United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge.
Julia M. Boeck filed this action challenging the decision of
the Commissioner of Social Security denying her disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. For the reasons
given below, the decision of the Commissioner will be
affirmed. At the same time, the decision is far longer than
one would expect in a case seeking judicial review to
determine whether there is substantial evidence in the record
to support the Commissioner's decision. This, I believe,
is a function of the expansion of eligibility under the
program to include more difficult-to-measure impairments, the
diagnosis and impact of which is often based on the
subjective complaints of the claimant, on the one hand, and
the manner in which judicial review of the Commissioner's
decisions in the federal courts is now required to be
conducted, on the other. See Brandenburg v. Colvin,
No. 14-CV-835, 2015 WL 4755740, at **8-10 (E.D. Wis. Aug. 11,
2015); see, generally, Richard V. Burkhauser &
Mary Daly, The Declining Work and Welfare of People with
Disabilities (AEI Press 2011); Jonah B. Gelbach & David
Marcus, A Study Of Social Security Litigation In The Federal
Courts (Adm. Conf. of U.S. 2016); Jennifer L. Erkulwater,
The Judicial Transformation of Social Security
Disability: The Case of Mental Disorders and Childhood
Disability, 8 Conn. Ins. L.J. 401 (2002). These larger
policy issues are beyond the province of a district court,
however, and so I turn to the specific facts of the case
case involves Boeck's fourth application for an award of
disability benefits, only two of which proceeded to hearing.
R. 322-23. Boeck's hearing on her previous application
was held before ALJ William Zellman on July 15, 2011. R.
73-121. On August 26, 2011, ALJ Zellman issued a decision
awarding Boeck a closed period of disability from April 3,
2009 through May 20, 2010, but concluding that she was
capable of a reduced range of sedentary work following the
closed period. R. 7. Boeck did not appeal ALJ Zellman's
decision and it became the Commissioner's final decision.
She then filed a second application for disability insurance
benefits and supplemental security income on March 9, 2012.
Boeck, age 42 at the time, alleged an onset date of April 4,
2009. Her claims were denied initially and on
reconsideration. She then requested a hearing, and ALJ Robert
L. Bartelt, Jr., was assigned.
time Boeck filed her second application, she stood
5'5" tall and weighed 212 pounds. She listed
arthritis in left knee and pain, right ankle, right wrist,
and depression as the conditions that limited her ability to
work, the same impairments she listed on the application ALJ
Zellman heard. R. 326-27, 83-85. Boeck previously worked as a
housekeeper at a nursing home and hotel and as a deli worker.
R. 327. She quit her job as a deli worker in June 2009 after
surgery on her knee because she was no longer able to do the
work. R. 127. Boeck has worked for Consumer Direct as a
personal care worker for her mother since that time, although
for no more than ten hours per week, and her average monthly
earnings have been well below the level required for
substantial gainful activity. R. 24, 128.
was apparently seriously injured in a motor vehicle accident
in January 1996, which resulted in multiple fractures, a
lacerated liver, abdominal surgery, a collapsed lung, and 7
weeks of hospitalization. R. 540. She recovered from her
injuries and eventually returned to work. Concerning her
claimed physical impairments, Boeck suffered a fracture of
her patella of the left knee, a compound fracture of her
right ankle, and a fracture of her right wrist. R. 540, 637.
Her left knee was treated with an open reduction internal
fixation, which failed and was redone in 2004. R. 637. She
continued to have pain and on April 3, 2009, underwent
another open reduction internal fixation on her left knee. R.
631. She was discharged the same day with a prescription for
Vicodin, but returned to the emergency room the following day
requesting Percocet instead. R. 629.
continued to have pain in her left knee and was referred to
Dr. John Horan, an orthopedic surgeon. Dr. Horan examined
Boeck on May 27, 2011, and noted her patellar fracture was
fully healed and the hardware well in place. R. 518. Based on
his examination and review of x-rays, Dr. Horan believed
"[Boeck's] problem in her knee is as simple as
painful hardware, and we will schedule that to be
removed." Id. On August 29, 2011, Dr. Horan
removed the hardware from her knee during an outpatient
procedure at Berlin Memorial Hospital. R. 446, 639. Two weeks
later, on September 13, 2011, Boeck reported that "the
pain she was experiencing before the surgery appears to be
gone." R. 520. Her only frustration at that point was
that her quad was weak. Id. Six weeks after the
surgery, on October 11, 2011, Dr. Horan noted she continued
to make good progress with her home exercise program. She was
starting to regain her extension power, and she had flexion
to 125 degrees. Her knee was stable, she had no effusion and
no erythema, and her incision was well healed. R. 521.
December 7, 2011, Boeck returned to Dr. Horan with "a
new problem." R. 522. Her left knee was doing "just
fine, " but her right ankle was giving her difficulty.
The problem was not really new in that Boeck had complained
of pain in her right ankle when Dr. Horan first saw her in
May. He had injected her peroneal tendon sheath with 1 ml of
Kenalog and 1 ml of 0.5% Marcaine with almost 100% initial
relief, but it did not last. R. 518, 519. In any event, she
reported a significant increase in ankle pain at the December
7 visit to the point she could hardly bear weight on it. R.
522. She reported that it had been coming on for the past two
or three weeks, and she felt like the pain was coming from
the front of her ankle. Dr. Horan noted the earlier success
with the Kenalog/Marcaine injection and tried the same
procedure. Id. Boeck reported almost 100% relief of
her symptoms, and Dr. Horan instructed Boeck to return
meantime, Boeck's family physician, Dr. Michael
Staudinger, was also following her post-surgery progress, but
appears to have been given significantly different reports by
his patient than Dr. Horan was given. In contrast to the
report that her knee pain "appears to be gone" and
continued progress that Dr. Horan recounted in his
post-operative notes, Boeck was complaining of continued pain
to Dr. Staudinger. Prior to her surgery, Dr. Staudinger had
been prescribing Percocet 5/325 five times a day. On August
31, 2011, only two days after her surgery, Boeck reported to
Dr. Staudinger that Dr. Horan had only given her enough pain
medication "to make it until today." R. 528.
Although Dr. Staudinger noted Boeck was "doing very
well" post surgery, he refilled her Percocet
prescription because "it is a little painful
October 17, 2011, only six days after Boeck told Dr. Horan
she was making "good progress with her home exercise
program" and apparently offered no complaint of
significant pain (R. 521), Boeck told Dr. Staudinger that
"she is still having severe knee pain." R. 527.
Boeck told Dr. Staudinger that she now wanted to have her
knee replaced, but that "Dr. Horan doesn't want to
replace it because she is only 42." Id. Dr.
Staudinger commented, "I think it is time that [knee
replacement] gets done." Id. Boeck said her
pain was "sharp the last few days" and asked Dr.
Staudinger for something stronger. In response, Dr.
Staudinger gave her a prescription for Oxycodone 10 mg
tablets to be taken four times a day and told her to follow
up in a month. Id.
Staudinger next saw Boeck on November 14, 2011. His office
note describes Boeck as "a 42 year old female with
chronic pain from a car accident." R. 526. He believed
"the pain is in her knees and ankles, " but
recorded no findings from physical examination as to either.
The only finding noted as to her musculoskeletal system is
"normal bulk, tone, and strength." Id. Dr.
Staudinger acknowledged the August 29th surgery performed by
Dr. Horan and observed that "we have had her on
oxycodone 10 mg 4 a day. I replaced her Percocets and she
said this is working out better." Id. Dr.
Staudinger commented, "Of course it is, we doubled her
oxycodone." Id. Byway of a plan for further
treatment, he noted "[w]e are going to keep her on the
oxycodone 10 mg q.i.d. for now." He then gave her a
prescription to be filled after November 22 and December 22,
renewed her Paxil at 40 mg daily, and directed her to follow
up with him in two months. Id.
Staudinger's note for Boeck's visit with him two
months later on January 25, 2012, is almost identical. Again
he describes her as having chronic pain in her knees and
ankles, finds she has "normal bulk, tone, and strength,
" and refills her oxycodone prescription. R. 525. The
next two-month follow-up on March 26, 2012, is the same,
except that Dr. Staudinger notes that Boeck's insurance
will no longer pay for her oxycodone, so she is going to
start buying it from Omro Pharmacy. R. 524. Despite his
acknowledgement that Dr. Horan is treating her for her knee
and ankle pain, Dr. Staudinger continues to refill her
prescription for oxycodone with no other findings on physical
examination than noted above.
next visit, on June 1, 2012, Boeck again tells Dr. Staudinger
that she wants her left knee replaced. Dr. Staudinger notes
she is "pretty young, " but otherwise, his note is
the same as the last three. The only findings noted again are
"normal bulk, tone, and strength, " and she is
given a refill of her prescription for oxycodone and told to
follow up in two months. R. 523. Office notes for July (R.
549), September (R. 548), and November (R. 547) of 2012, and
January of 2013 (R. 546), are essentially the same as the
notes for the previous visits, except that at her visit on
September 6, 2012, Boeck asked Dr. Staudinger to fill out a
"Musculoskeletal Impairment Residual Functional Capacity
Questionnaire." R. 548. Dr. Staudinger commented
"[i]t is borderline on a functional capacity exam form
and I am going to talk to physical therapy to see if they
want to get involved in this or if we should just recommend
that she get a functional capacity exam." Id.
The office note of January 2013 is the last of the office
notes from Dr. Staudinger in the record.
Boeck was to return to see Dr. Horan on an "as-needed
basis, there are no records of further office visits with Dr.
Horan after Boeck reported to him in December 2011 that her
knee was "just fine" and she received "almost
100% relief of symptoms" in her right ankle from the
injection he administered. R. 522. Boeck apparently continued
to voice complaints about her right ankle, however, and on
July 11, 2013, Dr. Horan performed a revision, right
calcaneal osteotomy to address her persistent right Achilles
tendonitis. R. 588. She tolerated the procedure well, but
later contracted a postoperative infection at the site and
was admitted to Berlin Memorial Hospital on September 7,
2013. R. 590. She was diagnosed with a Pseudomonas infection
of the right ankle and discharged after six days. R. 603. She
continued to receive wound care on an outpatient basis but
was discharged when she failed to return after her last visit
on October 14, 2013. R. 619-20.
next presented to the Kennedy Center in Oshkosh in March 2014
with a chief complaint of long-standing ankle pain. R.
572-73. She reported that she was alternating NSAIDs and
Ibuprofin for relief. She stated she was taking two Aleve
tablets three times a day and two tablets of Tylenol three
times a day with occasional ibuprofen. R. 572. Upon clinical
examination, Dr. Robert Hausserman noted that "[t]here
is some mild to moderate tenderness of the plantar fascial
origin in the plantar aspect. No particular localizing
tenderness over the Achilles or insertional area. The primary
pain was produced with attempts to passively move the
subtalar joint." R. 572. X-rays of the right ankle
demonstrated calcification about the medial and lateral
malleoli adjacent to the medial talus on the joint as well as
degenerative changes of the subtalar joint. Id. The
diagnostic impression was mild plantar fasciitis and subtalar
arthritis with restricted motion. R. 573. A podiatry
consultation with Dr. Todd Derksen was recommended for
further discussion of management options. Id.
presented to Dr. Derksen on May 21, 2014. Dr. Derksen noted
that Boeck has underwent several surgeries on her right ankle
and that she "continues to have sharp burning pain on
the lateral aspect of the ankle on the posterior tuber. It is
present all day long, worse with activity or
weightbearing." R. 567. He observed that Boeck has not
done stretching or physical therapy either before or after
her surgeries. Id. Dr. Derksen's impressions
were that Boeck suffered from Aquinas with insertional
Achilles tendinitis and subtalar degenerative joint disease
right foot. Id. He did not observe any fractures,
dislocations, or pathologic lesions on x-rays of Boeck's
ankle. R. 568. Dr. Derksen recommended physical therapy as
the next treatment step. Id.
16, 2014, Dr. Derksen completed a "Musculoskeletal
Impairment Residual Functional Capacity Questionnaire."
R. 624-27. Although there is no record of his having seen
Boeck since January 2013, Dr. Staudinger also completed the
"Musculoskeletal Impairment Residual Functional Capacity
Questionnaire" on August 6, 2014, about two weeks after
her hearing. R. 646-49. Both will be discussed below.
record also includes the treatment history for Boeck's
alleged mental impairments. Most of Boeck's mental health
treatment occurred prior to ALJ Zellman's August 2011
decision. R. 406-43, 448-516. Boeck reported chronic
depression dating back to when she was 19 years old. R. 482.
Psychologist Dr. Kathleen Roblee diagnosed Boeck in April
2011 with recurrent depressive disorder, moderate; dysthymia;
and adjustment reaction with mixed emotion. R. 419. Boeck was
prescribed Trazodone in May 2011 to help her sleep, which was
soon replaced when she was given samples of Zyprexa. R. 490,
495. She also took Paxil 40mg per day. R. 483. Dr. Roblee
discharged Boeck from treatment on September 29, 2011 after
seven sessions, noting that she had successfully completed
her program. R. 452.
record also contains a number of reports by medical
consultants. On July 17, 2012, Dr. Richard Sturm conducted a
consultative physical examination of Boeck for a disability
evaluation. R. 539-44. In addition, Scott Trippe, Psy.D.,
conducted a psychological consultative examination on June
24, 2012, R. 534-38, and several State agency consultants
provided opinions regarding her physical and mental
impairments based on their review of the record at the time
of their reports. R. 165, 166-67, 196, 198-200. These reports
also will be further discussed as relevant below.
July 22, 2014 hearing before ALJ Bartelt, Boeck testified
that she suffers from pain in her right ankle, left leg, and
right wrist every day. R. 132. She takes oxycodone daily
which provides some relief, but it results in constipation
and nausea. Id. She also testified that she both
ices the affected areas and uses a heating pad periodically
throughout the day. Id. Boeck described the symptoms
she experiences while sitting down as "it's like a
throbbing, and sometimes it's real sharp pains . . . ache
. . . terrible aches." R. 133. She testified that her
pain in her ankle, leg, and wrist has gotten a lot worse
within the last year. Id. Boeck explained that her
right wrist injury makes it more difficult to lift things
like a gallon of milk or a coffee pot with her right hand. R.
134. Writing with a pen or using a keyboard makes her right
wrist sore. Id. She can wash dishes for about 15 to
20 minutes before she needs to sit down. R. 135. Regarding
her mental impairments, Boeck testified that she has been
treated for depression for over 20 years but that it has
gotten worse within the last five to six years. R. 137. She
takes 25mg of Paxil to treat her depression. She testified
that she has lost interest in doing things and has difficulty
sleeping, and that it causes her to eat. R. 138. She naps
approximately 30-45 minutes per a day if she feels like she
can get some sleep. Id. Boeck said she received
counseling for her depression problems in the past, but
stopped because of insurance reasons. R. 139.
expert Dr. Allen Hauer also testified regarding Boeck's
alleged mental impairments. R. 148-51. He categorized
Boeck's mental impairment as dysthymic disorder, which is
a persistent but low-grade depressive disorder characterized
by generalized unhappiness, discouragement and pessimism,
easy irritability, and reduced energy and ambition. R. 149.
Dr. Hauer opined that Boeck had no limitations in activities
of daily living; a mild limitation in social functioning
based on her moods, ambition, and willingness to see people
outside her normal circuit; and a mild limitation in
concentration, persistence, and pace based on low energy and
fluctuating motivation that goes with the depressed mood. R.
149-50. He observed no episodes of decompensation of an
extended duration. R. 151. Dr. Hauer factored out any impact
or restrictions that Boeck's physical impairments may
have on her mental functional limitations. R. 149.
a vocational expert (VE) testified at the hearing. R. 151-56.
After having the VE summarize Boeck's work history, the
ALJ asked the VE whether there would be jobs available for an
individual of Boeck's age, education, and work experience
with the limitations expressed during the hearing. R. 154.
The VE stated that he understood the testimony to describe an
individual who could stand/walk for up to 15 to 20 minutes at
a time and lifting limited to approximately 8 pounds.
Id. The VE testified that an individual with those
limitations could perform sedentary, unskilled positions
suchasbenchwork assembly, production inspectors, machine
feeders, surveillance-systems monitors, and cashiers.
15-page decision dated November 28, 2014, the ALJ determined
Boeck was not disabled. R. 21-35. The ALJ's decision
followed the SSA's five-step sequential process for
determining disability. At the first step, the ALJ concluded
Boeck met the insured status requirements through June 30,
2014 and had not engaged in substantial gainful activity
since April 4, 2009, the alleged onset date. R. 23. At step
two of the disability analysis, the ALJ found Boeck had the
following severe impairments: a left knee impairment; a right
ankle impairment; and a right foot impairment. R. 24. The ALJ
used more general terms to describe Boeck's severe
impairments because different examiners offered various
diagnoses to describe her impairments. Id. The ALJ
considered Boeck's impairments in combination with her
obesity and concluded that, based on the objective medical
findings and Boeck's significant activities of daily
living, obesity was not a severe impairment because it did
not have at least more than a minimal effect on her ability
to perform work-related activities. Id. The ALJ also
considered evidence that Boeck experienced right wrist
symptoms including a slightly reduced grip strength on the
right side, but observed that she has not required any
significant treatment for her alleged wrist symptoms during
the relevant period and she retains her ability to manipulate
objects. R. 24-25. He concluded that Boeck's alleged
wrist impairment also does not constitute a severe
impairment. R. 25. Finally, the ALJ considered Boeck's
alleged mental impairments and, finding no more than minimal
limitations to her ability to perform basic mental work
activities and no periods of decompensation, concluded that
her mental impairments were nonsevere. R. 25-28. At step
three, the ALJ determined that Boeck's impairments did
not meet or medically equal any listed impairments under 20
C.F.R. § 404, Subpart P, Appendix 1. R 28.
determined that Boeck had the residual functional capacity
(RFC) to perform the full range of sedentary work as defined
in 20 C.F.R. §§ 404.1567(a) and 416.967(a). He
concluded that the record did not support Boeck's
allegations of disabling symptoms during the period relevant
to the decision, but also noted that the record contained
"considerable evidence from prior to August 27, 2011,
the first date relevant for purposes of this decision."
R. 30 (citations omitted). At step four, the ALJ found that
Boeck was unable to perform any past relevant work. R. 33-34.
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 Boeck
could perform. R 34-35.
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.
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)).
asserts that the ALJ committed at least four errors requiring
reversal: (1) ALJ Bartelt and the Appeals Council arbitrarily
applied res judicata; (2) the ALJ failed to properly
evaluate and weigh Boeck's statements about the limiting
effects of her symptoms; (3) the ALJ failed to properly
evaluate and weigh the opinions of the various medical
sources; (4) the ALJ failed to meet the Commissioner's
burden of proof at step-five that other jobs exist for Boeck
in significant numbers. I will address each in turn.