Engstrand, Ronald v. Colvin, Carolyn et al
Filing
28
Transmission of Notice of Appeal, Appeal Information Sheet, Docketing Statement, Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 24 Notice of Appeal, (Attachments: # 1 Appeal Information Sheet, # 2 Docketing Statement, # 3 Opinion and Order, # 4 Judgment, # 5 Docket Sheet) (lak)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RONALD MICHAEL ENGSTRAND,
OPINION AND ORDER
Plaintiff,
13-cv-436-bbc
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Ronald Michael Engstrand is seeking review of a final decision by defendant
Carolyn W. Colvin, Acting Commissioner of Social Security, denying his claim for Disability
Insurance Benefits and Supplemental Security Income payments under the Social Security
Act. 42 U.S.C. § 405(g). The administrative law judge hearing plaintiff’s claim concluded
that although he was diabetic and had mild osteoarthritis, he retained the ability to perform
substantial gainful activity. Her conclusion became the final decision of defendant when
plaintiff’s request for review was denied by the Appeals Council.
Plaintiff contends that the administrative law judge erred in two respects: (1) she
failed to give proper weight and consideration to the opinion of plaintiff’s treating physician
in violation of the “treating physician” rule; and (2) she made an improper credibility
determination.
Neither contention is supported by the record.
commissioner’s denial of plaintiff’s claim will be affirmed.
1
Accordingly, the
RECORD FACTS
Plaintiff Ronald Engstrand was born in 1963 and has a high school education. He
worked as a dairy farmer, first on his own land and later on a rented farm or for his parents
on their farm. He is married and the father of six children. He applied for disability benefits
and supplemental security income payments beginning July 1, 2007, alleging that he suffered
from severe, disabling diabetes with neuropathy in his legs and arthritic pain in his knee, hip
and ankle joints.
A. Medical Evidence
1. Thomas Retzinger, M.D.
Plaintiff saw Dr. Thomas Retzinger, a family practice doctor, eight times between May
2009 and January 2011. At a “new patient visit” in May 2009, Retzinger found that plaintiff
was diabetic and hypertensive, but did not identify any other physical problems that would
prevent plaintiff from working. AR 235-56. Plaintiff returned a month later for a diabetes
check; Retzinger noted that plaintiff was not checking his blood sugars and that his
hemoglobin count was abnormally high but he had good sensation in his feet. AR 226. In
March 2010, Retzinger found that plaintiff’s blood sugars were out of control, his oral
medications were ineffective in managing his problem and he was not checking his blood
sugars.
AR 227.
Plaintiff was started on NovoLog mix (an insulin injection,
http://www.novologmix70-30.com/default.aspx?RequestId=459b70be, visited May 30, 2014)
to take before each meal and Retzinger encouraged him to record his blood sugars before meals
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and to meet with clinic personnel for diabetic education and dietary management. Id.
Three months later, in June 2010, Retzinger checked plaintiff’s diabetes and what
plaintiff reported as significant pain in his feet as well as in his right hip and knee. AR 229,
255.
The doctor noted normal range of motion in plaintiff’s hip, but some right knee
tenderness.
He
prescribed
Lortab
(acetam inophen
and
hydrocodone,
http://www.drugs.com/lortab.html, visited May 30, 2014) for pain management, arranged for
an xray of plaintiff’s right hip and right knee and encouraged plaintiff to keep a blood sugar
log. Id. At an evaluation of plaintiff’s knee and hip pain at the end of June, xrays showed
evidence of degenerative arthritis and the doctor noted that his blood sugars were still high.
AR 231. An examination of plaintiff’s feet revealed diminished sensation in both, with some
burning dysesthesias (impairment of sensation), leading Retzinger to conclude that the best
course of action was for plaintiff to gain better control of his diabetes. He noted that plaintiff
had not filled two prescriptions.
On July 21, 2010, Retzinger saw plaintiff for follow up on the neuropathy in his feet
and increased his insulin mix. AR 259. On the same day, Retzinger completed a Medical
Source Statement for the Social Security Administration in which he wrote that plaintiff could
lift 50 pounds occasionally, 25 pounds frequently, stand or walk at least two hours in an eighthour workday, would have to alternate periodically between sitting and standing to relieve
pain and avoid temperature extremes, vibration, humidity and hazards. AR 218-21. In
addition, plaintiff could do occasional climbing, crouching, bending, crawling and stooping
and would be limited in pulling or pushing with his lower extremities. AR 219. Retzinger
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attributed plaintiff’s physical limitations to peripheral neuropathy secondary to Type 2
diabetes mellitus and to degenerative joint disease, id., but did not explain why he thought
plaintiff would be limited to two hours of standing or walking in any eight-hour day.
On August 25, 2010, Retzinger found that plaintiff had significant peripheral
neuropathy, as well as high blood sugars, although he was still able to perceive a 10-gram
filament without difficulty. AR 261. (10-gram monofilaments will buckle when a 10-gram
force is applied. “[L]oss of the ability to detect this pressure at one or more anatomic sites on
the plantar surface of the foot has been associated with loss of large-fibre nerve function.”
http://care.diabetesjournals.org/contents/31/8/1679.long, visited May 30, 2014).
Five months later, on January 12, 2011, Retzinger observed that plaintiff seemed to be
doing quite well., noting that “[h]e feels fine.” AR 263. At the time, plaintiff was taking
Novolin (injectable insulin) and checking his blood sugars three times a day; his extremities
revealed good sensation and circulation; and he was able to detect a 10-gram filament in both
feet without difficulty.
Id.
He was not taking any Zocor (cholesterol lowering drug
(www.medicinenet.com/simvastain/article.htm, visited May 30, 2014), hydrochlorothlazide
or
lisinopril,
both
of
which
are
used
to
treat
hypertension
(http://www.nlm.nih.gov/medlineplus/drug info/med/a692051.html,and
http://vsearch.nlm.nih.gov/vivisimo/cgi-bin/query-meta?v%Aproject–hydrochlorothiazide,
visited May 30, 2014), and he had not had the lab work done that Retzinger had
recommended. The doctor noted that plaintiff “continues to work,” although he did not say
what kind of work he was doing. Id.
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2. Agency physicians
Dr. Janis Byrd, M.D., reviewed plaintiff’s medical records on September 28, 2010 and
concluded that plaintiff could lift 25 pounds frequently, 50 pounds occasionally, stand or walk
at least two hours in an eight-hour workday, and would have to alternate periodically between
sitting and standing to relieve pain. AR 245. She found that he would have occasional
limitations of climbing, balancing, stooping, kneeling, crouching and crawling, AR 246, and
that he should avoid concentrated exposure to extreme heat, extreme cold, wetness, humidity
and vibration. AR 248. In her opinion, plaintiff’s statements about his symptoms were “not
inconsistent” with the objective evidence in the record, with the descriptions of plaintiff’s
activities of daily living or with Dr. Retzinger’s reports and that plaintiff was precluded from
returning to his past work in farming and limited to nearly sedentary activities. AR 249.
Five months later, on February 16, 2011, Dr. Syd Foster, D.O., reviewed plaintiff’s
medical records. He agreed with Byrd that plaintiff could lift 25 pounds frequently, but
differed from her in believing that plaintiff could stand or walk with normal breaks for six hours
in an eight-hour work day and sit for the same length of time.
AR 266. He agreed that
plaintiff was limited in crouching and kneeling, AR 267, and should avoid concentrated
exposure to extreme cold or heat and humidity. AR 269. He noted that although plaintiff
complained of burning pain in his legs and feet, he retained the ability to detect a 10 gram
filament in his feet and had a normal gait and recent examinations had shown no increase in
his neuropathy. AR 270. Foster noted also that plaintiff did not take his medications as
directed and had not been compliant with his diet.
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Plaintiff reported that he was limited to one to two hours a day of standing and walking,
but Foster found this inconsistent with plaintiff’s report that he worked five hours a day at his
parents’ farm. He found it unnecessary to give controlling weight to Dr. Retzinger’s July 2010
report because plaintiff’s blood sugar levels and his neuropathy had improved since the report
was written and he found plaintiff’s statements about his functional abilities to be less than
credible. Plaintiff had told his cardiologist in May 2010 that he was working five hours a day
at his parents’ farm but in his activities of daily living report, he had said he could stand and
walk no more than one to two hours a day. AR 270. In Foster’s opinion, plaintiff was capable
of medium work with no constant kneeling or crouching and limited exposure to heat, cold or
humidity.
3. Plaintiff’s function reports
In an August 20, 2010 function report filed with the Social Security Administration,
plaintiff described his activities of daily living. He drove his wife to work (5-6 a.m.), returned
home to put the dogs outside (6-7 a.m.), then took his children to his parents’ farm to “take
care” of their 4H projects (cattle and horses)(8 a.m. to noon), returned home and prepared the
noon dinner. After dinner, he picked up his wife at work (1-2 p.m.), made supper (5-6 p.m.),
returned to his parents’ farm to do whatever needed to be done with the 4H projects involving
cattle (7-11 p.m.) and slept from 11 p.m. to 5 a.m. AR 158. He reported doing laundry and
making meals “about 80% of the time,” providing water and food to dogs, horses and cattle and
giving them care as needed. AR 159.
He added that his feet were very tender and that he
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could not be on his legs too long before feeling a lot of pain. Id. He said that he did some
cleaning and some limited home repairs, but had trouble doing extended house cleaning or lawn
work. AR 160. He went outside to walk or drive on a daily basis and shopped for food weekly
and also shopped for clothing. AR 161. He reported being able to pay bills, handle a savings
account and use a checkbook. Id. He was no longer able to engage in sports with his kids but
he attended their sporting events. AR 162. He had trouble lifting 100 pounds and found it
hard to stay on his legs too long. AR 163.
In a report filed on January 20, 2011, plaintiff reported driving his wife to work at 5:30
a.m., coming home and lying down until 7, when he woke his kids and got them off to the bus
by 7:38. AR 181. After that, he tidied the house, fed the dogs and left for his parents’ farm
where he spent two to three hours taking care of his children’s 12 dairy cattle, providing feed
and bedding. He drove home, ate something, then picked up his wife at 2:15, came home and
helped with dinner. After supper, he took the children back to his parents’ farm and helped
them care for the dairy cows. Id. He reported he could no longer farm as he used to, that is,
for 18 hours a day, that he had a lot of pain in his joints and that his feet were very tender. AR
182. He could be on his feet for a couple of hours at a time before he had to sit down. AR
183. As for shopping, he said he did it only a couple of times a month because it was hard for
him to be on his feet for more than a couple of hours, but he went outside daily to walk. AR
184.
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4. Administrative hearing
At the administrative hearing held on February 15, 2012, plaintiff testified that he had
owned his own dairy farm until 1997, after which he worked until 2007 on a dairy farm he
rented. AR 28-29. He also worked briefly with pre-cast concrete on a part-time basis but
found the heat too extreme. AR 31. He said he helped his parents occasionally on their farm,
about three times a week for an hour or so, doing tractor work or feeding the beef cows, but
found it hard to be on his legs for more than a half-hour at a time, AR 35, so he usually had his
children help out with the farm chores.
Also plaintiff testified that he drove his children to school, to athletic practices and to
his parents’ farm; AR 40-41, and did the weekly grocery shopping. AR 41. He testified that
in the past he had done the laundry and cooked meals, but that his legs hurt too much for him
to be on his feet more than a half-hour at a time. AR 42. He said he usually lay down for two
hours a day, AR 43, to relieve his pain.
Vocational expert Stephen H. Porter testified at the hearing that he had reviewed the
vocational exhibits in plaintiff’s file and had heard his hearing testimony.
He classified
plaintiff’s past work of dairy farming as heavy material handling. AR 58. In his opinion, a
person of plaintiff’s age, education and prior work experience with the capacity for medium
exertion and limited to no more than frequent crouching or kneeling and having to avoid
extreme heat, extreme cold and humidity would be unable to perform plaintiff’s prior work but
could work as a security guard surveillance system monitor, (1300 jobs in Wisconsin) ticket
taker (1820 jobs in Wisconsin) and cashier (71,970 jobs in Wisconsin).
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AR 60-61. Porter
testified that his answer would not change if the hypothetical person were limited to light
exertional work. Id. If, however, the person could not stand or walk for more than two hours
in an eight-hour day, the available jobs would include only those of surveillance system monitor
and ticket taker. AR 62. If the person were limited to only occasional stooping, kneeling,
crouching, climbing and crawling, the only job would be the surveillance system monitor
position. AR 63.
5. Administrative law judge’s decision
The administrative law judge found that plaintiff had the severe impairments of diabetes
mellitus with early neuropathy and mild osteoarthritis of the right hip and knee but concluded
that neither of these impairments amounted to an impairment meeting or medically equaling
the severity of any listed impairment. AR 14. She found plaintiff’s hypertension “non-severe”
because Dr. Retzinger had not noted any specific limits for it or any active treatment and he
had taken plaintiff off medication for the condition. AR 13. She did not give controlling
weight to Retzinger’s opinion that plaintiff could stand or walk for no more than two hours out
of an eight-hour day because she found the opinion inconsistent with plaintiff’s xray results,
which had showed only mild osteoarthritis of his knee and hip, AR 15, with the lack of any
objective finding of loss of sensation, “as documented by the 10 gram filament test result,”AR
16, and with the lack of any positive EMG or nerve conduction study documenting a
neuropathy. In addition, she noted plaintiff’s generally normal neurological tests and normal
range of motion, the absence of joint tenderness, swelling or edema in the lower extremities and
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his normal gait. AR 15.
The administrative law judge observed that plaintiff had brought his blood glucose and
overall condition under control as his dosage of insulin had increased and that the doctors who
had limited plaintiff to two hours of walking or standing had based their limitations on his
peripheral neuropathy-related problems, even though plaintiff was only partially compliant with
treatment. Moreover, plaintiff had no reported hypoglycemic episodes, was not refilling any
pain medication prescriptions related to his diabetic condition and was refilling only the pain
medications related to his mild osteoarthrititis of his hip and knee. Id. She noted that
Retzinger had imposed only one limitation on plaintiff relating to his osteoarthritis and that
was “no vibration.” Id. (citing AR 221). In her opinion, Retzinger’s restriction of plaintiff to
no more than two hours a day of walking was inconsistent with the doctor’s own treating notes
and with the medical evidence in the record. Thus, she gave his assessment less weight than
she gave to Dr. Foster’s assessment that plaintiff was not limited to two hours a day of walking
or standing. AR 16. She bolstered this conclusion with a summary of the activities that
plaintiff had reported in his function reports to the Social Security Administration, which
indicated far more physical work and effort than Retzinger had found him capable of
performing when he assessed him. Id.
In the end, the administrative law judge concluded that plaintiff could not return to his
past relevant work but that he had the residual functional capacity to perform medium work
except for the inability to kneel or crouch more than frequently and the inability to work in
environments with concentrated exposure to extreme, heat, cold and humidity. She found
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plaintiff capable of performing three jobs that all fell into the category of light and unskilled
work: surveillance monitor, ticket taker and cashier.
OPINION
The only two questions in this case are whether the administrative law judge erred when
she rejected the opinion of plaintiff’s treating physician and when she found plaintiff not
credible in his descriptions of his disability and his alleged inability to work. Plaintiff focuses
primarily on the first question, arguing that the administrative law judge was required under
20 C.F.R. § 404.1527(c)(2) to give controlling weight to Dr. Retzinger’s assessment of
plaintiff’s ability to function. Section 404.1527(c)(2) directs administrative law judges to give
controlling weight to the opinion of the treating physician so long as his opinions are “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and “not
inconsistent with the other substantial evidence in [the] case record.” See also Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (administrative law judge can reject examining
physician’s opinion only for reasons supported by substantial evidence in record; contradictory
opinion of non-examining physician does not suffice).
In this case, a wealth of evidence in the record support the administrative law judge’s
decision to give less weight to Retzinger’s assessment of plaintiff’s ability than she gave to the
assessment by Dr. Foster, an agency physician. When Retzinger limited plaintiff to standing
or walking for no more than two hours a day, he gave no explanation for his opinion and the
restriction is unsupported by his own treatment notes, as well by any positive EMG or nerve
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conduction study. It is also inconsistent with plaintiff’s xray results and the 10-gram filament
test. (Plaintiff attacks the administrative law judge’s rejection of this opinion, saying that as
a lay person, she had no basis on which to find that the ability to perceive a 10-gram filament
meant that plaintiff’s neuropathy would not restrict him from walking and standing. This is
true, but it was permissible to her to rely on the evidence in the record that both Retzinger and
Foster, viewed the test as indicating that plaintiff had not lost sensation in his feet.) In
addition, plaintiff had generally normal neurological tests; no evidence of any significant
muscular hypertrophy, atrophy, twitching or spasms; normal range of motion; lack of joint
tenderness, swelling or edema in the lower extremities; and a normal gait. She noted plaintiff’s
non-compliance with Retzinger’s advice for treating his diabetes and hypertension, the absence
of any blood pressure tests and his failure to fill his prescriptions and take his prescribed
medications or have prescribed laboratory work done and she gave weight to Dr. Retzinger’s
January 2011 report that plaintiff had gotten his blood glucose and overall condition under
control and was not taking any pain medication related to his diabetic condition. Finally, the
administrative law judge took into account plaintiff’s August 20, 2010 function report, in
which plaintiff described a daily routine of considerable responsibility and hard work
demonstrating that he could manage jobs requiring a medium level of exertion that involved
standing for six out of eight hours a day.
Despite this evidence, plaintiff contends it was improper for the administrative law judge
to conclude that plaintiff had no underlying physical impairment supported “by medically
acceptable clinical and diagnostic laboratory techniques that could reasonably be expected to
12
produce his pain or other symptoms,” AR 14-15, citing Rohan v. Chater, 98 F.3d 966, 971
(7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their own
independent medical findings”) and saying that she was “playing doctor.” Plaintiff fails to
acknowledge that the administrative law judge did not make her own independent medical
findings, but relied on other medical evidence in the record (or the lack of such evidence),
including Dr. Retzinger’s reports of the improvement in plaintiff’s condition as of January
2011, the absence of any indications in any of the doctor’s reports of disabling conditions and
plaintiff’s function reports, showing extensive physical exertion.
I conclude that the
administrative law judge did not step beyond the bounds of her authority in adopting the
agency physician’s opinion that plaintiff retained the capacity to perform work of medium
exertion with certain limitations on kneeling and crouching. It was reasonable for her to give
lesser weight to the opinion of plaintiff’s treating physician and to rely on Dr. Foster’s February
16, 2011 assessment that plaintiff could handle six hours of standing or walking in an eighthour day. She found it more persuasive than the reports of the other two doctors (treating
physician Retzinger and agency physician Byrd) because it was undertaken after Retzinger had
observed the improvement in plaintiff’s condition as he gained control over his diabetes. Foster
was the only doctor to evaluate plaintiff who had access to this new information, which made
it reasonable for the administrative law judge to place greater weight on his assessment of
plaintiff’s capacity for work.
It was also reasonable for the administrative law judge to question the credibility of
plaintiff’s complaints of pain. The general rule is that “[a]n administrative law judge may not
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discount a claimant’s credibility just because [claimant’s] claims of pain are unsupported by
significant physical and diagnostic examination results.”
Pierce v.Colvin, 739 F.3d 1046,
1049-50 (7th Cir. 2014); SSR 96-7p(4). The court of appeals recognizes that pain can exist
unsupported by significant physical and diagnostic examination, but in such cases the “the
claimant’s credibility becomes pivotal.” Id. at 1050. In this case, the administrative law judge
had good reasons for questioning plaintiff’s credibility. She noted the lack of medication
prescribed for his pain other than anti-inflammatory medication for his mild osteoarthritis, as
well as what she characterized as his “fairly impressive array of active daily activities,” including
his many hours of work on his parents’ farm, helping children with their 4H projects and his
parents with other chores. AR 16. Given the wide gap between the disability plaintiff claimed
and the activities he reported doing, the administrative law judge did not err in finding him not
entirely credible.
ORDER
IT IS ORDERED that plaintiff Ronald Michael Engstrand’s motion for summary
judgment, dkt. #10, is DENIED and the decision of defendant Carolyn W. Colvin, Acting
Commissioner of Social Security, is AFFIRMED. The clerk of court is directed to enter
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judgment for defendant and close this case.
Entered this 2d day of June, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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