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Venturini v. Colvin

United States District Court, W.D. Wisconsin

May 23, 2016

PATRICK VENTURINI, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STEPHEN L. CROCKER, MAGISTRATE JUDGE

         Plaintiff Patrick Venturini applied for Disability Insurance Benefits pursuant to Title II of the Social Security Act on April 25, 2011, alleging that he has been disabled by rheumatoid arthritis since September 17, 2010. After his claim was denied initially and on reconsideration, Venturini requested a hearing, which was held on January 14, 2014. The administrative law judge (ALJ) who presided at the hearing issued a decision on March 11, 2014, finding that Venturini was not disabled. Specifically, the ALJ found that, although Venturini’s arthritis was severe, it was well-controlled with medication and it did not prevent him from performing work at the “medium” level of exertion, provided that this work did not require more than frequent handling and fingering. A vocational expert had testified at the hearing that a person with these abilities would be able to perform some of Venturini’s past jobs as well as other jobs existing in significant numbers in the national economy. Relying on this testimony, the ALJ determined that Venturini was not disabled. That decision became the final decision of the Commissioner when the Appeals Council denied Venturini’s request for review.

         Venturini now seeks judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g).[1] He contests the decision on only two grounds: 1) The ALJ erred in rejecting the opinions of Venturini’s treating rheumatologist (Dr. Fanopoulos) and a consultative examiner (Dr. Khan) whose reports Venturini says support a finding that he is capable of only sedentary work; and, 2) The ALJ ignored Venturini’s work history when he evaluated Venturini’s credibility. As discussed in more detail below, neither of these arguments provides a sufficient basis to reverse the Commissioner’s determination.

         This is not to say that the ALJ wrote an unassailable decision or that the court is convinced that the ALJ properly found that Venturini is not disabled. To the contrary, this court is troubled by certain aspects of the ALJ’s decision, namely, his decision to adopt a medium residual functional capacity (RFC) instead of a light RFC as found by all of the non-examining agency physicians, [2] as well as the ALJ’s failure to explain why he credited Venturini’s testimony about his swollen hands but rejected other parts of his testimony, such as his testimony that he can lift only 10-15 pounds regularly. Venturini, however, is silent on these issues. Accordingly, in keeping with the rule that this court will not make a litigant’s arguments for him, this opinion addresses only the two objections that Venturini has raised in his brief. See 330 West Hubbard Restaurant Corporation v. United States, 203 F.3d 990, 997 (7th Cir. 2000) (“[I]t is not the obligation of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel.”); DeSilva v. DeLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) (“A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record.”); Barry Aviation, Inc. v. Land O'Lakes Municipal Airport Com'n, 336 F.Supp.2d 792, 802 (W.D. Wis. 2005) (quoting Central States, Southeast & Southwest Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808 (7th Cir. 1999) (“Arguments not developed in any meaningful way are waived.”). See also Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013) (rejecting as waived arguments not raised in the district court); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000) (“[I]ssues that are not raised before the district court are waived on appeal.”).

         The following facts are drawn from the certified transcript of the administrative record, dkt. 7:

         FACTS

         I. Background

         At the time of his administrative hearing, Venturini was 57 years old. He had worked continuously for 37 years, performing work as a machine operator, warehouse worker, automotive line worker and forklift operator. At the hearing, Venturini testified that he had stopped working because of physical limitations resulting from his rheumatoid arthritis, with which he had been diagnosed in December 2009. Venturini spent his time caring for his aging mother, with whom he lived in a single family home. His daily activities consisted of tending to his mother’s personal care needs, taking her to appointments and cooking meals for the two of them. Venturini drove, grocery shopped, did light chores around the house and yard and used the computer occasionally. He said he could be active for about 45 to 60 minutes before needing a break. Venturini estimated that he could lift 10-15 pounds on a regular basis and up to 50 pounds on occasion. Standing for prolonged periods of time caused his back to hurt for several days. His hands would swell up and hurt with activity such as walking, snow blowing or writing out Christmas cards.

         II. Medical Records and Opinions

         Treatment records show that after Venturini was diagnosed with rheumatoid arthritis, he was prescribed a treatment regimen that included a Humira injection pen, Advil, hydrocodone-acetaminophen, Plaquenil, prednisone and a methotrexate injection. This regimen of medications was effective: at a follow up visit in September 2010, Venturini denied bone or joint symptoms or weakness, gait disturbance or cold intolerance, and he reported that he was exercising two to three times a week. His doctor, Stephen Rudisill, M.D., examined him and found no swelling and no motor or sensory deficits; Venturini’s lab results were normal.

         In May 2011, Venturini returned to see Dr. Rudisill with complaints of pain, decreased mobility, difficulty sleeping, swelling, tenderness and weakness. Venturini admitted that he had stopped taking his medications over the past year because he was concerned about side effects. Dr. Rudisill prescribed Prednisone and referred Venturini to a rheumatologist, Dr. Dimitrios Fanopoulos.

         Venturini saw Dr. Fanopoulos on July 13, 2011. Venturini told Fanopoulos that he had been relatively stable until he stopped taking his medications over the past year. Venturini said his condition had deteriorated over the past five months and had become markedly worse over the two weeks before his visit; Venturini reported that he was having a lot of stiffness, pain in all joints and had difficulty sleeping, secondary to his pain. Dr. Fanopoulos noted significant swelling, stiffness and limited range of motion in multiple joints and a weakened grip. He gave Venturini injections of Depo-Medrol and Toradol and restarted Venturini on arthritis medications.

         Once again, Venturini’s symptoms decreased and his condition improved when he took his medications as prescribed. At a follow-up visit on August 25, 2011, Dr. Fanopoulos found that Venturini was doing better and his pain score was only 1.5. On examination, Dr. Fanopoulos noted improvement in synovitis in all the joints with only mild puffiness, and improvement in mobility and grip strength. His impression was that Venturini had “[s]ignificant improvement on his present medication.” Dr. Fanopoulos adjusted some of Venturini’s medications and scheduled a follow up visit in two months. However, the records in the court file do not show that Venturini ever saw Dr. Fanopoulos again.

         On November 2, 2011, Dr. Fanopoulos completed a Musculoskeletal Questionnaire on which he indicated that Venturini had significant work-related limitations. Reciting his findings from his initial examination on July 13, 2011, Dr. Fanopoulos reported that Venturini could: lift at most 10 pounds occasionally and five pounds frequently; stand and walk two hours and sit two hours a day, provided that he could alternate sitting and standing; and, use his hands ...


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