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Geer v. Berryhill

United States District Court, E.D. Wisconsin

March 23, 2017

SHARON GEER, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.


         On June 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.

         The 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 “asthma/heart attack/arthritis/back/carpal 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.

         Most of 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.

         On 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.

         Plaintiff 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.

         Based 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 unchanged. Id.

         In the 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.

         With 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.

         Plaintiff 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. 483-84.

         Also in 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. 419-24.

         In June 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.

         On 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.

         At her 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 ...

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