Olson, Yvonne v. Colvin, Carolyn

Filing 22

ORDER affirming Commissioner decision regarding Social Security benefits RE: 7 Social Security Transcript. Signed by District Judge William M. Conley on 9/21/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
YVONNE OLSON,
Plaintiff,
v.

OPINION AND ORDER
15-cv-172-wmc

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Pursuant to 42 U.S.C. § 405(g), plaintiff Yvonne Olson seeks judicial review of a
final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security,
which denied her application for Social Security Disability Insurance Benefits. In her
appeal, plaintiff raises four challenges. The court held a telephonic hearing on Olson’s
appeal.

For the reasons provided below, the court will affirm the Commissioner’s

determination, enter judgment in defendant’s favor, and close this case.

BACKGROUND
A. Overview of Claimant
Olson was 55-years-old at the (amended) alleged onset date; 55 at the time she
applied for benefits; and 60 at the time of the second hearing. She has a high school
education, is able to communicate in English, and has past work experience as a cashier
and bill collector, among other jobs. Olson last worked in 2009 as a cashier at a gas station.
She claims disability based on a variety of physical ailments, including asthma, high blood
pressure, coronary artery disease, dizziness, headaches, goiter and fractured wrist. The
focus of the appeal, however, is on her somatoform disorder.

B. Medical Record
The medical record contains several reports from psychologists evaluating Olson’s
neuropsychological state and mental health complaints. A January 13, 2011, report, by
Tammy L. Hietpas-Wilson, Ph.D., notes that Olson “reported the onset of cognitive
difficulties following her heart surgery in 2006,” specifically noting forgetfulness, difficulty
with attention and concentration, slower processing speed, and problems with fine motor
coordination and weakness in both hands. (AR 496.)

Hietpas-Wilson reviewed her

medical, family and social history. (AR 496-97.) Hietpas-Wilson also conducted a variety
of mental examinations and motor tests. (AR 497-99.) As for the test interpretation, the
“[r]esults of the intellectual testing revealed verbal abilities at the high end of the low
average range.” (AR 500.) As for cognitive functioning tests, “Olson evidenced slow
processing speed and mildly impaired phonemic fluency,” though her “semantic fluency is
within normal limits.” (Id.) Other cognitive testing results were average or within the
normal range. (Id.) Motor testing demonstrated “mild impairment in manual dexterity
and strength in her left hand and fine motor slowing in the borderline range for her left
hand.” (Id.) (She’s left-handed.) There was no sign of slowing in her right hand, but “her
manual dexterity and strength were low average on her non-dominant side.” (Id.)
With regard to psychological functioning, Hietpas-Wilson stated that the “results
of the MMPI-2 were invalid as she responded in a manner suggesting of trying to create a
favorable impression or denying/repressing psychological distress.” (AR 500.) As part of
that assessment, Hietpas-Wilson stated, “[h]er responses indicate a highly unusual degree
or combination of somatic complaints, even in individuals with genuine health problems.”
(AR 501.)
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In summarizing her impressions, Hietpas-Wilson noted “[i]nterview and test data
revealed a talkative almost attention seeking woman with impaired processing speed and
phonemic fluency.” (Id.) Hietpas-Wilson also noted impairment/decline in her left hand.
Still, she performed within normal ranges on various cognitive skills. Hietpas-Wilson
concluded:
Psychological testing showed a preoccupation with somatic
complaints and an absence or denial of psychological distress.
Her impairments in processing speed and motor functioning
are most likely residual sequelae of her CABG [heart
condition], but may also reflect some exaggeration. Her
perception that her problems have worsened may reflect a
greater awareness/preoccupation with her residual problems,
which is colored by a histrionic personality style.
(Id.)
Hietpas-Wilson also completed a January 2012 report, the purpose of which was to
“rule out the presence of a neurodegenerative process in addition to cognitive dysfunction
from the CABG.” (AR 931.) Hietpas-Wilson concluded that “[g]iven the patient’s report
of stable cognitive functioning, additional cognitive testing is not warranted. At the present
time, it does not appear that she has a neurodegenerative disease process and her deficits
are like[ly] due to CABG.” (AR 931-32.)
In an April 10, 2012 report, Rebecca Angle, Ph.D., conducted a mental status
evaluation and administered the Wechsler Memory Scale, 4th Edition (WMS-IV). (AR
322.) In the description of history, claimant denied that she experiences symptoms of
depression or anxiety. Angle also noted that Olson has never been hospitalized for mental
health issues. (AR 322.) The test results were within the low average to average range.
(AR 324.) “Results of the memory testing indicate that overall the claimant’s abilities are
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within the average range of functioning.” (AR 325.) Dr. Angle stated that “the claimant
does not appear particularly motivated to work.” (AR 325.) She also stated that Olson’s
“prognosis with regard to her mental health is judged to be good. She identified no
diagnosis on Axis I or II and for Axis III, said “see current medical treatment notes.” Angle
believed that Olson “would likely have the ability to understand, remember, and carry out
simple instructions that might be given to her,” but that she would need assistance in
managing funds. (AR 325-26.)
Critical to Olson’s appeal, Steven Benish, Ph.D., issued a report on June 2, 2014,
based on his consultative examination of Olson. Benish noted that “[p]ast psychiatric and
psychological evaluations have described the claimant’s behavior in terms of ‘attention
seeking’, somatization, and ‘histrionic personality style’.” (AR 854.) Benish described
Olson’s attitude, speech, mood and affect, and asked her about various symptoms. Benish
also asked Olson about her activities of daily living and social functioning, and examined
her persistence and pace. (AR 855-56.)
Benish administered the Wechsler Adult Intelligence Scale IV text and described
the subtest results, concluding: “The claimant’s results indicate intellectual functioning in
the low average range compared to same age peers.

Across 5 indices, the claimant

consistently scores in this average-to-low average range. The results do not indicate any
significant deficits in verbal comprehension, perceptual reasoning, working memory,
processing speed, or full scale IQ.” (AR 856.)
In the “summary and diagnoses” section of the report, Benish noted that claimant
believes there is a problem with her processing speed “[d]espite multiple examiners and
reports indicating no major neurocognitive problems.”
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(AR 857.)

“One reasonable

explanation is that the claimant experiences somatic symptoms that are distressing to her,
experiences ruminative thoughts, feelings, and behaviors related to the somatic complaints,
experiences persistent anxiety about health symptoms, and as a result devotes much time
and energy to the symptoms.

These symptoms fulfill criteria for Somatic Symptom

Disorder of a persistent nature.” (AR 857.) Benish went on to explain, “Somatic Symptom
Disorder does not presume malingering or factitious behavior, and does require a rule out
of medical etiology for the symptoms.” (AR 857.) Benish also noted that “the claimant
does experience persistent anxiety that fulfills criteria for generalized anxiety disorder.”
(AR 857.)
With respect to her work capacity, Benish concluded that Olson “has most abilities
intact to understand, remember, and carry out simply instructions;” “has some discord in
relationships with supervisors and coworkers;” “mild problems in concentration, attention,
and work pace;” and “moderate abilities to respond to stressors.” (AR 857.) Benish
included diagnoses for both 300.82 Somatic Symptom Disorder and 300.02 Generalized
Anxiety Disorder. (AR 857.)
Material to the RFCs, the state agency doctors concluded that Olson was capable of
medium exertional level work. (AR 355-63, 434-441.)
In addition to the medical record, the ALJ had an independent medical expert, Dr.
Lynch, a psychologist, testify at the hearing. Lynch reviewed all of the exhibits in this case.
Lynch testified that somatization “may be a reasonable explanation for the amount of
physical complaints absent underlying pathology that might explain them medically.” (AR
588.) He concluded that “there is no medically determinable impairment,” because none
of the psychological evaluations found mental memory, cognitive impairment. (Id.) Lynch
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also stated, “I have considered, and, you know, as a rule out, she would fit under 1.07
somatoform disorders. There is no diagnostic test for this. But once again, Benish[] found
the same thing.”

(AR 589.)

In response to claimant’s counsel’s questions, Lynch

acknowledged that there is no treatment for somatoform disorder -- the focus being on
educating the patient -- and that in the face of such complaints, “one would then ask, well,
how does it really affect one on a day-to-day basis and similarly, under concentration, it
doesn’t appear to interfere on a day-to-day basis.” (AR 593.)
C. ALJ’s Decision
The ALJ found several severe impairments: history of heart disease status post 2006
coronary artery bypass graft (“CABG”), fibro muscular dysplasia of the internal carotid
arteries, benign positional vertigo, hypertension, asthma and obesity. (AR 543.) In setting
forth these severe impairments, the ALJ also found that Olson’s claims of chronic kidney
disease, mild carpal tunnel syndrome, history of mini-strokes and gout did not constitute
severe impairments. (AR 544.) Olson does not challenge these findings, instead focusing
her appeal on his rejection of her complaints of cognitive and somatic complaints.
With respect to Olson’s claim of a somatoform disorder, the ALJ placed some weight
on Angle’s April 2012 report, describing it as “objective testing was all within the average
to low average range and she still completed a wide range of daily activities in a timely
manner leading the doctor to conclude there was no mental diagnosis.” (AR 544.) The
ALJ placed “less” weight on Dr. Hietpas-Wilson’s January 2011 and January 2012 reports,
finding (1) that while Hietpas-Wilson diagnosed Olson with a cognitive impairment in
January 2011 she found the MMPI-2 testing invalid; and (2) in the January 2012 report,
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Hietpas-Wilson concluded that her cognitive impairment was “stable” and that the
claimant “has no functional limitations,” which the ALJ found “somewhat contradictory.”
(AR 545.)
For Dr. Benish, the ALJ stressed Benish’s statements that Olson’s “past mental
evaluations revealed ‘attention seeking,’ somatization, and a ‘histrionic personality style,’”
but still acknowledged Benish’s diagnoses of a somatic symptom disorder and generalized
anxiety disorder.

(AR 545.)

As for those diagnoses, the ALJ stated, “Benish also

contradicted himself and declined to provide actual objective medical evidence that would
substantiate a medically determinable mental impairment.” (AR 545.) The ALJ explained
that the testing showed “no major neurocognitive problem, but she thinks she does.” (AR
545.) As such, Benish’s conclusions were based on “claimant’s self-reports” rather than
“objective medical findings and medical observations.” (AR 545.)
The ALJ then reviewed Dr. Lynch’s testimony during the hearing. The ALJ describes
Lynch’s testimony as claimant’s psychological examinations were “within the normal range
of testing.” (AR 546.) The ALJ further described Lynch’s testimony as “the claimant’s
historical record may indicate some minor impairment, but that everyone has some ups
and downs, and there is nothing in the record to suggest an impairment warranting
cognitive testing . . . .

Dr. Lynch explicitly testified that there was no medically

determinable mental impairment.” (AR 546.) The ALJ found Lynch’s testimony “more
persuasive than the other opinions because the doctor was able to review all the evidence
and sworn testimony, and has known strong credentials in the psychological field.” (AR
546.) Lynch also testified, according to the ALJ, that there is no evidence that a medically

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determinable mental impairment is severe in light of her daily activities, ability to get along
with others, and normal evidence of concentration, persistence and pace. (AR 546.)
The ALJ’s RFC limited Olson to medium work, with additional restrictions: of
avoiding hazardous heights and dangerous machinery, heavy concentrations of dusts,
fumes, gases, odors and chemicals; limited to occasional balancing and climbing of ramps
and stairs; limited to frequent stooping, kneeling, crouching and crawling; able to
understand, carryout and remember routine work with a general education development
reasoning level of 4 or less; able to consistently and appropriately relate to supervisors,
coworkers and the public; would be off task less than 10% of the workday; limit fine finger
manipulation to frequent, but no limit on gross handling. (AR 547.)
In making this determination, the ALJ reviewed Olson’s testimony about poor
memory, uncontrollable hands, dizziness, difficulty walking, poor memory and
comprehension, inability to grasp and lift objects, inability to sit for more than 15 minutes,
stand for more than 10 minutes, and the need to take breaks walking even short distances,
frequent headaches and the need to elevate her feet. (AR 547.) The ALJ used the familiar
“not entirely credible” language to discount her testimony. In particular, in finding Olson
not credible, the ALJ relied on the fact that claimant’s physical ailments (in particular her
heart problem) were “all present at approximately the same level of severity prior to the
alleged onset date,” and “also were present well before she stopped working at the level of
substantial gainful activity in 2010.” (AR 547.) The ALJ also pointed out that she has
admitted to applying for jobs -- and collected unemployment compensation -- indicating
an ability to perform work.

(AR 547.)

(Though the court notes that Olson’s

unemployment compensation was in 2010, 2011.) The ALJ also pointed to evidence in
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the record in which she had described “ability greater than those alleged at the hearing,”
in particular about her ability to lift, stand, walk and use of fine fingering for sewing. (AR
547-48.)
The ALJ maintained his prior opinion that Olson “remains able to sustain her past
relevant work as a cashier both as she actually performed it and as it is generally
performed.” (AR 552.) In the alternative, the ALJ concluded that “there are other jobs
existing in the national economy that she is able to perform.” (AR 552.) Because the ALJ
placed additional limitations on the RFC of medium work, the ALJ stated that he “asked
the vocational expert whether jobs exist in the national economy for an individual with the
claimant’s age, education, work experience, and residual functional capacity,” and that the
VE testified that she could perform occupations such as assembly, machine tender and
office helper. (AR 553.)

OPINION
Olson raises four challenges on appeal: (1) the ALJ erred in finding that Olson could
perform “past relevant work;” (2) the ALJ erred in holding alternatively under step five
that Olson could perform other work in the economy, because the ALJ failed to consider
Olson’s age of 60 at the time of the second hearing; (3) the ALJ failed to properly evaluate
somatoform disorder; and (4) ALJ erred in his credibility determination. Because the issues
are related, the court will consider the first two together and the latter two together.
I. Treatment of VE’s Testimony
The first two challenges concern the ALJ’s treatment of the VE’s testimony and his
alternative findings that Olson could perform both past relevant work and other work in
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the national economy. As for the ALJ’s finding at step four about her ability to perform
past relevant work, Olson argues that for her work as a cashier to qualify as “past relevant
work” it must be substantial gainful activity (SGA) done within the past 15 years that
lasted long enough for the claimant to learn how to do the job.

See 20 C.F.R. §

404.1560(b)(1). Olson contends that the record does not demonstrate that her earnings
as a cashier in 2008 and 2009 was above the level of SGA. As detailed in her brief, the
record of evidence of earnings is a summary of earnings covering all of Olson’s jobs that
does not break out the income earned as a cashier. (Pl.’s Opening Br. (dkt. #9) 3 (citing
AR 181, 213).) Olson further contends that as a cashier, she was working four hours a
day, five days a week at $8.00 per hour, and assuming 4.3 weeks in a month, she would
have earned $693.28 per month, which is below the SGA limit for all years since 1999.
(Id.) As such, Olson argues that her cashier work was not SGA, and therefore the ALJ erred
in relying on it to find that she could perform past relevant work. 1
In response, the Commissioner acknowledges that while the record “does not
conclusively show that Plaintiff only worked as a cashier during this time, a reasonable
person could conclude that she was working as a cashier at this time given her work history
reports, earning records, and hearing testimony.” (Def.’s Opp’n (dkt. #16) 13.) While

At step 4, Olson also challenges the ALJ’s past relevant work analysis, even assuming her cashier
work would satisfy past relevant work. Olson argues that under Strittmatter v. Schweiker, 729 F.2d
507 (7th Cir. 1984), and Nolen v. Sullivan, 939 F.2d 516, 519 (7th Cir. 1991), the ALJ failed to
“specify the duties involved in a prior job and assess the claimant’s ability to perform the specific
tasks.” (Pl.'s Opening Br. (dkt. #9) 5.) The VE’s testimony at the hearing however, undermines
this argument. The ALJ described a cashier job as “light, SVP-2, unskilled.” (AR 596.) The ALJ
then described a hypothetical RFC that mirrors the one he adopted. (AR 597-98.) The VE then
testified that with that RFC, an individual could perform a cashier job. (AR 599.) This exchange
appears to satisfy the requirement.
1

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plaintiff’s argument may have some merit, the court need not rule on this challenge,
assuming the ALJ’s alternative holding at step 5 was not in error.
The crux of Olson’s challenge to the ALJ’s alternative holding that she could perform
other jobs is that the VE’s testimony failed to establish that there were sufficient medium
exertion jobs Olson could perform that would accommodate the additional restrictions in
the RFC. The VE gave numbers for three different jobs and broke down those numbers by
medium and light exertional requirements. (AR 599.) Olson’s counsel asked the VE for
the DOT numbers for the occupations the VE identified. The VE then provided numbers
“as example[s].” (AR 601.) The representational numbers all correspond with light or
sedentary exertional levels. (Pl.'s Opening Br. (dkt. #9) 6.) From this, Olson appears to
reason that her RFC should have required light work, and if it had -- given her age -- under
the medical-vocational guideline, she would have been deemed disabled. (Id. at 7.)
This argument is too clever by half. Critically, the VE testified as to the number of
jobs for the three identified occupations at both light and medium exertional levels.
Moreover, because the ALJ concluded that Olson is capable of medium exertional work -a finding that Olson does not challenge, other than to challenge the ALJ’s rejection of her
somatoform disorder as a severe impairment -- it is not clear how the ALJ could have erred
in considering the availability of light exertion jobs in the national economy. If the ALJ
had determined that Olson could only perform light work (and assuming she was not
disabled under a grid), then considering the availability of jobs requiring a more rigorous
level of exertion would have constituted error, but that is not what happened here. As best
as the court can determine, Olson is trying to argue that the consideration of light exertion
level jobs should alter her RFC to limit her to light work, and if she is limited to light work,
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then she is disabled under the Medical-Vocational guideline. This logic does not hold
together. 2 As such, the court finds that the ALJ’s determination that Olson could perform
other work, and the ALJ’s reliance on the VE’s testimony of sufficient numbers of other
jobs Olson could perform that other work, is not in error.
II.

Credibility Determination; Treatment of Somatoform Disorder
Plaintiff’s third and fourth challenges are also related. She challenges the ALJ’s

rejection of a somatoform disorder as a severe impairment and the ALJ’s discrediting of
Olson’s testimony about her limitations. Somatoform disorders are defined as “[a] group
of closely related mental illnesses characterized by distressing physical symptoms that lack
a physical cause and arise instead from emotional conflict or anxiety.” American Medical
Association, Complete Medical Encyclopedia 1142 (2003); see also Adaire v. Colvin, 778 F.3d
685, 686 (7th Cir. 2015) (describing a somatoform disorder as a “mental condition that
causes pain that has no known physical cause”).
The Seventh Circuit instructs that an ALJ cannot reject a claim of disability because
of a lack of “objective” evidence where the claimed impairment cannot be proven by such
evidence. Adaire, 778 F.3d at 687 (citing cases). Here, the ALJ erred in finding that Olson’s
claimed somatoform disorder was not a medically determinative disorder or discounting it
because it was a “rule-out” disorder. By its very definition, somatoform disorder is a
disorder where there is no physical cause, where physical causes have been ruled out, and

Olson also raises an argument in a footnote challenging the validity of the VE’s data. (Pl.’s
Opening Br. (dkt. #9) 7 n.5.) This argument is not sufficiently developed to warrant consideration.

2

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where there is a lack of “objective” medical evidence. Under the ALJ’s logic, the very nature
of the disorder would render it non-disabling.
Still, as plaintiff recognizes even if she suffers from the disorder, Olson must prove
that it limits her in such a way that she cannot work. See Cass v. Shalala, 8 F.3d 552, 555
(7th Cir. 1993) (“While the law requires an ALJ to weigh all the credible evidence and
make unbiased factual findings, it does not compel an ALJ to accept wholly the claimant’s
perception of a disability.”). Here, Olson claims cognitive limitations, including problems
with processing and memory, as well as dizziness. While she may genuinely feel that she
has these limitations, the tests performed by various medical providers, as detailed above,
demonstrated that her processing and memory skills were within the normal range of
results, and she passed a tilt-table test limiting any concern about her complaint of
dizziness.
Furthermore, because “there is always a risk that the patient is a malinger, the ALJ
must of necessity base a decision on the credibility of the claimant’s testimony.” Sims v.
Barnhart, 442 F.3d 536, 537-38 (7th Cir. 2006). Here, the ALJ discounted Olson’s claims
of limitations based on findings that she claimed the same physical ailments, in particular
her heart problem, during the time she was working at the level of substantial gainful
activity and she admitted to applying for jobs past her claimed disability on set date, and
that the physical exertion and movement she needs to perform her daily activities and her
past description of her abilities are greater than that described during her testimony. The
court finds no error in the ALJ’s credibility determination.
Accordingly, while the court credits, or at least assumes for purposes of this opinion,
that Olson suffers from a medically-determinable impairment, she has failed to point to
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evidence to support any finding of work-related limitations, at least beyond those found
by the ALJ in crafting an RFC, and, indeed, the evidence in her record undermines such a
finding of limitations.

ORDER
Accordingly, IT IS ORDERED that the decision of defendant Nancy A. Berryhill,
Commissioner of Social Security, denying plaintiff Yvonne Olson’s application for
disability benefits is AFFIRMED. The clerk of court is directed to enter judgment for
defendant and close this case.
Entered this 21st day of September, 2017.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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