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Akin v. Berryhill

United States District Court, E.D. Wisconsin

February 23, 2017

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


          William C. Griesbach, Chief Judge United States District Court

         This is 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.

         Akin 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.


         Akin 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) testified.

         At the 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.

         Akin 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.

         Akin 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.

         The 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.

         Medical 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.

         In 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.

         In the 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.

         Four 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.

         Akin 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. 266.

         On 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.

         In July 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.

         On 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.

         Akin 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.

         On May 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.

         In July 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.

         On 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.

         In 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.

         On 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.

         On 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 ...

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