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Radosevich v. Berryhill

United States District Court, E.D. Wisconsin

September 18, 2017

HEIDI RADOSEVICH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER AFFIRMING COMMISSIONER'S DECISION

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Heidi Radosevich filed this action for judicial review of the decision of the Commissioner of Social Security denying her disability insurance benefits under Title II of the Social Security Act. She claims that the decision is not supported by substantial evidence and violates several of the Commissioner's own rules and regulations. For the reasons given below, the decision of the Commissioner will be affirmed.

         BACKGROUND

         Plaintiff lives with her husband and two children in Green Bay, Wisconsin. R. 61. On October 17, 2012, Plaintiff, age 46 at the time, completed an application for disability and disability insurance benefits with her alleged disability beginning January 9, 2007. She listed low back injury, fibromyalgia, depression, anxiety, attention deficit disorder (ADD), insomnia, and migraines as the conditions that limited her ability to work. R. 209. Plaintiff previously worked at United Healthcare as a sales and service representative. R. 62. The company terminated her employment on July 22, 2009 because she was unable to work full-time. Id. Plaintiff ultimately amended her alleged onset date to July 22, 2009. R. 304. The Social Security Administration (SSA) denied Plaintiff's application for benefits on April 23, 2013. After her application and request for reconsideration were denied, Plaintiff requested an administrative hearing. ALJ Barry Robinson held a hearing on November 17, 2014. R. 33. Both Plaintiff, who was represented by counsel, and a vocational expert (VE) testified at the hearing. R. 56-88.

         In an 18-page decision dated January 26, 2015, the ALJ determined Plaintiff was not disabled. R. 33-50. The ALJ's decision followed the SSA's five-step sequential process for determining disability. At the first step, the ALJ concluded Plaintiff met the insured status requirements and had not engaged in substantial gainful activity since July 22, 2009, the amended alleged onset date. R. 37. At step two of the disability analysis, the ALJ found Plaintiff had the following severe impairments: fibromyalgia; degenerative disc disease of both the cervical and lumbar spine; and mental impairments diagnosed as depression, anxiety, and ADD. Id. Although the ALJ found that her migraines were nonsevere, he considered this condition in his assessment. R. 38.

         At step three, the ALJ determined that Plaintiff's impairments did not meet or medically equal any listed impairments under 20 C.F.R. § 404, Subpart P, Appendix 1. Id. The ALJ found that Plaintiff's degenerative disc disease did not meet the requirements of listing 1.04 because the record did not contain evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in an ability to ambulate effectively. Id. He concluded that Plaintiff's fibromyalgia did not meet or equal any of the Listed Impairments contained in Appendix 1, Subpart P, Regulations No. 4. R. 39. He further found that Plaintiff's headaches did not meet the level of severity required by any listing in Section 11.00 of the Neurological System. On the question of mental impairments, the ALJ also concluded Plaintiff had moderate restrictions in activities of daily living as well as moderate difficulties in concentration, persistence, or pace but found that her mental impairments were not so severe as to meet or medically equal the criteria of listings in 12.04 and 12.06. Id.

         The ALJ determined Plaintiff had the following residual functional capacity (RFC): “the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except the claimant can perform simple, routine, and repetitive tasks, performed in a work environment involving only simple, work related decisions, and with few, if any, work place changes.” R. 40-41. The ALJ found at step four that Plaintiff was unable to perform any past relevant work. R. 47. Nevertheless, he determined that based on her age, education, work experience, and the RFC that there were a significant number of jobs existing in the national economy that Plaintiff could perform. R. 48. Accordingly, the ALJ concluded Plaintiff was not disabled. R. 50.

         LEGAL STANDARD

         The statute authorizing judicial review of decisions of the Commissioner of Social Security states that the findings of the Commissioner as to any fact, “if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is “such relevant evidence as a reasonable mind could accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and his conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the SSA's rulings and regulations in making a determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006). In reviewing the entire record, the court does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Campbell v. Asrue, 627 F.3d 299, 307 (7th Cir. 2010)).

         ANALYSIS

         Plaintiff asserts that the ALJ committed seven errors requiring reversal: (1) the ALJ failed to properly evaluate the opinions of her treating physician; (2) the ALJ failed to adopt the limitations provided by the consultative psychological examiner; (3) the ALJ failed to properly evaluate and weigh Plaintiff's statements about the limiting effects of her symptoms; (4) the ALJ failed to properly assess the statements of her friends and family members; (5) the ALJ failed to properly evaluate the opinions of the state agency physicians; (6) the ALJ did not fully inform the vocational expert about Plaintiff's limitations; and (7) the ALJ did not rely on a fully-informed VE and substantially supported RFC in making his determination. I will address each claim of error, but because Plaintiff's claim rests primarily upon her own statements, I will begin there.

         A. Evaluation of Plaintiff's Statements

         Plaintiff claimed she was disabled due to a variety of impairments, including low back injury, fibromyalgia, depression, anxiety, attention deficit disorder, insomnia, and migraines. R. 41 (citing R. 209). Until July 22, 2009, she worked as a Sales and Service Representative for Medicare Supplemental Insurance Plans for United Healthcare Insurance Company. R. 62. She was terminated due to performance problems, which she attributes to her impairments, id., although she also believes it was due to her pending claim against the company. R. 208.

         As recounted by the ALJ, Plaintiff testified that she can sit for 30 minutes at most before she must lay down or stand for 15 minutes; she can stand for 20 to 30 minutes and walk for ½ of a block to a block. Her husband works outside the home, and she has two high school aged sons who take care of the family pets. Plaintiff testified she has difficulty lifting a gallon of milk and had severe pain, weakness and numbness in her hands such that she cannot open containers. She testified she could not reach above her head due to radiating pain. She suffers from degenerative disc disease in her back into her legs, and muscle spasms in her legs, arms and whole body. She also testified she suffers from frequent falls caused by her fibromyalgia and her legs giving out. She has tried ultrasound, cold laser therapy, chiropractic treatment, and physical therapy, but her whole body pain persists, and the medications she has taken counteract and have caused lethargy and sleepiness. R. 41-42.

         As to her mental condition, Plaintiff testified that she suffers from depression, anxiety and attention deficit disorder. She testified that she does not leave her house, and that she has memory problems and difficulty concentrating. She also suffers from panic attacks. R. 43. Plaintiff testified that since she filed her claim, her symptoms have worsened. She suffers from fog, memory loss, muscle weakness, fatigue, foot numbness, irritable bowel syndrome, and more frequent migraine headaches. R. 41. Because of these symptoms, Plaintiff claims she is unable to perform any substantial gainful employment.

         The Social Security regulations distinguish between symptoms, signs and laboratory findings. 20 C.F.R. § 404.1529. Symptoms, such as pain, fatigue, shortness of breath, weakness or nervousness, are the claimant's own description of her impairments. Id. §§ 404.1529(a)-(b). “Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms).” Id. § 404.1529(b). Signs are shown by medically acceptable clinical diagnostic techniques. Id. Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques such as chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests. Id. § 404.1528(c).

         The regulations set forth a two-step procedure for evaluating a claimant's statements about the symptoms-her subjective complaints-allegedly caused by her impairments. See 20 C.F.R. § 416.1529. The ALJ first determines whether a medically determinable impairment “could reasonably be expected to produce the pain or other symptoms alleged.” Id. § 404.1529(a). If so, the ALJ then “evaluate[s] the intensity and persistence” of the claimant's symptoms and determines how they limit the claimant's “capacity of work.” Id. § 404.1529(c)(1). In evaluating the intensity and persistence of a claimant's symptoms, the ALJ looks to “all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating and nontreating source, or other persons about how your symptoms affect you.” Id. The ALJ also considers medical opinions. Id. The ALJ then determines whether the claimant's statements about the intensity, persistence, and limiting effects of her symptoms are consistent with the objective medical evidence and the other evidence of record. SSR 16-3p.

         On judicial review of the ALJ's decision, the court is not to reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its judgment for that of the Commissioner. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). Because the ALJ is in the best position to determine the credibility of witnesses, the court reviews that determination deferentially, although its review is less deferential when the credibility determination is based upon objective factors, as opposed to subjective considerations. Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). Still, the question is not whether the court agrees with the ALJ, or whether the ALJ's analysis eliminates all possibility of error. Given the non-adversary nature of the disability adjudication process, the latter standard could seldom be met. In many cases, especially the relatively small percentage of the total claims that go to hearing, the determination of the claimant's true functional capacity rests primarily on the claimant's description of her symptoms offered either directly through the claimant, or indirectly through the claimant's friends and/or family, or through the health care professionals whose training and professional interest strongly encourage acceptance of their patient's description of her symptoms. Medical evidence, in many cases, reveals only the existence of an impairment; not its limiting effects, and only rarely is evidence from a disinterested third party available. See, e.g., Krause v. Berryhill, No. 16-C-226, 2017 WL 3189450 (E.D. Wis. July 27, 2017) (affirming termination of DIB based on OIG investigation for VA showing claimant engaged in activities inconsistent with claimed incapacity). As a result, courts “merely examine whether the ALJ's determination was reasoned and supported.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (citing Jens v. Barnhart, 347 F.3d 209, 213-14 (7th Cir. 2003)). “It is only when the ALJ's determination lacks any explanation or support that we will declare it to be patently wrong . . . and deserving of reversal.” Id. at 413-14 (internal quotations and citations omitted).

         In this case, Plaintiff first chastises the ALJ for including in his decision boilerplate language that the Seventh Circuit has criticized. The language at issue reads:

After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.

R. 42. Plaintiff claims this sentence is “meaningless” because the phrase “‘not entirely credible' yields no clue to what weight the trier of fact gave the testimony.” ECF No. 14 at 16 (citing Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)). Plaintiff also argues that the sentence betrays a fundamental error the ALJ committed by “fabricating the RFC first, and then using that as a scale to weigh the symptoms.” Id. Citing the Seventh Circuit's decision in Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012), Plaintiff also contends that the sentence “stands the adjudication process on its head, assessing listings, medical equivalence to listings, and giving the finding of residual functional capacity without first properly evaluating and weighing the credibility of the claimant's statements about the severity of symptoms, and their limiting effects.” Id. (emphasis in original).

         These are common, one might even say “boilerplate, ” criticisms that appear in many appeals from decisions denying Social Security disability benefits. Absent more, however, they go merely to the writing style of, or the template used by, the ALJ, as opposed to the soundness of the decision. The notion that the ALJ's credibility determination should be overturned because the phrase “not entirely credible” fails to convey precisely what weight the ALJ gave the claimant's statements extends a metaphor too far. Obviously, statements do not have weight. We speak of the weight given to a witness' testimony as a way of describing how convincing or persuasive it is. The kind of precision that measuring a material object's weight allows is not possible when talking about the “weight” given a witness' testimony. There is no standard measurement for assigning weight to witness statements or other kinds of evidence. What is required in this context is an explanation of why and in what respects the ALJ did or did not find the claimant's statements credible; not a specific measurement of weight.

         Similarly, the fact that the ALJ set forth the claimant's RFC in his decision before he explained why he found the claimant's statements less than fully credible does not require remand. The fact that he placed his RFC determination in his written decision before his detailed discussion of the claimant's credibility does not mean he arrived at the RFC first and then constructed a credibility determination to support it. This, too, is a matter of writing style. Many judges set out their conclusion at the beginning of their opinions and then explain the reasoning process they used to arrive at that result in the body. Others begin with their reasoning process and wait until the end to reveal their conclusion. In either event, the writing is finalized only after the analysis is done and the decision made. As a result, just because the RFC is set out before the explanation is not a reason to conclude that it came first and the explanation was concocted to support it.

         Courts do not reverse the Commissioner's decision because a judge does not like the ALJ's writing style. The question on judicial review is whether the ALJ followed the law and whether substantial evidence supports the Commissioner's decision. “[T]he simple fact that an ALJ used boilerplate language does not automatically undermine or discredit the ALJ's ultimate conclusion if he otherwise points to information that justifies his credibility determination.” Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013); see also Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. ...


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