United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
Cassandra Lemke seeks judicial review of a final decision of
Nancy A. Berryhill, Acting Commissioner of Social Security,
finding her not disabled within the meaning of the Social
Security Act. The court heard oral argument on July 20, 2017.
As discussed at oral argument, Lemke endured a number of
injuries during the period of alleged disability that at
times interfered with her ability to work. But the question
for the court is whether the ALJ's decision that Lemke
was not disabled for the entire period at issue is supported
by substantial evidence. For reasons explained during oral
argument and summarized here, the court will deny Lemke's
motion for summary judgment and affirm the Commissioner's
suffers from obesity, carpal tunnel syndrome, degenerative
joint disease in both knees, hyperlipidemia, vitamin D
deficiency, obstructive sleep apnea, and depression. She
injured her right knee in a fall in March 2010, which she
alleges is the onset of her disability. She also injured her
left knee in August 2013. She has undergone bilateral knee
surgery and carpal tunnel release surgery. The ALJ determined
that Lemke had the residual functional capacity (RFC) to
perform sedentary work with additional limitations. R.
She found that although Lemke had no past relevant work,
there were jobs in the economy that she could do. R. 29.
Lemke contends that the ALJ erred in finding her not disabled
for five reasons: (1) she failed to consider Lemke's
carpal tunnel syndrome; (2) she failed to perform a
function-by-function assessment; (3) she failed to adequately
weigh November 2013 and January 2014 notes by Lemke's
treating orthopedist, Thomas Kaiser, MD; (4) she failed to
adequately weigh parts of the opinion of Lemke's treating
primary care physician, Jeffrey E. Eichten, MD; and (5) she
failed to include the use of an assistive device in her RFC
described Lemke's status post carpal tunnel syndrome
surgery and found that it was a severe impairment, but noted
that she had recovered. The record supports this description.
R. 1824. The ALJ accounted for Lemke's status post carpal
tunnel syndrome surgery in the RFC, finding that she was
limited to frequent, not constant, fine and gross
manipulation with her upper extremities. The ALJ did not err
in her consideration of Lemke's carpal tunnel syndrome.
found an RFC of sedentary work with additional limitations,
but did not specifically discuss Lemke's ability to sit,
stand, walk, carry, push, or pull. Lemke contends that the
ALJ erred by failing to make an express determination about
Lemke's ability to perform these tasks. But sedentary
work is defined as lifting no more than 10 pounds at a time,
occasionally lifting and carrying light objects, and walking
and standing only occasionally. 20 C.F.R. § 404.1567(a).
So the RFC itself ALJ accounts for Lemke's limitations in
these functions. The only function that is not specifically
defined under sedentary work is sitting, so someone capable
of sedentary work must be capable of sitting for eight hours.
Bu Lemke points to no evidence in the record to show that she
was at all limited in her capacity to sit. The ALJ's
failure to expressly set out that Lemke could sit for eight
hours is not reversible error.
contends that the ALJ did not properly credit Dr.
Kaiser's notes from November 2013 and January 2014, both
of which indicate that she was “unable to work”
for an unspecified amount of time. R. 647, 2138. But by
October 2014, Dr. Kaiser opined that Lemke was capable of
sedentary work. The ALJ gave the November 2013 and January
2014 notes little weight because they were “explicitly
temporary” and provided for Lemke's worker's
compensation claim. R. 25. The ALJ gave the October 2014
opinion controlling weight because Dr. Kaiser was Lemke's
treating physician and the opinion was supported by objective
medical evidence and consistent with other substantial
evidence. The ALJ did not err in giving little weight to Dr.
Kaiser's earlier notes because they were not shown to be
permanent-that is, there was no indication that Lemke would
be unable to work for more than one year. Dr. Kaiser's
later opinion, on the other hand, was made when Lemke's
restrictions had stabilized.
contends that the ALJ erred in rejecting two of Dr.
Eichten's opinions: (1) Lemke must miss four or more days
of work per month because of medical appointments; and (2)
Lemke can rarely stoop. The ALJ gave Dr. Eichten's
opinion partial weight but explicitly rejected Dr.
Eichten's four-day assessment because it was not
supported by medical evidence and was not consistent with the
record. The four-day issue is critical, as missing four days
of work a month effectively precludes full-time employment,
so the ALJ appropriately scrutinized that assessment. The
parties agree that Dr. Eichten did not point to medical
evidence to support his assessment. The record indicates that
at least in some months during the period at issue, Lemke
attended medical appointments several times a week, but the
record does not support Dr. Eichten's assessment that
Lemke would miss four or more days of work per month
permanently. The ALJ's rejection of Dr.
Eichten's four-day assessment is adequately explained and
consistent with the record.
Dr. Eichten's opinion that Lemke can rarely stoop, the
ALJ gave Dr. Eichten's opinion partial weight, but then
found that Lemke can stoop “occasionally” in the
RFC. R. 16. “Occasional” means up to one-third of
the time, so the ALJ erred in making that finding. But the
error was harmless because, based on information in the
Dictionary of Occupational Titles, none of the occupations
proposed by the Vocational Expert (VE) for Lemke required any
stooping. So even if the ALJ had correctly limited
Lemke's stooping to rarely in the RFC, she still would
not have found Lemke disabled.
Lemke contends that the ALJ erroneously failed to include an
assistive device in her RFC. The record does not establish
that Lemke consistently required an assistive device to walk.
But even if it did, the use of an assistive device would not
preclude employment in the three occupations proposed by the
VE. The VE testified that a person who used a walker- among
the more restrictive types of assistive devices-would still
be able to perform work in the national economy. R. 57. The
fact that the ALJ did not explicitly list an assistive device
in Lemke's RFC is not a basis for remand.
IT IS ORDERED that the decision of Nancy A. Berryhill, Acting
Commissioner of Social Security, denying plaintiff Cassandra
Lemke's application for disability benefits is AFFIRMED
and Lemke's appeal is DISMISSED. The clerk of court is
directed to enter judgment in favor of the defendant and
close this case.
 Record citations are to the
administrative record, ...