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Jacobson v. Berryhill

United States District Court, E.D. Wisconsin

March 7, 2017



          William C. Griesbach, Chief Judge

         The Plaintiff filed this action seeking judicial review of the decision of the Commissioner of Social Security denying her disability benefits. She claims that the ALJ erred in assessing the medical evidence, her credibility, her residual functional capacity (RFC) and her ability to return to past work. Finding no error and substantial evidence to support the decision, I affirm.

         I. Background

         This appeal is a review of the second iteration of the Plaintiff's claim for disability benefits. After a hearing in 2012, Administrative Law Judge Everstine denied disability benefits; the Plaintiff appealed. In September 2013, the Appeals Council remanded the case on the grounds that the ALJ had not adequately translated the Plaintiff's “moderate” mental limitations regarding concentration, pace, and persistence (CPP) into a residual functional capacity (“RFC”). (R. 125-126.) The case was assigned to ALJ Robert Bartelt, who conducted a second hearing in 2014. After this second hearing, however, and based upon the testimony of a medical expert at the second hearing, ALJ Bartelt found that the Plaintiff's limitations in CPP were only mild. Upon his consideration of all of the evidence, he concluded that the Plaintiff was not disabled. It is that decision the Plaintiff asks the court to review.

         The Plaintiff, aged 51 at the time of the 2014 hearing, suffers from a number of physical and mental issues, including pain from fibromyalgia, headaches, carpal tunnel, depression and anxiety, among others. She had last worked at a childcare facility but testified that she had to leave the job because various smells were making her headaches worse. (R. 67.) She stated that her worst condition was the daily migraines, and in addition to that she had two bulging disks in her cervical spine. In addition, her depression and anxiety had been conditions since her early twenties, and she had also suffered from carpal tunnel syndrome, for which she had surgery in 1991. (R. 69-70.)

         She stated that her migraines became unbearable in late 2009 after a change in her work situation and her belief that a supervisor was picking on her, which made things more stressful. (R. 71.) Although she continued to work for a few more months, she took family leave in March 2010 and ultimately was let go a few months later. She testified that the migraines were normally a “five” out of ten, but sometimes escalated to six or seven, at which point she would need to lie down in a dark room for a few hours and use a cool compress. (R. 73.) This occurred four or five days per week. At the hearing she appeared wearing a hat and dark glasses because the sunlight and fluorescent lights bothered her and made her eyes hurt. She also appeared for several physician visits wearing sunglasses.

         The Plaintiff also testified that she had pain due to fibromyalgia, having “18 points on me that all hurt . . . but mostly my elbow, my right elbow, hurts a lot . . . the more activity I do, the worse it hurts.” (R. 75.) For daily activities, she described a somewhat normal routine involving light cleaning, some laundry, and shopping, but she expressed a reluctance to drive a car due to side-effects of her medications, and she noted pain and an inability to lift a gallon of milk. (R. 76-78.) She attended church regularly, but had to “nap for the whole, entire afternoon” afterwards. (R. 78.) Her medications caused dry mouth, tiredness, dizziness and some clumsiness. (R. 80.) She stated that she could sit for a half hour and walk five or ten minutes. (R. 82.)

         ALJ Bartelt also called a medical expert at the hearing. Dr. Allen Hauer, Ph.D., a psychologist, reviewed the medical record and heard the testimony. (R. 89.) He first opined that although the Plaintiff had received a number of different mental health diagnoses over the years, including PTSD, major depression, anxiety disorder, and somatization disorder, he believed that the listing 12.04 was most appropriate. That listing included mood disorders, including dysthymic disorder, which he found the most apt description of her condition. He described it as a “low grade mood disorder, a depressive disorder” characterized by depressed moods, worry, tension, and feelings of pessimism. (R. 90.) Dr. Hauer was then asked about any limitations the Plaintiff would experience from her conditions, and he concluded that her mood disorder would impose no limitations on activities of daily living and only mild limitations in social functioning. She would also have only mild limitations in concentration, persistence and pace. (R. 91.) “I think there would be a mild restriction or loss in terms of her overall persistence and efficiency due to when her moods are low.” (R. 92.)

         A vocational expert also testified. He concluded that an individual of the claimant's age, experience, education and limitations (as hypothesized by the ALJ) would be able to perform the job of nursery school attendant. Such positions would allow the individual to wear sunglasses for light protection. (R. 98.) There would not, however, be any jobs available for someone who would be off-task one to five hours several days a week due to migraine headaches. (R. 99.)

         The medical record was less bleak than the Plaintiff's own testimony. For example, in a visit with Nurse Practitioner Marx on February 21, 2012, she denied any muscle or joint pain at all. (R. 1545.) In fact, most of her interactions with NP Marx and Dr. Carlson, her primary care physician, were limited to reviews of her cholesterol and fail to mention any fibromyalgia pain or other issues. (R. 1535: “She denies any muscle aches or fatigue.”) In another visit with Dr. Carlson, she reported having headaches “all the time” but then rejected his suggestion that she see get a second opinion to treat them. (R. 1533-34.) “Basically, her review of systems is floridly positive from head to toe. It is really hard to pin her down on any specific problems.” (R. 1533.) Eventually, when she asked him for a disability letter, he refused to provide one since he viewed her as not disabled. (R. 1606.)

         In his written opinion ALJ Robert Bartelt was mindful that the case had been remanded by the Appeals Council on the question of mental limitations, in particular the issue of translating the Plaintiff's moderate limitations in concentration, persistence or pace into a residual functional capacity. However, based on the testimony of the medical expert the ALJ enlisted, as well as his own independent review of the record, ALJ Bartelt concluded that the Plaintiff did not actually have any such moderate limitations. The ALJ concluded: “Pursuant to the testimony by the medical expert at the supplemental hearing, there is no ‘severe' mental impairment. Allen Hauer, Ph.D., testified that despite all the various diagnoses in the record, the only condition that he felt was present was a dysthymic disorder, characterizing it as a low grade mood disorder marked by a dysphoric mood, worry, motor tension and general feelings of discomfort and pessimism.” (R. 29-30.) The ALJ added:

Having reviewed the medical evidence and testimony, the undersigned finds himself to be in total agreement with Allen Hauer, PhD. While that may seem on its face to be a bit radical given the prior psychiatric treatment notes, the diagnoses by Robert Schedgick, Ph.D., and the residual functional capacity forms completed by the Wisconsin Disability Determination Services which conclude that claimant has a ‘severe' impairment, when really looking at the actual records there does not seem to be a whole lot of abnormalities on mental status examination, only a lot of complaints. . . . The undersigned defers to Allen Hauer, Ph.D., medical expert at the hearing, who unlike the Disability Determination Services has had the opportunity to observe claimant as well as to examine subsequent records since then.

(R. 30.)

         The ALJ further observed:

This case essentially comes down to the issues of pain and credibility and simply stated claimant is not all that credible. When factoring in both her physical complaints and her mental complaints and contrasting them with the actual medical records, it becomes quite clear that a certain amount of exaggeration exists not only in terms of the pain complaints, but also regarding claimant's claims of limitations in her activities. While her constant complaining at work may have worn thin on coworkers and prompted concerns by the parents of the children she was involved with, the question is does she have the physical and mental capacity to engage in competitive employment. Claimant had demonstrated such a capacity in the past and looking at the medical evidence in the file, the undersigned sees nothing since 2010 that would change that opinion.

(R. 30-31.)

         On that basis, the ALJ found that the Plaintiff could perform a range of light work, including her ...

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