United States District Court, E.D. Wisconsin
DECISION AND ORDER AFFIRMING COMMISSIONER'S
William C. Griesbach, Chief Judge United States District
an action for judicial review of the final decision of the
Commissioner of Social Security denying Plaintiff Rebecca
Akin's application for Supplemental Security Income (SSI)
under Title XVI of the Social Security Act. 42 U.S.C. §
405(g). Following the denial of her application initially and
on reconsideration, Akin requested a hearing before an
administrative law judge (ALJ). ALJ Charles Muhl conducted a
hearing on June 9, 2014, and on July 10, 2014, issued a
decision denying Akin's application. ALJ Muhl concluded
Akin could perform jobs that existed in the national economy
and was therefore not disabled. The Appeals Council denied
Akin's request for review making ALJ Muhl's decision
the final decision of the Commissioner.
challenges the Commissioner's decision because the ALJ
failed to follow Social Security Administration (SSA) rulings
and regulations. Akin claims that the ALJ committed
essentially three significant errors: failed to properly
weigh the opinions of her treating physicians and the state
agency physicians; failed to properly assess her credibility;
and failed to include all relevant limitations in her RFC.
Based on these errors, Akin argues that the
Commissioner's decision should be reversed and the case
remanded for further proceedings. Finding no error and
substantial evidence to support the Commissioner's
decision, I affirm.
resides with her husband, who receives social security
disability benefits due to diabetes, and two minor children
in Redgranite, Wisconsin. Family income consists of her
husband's disability benefits and child support payments
paid by her children's father. Akin applied for SSI on
May 14, 2012, stating that her disability began on December
1, 2008. R. 146. She was 41 years old at the time. She
claimed her fibromyalgia, rheumatoid arthritis, herniated and
bulging discs in her neck, migraines, carpal tunnel in both
wrists, restless leg syndrome, and poor sleep prevented her
from working. R. 174. After her application was denied
initially and on reconsideration, Akin requested a hearing.
An ALJ held a hearing in June 2014, at which Akin,
represented by counsel, and a vocational expert (VE)
outset of the hearing, Akin amended her onset date, through
counsel, to June 8, 2011, in consideration of the fact that a
prior application she filed on February 22, 2011, had been
denied on June 7, 2011. R. 40. Akin then testified that she
completed the eleventh grade of high school but took a CNA
class when she was twenty years old. R. 43. She worked as a
factory worker where she cut out material to make NFL
uniforms. R. 54. She also bartended and worked close to 40
hours per week. Akin testified she quit bartending in 2008
because she had trouble standing her entire shift. R. 55.
There is also evidence she was let go because the bar was not
making money. R. 174. In any event, Akin has not been
employed since that time. Id.
claimed she has constant neck and back pain and that her pain
is everywhere. R. 46, 51. She described her back pain as
“a burning kind of stabbing and then throbbing.”
R. 41. She explained that her neck pain flows up into her
head and down her shoulders and arms. R. 45. The neck pain
will eventually cause a headache, which occurs a couple times
a week. R. 46. She also testified about pain in her fingers
and hands. Id. Her hands go numb and she cannot
squeeze things tightly. R. 47. She claimed she has two sets
of braces she wears on both hands. R. 54.
claimed her back and neck pain prevented her from standing
for long periods of time. R. 48. She stated that the more she
does, the worse her pain gets. R. 52. She claimed she does
not use an assistive device but her husband and kids help her
get around. R. 49. She only goes to grocery stores where she
can use an electric cart. R. 48. If she has to do dishes or
cook, she pulls a chair up to the sink or stove. R. 49. She
indicated she could sit in a chair for an unlimited period of
time as long as she could shift around. R. 47-48. But when
asked if she could perform a job that required being seated,
she said she would be uncomfortable sitting in a regular
chair and could sit in a recliner a little longer. R. 59.
medications prescribed for Akin's ailments consist of
Gabapentin and Percocet for pain, ibuprofen for swelling,
Ropinirole for restless leg syndrome, Lidocaine patches to
prevent inflamation, and muscle relaxers. R. 52-53. She
testified that although her doctors suggested injections for
her back, she had not gone through with the procedure. R. 60.
documentation in the administrative record covers the period
between 2008 and 2014. In 2008, Akin saw Gretchen Tolsma, a
nurse practitioner, with complaints of leg cramping and hand
pain she believed were connected to rheumatoid arthritis. R.
312. After conducting numerous tests, however, the results
could neither rule in nor rule out rheumatoid arthritis.
Id. In January 2009, Akin complained of joint and
hand pain. R. 311. She reported that she took up to four
Advils for pain but was not getting any relief. Ms. Tolsma
referred her to a rheumatoid specialist. Id. Akin
reported back to Ms. Tolsma on February 5, 2009 complaining
of stiffness, neck pain, shoulder pain, wrist pain, hand
pain, hip pain, bilateral knee pain, headaches, and
dizziness. R. 357. Ms. Tolsma noted Akin had full range of
motion of her shoulder joints, elbow joints, and wrist
joints, though there was some tenderness in her shoulder
joints and upper back. R. 358. Ms. Tolsma prescribed Effexor
for her pain. Id.
2010, Akin began chiropractic treatment at Redgranite Family
Chiropractic. R. 303. At her initial appointment, Akin
complained of neck and lower back pain and migraines. She
claimed that she could not stand for more than five to ten
minutes at a time or walk for more than five minutes at a
time. She also reported difficulty doing housework or
cleaning. Id. Over the following five months, Akin
had fifty-one visits for manipulations. Throughout that
period of time, she generally reported having pain in either
her neck, back, hands, and arms. R. 290-303. Her chiropractor
noted “slow but steady” progress. At her last
visit on April 29, 2011, Akin indicated her pain was slightly
better with some pain intensity. R. 290.
meantime, in January 2011, Akin presented at the Valley
Neurology Clinic in Oshkosh, Wisconsin to establish care with
Dr. Ahmad Haffar. R. 268. She reported she was diagnosed with
fibromyalgia approximately two years prior. Though her stance
and gait were normal, Dr. Haffar noted she walked with a
slight limp. R. 269. He observed that she was limited with
the range of motion of her cervical spine as well as on
flexion, extension, lateral bending, and rotation. The range
of motion in her lumbar spine was normal. She had 12 trigger
points in her back. Dr. Haffar found she had symptoms of
fibromyalgia, demyelinating osteoarthritis of her cervical
and lumbar spine, and potentially rheumatoid arthritis. He
requested a neurodiagnostic study, sedimentation rate,
rheumatoid factor, ANA, and CRP. Id. The
electromyography study was compatible with active motor left
C6 root impingement and irritation. R. 273. Akin returned to
the Valley Neurology Clinic on February 22, 2011 complaining
of neck pains and headaches. R. 267. An electroencephalogram
showed diffuse nonspecific abnormalities. Dr. Haffar
recommended a steroid epidural injection, but Akin declined
to receive injections. Id.
days later, Akin met with Stacy Budde, a physical therapist,
at Berlin Memorial Hospital, to begin physical therapy. R.
328. She complained of neck and arm pain. Akin claimed that,
most of the time, she had a burning, aching pain in her neck
which started at the base of her skull and radiated across
both shoulders. Akin also reported that she had a constant,
deep aching pain in both of her arms which felt worse with
prolonged activity. She had been dropping things because of
the weakness in her right hand. She stated that she had worn
braces on her wrists for approximately one year. Akin further
complained that she got daily headaches that started in her
neck and wrapped around her head. Ms. Budde instructed Akin
to continue therapy twice a week for four weeks. Id.
presented to the emergency department at Mercy Medical Center
on March 18, 2011 complaining of headaches and neck pain that
were ongoing for a period of months. R. 429. She described
feeling electrical-like symptoms in her upper and lower
extremities that originated in her neck. Id. A CT
scan of her head without IV contrast revealed no intracranial
hemorrhage or acute intracranial findings. R. 431. X-rays of
her cervical spine revealed congenital fusion of C2 and C3 as
well as mild disc space narrowing and spurring at ¶ 5-6.
R. 432. She was prescribed Percocet to relieve her pain and
instructed to follow up with Dr. Haffar. R. 430. At
Akin's next visit to the Valley Neurology Clinic in April
2011, she complained of continued neck pain and headaches. R.
April 28, 2011, Akin returned to the Berlin Memorial Hospital
and rated her pain as a 6 to 7 out of 10. R. 331. She stated
that her shoulders were sore and that she got daily
headaches. Id. She returned to Berlin Memorial on
May 3, 2011, where she presented ongoing issues of joint
pain. R. 391. Dr. John Modrzynski observed that Akin had
increased pain when she moved her neck. Id. On the
same day, she saw Dawn Groves, a physical therapist, and
complained of pain in her head, neck, and arms. R. 332. She
reported numbness and tingling in her left hand. She claimed
she could only hold things with her right hand. Ms. Groves
instructed her to continue therapy. Id. The
following week, Akin saw Ms. Groves, complaining that she
continued to get headaches every day. R. 334. Ms. Groves
noted Akin needed to sit down and take breaks often. Akin
felt relief with electric stimulation. Ms. Groves again told
her to continue her therapy appointments. Id. On May
16, 2011, Akin stated that she did not feel any improvement
since starting physical therapy. She reported she continued
to have high pain levels with frequent headaches. Ms. Budde
noted Akin had poor tolerance and discontinued Akin's
physical therapy. Id.
2011, Akin returned to the Valley Neurology Clinic reporting
that her fibromyalgia acted up with warm and humid weather.
R. 399. She indicated her severe pain caused her to sit in
her recliner most of the day. Dr. Haffar increased her dose
of Gabapentin for the pain. Id. Dr. Haffar saw Akin
again on October 17, 2011, and then on February 14, 2012, for
rechecks and medication renewals. She continued to complain
of aches and pains in her joints, and examination showed
trigger points. R. 396-97.
March 4, 2012, Akin went to the emergency room with
complaints of severe back pain and generalized pain
associated with her fibromyalgia. R. 418. She claimed the
symptoms were alleviated by nothing and aggravated by any
movement. She had no spinal tenderness and had full range of
motion. Id. Akin was discharged home once her
condition was stabilized and received Percocet and
Prednisone. R. 419. The following day, Akin presented to the
Family Health Clinic to establish care with Laurie Van
Grinsven, a physician assistant. R. 408. She indicated that
her bones had hurt for months and that her hands, hips, and
toes ached. Her biggest goal was to increase mobility.
Id. Ms. Van Grinsven advised Akin to consult with a
specialist. R. 410.
did see a specialist, Dr. Thomas Bartow, on May 8, 2012. R.
402. Akin explained that for over a decade, she has had
significant musculoskeletal pain in every spot on her body.
She stated she had not worked for the last four to five years
because of the pain. She gained forty pounds in the past
year. R. 403. Dr. Bartow noted that her hand grip was good
and that her wrists, elbows, and shoulders moved well. R.
404. Dr. Bartow saw no evidence of inflammatory arthritis. He
observed that her fibromyalgia tender points were universally
positive. Dr. Bartow noted that Akin had iron deficiency
anemia which was strongly correlated with restless legs and
could also be a contributing factor to her generalized
malaise and fatique. Id. He also anticipated,
however, that she was never going to feel well, but her
fibromyalgia was something that could be dealt with and
managed. R. 405.
26, 2012, Akin returned to the Mercy Medical emergency
department, complaining of pain all over from a fibromyalgia
flare-up. R. 416. She had no spinal tenderness and had full
range of motion. She was discharged home after being
diagnosed with acute exacerbation of chronic pain and told to
follow up with Ms. Van Grinsven. R. 417.
2012, Akin reported to Dr. Haffar describing pain and
numbness in her lower back and her upper and lower
extremities. R. 442. Dr. Haffar noted she walked with a
pronounced limp and had multiple trigger points. He
prescribed morphine for her pain. Id. On August 2,
2012, an EMG showed mild neuropathy and active left S1 root
impingement. R. 441. At the end of August, Akin presented to
the emergency department complaining of breathing difficulty
caused by a severe cough and wheezing. R. 467-69. She
indicated she wanted to quit smoking, which was most likely
the precipitating cause of her bronchospasm. R. 467. Akin was
discharged on a course of Prednisone, antibiotics, and
inhalers until the bronchospasm completely resolved.
Id. On November 20, 2012, Akin reported to Dr.
Haffar, indicating she could not tolerate morphine. R. 440.
He renewed her other medications. Id.
January 13, 2013, Akin presented to the emergency department
complaining of pain in her shoulders, neck, and hips. R. 464.
She had moderate pain with any movement, but her symptoms
improved with medication. R. 465. She returned to the
emergency department in February 2013 complaining of pain all
over. R. 461. Her range of motion was preserved, but she made
very deliberate, slow movements. R. 462. Again, her symptoms
improved with medication. R. 463.
March 2013, Akin reported to Dr. Ryan Zantow at Thedacare
Orthopedics Plus Center for Rehabilitation Services
complaining of widespread full-body pain. R. 536. She
presented to the appointment in a wheelchair. R. 538. She
described the pain as a sharp, burning, aching, and throbbing
sensation located throughout her entire body, but
specifically involving her head, neck, chest, shoulders,
elbows, wrists, hips, thighs, and right foot. Akin stated she
was out of work because of the pain. R. 536. Akin noted her
treatments included land-based and aquatic-based physical
therapy. Dr. Zantow observed that she wore wrist splints
because of numbness and tingling in her right hand.
Id. Once the splints were removed, however, there
were no signs of active synovitis or swelling. R. 538. Dr.
Zantow did not observe any focal weakness in her arms or
legs. Nevertheless, he noted that Akin was hypersensitive to
even light palpation throughout any areas of her neck,
shoulder, or upper back. R. 537. Dr. Zantow indicated he was
unsure what he could offer her from a rehabilitation
perspective and concluded Akin would benefit from a
comprehensive pain treatment program. R. 538.
April 19, 2013, Akin presented to Dr. John Joseph at La
Clinica with widespread body pain and headaches. R. 523. She
complained of pain involving her neck, shoulders, upper
extremities, low back, and lower extremities. Dr. Joseph
noted that she continued to do poorly despite being on
multiple medications. Akin described her pain as a constant,
aching, stabbing, throbbing pain with occasional burning and
shooting. She reported frequent headaches that typically
started at the base of her head and radiated to the front.
She claimed that physical activity aggravated her pain while
medication and rest relieved it. Id. Akin stated
that her pain significantly interfered with her general
activity, mood, ability to walk, ability to do household
work, relationships with other people, sleep, and enjoyment
of life. R. 523. Dr. Joseph discussed pain management with
Akin, but she indicated she was quite hesitant to consider
any interventional treatments. R. 524.
October 10, 2013, Akin presented to the emergency department
with complaints of neck and back pain. R. 495. She indicated
her small dog jumped onto her shoulders and upper back
causing an episode of significant pain. She had generalized
tenderness over her posterior cervical spine with no focal
point tenderness. Her range of motion was painful. R. 496.
Akin's symptoms improved after receiving medication. R.
497. In November 2013, Akin appeared for a follow up at La
Clinica for her chronic pain. R. 504. She claimed that her
pain occurred with walking or standing in one position for
too long. She described her pain as burning and throbbing and
is only relieved ...