Anderson, Rhonda v. Colvin, Carolyn

Filing 14

OPINION AND ORDER affirming Commissioner decision regarding Social Security benefits RE: 7 Social Security Transcript. Signed by District Judge William M. Conley on 5/12/17. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RHONDA L. ANDERSON,
Plaintiff,

OPINION AND ORDER

v.
15-cv-556-wmc

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

Pursuant to 42 U.S.C. § 405(g), plaintiff Rhonda L. Anderson 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
and Supplemental Security Income. In her appeal, plaintiff raises four challenges. 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
Anderson was 50-years-old at the alleged onset date and at the time she applied for
benefits, and 52 at the time of the hearing. She has at least a high school education, is
able to communicate in English, and has past work experience as a certified nursing
assistant (“CNA”) and sweeper/cleaner. Anderson testified at her hearing that he last
worked in December 2010 as a CNA, but could not do the work because of a lifting
restriction of 50 pounds. She claims disability based on obesity and degenerative joint
disease with right knee replacement.

B. Medical Record
The bulk of plaintiff’s medical records concern treatment before her knee
replacement surgery in September 2012. In June 2012, a note by Lance E. Sathoff, M.D.
indicated a diagnosis of right knee degenerative joint disease and described the treatment
options, including the recommended treatment of total knee arthroplasty. (AR 210.)
These notes are consistent with the treatment notes of physician assistants in the same
practice, indicating that Anderson returned to the clinic after three years for evaluation of
her right knee because the pain was getting worse.
On September 17, 2012, Anderson had right knee replacement surgery. (AR 22627.)

A two-week post operation appointment on October 2, 2012, with PA-C Karl

DePauw, noted that she was “doing well,” her pain was 3/10 and her incision was well
healed. (AR 248.) She also reported no tingling, numbness or weakness, and her range of
motion was “good,” specifically 86 flexion. (Id.)
On October 31, Dr. Sathoff saw Anderson for a six-week post-operation
appointment. The notes indicate that Anderson again reported pain as 3/10, and that she
was “ambulating fair, with assistive devices.” (AR 248.) Dr. Sathoff noted that Anderson
again reported no tingling, numbness, or weakness in the affected extremity. At that time,
his physical exam revealed that: the incision was well healed, range of motion was fair, she
was stable in valgus/varus, and the patella tracked centrally. An x-ray further confirmed
that the knee was well aligned and well fixed. (Id.) Overall, Dr. Sathoff concluded that
Anderson was “doing well.” (Id.)
Anderson also attended two physical therapy appointments on October 10 and
October 22, 2012. She was, however, a no show for three other appointments and called
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to cancel two. (AR 228.) Anderson was eventually discharged from therapy on January
30, 2013, because she did not return or call for follow-up therapy appointments.1
Anderson returned to Dr. Sathoff in January 2014 for review of a recent elbow
injury and renewed right knee pain. The medical notes state that she had “some stiffness”
in her right knee, but physical examination revealed that the incision was well-healed and
that her range of motion is at 90-plus degrees. (AR 376-77.) X-rays revealed “satisfactory
position of her right total knee arthroplasty.” (AR 377.) The noted plan was to “work on
motion.” (Id.) Dr. Sathoff indicated that Anderson “is not to the point where she wishes
to have anything further treated for her knee.” (Id.) After reviewing her medical file, state
agency physicians came to a similar assessment, limiting Anderson to light work.
C. ALJ’s Decision
The ALJ held a hearing on December 23, 2013, and issued an opinion dated April
24, 2014. The ALJ concluded that Anderson was not disabled. (AR 17.) As an initial
matter, the ALJ found that Anderson suffered from two severe impairments -- obesity and
degenerative joint disease with right knee replacement.

Nevertheless, the ALJ found

neither impairment nor combination of impairments meets or medically equals the severity
of one of the listed impairments. (AR 19.) In making this determination, the ALJ also
considered whether Anderson’s diagnoses of Grave’s disease, hypertension, dyslipidemia,
and hypercholesterolemia constituted severe impairments, but concluded otherwise
because they are all “well controlled with prescribed medication.” (Id.) Similarly, the ALJ

Muddling the record is a November 10, 2013, note from Amy L. Simnatel, M.D., more than nine
months later, that indicates Anderson has no insurance and was feeling depressed since she was
now on her sixth attempt to qualify for disability. (AR 355.) Although she apparently had some
capacity to pay for medical treatment, as she returned for care a few months later.
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considered one treatment note indicating that Anderson suffered from depression and was
prescribed medication, but found that “the record does not support a finding that this
caused significant limitations for an extended period.” (Id. (citing Ex. B9E).)
Material to one of plaintiff’s challenges, the ALJ specifically considered Anderson’s
obesity. The ALJ noted that her BMI score was 51.4, but citing the correct regulation
(Social Security Ruling 02-01p), concluded:
Overall, the evidence does not reflect that the claimant’s
obesity, when considering its impact on the relevant body
systems individuals or in combination results in a listing being
met or medically equaled. In addition, the claimant does not
allege specific work-related limitations secondary to obesity.
(AR 20.) Still, the ALJ purported to have considered Anderson’s obesity in “reducing her
functional capacity.” (Id.)
At step 5, the ALJ concluded that “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms.

When

considered in light of the record as a whole, however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely credible.”
(AR 22.) In so finding, the ALJ relied on the following:
o The fact that Anderson had right knee replacement surgery in September
2012, and at the six-week recheck, she was doing well, and x-rays showed
good alignment.
o She failed to attend a follow-up appointment or follow the prescribed
physical therapy.
o Despite this, she was seen in January 2014, and her treating physician noted
that her range of motion of her right knee was 90+ degrees, and that x-rays
showed “satisfactory position of her right knee.” “Despite continued
complaints of pain, the claimant stated that she did not want any further
treatment for her knee.”

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o There was no evidence of a medically necessary use of an assistive device,
such as a cane.
o A face-to-face interview in June 2013 with an interviewing agency
representative noted that Anderson demonstrated no difficulty in sitting,
standing or walking.
o Her reported daily activities included cleaning the house, doing dishes,
vacuuming, sweeping the floors, driving her son to school and attending his
activities.
o Anderson provided inconsistent reports about the length of time she could
walk, sit and stand.
o Although prescribed pain medication, Anderson declined, preferring to treat
her pain with over-the-counter Tylenol.
In considering Anderson’s limitations and in crafting the RFC, the ALJ placed some
weight on the state agency medical consultants, who concluded Anderson was capable of
light work, but the ALJ also adopted additional limitations. The ALJ further found that:
(1) Anderson’s treating physician’s opinion about her “disabling” right knee arthritis
occurred before her knee replacement surgery; and (2) “[n]o other medical source has
proffered an opinion as to the claimant’s functional capabilities or restricted her from
performing the range of unskilled light work activities assessed in this decision.” (AR 2223.)
As a result, the ALJ’s RFC limited Anderson to light work, with the following,
additional limitations: “precluded from crawling, kneeling and climbing ropes, ladders and
scaffolds. The claimant can occasionally stoop, bend, crouch and climb ramps and stairs.
She requires a sit/stand option at the workstation that limits her to standing no more than
30 minutes at one time and sitting no more than 20 minutes at one time.” (AR 20.)
Finally, the ALJ concluded that Anderson is unable to perform any past relevant
work, but could perform jobs of packager, office clerk and counter clerk. (AR 23-24.)
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OPINION
Anderson raises four challenges on appeal: (1) unresolved conflicts between the VE
testimony and the DOT/SCO; (2) invalid waiver of right to counsel; (3) failure to consider
proper listing; and (4) flawed credibility assessment, specifically with respect to the ALJ’s
treatment of Anderson’s obesity. The court will address each in turn.
I. Unresolved Conflict between the Vocational Expert Testimony and DOT/SCO
Social Security Ruling 00-4p places an affirmative duty on the ALJ to first ask the
vocational expert whether his testimony conflicts with the Dictionary of Occupational Titles
(“DOT”), and if it “appears to conflict,” to elicit “a reasonable explanation for the apparent
conflict.” Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (citing SSR 00-4p at 5);
see also Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006).2 Here, while the ALJ
asked the VE if he was familiar with the DOT, she did not ask if his testimony was
consistent with it. (AR 53.) Even so, the VE not only indicated familiarity, but relied on
the DOT in listing occupations that would accommodate the limitations described in the
ALJ’s hypotheticals. Read as a whole, this testimony is enough to conclude that the VE
viewed his testimony to be consistent with the DOT.
This technical lapse aside, plaintiff’s substantive challenge is that the ALJ failed in
her duty to obtain a reasonable explanation for an apparent conflict between the DOT
definitions and the vocational expert’s testimony. Failure to ask a vocational expert about

“The Dictionary, published by the Department of Labor, gives detailed physical requirements for
a variety of jobs. The Social Security Administration has taken ‘administrative notice’ of the DOT.”
Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) (citing 20 C.F.R. § 416.966(d)(1)) (italics
added).
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any conflict between the testimony and the DOT is considered harmless error provided
there is no actual conflict. See Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). Anderson
identifies two purported conflicts, both of which the court now rejects.
First, plaintiff contends that the ALJ failed to account for an apparent conflict
between the VE’s testimony that a claimant with Anderson’s RFC could perform the
occupation of “packager” versus the DOT’s definition for that same occupation.
Specifically, plaintiff contends that “a Packager requires frequent climbing in general,”
which conflicts with “the ALJ’s RFC and hypothetical question” that precluded “climbing
ropes, ladders, and scaffolds and would limit Anderson to occasional climbing ramps and
stairs.” (Pl.’s Br. (dkt. #9) 9.) Plaintiff, however, fails to offer any support or explanation
for her contention that a packager would require climbing.

At the very least, this

requirement is not obvious from the description of physical requirements.

See DOT

§ 522.687-018. Moreover, as defendant points out, “even if Plaintiff is correct on that
point, the ALJ could still rely upon the VE’s testimony regarding the jobs of office clerk
and counter clerk.” (Def.’s Opp’n (dkt. #11) 14.)3
Second, plaintiff contends that there is a conflict between the VE’s testimony that
all three occupations would allow for the sit/stand option and the DOT descriptions of
those three positions. Here, the ALJ’s exchange with the VE demonstrates that the ALJ
required the VE to consider, and the VE did consider, whether the DOT definitions would
accommodate the sit/stand option limitation. The first hypothetical question posed by the

Plaintiff’s characterization that the number of jobs provided by the VE for those two jobs is
“minimal” is belied by the actual evidence that those two positions encompass over 300,000
positions nationally and over 12,000 in Wisconsin. (Def.’s Opp’n (dkt. #11) (citing AR 24, 55).)
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ALJ only limited the claimant to light work, with limitations about climbing, crawling,
kneeling, stopping, bending and crouching. In the second hypothetical, however, the ALJ
added a requirement of a sit/stand option so that the person would be able to “stand no
more than 30 minutes at one time and sit no more than 30 minutes at one time.” (AR
55.) In response to that question, the VE determined that the cashier position offered in
the prior hypothetical would be eliminated but that the claimant would still be able to
perform the office clerk, counter clerk and packager positions.

(Id.) This testimony

clarified that the VE considered whether the specific DOT positions would allow for a
sit/stand option.

Therefore, there is no conflict, apparent or otherwise, between his

testimony and the DOT.
Even if an unresolved conflict actually existed with respect to both of those claimed
by the plaintiff, the ALJ’s obligation to obtain a reasonable explanation from the expert is
only triggered if the conflict is “so obvious that the ALJ should have picked up on [it]
without any assistance.” Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (citing
Prochaska, 454 F.3d at 735); 20 C.F.R. §§ 404.1366(e), 416.966(e); SSR 00-4p. Here,
plaintiff fails to explain how either purported conflict would be apparent to the ALJ.
Instead, plaintiff quotes language from an RFC -- presumably applying to another of
plaintiff counsel’s clients (an unfortunate, but frequent cut-and-paste error) -- limiting the
claimant to no production-type work, the amount of fingering and handling, changes in
tasks, and contact with people. (Pl.’s Br. (dkt. #9) 12, 13-14; Pl.’s Reply (dkt. #12) 3 n.1
(repeating same erroneous language).) As such, plaintiff utterly failed to explain how either
of these purported conflicts was “so obvious” as to require the ALJ to probe for an
explanation.
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II. Invalid Waiver of Counsel
While Social Security claimants have a statutory right to counsel at a disability
hearing, 42 U.S.C. § 406, this right may be waived as long as the evidence shows the
claimant did so knowingly. Ratulowski v. Astrue, 380 F. App’x 552, 554 (7th Cir. 2010);
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). The parties agree that a proper waiver
must contain an explanation of: (1) the benefits of counsel; (2) the possibility of free
counsel or a contingency fee arrangement; and (3) the statutory 25% withholding
limitation on attorneys’ fees, including required court approval of the fees.

Binion v.

Shalala, 13 F.3d 243, 245 (7th Cir. 1994); Thompson v. Sullivan, 933 F.2d 581, 584 (7th
Cir. 1991).
Here, the ALJ informed Anderson of all three requirements:
I am required to explain that you have the right to be
represented by an attorney or a non-attorney. This person can
help you obtain and submit records, explain medical terms,
make requests, protect your rights, and present the evidence in
a light most favorable to your case. A representative may not
charge or receive a fee unless the Agency approves it, and a
representative does not normally get paid unless you are
awarded benefit, and then they may only accept 25 percent of
your back benefits of $6,000.00, whichever is less.
A representative may charge you for certain expenses such as
copying charges or postage, but some legal service
organizations may off[er] completely free representation, but
that is based on needs. You would have to meet their
requirements and qualify under their rules. . . . We can give
you a list of resources in order to help you obtain a
representative if you choose to do that[.]
(AR 32.) The ALJ then asked Anderson how she would like to proceed, to which she
responded, “by myself.” (AR 33.) Finally, the ALJ acknowledged that “we, generally, have
the claimant that is here [i.e., testifying in person] sign a document to that effect. But you
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are testifying under oath that you understand your rights, and that you do want to proceed
without it. So, we will go ahead and have that document just mailed to you.” (Id.)
Even if a writing were required, the record also reflects that Anderson did sign the
waiver the same day as the hearing. (AR 120.) Plaintiff’s argument that she was not
provided a paper copy, that the waiver was not conducted at the hearing, or that the
information she was provided orally was somehow insufficient is entirely belied by the
record.4
III. Failure to Consider Proper Listing
Next, Anderson raises two related challenges concerning the ALJ’s consideration of
whether she met a listing. First, Anderson contends that the ALJ should have considered
whether she met Listing 1.03, which concerns reconstructive surgery or surgical arthrodesis
of a major weight bearing joint. Second, Anderson argues that the ALJ’s consideration of
Listing 1.02, major dysfunction of any joint, was insufficient.

As the Commissioner

persuasively argues in response, both of these listing require Anderson to demonstrate an
inability to ambulate. (Def.’s Opp’n (dkt. #11) 8 (discussing this element as a share
element, with 1.03 requiring an inability to ambulate lasting or expected to last 12
months).)

The record also contains a two-page document titled “Your Right to Representation,” which was
apparently included with her notice of hearing. (AR 111-12.) If this were the only information
plaintiff had received, the court might well agree with plaintiff, as it has in other cases challenging
waiver of counsel, that mere provision of that document would not satisfy the requirement that the
waiver be knowing absent proof the claimant read and understood the document. See Lovell v.
Colvin, No. 14-CV-708-WMC, 2017 WL 108071, at *3 (W.D. Wis. Jan. 11, 2017) (remanding
due to invalid waiver of counsel). As explained above, however, plaintiff was provided the required
information orally during the hearing and she indicated that she understood her rights and waived
counsel, while under oath, then also signed a waiver.
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Critically, the listing provides a specific definition for “inability to ambulate”:
b. What we mean by inability to ambulate effectively.
(1) Definition. Inability to ambulate effectively means an
extreme limitation of the ability to walk; i.e., an impairment(s)
that interferes very seriously with the individual’s ability to
independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having
insufficient lower extremity functioning (see 1.00J) to permit
independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper
extremities. (Listing 1.05C is an exception to this general
definition because the individual has the use of only one upper
extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance
to be able to carry out activities of daily living. They must have
the ability to travel without companion assistance to and from
a place of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to, the
inability to walk without the use of a walker, two crutches or
two canes, the inability to walk a block at a reasonable pace on
rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory
activities, such as shopping and banking, and the inability to
climb a few steps at a reasonable pace with the use of a single
hand rail. The ability to walk independently about one's home
without the use of assistive devices does not, in and of itself,
constitute effective ambulation.
Listing 1.00B.
Here, plaintiff has failed to demonstrate that she meets this listing. In her reply,
plaintiff points to her testimony at the hearing that she needs a cane to walk in stores and
that she could only walk for about 15 minutes before taking a break. (Pl.’s Reply (dkt.
#12) 10 (citing AR 43).) This testimony, however, is insufficient to demonstrate that an
assistive device is required for walking. Moreover, other than the use of a cane postsurgery, there is no indication that a cane is medically required. To the contrary, as the
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ALJ pointed out, a face-to-face interview in June 2013 with an interviewing agency
representative specifically noted that Anderson demonstrated no difficulty in sitting,
standing or walking. The court finds no error in the ALJ’s consideration of whether
plaintiff met a listing. At a minimum, any error would have been harmless since plaintiff
failed to put forth evidence to support an inability to ambulate -- a required element under
Listing 1.02 and 1.03.
IV. Credibility and Treatment of Obesity
In this last challenge, plaintiff raises a hodgepodge of issues with respect to the ALJ’s
treatment of her credibility and obesity. The hook, as plaintiff explains in her opening
brief, is that if the ALJ had limited her to sedentary work, she would have met Grid Rule
20.14, which would have rendered her disabled.
Anderson testified that she had to use a cane if walking in a store for a “long time,”
could sit at one time for 30 minutes before having to change position, and could walk
about 15 minutes before having to sit down. (AR 43-46.) Plaintiff fails to explain how
the light work exertion level RFC with additional physical limitations and the sit/stand
option described above would not accommodate her own self-reported limitations. As
such, any error in discounting her credibility appears to be harmless.
In finding that her reported limitations were not as serious as her actual limitations,
the ALJ did note Anderson’s failure to treat her pain, in particular, her failure to attend
post-surgery, follow-up appointments and to complete physical therapy.

In response,

plaintiff directs the court to a note in one of her medical records that she lacked insurance.
That note, however, was several months after her right knee replacement surgery, as well as

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the scheduled physical therapy for which she was a no-show or canceled. Regardless, this
was one reason among several on which the ALJ relied in discounting her credibility.
Finally, with respect to the ALJ’s treatment of Anderson’s obesity, the ALJ
considered whether her obesity would further magnify the limitations posed by her
degenerative joint disease after citing the appropriate regulation. (AR 20.) Tellingly,
Anderson did not allege specific work-related limitations posed by her obesity. Regardless,
in crafting the RFC, the ALJ considered her obesity in limiting her to light work and further
limiting her physical movements, including providing her with a sit/stand option. In light
of the fact that the RFC addresses Anderson’s self-reported limitations with respect to
walking, sitting and standing, as described above, the court is hard-pressed to find any
abuse of discretion by the ALJ in assessing her credibility or the impact of her obesity on
her functional limitations. Accordingly, the court rejects this basis as well.

ORDER
IT IS ORDERED that the decision of defendant Carolyn W. Colvin, Commissioner
of Social Security, denying plaintiff Rhonda L. Anderson’s application for disability
benefits is AFFIRMED. The clerk of court is directed to enter judgment for defendant and
close this case.
Entered this 12th day of May, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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