United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE.
Sharon Geer brought this action challenging the decision of
the Commissioner of Social Security denying disability
benefits. She claims that the ALJ erred in failing to
properly assess and assign controlling weight to the opinion
of her treating Rheumatologist and in failing to assign any
weight to the conclusions set forth in an unsigned Functional
Assessment Rating (FAR) form provided by the Wisconsin
Division of Vocational Rehabilitation as part of a
psychological evaluation. Plaintiff also claims that the
ALJ's credibility determination is not supported by
substantial evidence. For the reasons given below, I conclude
that the ALJ erred in failing to explain why no weight was
given to the FAR. For this reason, the decision of the
Commissioner will be reversed and remanded. On remand, the
ALJ is also directed to provide a more complete explanation
for his credibility assessment.
7, 2012, Plaintiff filed her applications for Social Security
Disability Insurance Benefits and Supplemental Security
Income, alleging disability with an onset date of January 1,
2011. A previous application was denied on January 4, 2008,
on initial determination with no further appeal. With respect
to her 2012 application, Plaintiff identified the conditions
that limited her ability to work as chronic asthma, major
feet problems, vision problems, nerve damage in her brain,
and major headaches. R. 230-31. In a Function Report
submitted on July 20, 2011, after her alleged onset date but
before the 2012 application, Plaintiff described how her
illnesses, injuries, or conditions limit her ability to work:
“feet hurt, can't walk much or put weight on feet,
back pain makes it hard to stand or lift, can't see well,
hip hurts when sitting too long.” R. 207. She said she
could only walk five minutes before she would have to rest
ten minutes and could only lift five pounds. R. 212. She was
living with her daughter and her family in a trailer home at
the time, and her day consisted of watching television,
making coffee, washing dishes and laundry, playing with her
grandchildren, and taking a nap. She stated she stayed in her
room and watched television a lot. R. 208. Her only
medications consisted of an inhaler and Tylenol. R. 214.
medical record dates back to November 2007, when Plaintiff,
then a resident of Texas, apparently filed her first
application for disability benefits on allegations of
tunnel.” R. 283. Plaintiff was seen by Dr. Raj Saralaya
in Amarillo and provided a history of steadily worsening low
back pain, arthralgias, bilateral foot pain, migratory pain
in her hands and wrists, and asthma (though she continued to
smoke a pack per day). Plaintiff also claimed she had been
hospitalized for a heart attack in March 2006, but had no
chest pain since. R. 284. The physical examination performed
by Dr. Saralaya was essentially normal, as were the x-rays
taken of her spine. R. 285-90.
the medical records in the file concern Plaintiff's foot
problems. An October 2008 x-ray report notes hallux valgus
and bunion deformity on her left foot with soft tissue
swelling and edema noted. If symptoms persisted, additional
imaging was recommended for further evaluation. R. 306. On
July 25, 2012, a disability consultative examination was
performed by Dr. Hector Ortiz in response to Plaintiff's
current application alleging disability due to asthma, pain
in her left foot, decreased vision, and headaches. R. 311-13.
Plaintiff was then smoking two packs per day, despite her
complaints of asthma, and gave a history of having broken her
left foot in 1976. R. 311. Plaintiff's claim that she
fractured her foot in 1976 is noteworthy in light of the fact
that x-rays of her left foot in 2008 revealed no evidence of
a fracture, old or new, and the accompanying report indicates
no history of a prior injury to the left foot. R. 306-09. In
any event, Plaintiff stated that the pain in her left foot
had been going on for several years and was getting worse.
She said the pain was aggravated by tight shoes and heels,
and by standing and walking, and was associated with swelling
on the lateral aspect of the foot and ankle and stiffness of
the ankle along with pins and needles sensations in the foot.
R. 311. She also reported a history of headaches, for which
she took Tylenol, and blurry vision with the left eye worse
than the right. She indicated she was supposed to wear
glasses but could not afford them. Id.
exam, Dr. Ortiz noted Plaintiff's gait was slow and
unsteady with difficulty standing on her left heel and toes.
Bending forward caused back and left hip pain, but straight
leg raising was negative with alignment and position of legs
being bilaterally symmetrical. R. 314. Plaintiff had some
restriction of range of motion in her spine and left ankle
and toe, but normal range of motion in her other extremities.
She had 5/5 strength in all muscles of upper and lower
extremities on restricted maneuvers, and there was no
evidence of fasciculations (twitching), atrophy, or rigidity.
Her deep tendon reflexes were symmetrical, her grip was 5/5
bilaterally, and her fine finger movements were normal. Her
sensory exam was also normal in intact to light touch, pin
and position. R. 314-15. Chest x-rays revealed her cardiac
size and pulmonary vascularity were normal. R. 318.
was next seen on August 17, 2012, for a complaint of injury
to her left foot. X-rays confirmed the bunion reported
previously, but there was no evidence of osseous or soft
tissue injury to the foot. R. 321. X-rays of the right foot
taken at the same time also showed no evidence of injury and
a normal right ankle. R. 322.
on a review of this record, Dr. Leigh McCary, a consulting
physician, concluded on September 12, 2012 that Plaintiff was
capable of light work with only minor postural limitations
and that she could walk, stand, and sit for six hours of an
eight-hour day. R. 347-54. Dr. McCary found that the severity
of the symptoms Plaintiff alleged were not supported, and
that while she had a hallux deformity, there was no evidence
of neuropathy. Dr. McCary specifically found that
Plaintiff's walking limitations were unsupported. R. 354.
An examination or record review in November 2012 by Dr.
Theresa Fox indicated no evidence of statutory blindness. R.
373. As a result, on March 12, 2013, the previous
determination that Plaintiff was not disabled and was capable
of performing her previous work as a housekeeper was left
meantime, in February 2013, Plaintiff moved in with her
brother in Menasha, Wisconsin. R. 73. On February 15, 2013,
Plaintiff presented at the Fox Cities Community Clinic for an
annual physical and to establish care at her new residence.
R. 486. She was seen by Advanced Practice Nurse Practitioner
(APNP) Ryan Gerhartz. Plaintiff was blind in her left eye and
had cataracts in her right. She gave a history of a heart
attack four years ago, but NP Gerhartz noted no chest pain,
palpitations or abnormal pulse and there was no ankle edema.
She reported a history of asthma, but denied cough, wheezing
or shortness of breath, and was again down to smoking a pack
a day. Under review of musculoskeletal system, NP Gerhartz
listed “possible arthritis of right foot and
knees.” And under neurologic, NP Gerhartz noted
“reports facial pain all over, seen in Texas
-Trigeminal Neuralgia.” Id.
respect to the latter diagnosis, the only medical record
dealing with facial pain from Texas is a report dated April
15, 2011, indicating Plaintiff went to the emergency room at
a hospital in Amarillo, Texas on that date with a chief
complaint of headache in the left eye and forehead area of
her face that started the preceding day and was of moderate
severity. She denied having experienced similar symptoms
previously. R. 296. Although other parts of the same report
indicate that Plaintiff rated the pain at ¶ 10 and
denied that it was a headache, R. 294-95, she was discharged
home the same day with a clinical assessment of acute
headache. R. 297. No other records from Texas address this
type of headache, nor do they carry a diagnosis of trigeminal
neuralgia. Yet, NP Gerhartz apparently concluded from what
Plaintiff told him that she had been diagnosed with
trigeminal neuralgia when she lived in Texas, R. 488, and the
diagnosis has been repeated in the clinic's records
since. Plaintiff also told NP Gerhartz that she had only
taken Ibuprofen for the condition, but explained that she had
ulcers and so it was bad on her stomach. NP Gerhartz
therefore decided to try gabapentin for Plaintiff's
trigeminal neuralgia and start Plaintiff back on Albuteral
and Advair for her asthma. Id.
returned to the clinic on March 13, 2013, for a follow-up on
her asthma and concerns with joint and hip pain. She noted
significant improvement in her asthma with the Advair and
Albuteral, noting she had not had any severe asthma attacks
and that her breathing was better overall. She complained of
pain in the left hip/buttock area causing numbness and pain
down the back of her leg. She also noted pain in both knees
which she attributed to arthritis. Finally, she reported she
had stopped taking the gabapentin for her trigeminal
neuralgia because of the side effects. R. 482. Upon
examination, NP Gerhartz found her back symmetrical with
normal range of motion and negative straight leg raising. He
prescribed a muscle relaxant and a dose of prednisone for the
hip/buttock pain and meloxicam for her knee pain. NP Gerhartz
also switched her gabapentin to tramadol for her trigeminal
neuralgia and told her to follow up in three months. R.
March 2013, Plaintiff was referred to Affinity Medical Group
for an ophthalmologic exam by an optometrist at Walmart
because of her “extensive cataracts.” The
examination revealed extensive cataracts causing her
decreased vision and legal blindness in the left eye. R. 426.
An extraction procedure was performed in April, and by May
14, 2013, she had 20/20 corrected vision in each eye. R.
2013, Plaintiff was seen by Dr. David Miller, a podiatrist,
for her foot pain. Plaintiff reported difficulty finding
shoes that would fit because of the hallux deformity and
noted that it caused her to alter her gait and pain as well.
Dr. Miller recommended outpatient surgery on each foot,
beginning with the left, to decrease pain and increase her
ability to stand throughout the day. R. 417. The first
surgery was performed on June 17 and the second on August 26,
2013. R. 411, 447. Post operative reports for both procedures
noted the alignment of the metatarsal joint was stable and
Plaintiff progressed as expected to full weight-bearing. R.
412, 447-69. At her final post operative visit on November
14, 2013, she was doing significantly better and was happy
with her progress. Incisions on both feet had completely
healed, she had good muscle tone, and x-rays revealed solid
fusion of the joints. R. 505.
October 17, 2013, Plaintiff returned to the Fox Cities
Community Health clinic for a follow-up on her complaints of
arthritis and neck pain, the latter which she attributed to a
car accident years ago. She complained that her arthritis was
getting worse and felt like it was in every joint. She wanted
to know about seeing a Rheumatologist. R. 475. NP Gerhartz
referred her to Dr. Kent Partain, a Rheumatologist, who saw
her on October 31, 2013.
initial consultation with Dr. Partain, Plaintiff recounted a
history of “gradually seemingly inspissated onset of
pain about the muscles, bones, and joints” that seemed
to cover her entire body. She reported her symptoms
intensified with cool, damp changes in the weather. At the
time of examination, she complained of midcervical spine pain
and said that “all movements are uncomfortable with
perhaps some reduced mobility.” She reported pain along
the superior border of the trapezius, the muscles between and
overlying the scapula, and mid paralumbar spine pain that was
exacerbated with flexion and extension with reduced mobility.
She claimed she found it difficult to comfortably stand for
about five minutes at a time, citing a numbing shooting pain
down the posterolateral aspect of the left leg, typically to
the knee, at times to the ankle. She reported this may occur
up to once or twice daily for up to five to ten minutes at a
time. Plaintiff complained of pain along the left lower
costal margin. She had crepitus about the shoulders without
loss of mobility and pain along the medial aspect of the left
elbow without redness, warmth, swelling, or loss of mobility.
She also reported pain in the region of the recently fused
MCP joints, discomfort about the tops of her hands, and
numbness of both hands when holding a phone, driving a car,
or at night. There was also crepitus and pain around the
kneecaps, and she reported intermittent locking two to three
times a week for up to 10 to 20 minutes. She also claimed her
knees occasionally gave way on her; she had reduced hearing;
episodes of dizziness or lightheadedness at least two to
three minutes daily; sinus congestion; chest discomfort,
particularly when excited, on almost a daily basis; swelling
of the ...