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Moritz v. Berryhill

United States District Court, W.D. Wisconsin

May 31, 2017

LINDA MORITZ, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          WILLIAM M. CONLEY District Judge.

         Plaintiff Linda Moritz seeks judicial review of an adverse decision of the Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g), which denied her eligibility for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) under Title II and Title XVI of the Social Security Act, codified at 42 U.S.C. §§ 416(i), 423(d) and 1614(a)(3)(A). Specifically, Moritz contends that the Administrative Law Judge (“ALJ”): (1) failed to evaluate her obesity consistent with Social Security Ruling (“SSR”) 02-1p; and (2) erroneously found her testimony not credible. While the ALJ did not specifically mention SSR 02-1p, the court finds that he met its requirements. In addition, the court finds that the ALJ made a proper credibility finding. Accordingly, the court will affirm the final decision of the Commissioner, adopting the ALJ's finding that Moritz was not entitled to DIB and SSI.


         A. Social Security Application

         On September 1, 2010, Moritz filed a Title II application for a period of DIB and a Title XVI application for SSI, alleging disability beginning August 28, 2010. Both applications were denied initially on December 27, 2010, and again upon reconsideration on May 23, 2011. (AR 84-92, 94-102.) A hearing to reconsider the denial of DIB and SSI was held on October 30, 2012, before ALJ Arthur J. Schneider, at which Moritz was both represented by counsel and also testified. (AR 117-122, 51-77.) The ALJ also heard and considered the testimony of Allen R. Searles, a neutral vocational expert.

         On December 18, 2012, the ALJ issued a written decision denying Moritz's application for DIB and SSI. (AR 19-32.) The ALJ found that although Moritz has severe impairments, including morbid obesity, she was not disabled within the meaning of the Social Security Act from August 28, 2010, through the date of the opinion. This decision became the final decision of the Commissioner of Social Security on April 5, 2014, when the Appeals Council declined Moritz's request for review of the ALJ's decision. (AR 1-3.)

         B. Overview of Medical Issues

         Generally, Moritz's medical record contains treatment notes for diabetes, muscle spasms and cramping, low back pain radiating down her left leg, and foot pain (possibly neuropathy from her diabetes). With that overview, the court provides the following summary of Moritz's medical record from 2009 until the date of the hearing in October 2012.

         The records reflect ongoing treatment for diabetes management and some blood pressure management from August 2009 to October 2012 at the Marshfield Clinic, with Dr. Sheehan providing direct care or at least oversight of nurse visits. During this time, Dr. Sheehan also performed periodic (at least once per year) diabetic foot exams, all of which were normal.

         In December 2009, Moritz was seen by Drs. Katherine Patterson, Verica Neskovic, and Swati S. Biswas for muscle cramping and back pain. All three physicians are with the Marshfield Clinic. At a December 2, 2009, appointment, Dr. Patterson noted that Moritz “does not appear to feel comfortable” due to low back pain, and she also mentioned that Moritz was considering applying for bankruptcy. Similarly, in a December 15, 2009, treatment note, Dr. Biswas found Moritz's back was tender to touch and her range of motion was restricted in certain respects, but had no significant abnormalities. Dr. Biswas further noted Moritz's interest in obtaining disability. Dr. Neskovic again saw Moritz on December 17, and after reviewing her history of muscle spasms, noted that her physical exam was normal, changed her medications to deal with the muscle cramps, and suggested therapy.

         In January 2009 and again in April of 2010, Moritz underwent nerve conduction studies, both of which showed normal results. She also again saw Dr. Neskovic in April 2010, again complaining of low back pain, this time with radiating pain down her left leg, muscle spasms and some tingling in her feet. Still, Dr. Neskovic noted a “normal physical exam” except for pain in her low back during straight leg raises. In response, Dr. Neskovic increased Moritz's pain medication. In April, Moritz also had an MRI of her spine. Another doctor, Gregory Peterman, reviewed the results of that MRI and, after comparing them to an earlier June 2007 MRI, noted “no significant interval change in the spondylosis at the lower thoracic spine with small disc protrusions and the degenerative fact hypertrophy in the lower lumbar spine.” (AR 707.) In May 2010, Moritz again saw Dr. Biswas as well. At that time, Moritz repeated her complaint of low back pain, radiating down her left leg. The notes from that appointment reflect yet another normal physical exam. Still, Moritz discussed her continuing interest in pursuing a disability claim, although Dr. Biswas noted that he didn't think she would qualify.

         Also beginning in May 2010, Moritz began seeing Dr. Poole, a podiatrist, to address her foot pain. At a May 17 appointment, Poole discussed the possibility of plantar fasciitis surgery. Moritz had that surgery in June 2010, after which Dr. Poole noted that she was healing well at two post-operation appointments, the latter occurring approximately three weeks after surgery. Moritz denied having any pain. On August 4, 2010, she requested a note from Dr. Poole stating she could wear tennis shoes to work as she was starting a new job on August 23, 2010.

         Despite the seemingly positive results of the foot surgery, Moritz presented at the Aspirus Wausau Hospital Emergency Room complaining of foot pain on August 30, 2010. In early September 2010, Moritz also called Dr. Poole and the offices of Dr. Marie A. Tomasi, also with the Marshfield Clinic, now complaining of severe foot pain, and specifically noting a burning feeling. On September 13, 2010, Moritz saw Dr. Neskovic. The notes reveal that Moritz complained of burning foot pain at that appointment as well, though she noted that her muscle cramping was fairly well controlled with medication and “denie[d] having significant low back pain at present.” (AR 404.)

         In October and November 2010, Moritz returned to Dr. Poole regarding her foot pain. Poole's treatment plan included new orthotics, for which Moritz was subsequently fitted in December. Despite those orthotics, Moritz complained in a January 2011 phone message to her doctor's office that it felt like she was “walking on hot coals.” (AR 535.) The burning foot pain, however, appears to have subsided by March 28, 2011, because in an appointment with Dr. Neskovic on that date, Moritz reported that the ...

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