Sheffield, Michael v. Colvin, Carolyn

Filing 23

ORDER denying 7 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 12/22/2014. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MICHAEL J. SHEFFIELD,
OPINION AND ORDER
Plaintiff,
14-cv-24-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Michael J. Sheffield is seeking judicial review of a final decision by defendant
Carolyn W. Colvin, Acting Commissioner of Social Security, denying his application for
disability insurance benefits and supplemental security income. The administrative law
judge who heard the case found that plaintiff’s claims of permanently limiting back pain and
degenerative disc disease were not supported by plaintiff’s own statements or by the medical
evidence in the record. His conclusion that plaintiff was capable of performing the full
range of light work was upheld by the Appeals Council and became the agency’s final
decision.
Plaintiff contends that the administrative law judge erred in two ways: (1) he failed
to give proper weight to the opinion of Dr. Jane Stark, a specialist in occupational medicine
who examined plaintiff on two occasions; and (2) he ignored a vocational assessment from
the University of Wisconsin-Stout that supported plaintiff’s application. The record shows

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the reasons why the administrative law judge gave only “some weight” to Dr. Stark’s
assessment that plaintiff could perform a limited range of light work. Those reasons are
supported by substantial evidence in the record, including the opinions of other medical
specialists who examined plaintiff. Substantial evidence also supports the administrative law
judge’s decision not to give any weight to the UW-Stout vocational assessment.

RECORD FACTS
Plaintiff was a 41-year-old high school graduate on September 21, 2009, when he
allegedly became disabled and left his job as assistant sewer treatment plant operator for the
City of Ladysmith, Wisconsin. Thereafter, he applied for worker’s compensation and for
social security disability income benefits, claiming to suffer from permanently limiting back
pain and degenerative disc disease.
In a December 12, 2009 function report submitted to Social Security, plaintiff said
his activities were limited to daily stretching and minor chores around the house, driving to
town once a week, taking a one-mile walk two to three times each week, caring for his two
dogs, preparing meals, working at waist level and shopping for food. AR 221-22. Mostly,
he said, he lay on his couch for 12-16 hours a day. AR 219, 227. He complained of pain
when bending, difficulty with sitting for any length of time and the tendency of his left leg
to fall asleep. AR 220.
Plaintiff saw a number of doctors after he left his job. In September 2009, he saw his
internist, John Ziemer, complaining of having had intense back pain for three months. Dr.

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Ziemer found that plaintiff had intact range of motion, symmetrical reflexes, intact sensation
and negative straight leg raising. He recommended physical therapy and scheduled an MRI.
AR 339-41. In October 2009, plaintiff saw Dr. Eric Carlsen, a physical medical specialist.
Dr. Carlsen reviewed plaintiff’s x-rays and MRI results and found relatively mild disc bulging
in the lumbar spine of the sort “not uncommon in a 41-year-old back.” AR 351. He noted
plaintiff’s relatively normal gait, his ability to walk briefly on his heels and toes, some back
pain with straight leg raising and a give-away quality of weakness in his left leg. (Give-away
weakness can indicate malingering or other functional weakness; it is characterized by a
sudden

cessation

of

normal

strength

of

effort.

http://www.merckmanuals.com/professional/neurologic_disorders/approach_to_the_neurol
ogic_patient, visited Dec. 15, 2014.) Id. Carlsen told plaintiff he did not think his injury
was work-related and that it was likely it would respond to conservative treatment. He
thought plaintiff could return to work in 4-6 weeks if he continued to make good progress
with physical therapy. AR 352.
In November 2009, plaintiff saw both Dr. Joseph Holt, a doctor of internal medicine,
and Dr. Phillip Porter, a neurosurgeon. Dr. Holt observed that plaintiff was in no acute
distress and walked with a slight limp. AR 354-55. Dr. Porter noted that plaintiff had
stiffness and tenderness, but negative straight leg raising, full strength in his lower
extremities, normal gait and intact sensory testing. He wrote that plaintiff was reporting his
condition as 35-40% better than when he was at his worst. Porter did not recommend
surgery, finding it excessive in plaintiff’s condition, and he encouraged plaintiff to continue

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with conservative measures, including physical therapy. AR 271-73. (Porter wrote a report
in March 2012 in which he found plaintiff disabled within the meaning of the Wisconsin
Administrative Code; the administrative law judge gave this report no credence because it
did not reflect any of the doctor’s testing of plaintiff or the results of imagining. AR 28.)
In December 2009, Dr. Justin Boge gave plaintiff a diagnostic and therapeutic
injection in December and advised him he could prevent further back pain by losing weight,
stopping smoking and engaging in physical therapy to strengthen his core. AR 418. In the
same month, physician’s assistant Carol Krupa gave plaintiff a temporary return to work,
limiting him to lifting 10 pounds frequently and 20 pounds occasionally, seldom bending,
twisting or working from floor to waist, no walking on uneven or slippery surfaces,
alternating standing and walking as needed and stretching every 30 to 60 minutes. AR 364.
Also in December 2009, plaintiff Dr. Mark Roberts, who told plaintiff he could return
to work halftime at light duty, with no lifting over 20 pounds, seldom bending, pivoting or
twisting at the waist, rotating jobs every two hours and alternating sitting, standing and
walking as needed. AR 362. Plaintiff was to stretch and pause every 60 minutes. Id. He
advised plaintiff to get out to walk more to increase his activity. Id.
Dr. Jane Stark, a physician in the Department of Occupational Medicine at the
Marshfield Clinic, examined plaintiff in April 2010 for worker’s compensation purposes and
found him capable of lifting 20 to 30 pounds, sitting for five to ten minutes at a time before
having to change his positions and needing frequent alteration between positions. AR 322.
She limited plaintiff to only occasional bending or twisting at the waist, climbing stairs or

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steps, working over shoulder height and below waist height, pushing or pulling with his
hands or reaching with outstretched arms, and only seldom kneeling, squatting or crawling.
She advised him to avoid ladders and unprotected heights “due to some instability with his
motion.” Id. She believed plaintiff had reached the end of healing and would have waxing
and waning symptoms and she advised him that if the symptoms returned, he should see a
special physical therapist with expertise in pelvic dysfunction. Id.
In August 2010, Dr. Mark Schlimgen administered two epidural injections to plaintiff
and encouraged him to resume his exercise regime to stretch and strengthen his back. AR
405.
Dr. Stark saw plaintiff a second time in December 2010. She recorded increased
subjective complaints, recommended conservative care in the form of “aggressive physical
therapy” and noted that some of her findings indicated the possibility of improvement. AR
601-02. Plaintiff had four sessions of physical therapy at Blue Hill Rehabilitation, as
recommended by Dr. Stark, but stopped going in January 2011, saying that he could no
longer afford the cost of the sessions. AR 502. The physical therapist counseled him about
“working smart” and told him that lying on the couch for most of the day was not a healthy
option. Id.
Dr. Carlsen saw plaintiff a second time, in July 2011, when he examined plaintiff for
the Social Security Administration. AR 539-44. He noted that plaintiff reported occasional
tingling in his left leg, had 4/5 muscle strength with some “give-away” weakness on the right
and 3/5 on the left, positive supine straight leg raising, on the right at 20 degrees, on the left

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at 10 degrees. He noted also that plaintiff preferred to stand and that he changed positions
during the examination. Carlsen found no obvious neurological impingement and only mild
posterior disc bulging in L4-5 and L5-S1. He estimated plaintiff’s functional capacity in the
light-medium range. AR 544.
Plaintiff applied for services from the state Division of Vocational Rehabilitation in
September 2011. The agency found him eligible for services because of his disabilities and
referred him to the University of Wisconsin-Stout for an employment-based assessment of
his disabilities and transferable skills, among other things. AR 582. In evaluating his
disabilities, the UW-Stout evaluator did not perform a physical examination, but relied on
Dr. Stark’s April 26, 2010 workers’ compensation examination. Ar 584. In addition, she
took into consideration plaintiff’s statements that no doctor had released him to any work;
he had to lie down during the day; he had to constantly change positions, could not drive,
stand or walk for any length of time; he was experiencing increased pain; he used a cane for
walking; and he expected he would need back surgery.

AR 580. Plaintiff also told the

evaluator that he had dyslexia. AR 587. The evaluator reported that in their meetings,
plaintiff had to change positions frequently and that he exhibited great pain when he did so.
Id.
In case notes, a Division of Vocational Rehabiliation case worker wrote that plaintiff’s
pain had increased dramatically since the previous meeting and that he was planning to meet
with his doctor to discuss options that might include surgery. AR 589. The division closed
plaintiff’s case on December 6, 2011 (apparently because he seemed physically incapable of

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working), informing him that he could reapply for services at any time. AR 579, 589.
Eight days later, on December 14, 2011, plaintiff was seen by Michael Chu, a
physician in the Physical Medicine Department at the Marshfield Clinic. Id. Dr. Chu
found that plaintiff’s MRI results did not support his complaints of pain. AR 642. To
assure himself that plaintiff’s condition had not changed for the worse, Chu had another
MRI taken of plaintiff’s lumbar spine, AR 641; the test showed no unusual degenerative disc
changes. After seeing the MRI, Dr. Chu declined to complete a disability form for plaintiff.
AR 642. Instead, he recommended that plaintiff undergo a more aggressive functional
rehabilitation program, “as one of his doctors had suggested in the past.” Id.
Two state agency physicians reviewed the medical evidence. On February 9, 2011,
Dr. David Kamper found that plaintiff could lift 10 pounds frequently, 20 pounds
occasionally, sit, stand or walk for about six hours in a day and push or pull without any
limitation other than for lifting. AR 504-05. He also found that plaintiff should never climb
a ladder or scaffold and kneel or crawl only occasionally and had no manipulative, visual,
communicative or environmental limitations. AR 506-07. He found plaintiff’s statements
about his ability to function “only partially credible” because his complaints appeared “to
be more than could be reported by” his scans and x-rays. AR 508. On August 9, 2011, Dr.
Janis Byrd reviewed the file, concluded that plaintiff’s x-rays and MRI’s continued to show
only mild degenerative disc disease and degenerative joint disease and confirmed Dr.
Kamper’s assessment. AR 545.
After summarizing and reviewing the evidence, the administrative law judge found

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that it supported findings that plaintiff had the severe impairments of disc disease and early
disc degeneration, but no others, AR 21, that neither of his severe impairments met or
equaled a listed impairment, whether considered alone or in combination, AR 21-22, and
that plaintiff retained the residual functional capacity to perform the full range of light work,
as defined in 20 C.F.R. §§ 404.1527 and 416.927. His decision was upheld by the Appeals
Council, leading to plaintiff’s request for judicial review in this court.

OPINION
A. Dr. Stark’s Assessment
Plaintiff’s first challenge to defendant’s adverse decision centers on the administrative
law judge’s reading of Dr. Stark’s two assessments of plaintiff’s residual functional capacity.
Plaintiff faults the administrative law judge for mischaracterizing the assessments, for not
saying how much weight he was placing on them, for not evaluating them in light of the
requirements of SSR 96-2p and for not considering the “checklist factors” when rejecting
parts of them. Plaintiff also contends that the administrative law judge seemed to infer from
the fact that Dr. Stark determining that plaintiff had a 9% disability rating for workers’
compensation purposes that she did not believe that plaintiff was disabled. However,
plaintiff does not identify anything in the administrative law judge’s lengthy decision that
would support this last contention, so it is not necessary to address it.
I understand plaintiff’s claim of mischaracterization to be that the administrative law
judge misread Dr. Stark’s assessment as saying that plaintiff retained the capacity to perform

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a wide range of work at the light and sedentary exertional levels. AR 25. If so, he erred,
according to plaintiff, because he did not acknowledge the erosion in the occupational base
resulting from Stark’s limitations on plaintiff’s postural activities and his need to alternate
positions while working.

Although the administrative law judge might have left this

impression when he first discussed Dr. Stark’s assessment, AR 25, he made it clear later in
his opinion that he understood her assessment as limiting plaintiff’s ability to perform the
full range of light work. He explained that he did not accept that part of her assessment in
which she limited plaintiff to sitting for ten minutes or less at one time or imposed
restrictions on plaintiff’s ability to do things like reaching, bending, etc., because the
“restrictions were not consistent with the objective evidence, or the treatment course.” AR
28. As he stated, they were contradicted by Dr. Carlsen’s consultative examination in July
2011, id., by the absence of any third party statements that might support plaintiff’s claims,
AR 27, by the repeated encouragement plaintiff received from his treating and examining
physicians to increase his activity and pursue aggressive physical therapy, id., by the evidence
that his daily activities had at times exceeded those to which he testified at the hearing, id.,
by the lack of any objective evidence of dramatic change since he first reported his back pain
and sought treatment in 2009-10, by the reports that his symptoms were reduced by
physical therapy and by his seeking and obtaining unemployment benefits in 2010-11 (for
which he had to show he was ready, able and willing to accept work). AR 27-28.
This is not an example of cherry-picking the record, as plaintiff alleges, citing Denton
v. Astrue, 596 F.3d 419, 425 (7th Cir. 2013). The administrative law judge did not simply

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pull evidence from the record that supported his opinion and ignore evidence to the
contrary. He chose to reject certain evidence but explained why he was doing so and his
explanations are well supported by the evidence.
Next, plaintiff challenges the administrative law judge’s failure to state how much
weight he was placing on Dr. Stark’s assessment, in violation of the general rule directing
him to explain what weight he is giving to physician opinions and why. In fact, the
administrative law judge wrote that he was giving some weight to Stark’s report “insofar as
[it was] consistent with the finding that [plaintiff] could perform light exertional work
activity.” AR 28. He rejected her opinion as it related to plaintiff’s ability to sit for less than
ten minutes or less at one time or that otherwise restricted his residual functional capacity
below the light level, for the reason stated above: the “restrictions were not consistent with
the objective evidence or the treatment course.” Id. In reaching this conclusion, the
administrative law judge did not violate the holding in Beardsley v. Colvin, 758 F.3d 834,
839 (7th Cir. 2014), that the opinion of an examining physician is not to be rejected except
“for reasons supported by substantial evidence in the record; a contradictory opinion of a
non-examining physician does not, by itself, suffice.” He relied on the reports of another
examining source, Dr. Eric Carlson, a specialist in physical medicine, and he explained why
he found Carlsen’s report more persuasive. Like Dr. Stark, Dr. Carlsen examined plaintiff
on two different occasions, but he reached the conclusion that plaintiff had the residual
functional capacity to perform work in the light-medium range.
Although the general rule is that an examining source is to be given more weight than

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a non-examining source, the administrative law judge gave the “greatest weight” to the
opinions of the agency’s medical consultants, neither of whom ever examined plaintiff.
However, he explained that he was doing so because their opinions “were consistent with the
record as a whole, including the conservative treatment course, [plaintiff’s] reliance on
prescription medication (with no documented side effects), and with his lack of complete
credibility.” AR 28.
Plaintiff cites SSR-96p for the proposition that controlling weight must be given to
the opinions of treating physicians, without acknowledging that controlling weight is to be
given only if the opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in the case
record. 20 C.F.R. § 404.1527(c)(2). The rule does not apply to an examining physician such
as Dr. Stark. Nevertheless, as Beardsley holds, the administrative law judge must explain
why he is rejecting the opinion of an examining physician.

In this instance, the

administrative law judge provided a thorough explanation for rejecting the limitations on
sitting, standing, reaching, etc., assessed by Dr. Stark in light of the opinions of the other
doctors who had examined plaintiff and the inconsistency of plaintiff’s complaints with the
medical evidence. In addition, the administrative law judge noted that plaintiff had provided
no third party statements to social security that might have supported his subjective
complaints, that the daily accounts he did submit demonstrated that he was capable of more
physical activity than he had reported to the agency and that the record contained no
evidence of emergency room visits or similar evidence related to uncontrolled pain or

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increasing symptoms. AR 27.
Finally, plaintiff contends that the administrative law judge should have gone through
the “checklist factors” if he was rejecting any part of Dr. Stark’s assessment. The ”checklist”
to which he refers comes from 20 C.F.R. § 404.1527(c)(2)(i) and inquires into the nature
and length of the treating relationship. It goes on to specify that when assessing the opinion
of any medical source, the agency is to consider the amount of relevant evidence provided
to support the opinion, the consistency of the opinion with the record as a whole and the
specialization or lack of specialization of the source.

As the administrative law judge

explained, he found Dr. Stark’s opinion inconsistent with the record as a whole to the extent
that she limited plaintiff in sitting, standing and reaching, etc. and he took into account the
amount of evidence supporting her opinion as compared to the amount contained the record
as a whole. As a specialist, her opinion is to be given weight, but in this case, her opinion
was rebutted in significant part by the opinions of other examining physicians, such as
Carlsen and Chu.

B. The UW-Stout Evaluation
The administrative law judge explained why he found the Division of Vocational
Rehabilitation reports unpersuasive because they relied so heavily on plaintiff’s subjective
complaints, rather than on the medical record. He noted that plaintiff had told the division
that at his last visit to a doctor a year earlier, he had not been released to work. Plaintiff had
also said that his pain had increased, that he needed a cane and would also need back

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surgery, that he had to lie down during the day and constantly change positions, that he
could not stand, walk or drive for any length of time and that he had dyslexia. AR 580, 589.
The administrative law judge observed that these reports did not conform to the medical
evidence in the record and pointed out that the evaluator had access only to Dr. Stark’s
report. He noted that no medical evidence supported plaintiff’s alleged need for a cane. AR
26. He noted in particular that the agency had reported that plaintiff seemed to be in pain
and changed positions often, but that these actions were not supported by the medical
evidence. AR 27.
Finally, the administrative law judge pointed out that the record contained no
evidence to confirm plaintiff’s statement that he had dyslexia, other than his own allegation.
Moreover, plaintiff’s employment history included both skilled and semi-skilled positions,
which the administrative law judge believed made it unlikely that plaintiff was significantly
limited by dyslexia. AR 21.

C. Summary
A review of the administrative law judge’s decision shows that he provided an
extensive and persuasive explanation of his reasons for not giving controlling weight to Dr.
Stark’s assessment of plaintiff’s residual functional capacity and for not giving any weight
to the report from the Wisconsin Division of Vocational Rehabilitation.

The record

contains substantial evidence to support his conclusion that plaintiff was capable of a full
range of light work and therefore, also capable of performing sedentary work. This finding

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made it unnecessary for him to consider whether plaintiff had transferable job skills. SSR
82-41; 20 C.F.R. Pt. 404, Subpt. P, App. 2 (transferability of skills is not issue when
individual is limited to light work and is high school graduate).

ORDER
IT IS ORDERED that plaintiff Michael J. Sheffield’s motion for summary judgment,
dkt. #8, 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
judgment for defendant and close this case.
Entered this 22d day of December, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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