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Misch v. Berryhill

United States District Court, E.D. Wisconsin

February 21, 2017

PEGGY MISCH Plaintiff,
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration Defendant.


          LYNN ADELMAN District Judge.

         Plaintiff Peggy Misch seeks judicial review of the decision of an administrative law judge (“ALJ”) denying her application for social security disability benefits. See 42 U.S.C. § 405(g). The court “will uphold an ALJ's decision if it is supported by substantial evidence, but that standard is not satisfied unless the ALJ has adequately supported his conclusions.” Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016). Because the ALJ did not do so here, I reverse and remand for further proceedings.


         A. Plaintiff's Application

         Plaintiff filed the instant application on June 11, 2012, alleging disability due to back, hip and leg pain, depression, and anxiety, with an onset date of November 7, 2011 (Tr. at 286, 345, 349), although she indicated that she stopped working in April 2009 because of her conditions.[2] (Tr. at 349.) In a function report, plaintiff alleged constant pain, for which she took Vicodin. (Tr. at 356.) She indicated that she could not sit or stand for long and had a hard time dressing and bathing. (Tr. at 357.) She prepared easy meals, and her husband did the cleaning and yard work. (Tr. at 358.) In a physical activities addendum, plaintiff indicated that she could sit for one hour, stand for 20 minutes, and walk for 10 or 15 minutes. Her doctor limited her lifting to 10 pounds. (Tr. at 364.)

         B. Medical Evidence

         On October 1, 2010, plaintiff saw Dr. Merle Rust, a neurosurgeon, regarding her complaints low back, hip, and left knee pain. Plaintiff reported that she had injured herself in June 2007 while bending over to pick something up; she felt a stabbing sensation in her back and soon developed anterior groin/left hip discomfort. She underwent extensive physical therapy and ended up having surgery. A September 7, 2010, MRI showed mild, multi-level degenerative disc change, as well as a small protrusion on the left side at ¶ 4-5. (Tr. at 471, 494-95.) She reported that she had stopped working due to pain. (Tr. at 471.) She took Vicodin sparingly for pain. On physical exam, she stood 5'4" and weighed 180 pounds. Straight leg raising was negative; hip rotation showed very mild restriction with some discomfort on external rotation on the left side; palpation of the back suggested mild tenderness in the paraspinal facet area with no obvious spasm; and gait was unremarkable. Neurologically, she showed full strength in hip flexion, knee extension and flexion. Dr. Rust suggested a left lower extremity EMG; he did not recommend immediate surgery.[3] (Tr. at 472.)

         On January 24, 2011, plaintiff saw Dr. Rachel Gronau to establish primary care. She reported an ongoing history of low back and joint pain, including in her knees and ankles. Her back had gotten worse over the past year, and she had been unable to work for two years. She took Vicodin as needed. She reported gaining about 40 pounds in the past year and a half due to inactivity related to pain, up from her usual 145. (Tr. at 475.) Dr. Gronau assessed chronic back pain, continuing Vicodin as needed. They also discussed weight loss strategies, including use of phentermine.[4] (Tr. at 476.)

         On February 18, 2011, plaintiff returned to Dr. Gronau, taking phentermine without side effects and having lost four pounds. She had not been able to do much exercise as her back flared after shoveling. Dr. Gronau recommended continued weight loss, which would help with her back and joint pains. She also recommended a walking or cycling program, or swimming. (Tr. at 479.)

         On March 21, 2011, plaintiff noted phentermine was not as effective the past two weeks. She did report more energy and feeling better overall, having lost another three pounds. She was trying to exercise but still had problems with chronic back pain and was limited in how much she could do. Dr. Gronau increased phentermine. (Tr. at 482.)

         On April 19, 2011, plaintiff again advised Dr. Gronau that she felt better overall with further weight loss. She had started a walking program but could not walk more than 15 minutes at a time due to her back and leg pain. (Tr. at 485.)

         On April 27, 2011, Dr. Bradley Fideler prepared a lumbar spine medical source statement, listing diagnoses of multiple level degenerative disc disease and spinal stenosis, with a poor prognosis.[5] As clinical findings, he cited the MRI showing degenerative disc disease, and he listed symptoms of pain, weakness, and inability to bend, twist, and lift. He indicated that plaintiff experienced chronic, severe pain, worse with activity, requiring use of narcotic pain medications. (Tr. at 513.) As positive objective signs, he checked reduced range of motion (limited bending/twisting), muscle spasm, abnormal gait, muscle atrophy, muscle weakness, impaired appetite, tenderness, and impaired sleep. Her medications caused side effects of dizziness, drowsiness, and nausea. She could continuously walk less than one block, sit for one hour, and stand for one hour; in an eight-hour workday, she could sit less than two hours and stand/walk less than two hours. She also required a job that permitted shifting positions at will. (Tr. at 514.) She had to get up and walk around every 60 minutes for 10 minutes. She also needed two to three unscheduled breaks of 10 minutes duration during a working day, as well as the use of a cane or assistive device while engaged in standing/walking. She could occasionally lift 10 pounds, never more; rarely twist, stoop, crouch, and climb stairs; and never climb ladders. Dr. Fideler assessed no limitations with reaching, handling, and fingering, other than the weight lifting limit. (Tr. at 515.) She would likely be off task about 20% of a typical workday due to symptom interference with attention and concentration. She would likely experience good days and bad days, and miss about four days per month as a result of her impairments or treatment. These limitations applied for the past two to three years. (Tr. at 516.)[6]

         On May 23, 2011, plaintiff returned to Dr. Gronau, continuing to take phentermine without side effects, reporting more energy and feeling better overall. She was on a walking program but was not able to walk more than 15 minutes due to her back and leg pain. (Tr. at 554.) Dr. Gronau increased phentermine. (Tr. at 555.) On July 20, plaintiff reported trying to increase her activity level, walking her dog and doing yard work. The yard work did flare her back up, and she requested a refill of Vicodin. (Tr. at 556.) On August 22, plaintiff reported doing well on her walking program except for the last two weeks. She felt ready to stop phentermine. (Tr. at 557.) She weighed 167 pounds that day. (Tr. at 558.)

         On September 27, 2011, plaintiff presented to Dr. Gronau for follow-up of her low back and left hip pain, which had recently been getting worse. She requested referral to neurosurgery. (Tr. at 559.) She was to see Dr. Craig Lyon in consultation of her hip pain, obtain a repeat MRI, then seek follow-up with neurosurgery. (Tr. at 560.)

         On October 10, 2011, plaintiff saw Dr. Lyon for evaluation of her left hip, which had been bothering her for several years. In 2008, she had a labral tear. In 2009, she had a left hip scope done for presumed impingement. The hip never significantly improved and had been worsening over the past year requiring use of Vicodin for pain control. She had difficulty rotating the hip, walking for long distances, and going up and down stairs. (Tr. at 520.) Dr. Lyon recommended total hip arthroplasty. (Tr. at 521.)

         Dr. Lyon performed the hip replacement surgery on November 7, 2011. (Tr. at 522.) Plaintiff's post-operative course was uncomplicated. She tolerated physical therapy extremely well and was tolerating oral medications on the evening of surgery. She had a very high pain tolerance and was discharged home on Percocet only on November 9 and would continue home physical therapy. (Tr. at 524.) According to a November 22 follow-up note, plaintiff was onto the cane, weaning herself off the Percocet onto Vicodin. She was going to start outpatient physical therapy. (Tr. at 526.)

         On November 28, 2011, plaintiff underwent a physical therapy evaluation, reporting functional limitations with walking, car transfers, sitting in a car, putting on sock/shoes, and stairs. (Tr. at 526-27.) She was ambulating but lacked hip flexibility and strength for functional mobility. (Tr. at 529-30.) She was to be seen once per week for six weeks. (Tr. at 530.) On December 6, plaintiff demonstrated increased left hip extension tolerance for gait phase. She had minimal pain complaints. She did lack hip strength and tended to deviate without use of an assistive device. (Tr. at 531.) On December 13, she was walking without an assistive device and had minimal trunk compensation. She did complain her whole body was aching that day. (Tr. at 532.) On December 27, she was ambulating with minimal deviation. She did have mild-moderate hip flexor tightness and continued lateral hip weakness. (Tr. at 533.) Plaintiff also saw Dr. Lyon that day, reporting the pain in the hip was much better than before surgery. She felt her strength was still improving. She was very pleased with the results thus far. (Tr. at 534.)

         On February 15, 2012, plaintiff returned to Dr. Lyon, “doing great with the hip.” (Tr. at 534.) She did report intermittent bouts of radicular-type symptoms with the lower back radiating around to the back of the leg. She had been taking Vicodin for pain control, which was not working as well as in the past. (Tr. at 534.) Dr. Lyon ordered a repeat MRI of the lumbar spine, started her on Medrol Dosepak, [7] and referred her to Dr. Rust for further evaluation. (Tr. at 535.)

         On March 2, 2012, plaintiff saw Dr. Rust, reporting great benefit from the left hip replacement with resolution of her deep groin, generalized hip, and thigh pain. However, she still had residual low back pain issues. In 2010, Dr. Rust appreciated a small disc bulge on the left side at ¶ 4-5, but EMG results were negative, so he refrained from recommending any surgery. A repeat MRI continued to show a small disc bulge, with no other new process or area of nerve root impingement. (Tr. at 519, 548-49.) Her exam again showed no focal weakness with knee extension, dorsiflexion, and plantar flexion demonstrating 5/5 strength bilaterally. Based on the unchanged appearance of the new MRI, Dr. Rust recommended conservative measures, including an epidural steroid injection. (Tr. at 519.)

         On March 2, 2012, plaintiff saw Dr. Gronau with concerns regarding weight gain. She had been doing well managing her weight until winter. She had hip replacement surgery and since then had been having more issues with her back pain, which restricted her activity level. She wanted to go back on phentermine, which Dr. Gronau provided. (Tr. at 632.) On March 30, plaintiff advised that she was scheduled at a local pain clinic to try some injections and possibly a facet block to help manage her pain. Dr. Gronau increased phentermine. (Tr. at 633.) On May 1, plaintiff again asked to increase phentermine, indicating that it effectively reduced her appetite, but she was not losing much weight due to her inability to exercise. She had started to walk for five minutes two to three time daily but could not go very quickly because of back pain. (Tr. at 633.) Her epidural injection had been canceled due to financial issues. (Tr. at 634.) On exam, she had normal gait, negative straight leg raise, and normal strength. No muscle atrophy was noted. Dr. Gronau advised plaintiff to notify Dr. Rust of her worsening back pain and perceived weakness in her left leg. Dr. Gronau did not notice any focal weakness on exam, but plaintiff recently had a left hip replacement and ongoing back issues so she may have some generalized weakness and de-conditioning issues. Dr. Gronau recommended a course of physical therapy. (Tr. at 635.)

         On June 7, 2012, plaintiff returned to Dr. Gronau for an annual exam. She had not been able to go for physical therapy or see a pain specialist for injections due to her financial situation. She also reported anxiety due to family issues. (Tr. at 635.) Dr. Gronau tried meloxicam for an anti-inflammatory to help with pain management.[8] Plaintiff also requested a functional capacity exam as advised by her lawyer to pursue disability. She was to use Vicodin sparingly as needed for severe pain. For anxiety, Dr. Gronau recommended a low dose of fluoxetine.[9] (Tr. at 637.)

         On June 26, 2012, plaintiff saw Dr. Jilaine Bolek Berquist, a rheumatologist, for evaluation of widespread body pain. She reported being uncomfortable if she had to sit too much and soreness when she had to get up; cleaning her house was quite difficult. She stated that if she lied down for too long she could not move her legs and had to sleep in a recliner. She had tried various medications, which did not help. (Tr. at 609.) On exam, she had 0 of 18 fibromyalgia tender points, but some crepitus of her knees bilaterally. Dr. Berquist assessed polyarthralgia, which she thought was a combination of multiple injuries to various joints and not due to something like fibromyalgia or inflammatory arthritis. (Tr. at 610.)

         On July 2, 2012, plaintiff underwent an occupational therapy evaluation, which assessed a functional ability level of light. (Tr. at 613-21.)

         On September 19, 2012, Dr. Gronau completed a residual functional capacity questionnaire, listing diagnoses of low back and left leg pain with a fair prognosis. She opined that plaintiff's pain and other symptoms would occasionally interfere with the attention and concentration needed to perform simple work tasks. (Tr. at 624.) Plaintiff could continuously sit for 30 minutes and stand for one hour; in an eight-hour day, she could sit for about two hours and stand/walk about two hours. She needed a job that allowed shifting positions at will. She could frequently lift less than 10 pounds, occasionally 10 pounds; occasionally twist, stoop, crouch, and climb ladders; and frequently rotate and extend her neck. (Tr. at 625.) She would have good and bad days, and miss one to two days per month due to her impairments or treatment. (Tr. at 626.)

         On October 31, 2012, plaintiff presented to Dr. Gronau with ongoing concerns of anxiety and obsessive-compulsive behaviors. She had been on fluoxetine for several months without improvement. Dr. Gronau discontinued fluoxetine and started luvox.[10] Plaintiff declined a pain clinic referral for her back due to financial concerns. (Tr. at 627.)

         On January 10, 2013, plaintiff returned to Dr. Lyon, reporting two falls in the past week, twisting her left knee both times. X-rays showed no effusion and preserved joint spaces. She ambulated with a normal heel-to-toe gait without any assistive devices. Dr. Lyon suspected a medial meniscal tear. (Tr. at 572.) He obtained an MRI to evaluate intra-articular structures. (Tr. at 573.) On January 18, Dr. Lyon noted that the MRI was consistent with patellofemoral chondromalacia. (Tr. at 573, 585.) They would try conservative treatment first, injecting the knee with cortisone. (Tr. at 573.)

         Conservative treatment options failed, and on January 29, 2013, plaintiff saw Dr. Gronau for pre-operative evaluation in anticipation of a left knee arthroscopy for patellar chondromalacia. (Tr. at 574.) On February 8, Dr. Lyon performed the surgery. (Tr. at 579-80.) On February 22, plaintiff reported doing well; the pain was improving, swelling going down, and motion coming back. (Tr. at 677.)

         On March 5, 2013, plaintiff presented to Dr. Gronau to discuss weight loss, wanting to get back on phentermine. Her knee and back pain had worsened as her weight increased. She was trying to wean off luvox, feeling her anxiety was well-controlled. (Tr. at 657.) Dr. Gronau started phentermine and continued to wean off luvox. (Tr. at 658.)

         On March 22, 2013, plaintiff returned to Dr. Lyon, reporting that she stepped awkwardly the other day and felt posterior buttock pain. (Tr. at 677.) On exam, she ambulated with a normal heel-to-toe gait without any assistive devices. Dr. Lyon assessed abductor and low back strain, providing a referral to a neurosurgeon and recommending conservative management for the strain. (Tr. at 678.)

         On April 2, 2013, plaintiff saw Dr. Gronau for follow up of her weight loss efforts. (Tr. at 655.) She had lost four pounds that month and was doing well with her exercise regimen, walking 10 to 15 minutes per day. (Tr. at 656.)

         On May 8, 2013, plaintiff returned to see Dr. Rust following a more recent MRI dated April 23, 2013, which continued to show a small foraminal bulge on the left side at ¶ 4-5. (Tr. at 652, 752-53.) It did not appear to cause significant nerve root compression. The remainder of the MRI was unchanged from the previous scan with no significant central or lateral recess impingement. Plaintiff had undergone a hip replacement and knee surgery, which helped her. She had no really well-defined radiating leg pain at that time. She complained of low back pain, which was aggravated by lying flat and bending. On exam, she had palpable tenderness as well as fixation of pain in the paraspinal area ranging from L3 down to S1 bilaterally. Slight bending and holding that position greatly accentuated her low back discomfort. Dr. Rust did not appreciate any significant weakness. He further indicated that he could not guarantee any benefit through a lumbar surgery, which was perhaps a good thing given her financial difficulties. (Tr. at 652.) He did indicate that a facet injection may improve her pain; she wanted to go ahead with this. (Tr. at 652.)

         On October 2, 2013, plaintiff saw Dr. Mark Gibson complaining of ankle pain. (Tr. at 735.) She walked into the exam room with no hesitancy, including movement up onto the exam table. She had mild tenderness in the calf and central ankle without swelling. She was to use Aleve and Vicodin as needed. (Tr. at 736.) An x-ray of the ankle showed degenerative changes but ...

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