Moritz, Linda v. Colvin, Carolyn

Filing 20

OPINION AND ORDER affirming Commissioner decision regarding Social Security benefits re: 8 Social Security Transcript. Signed by District Judge William M. Conley on 5/31/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LINDA MORITZ,
Plaintiff,

OPINION AND ORDER

v.
14-cv-380-wmc
NANCY BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

Plaintiff Linda Moritz seeks judicial review of an adverse decision of the
Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g), which denied her
eligibility for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
Benefits (“SSI”) under Title II and Title XVI of the Social Security Act, codified at 42
U.S.C. §§ 416(i), 423(d) and 1614(a)(3)(A).
Administrative Law Judge (“ALJ”):

Specifically, Moritz contends that the

(1) failed to evaluate her obesity consistent with

Social Security Ruling (“SSR”) 02-1p; and (2) erroneously found her testimony not
credible. While the ALJ did not specifically mention SSR 02-1p, the court finds that he
met its requirements. In addition, the court finds that the ALJ made a proper credibility
finding.

Accordingly, the court will affirm the final decision of the Commissioner,

adopting the ALJ’s finding that Moritz was not entitled to DIB and SSI.

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FACTS1
A. Social Security Application
On September 1, 2010, Moritz filed a Title II application for a period of DIB and
a Title XVI application for SSI, alleging disability beginning August 28, 2010. Both
applications were denied initially on December 27, 2010, and again upon reconsideration
on May 23, 2011. (AR 84-92, 94-102.) A hearing to reconsider the denial of DIB and
SSI was held on October 30, 2012, before ALJ Arthur J. Schneider, at which Moritz was
both represented by counsel and also testified. (AR 117-122, 51-77.) The ALJ also
heard and considered the testimony of Allen R. Searles, a neutral vocational expert.
On December 18, 2012, the ALJ issued a written decision denying Moritz’s
application for DIB and SSI. (AR 19-32.) The ALJ found that although Moritz has
severe impairments, including morbid obesity, she was not disabled within the meaning
of the Social Security Act from August 28, 2010, through the date of the opinion. This
decision became the final decision of the Commissioner of Social Security on April 5,
2014, when the Appeals Council declined Moritz’s request for review of the ALJ’s
decision. (AR 1-3.)
B. Overview of Medical Issues
Generally, Moritz’s medical record contains treatment notes for diabetes, muscle
spasms and cramping, low back pain radiating down her left leg, and foot pain (possibly
neuropathy from her diabetes). With that overview, the court provides the following

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The following facts are drawn from the administrative record (“AR”). (Dkt. #8.)

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summary of Moritz’s medical record from 2009 until the date of the hearing in October
2012.
The records reflect ongoing treatment for diabetes management and some blood
pressure management from August 2009 to October 2012 at the Marshfield Clinic, with
Dr. Sheehan providing direct care or at least oversight of nurse visits. During this time,
Dr. Sheehan also performed periodic (at least once per year) diabetic foot exams, all of
which were normal.
In December 2009, Moritz was seen by Drs. Katherine Patterson, Verica
Neskovic, and Swati S. Biswas for muscle cramping and back pain. All three physicians
are with the Marshfield Clinic. At a December 2, 2009, appointment, Dr. Patterson
noted that Moritz “does not appear to feel comfortable” due to low back pain, and she
also mentioned that Moritz was considering applying for bankruptcy. Similarly, in a
December 15, 2009, treatment note, Dr. Biswas found Moritz’s back was tender to touch
and her range of motion was restricted in certain respects, but had no significant
abnormalities. Dr. Biswas further noted Moritz’s interest in obtaining disability. Dr.
Neskovic again saw Moritz on December 17, and after reviewing her history of muscle
spasms, noted that her physical exam was normal, changed her medications to deal with
the muscle cramps, and suggested therapy.
In January 2009 and again in April of 2010, Moritz underwent nerve conduction
studies, both of which showed normal results. She also again saw Dr. Neskovic in April
2010, again complaining of low back pain, this time with radiating pain down her left leg,
muscle spasms and some tingling in her feet.
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Still, Dr. Neskovic noted a “normal

physical exam” except for pain in her low back during straight leg raises. In response, Dr.
Neskovic increased Moritz’s pain medication. In April, Moritz also had an MRI of her
spine. Another doctor, Gregory Peterman, reviewed the results of that MRI and, after
comparing them to an earlier June 2007 MRI, noted “no significant interval change in
the spondylosis at the lower thoracic spine with small disc protrusions and the
degenerative fact hypertrophy in the lower lumbar spine.” (AR 707.) In May 2010,
Moritz again saw Dr. Biswas as well. At that time, Moritz repeated her complaint of low
back pain, radiating down her left leg. The notes from that appointment reflect yet
another normal physical exam. Still, Moritz discussed her continuing interest in pursuing
a disability claim, although Dr. Biswas noted that he didn’t think she would qualify.
Also beginning in May 2010, Moritz began seeing Dr. Poole, a podiatrist, to
address her foot pain.

At a May 17 appointment, Poole discussed the possibility of

plantar fasciitis surgery. Moritz had that surgery in June 2010, after which Dr. Poole
noted that she was healing well at two post-operation appointments, the latter occurring
approximately three weeks after surgery. Moritz denied having any pain. On August 4,
2010, she requested a note from Dr. Poole stating she could wear tennis shoes to work as
she was starting a new job on August 23, 2010.
Despite the seemingly positive results of the foot surgery, Moritz presented at the
Aspirus Wausau Hospital Emergency Room complaining of foot pain on August 30,
2010. In early September 2010, Moritz also called Dr. Poole and the offices of Dr.
Marie A. Tomasi, also with the Marshfield Clinic, now complaining of severe foot pain,
and specifically noting a burning feeling.

On September 13, 2010, Moritz saw Dr.
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Neskovic.

The notes reveal that Moritz complained of burning foot pain at that

appointment as well, though she noted that her muscle cramping was fairly well
controlled with medication and “denie[d] having significant low back pain at present.”
(AR 404.)
In October and November 2010, Moritz returned to Dr. Poole regarding her foot
pain. Poole’s treatment plan included new orthotics, for which Moritz was subsequently
fitted in December.

Despite those orthotics, Moritz complained in a January 2011

phone message to her doctor’s office that it felt like she was “walking on hot coals.” (AR
535.) The burning foot pain, however, appears to have subsided by March 28, 2011,
because in an appointment with Dr. Neskovic on that date, Moritz reported that the
“burning sensation in her feet is tolerable.” (AR 544-46.) Moritz also told Dr. Neskovic
that her muscle spasms were better with medication.
At some point in early 2011, however, Moritz’s back pain worsened.

From

January 2011 through August 2011, Moritz saw doctors at the Aspirus Wausau Hospital
pain clinic, where she complained of progressively worse chronic back pain. In February
and March 2011, Moritz participated in physical therapy to deal with low back pain
caused by a T12-L1 disc extrusion.

She also received epidural steroid injections to treat

symptomatic T12-L1 disc disease with radiculopathy into the lumbar area bilaterally.
Except for these pain clinic records, Moritz appears not to have seen a treating
physician again until October 2011, at which point she complained of an ankle injury.
Later, Moritz reported improvement, despite a set back when she “tried to run after her
dog.” (AR 668.) The medical records also reveal that Moritz attended appointments at
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Allied Health Chiropractic Centers from August 2009 through April 2012, but these
records describe neither her medical condition nor the nature of the treatments.
During the summer of 2011, Moritz also began exploring possible bariatric surgery
for weight loss, but opted not to have the surgery given her lack of insurance coverage.
Nevertheless, records suggest that Moritz was successful in losing weight without the
surgery, losing approximately 30 pounds by June 2012.
C.

State Agency Doctor’s Opinions
After reviewing her medical record, state agency physicians limited her to

sedentary work. A Physical Residual Functional Capacity Assessment completed by Pat
Chan, M.D., dated 12/23/2010, found that Moritz was “capable of sitting 6 hours in an 8
hour work day with routine position changes. RFC is sedentary.” (AR 475.) Another
RFC assessment completed by Dr. Chan in May 2011, similarly concluded that “[g]iven
the combination of her multiple impairments, she would have difficulty standing/ walking
6/8 hours per day, and is limited to RFC as established.” In so finding, Chan also called
into question Moritz’s credibility, specifically citing: (1) her reports of increased burning
pain in her feet, which is arguably inconsistent with her own reported improvement to
her neurologist; and (2) her self-reported limits on her ability to only sit for one to two
hours per day and walk / stand 20 minutes per day is not consistent with her other
reports of functioning. (AR 590) Eventually, Chan limited her to 2 hours of standing or
walking in an 8-hour workday and to roughly 6 hours of sitting in an 8-hour workday.

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D. Administrative Law Judge Hearing
At the hearing conducted via videoconference, Moritz testified that she recently
began a job as a photographer at J.C. Penney Portrait Studio, where she was scheduled to
work approximately 10-12 hours per week. In August 2010, right before she applied for
SSI, Moritz had worked at a collections agency for approximately one month, but she
had to quit because she “got really sick and sore. I couldn’t do the stairs. I had problems
with my legs and back.” (AR 60.) Between August 2010 and the hearing in October
2012, Moritz attended school and had a “work study position,” where she worked in the
computer lab at the school she attended for about 12 hours per week. Still, Moritz
reported that she missed school and some work study hours due to being in a lot of pain.
When asked where she experienced pain, Moritz answered, “[i]n my back and my
legs, and my feet; and I do get muscle spasms throughout my body everywhere but my
face.” (AR 63.) Moritz also reported that she continues to have burning pain in her feet
every day, and at times, she has trouble walking.

Contrary to her medical records,

Moritz also testified that the planta fasciitis surgery did not help. In addition to pain in
her back, legs and feet, Moritz also reported that she was now experiencing migraine
headaches “at least every other day, if not every day.” (AR 65.) Although, as far as this
court can tell, there is nothing in her medical record about chronic headaches. At this
time, Moritz also began to complain of arthritis in her hands, but again, there does not
appear to be any mention in her medical records.
As for her physical limitations, Moritz testified that her job at J.C. Penney was not
going well because it requires standing and kneeling, and she was having a lot of
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discomfort while working. Moritz also testified that she could walk for approximately
30-40 minutes, can stand in one spot for 30 minutes and has to take breaks from sitting
about every 20 minutes.
In addition to Moritz, a vocational expert Searles also testified, responding to
three hypotheticals from the ALJ. In the first hypothetical, Searles was asked to “assume
an[] individual who can lift . . . 10 pounds occasionally, 10 pounds frequently; can stand
for two out of eight hours and sit for six out of eight hours. They would have no limit on
fine finger manipulation and gross handling.”

Searles testified that with those

limitations, an individual would be able to perform Moritz’s past relevant work as a
collections agent.

Under the second hypothetical, the ALJ added limitations for fine

finger manipulation and gross handling, and Searles testified that the individual would
not be able to perform Moritz’s past relevant work, but that there were still jobs in the
national economy the person could perform. Finally, under the third hypothetical, the
ALJ added that the individual would be absent from work two or more random days each
month, and in response, Searles testified that no jobs existed in the national economy
with that limitation included.
E. Administrative Law Judge’s Decision
The ALJ found Moritz suffered from the following severe impairments:
“degenerative disc disease, diabetes, mellitus, obesity, plantar fasciitis, and degenerative
changes of the bilateral ankles and left knee.”

The ALJ did not include diabetic

neuropathy on his list because: (1) this diagnosis was not substantiated by objective
medical findings, such as conduction and sweat tests; (2) a treating neurologist opined
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that Moritz did not have diabetic neuropathy based on the lack of objective evidence; and
(3) Moritz stated in March 2011 that the pain in her feet was tolerable. Nonetheless,
the ALJ considered subjective complaints of foot pain in limiting her to sedentary work.
As for Moritz’s obesity, the ALJ found “when considering its impact on the
relevant body systems individually or in combination,” “the evidence does not reflect that
the obesity” results in a listing being met or medical equaled. In addition, the claimant
does not allege specific work-related limitations secondary to obesity.” (AR 26; see also
AR 30 (stating that obesity considered in crafting RFC, in particular limiting her to
sedentary work).) Similarly, the ALJ did not find back pain to be sufficiently severe to
meet a listing and qualify as a severe impairment.
In crafting an RFC, the ALJ limited Moritz to sedentary work, and limited her to
frequent fine manipulation and frequent gross manipulation.

Using now familiar,

formulaic (if not hackneyed) language, the ALJ also determined that “the claimant’s
medical determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.” (AR 27.)
In fairness, the ALJ supported this finding by describing various reasons for
discounting Moritz’s credibility or otherwise cabining the limitations normally associated
with her severe impairments, including that: (1) the June 2007 and April 2010 MRIs
were “about the same” and yet Moritz was able to maintain employment for a significant
period of the time between those two dates; (2) Moritz has had relatively normal physical
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exams in terms of range of motion, gait, no neurologic deficits, etc.; (3) after receipt of
physical therapy and epidural steroid injections, treatment notes stated that Moritz’s
pain was significantly improved; (4) after August 2011, there is no record of regular care
for back pain beyond chiropractic care; (5) the medical records revealed Moritz’s plantar
fasciitis was treated successfully with surgery and she was healing normally; (6) while xrays revealed degenerative changes in Moritz’s ankles and left knee, there were either no
specific limitations/symptoms, or any limitation would be addressed through a sedentary
work RFC; and (7) while her diabetes is not well controlled, there is no evidence of
complications or exacerbated symptoms, like retinopathy, nephropathy or neuropathy.
In addition to discussing the limitations of Moritz’s impairments, the ALJ
discounted her account of work limitations because they are “largely inconsistent with
her ability to perform daily activities, including full time schooling, working two part
time jobs, working out at the gym three times per week, and maintaining her household.
(AR 29.)

OPINION
The standard by which a federal court reviews a final decision by the
Commissioner of Social Security is well settled. Findings of fact are “conclusive,” so long
as they are supported by “substantial evidence.”

42 U.S.C. § 405(g).

Substantial

evidence means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When reviewing
the Commissioner’s findings under § 405(g), the court cannot reconsider facts, re-weigh

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the evidence, decide questions of credibility or otherwise substitute its own judgment for
that of the ALJ.

Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

Thus, where

conflicting evidence allows reasonable minds to reach different conclusions about a
claimant’s disability, the responsibility for the decision falls on the Commissioner.
Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir. 1993). At the same time, the court must
conduct a “critical review of the evidence” before affirming the Commissioner's decision,
Edwards, 985 F.2d at 336. Here, Moritz raises two, principal challenges to the ALJ’s
decision: (1) he failed to consider her obesity consistent with SSR 02-1p; and (2) he
failed to credit Moritz’s statements concerning the intensity, persistence and limiting
effects of her symptoms. The court will address each challenge in turn.
I. ALJ’s Consideration of Moritz’s Obesity
In determining whether a claimant is under a disability as defined in Social
Security Act, the ALJ must conduct a five-step inquiry. See 20 C.F.R. § 404.1520; Knight
v. Chater, 55 F.3d 309, 313 (7th Cir. 1995). In the event the claimant suffers from
obesity, SSR 02-1p requires the ALJ to incorporate the effects of obesity in the five-step
sequential evaluation process. See SSR 02-1p at 3; Skarbek v. Barnhart, 390 F.3d 500,
504 (7th Cir. 2004). Still, a failure to consider the effects of obesity explicitly may be a
harmless error, so long as the ALJ demonstrated that he reviewed the medical reports of
the doctors familiar with the claimant’s obesity. Prochaska v. Barnhart, 454 F.3d 731, 736
(7th Cir. 2006); Skarbek, 390 F.3d at 504; Hernandez v. Astrue, 277 Fed. Appx. 617, 624
(7th Cir. 2008) (unpublished).

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As reflected in his opinion, the ALJ considered Moritz’s history of obesity in
conjunction with her other impairments and crafted an RFC in response. At step 2 of the
evaluation, the ALJ explicitly found morbid obesity to be one of Moritz’s severe
impairments.

(AR 25.)

In determining whether her residual functional capacity is

consistent with medical records, the ALJ again considered Moritz’s history of obesity,
finding that it was a “contributing factor to the pain and limitations associated with her
other impairments,” and that an RFC limiting her to sedentary work would address this
impairment, both alone and in conjunction with her other impairments. (AR 30.)
In her reply brief, Moritz argues more specifically that the ALJ failed to consider
her obesity in conjunction with her diabetic neuropathy. That argument, however, lacks
traction because the ALJ determined that Moritz’s complaints of foot pain were not a
medically determinable impairment, depending in large part on her neurologist’s finding
that she “did not have diabetic neuropathy based on the lack of objective findings or
deficits in strength or sensation on physical exam.” (AR 25, see also AR 577.) Other than
challenging the ALJ’s overall credibility determination, Moritz does not argue that the
ALJ failed to find either diabetic neuropathy as a severe impairment, nor could she
credibly on this record.
Similarly, Moritz also contends that the ALJ failed to consider the impact of
obesity on her back pain, but here, too, the ALJ discounted the limitations associated
with her degenerative disc disease, finding that “nerve conduction studies and EMG
testing was normal and an MRI revealed no changes in her degenerative disc disease
when compared to images from 2007,” reasonably inferring that she should be able to
conduct the same activities during the disability period as she did in 2007. (AR 29.)
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Here, too, plaintiff does not challenge this specific finding. As such, there is no merit to
any claimed error based on the ALJ’s failure to consider her obesity in conjunction with
an impairment for which the ALJ found narrowed limitations.
Even if the ALJ had erred, it would be harmless given Moritz’s failure to explain
how the ALJ’s claimed failure to address her obesity adequately would have changed the
RFC. In particular, other than take issue with the ALJ’s rejection of her testimony that
she would have to miss two or more days per month because of pain -- an argument
addressed below -- Moritz does not explain why a sedentary RFC would not sufficiently
address her own obesity, as well as its impact on her other limitations. Accordingly, the
court rejects this challenge.
II. ALJ’s Credibility Determination
Moritz also contends that the ALJ’s adverse credibility finding is not supported by
substantial evidence. The Seventh Circuit instructs, however, credibility determinations
are entitled to special deference because the ALJ has the opportunity to observe the
claimant testifying, while a reviewing court obviously does not. Jones v. Astrue, 623 F.3d
1155, 1160 (7th Cir. 2010). Therefore, courts give an ALJ’s credibility determinations a
“commonsensical reading,” rather than “nitpick the ALJ’s opinion for inconsistencies and
contradictions,” id., and will overturn an ALJ’s credibility finding only if “patently
wrong.” Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
In this case, the ALJ summarized and discussed the various factors supporting his
credibility findings, all of which were supported by the evidence on record. As detailed
above, the ALJ reviewed each of Moritz’s impairments and described why the limitations

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associated with the impairments were not as severe as Moritz claimed. (AR 27-30; see
also supra pp.9-10.) In addition, the ALJ discredited Moritz’s credibility because: (1) her
claimed work limitations were not consistent with her reported daily activities; and (2)
the lack of any treating or examining physician limiting her ability to work.2
Moreover, the court’s own review of the testimony Moritz provided at the hearing
-- in particular, her complaints of headaches and muscle cramping in her hands -- lacks
any foundation in the medical record. Accordingly, the court finds no error in the ALJ’s
credibility assessment, including his rejection of Moritz’s testimony that her pain is so
severe as to cause her to either miss two or more days per month or have to take multiple
breaks per hour.

In response to the Commissioner pointing out the absence of a medical opinion, plaintiff argues
“given the frequency that ALJ’s reject favorable treating source statements, such rationale is more
than a bit disingenuous.” (Pl.’s Reply (dkt. #19) 5.) Even if plaintiff’s criticism were wellfounded, plaintiff’s counsel, of course, knows that the federal courts frequently review ALJ’s
treatment of treating physician opinions and remand on that basis, if warranted.
2

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ORDER
IT IS ORDERED that the decision of defendant Carolyn W. Colvin, Acting
Commissioner of Social Security, is AFFIRMED and plaintiff Linda Moritz’s appeal is
DISMISSED. The clerk of court is directed to enter judgment in favor of defendant and
close this case.
Entered this 31st day of May, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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