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Zurakowski v. Berryhill

United States District Court, W.D. Wisconsin

September 20, 2017

KIMBERLY ZURAKOWSKI, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Kimberly Zurakowski seeks judicial review of a final decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security, finding her not disabled under the Social Security Act. The court heard oral argument on September 19, 2017. For reasons explained during oral argument and summarized here, the court will grant Zurakowski's motion for summary judgment and remand the Commissioner's decision.

         The central issue raised by Zurakowski is whether the administrative law judge properly assessed an examining source's opinion. Zurakowski relied on an opinion from Larry Studt, an occupational medicine specialist, who examined Zurakowski and concluded that she had significant limitations that, if creditied, would prevent her from engaging in full-time work. The ALJ gave Studt's opinion little weight because, according to the ALJ, the opinion was inconsistent with treatment notes from Zurakowski's treating physician, Brent Carlson, and her physical therapist, Alzada Bourget, and because Studt gave no explanation in support of his opinion. After the ALJ's decision, Zurakowski submitted a letter from Studt in an attempt to provide an explanation in support of his opinion. Despite Studt's letter, the Appeals Council denied plenary review. Before this court, Zurakowski raises two issues: (1) whether the ALJ properly assessed Studt's opinion; and (2) whether the Appeals Council should have considered Studt's letter and found Zurakowski disabled.

         The court will remand on the grounds that the ALJ did not properly assess Studt's opinion. The Appeals Council's failure to consider Studt's letter is not a basis for remand. The court will also provide additional guidance on issues for consideration on remand.

         ANALYSIS

         A. Studt's May 7, 2015 opinion

         On May 7, 2015, Studt completed a Functional Capacity Evaluation form for Zurakowski, opining that she was disabled. Studt noted that Zurakowski had severe limitations, namely that Zurakowski could perform sedentary work for only one hour a day. See R. 636-37. The ALJ gave Studt's opinion little weight for two reasons: (1) the opinion was inconsistent with Carlson's and Bourget's treatment notes, which showed “a marked improvement” in 2014; and (2) Studt offered no explanation in support of his opinion. R. 24. But Studt's opinion was not inconsistent with Carlson's and Bourget's treatment notes. And the fact that Studt offered no explanation in support of his opinion was not a good reason to discount his opinion.

         1. Inconsistencies

         Studt's opinion was not inconsistent with Carlson's and Bourget's treatment notes. The ALJ cited only three pages from Carlson's notes and one page from Bourget's notes, R. 23 (citing R. 388, 584, 613, 633), but those pages did not warrant the ALJ's conclusion.

         Carlson's notes from February 2014 neither contradicted nor supported Studt's opinion. R. 633. Carlson noted that Zurakowski felt better; her left shoulder fatigued easily; she could not return to her previous job; he recommended that she find another line of work; and for any formal functional capacity examination, he would refer her to a specialist. R. 633. The ALJ construed the comment that Zurakowski felt better as though she had made a significant recovery. But read in context, this statement means only that she felt better compared to past severe pain; it is not a statement that she could work full-time. And Carlson's recommendation that she should find another line of work did not imply that Zurakowski could work, especially given his note that he would refer her to a specialist for a formal, functional assessment of her work capacity. In short, Carlson's notes do not contradict Studt's opinion.

         The Commissioner argued during oral argument that Carlson's notes were inconsistent with Studt's opinion because the notes showed that Zurakowski could wash her hair. R. 611. This is not an issue that the ALJ considered. Besides, the argument cuts both ways: Carlson noted that it was so painful for Zurakowski when she washed her hair that she needed to switch hands multiple times. Id. This statement goes to show that she could not perform even a basic daily activity; it is not a statement that contradicts Studt's opinion.

         As for Bourget's notes, the ALJ's assessment of the record was particularly superficial. The ALJ gave only partial weight to Bourget's opinion that Zurakowski could work for only six hours a day “to the extent that it supports finding” that Zurakowski could perform sedentary work. R. 23. The ALJ's reason was that Bourget “did not point to any objective evidence as to why” Zurakowski could not work full-time. Id. (citing R. 613). But Bourget did note her findings from functional evaluations of Zurakowski. R. 611-13. Bourget had Zurakowski perform repeated overhead reaching, simulation of typing, pushing and pulling with cart, forward reaching, and transferring weight. R. 611-12. The ALJ's statement that Bourget pointed to no objective evidence is wrong.

         The ALJ also took Bourget's comment that Zurakowski “improved” out of context. Bourget noted in March 2014 that, although Zurakowski's conditions “improved, ” Zurakowski's still had “significant limitations in use of her bilateral arms.” R. 613. Bourget noted that Zurakowski could not manipulate items heavier than five pounds with her left upper extremity, tolerate repeated overhead activities, or perform prolonged reaching activities. Id. Bourget also noted that Zurakowski's “limited muscular strength and endurance would likely lead to high levels of pain ...


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