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Boeck v. Berryhill

United States District Court, E.D. Wisconsin

September 30, 2017

JULIA BOECK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          William C. Griesbach, Chief Judge.

         Plaintiff 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 before me.


         This 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.

         At the 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.

         Boeck 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.

         Boeck 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.

         On 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 as-needed. Id.

         In the 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 today." Id.

         On 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.

         Dr. 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.

         Dr. 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.

         At her 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.

         Although 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.

         Boeck 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.

         Boeck 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.

         On July 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.

         The 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.

         The 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.

         At the 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.

         Medical 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.

         Finally, 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. Id.

         In a 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.

         The ALJ 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.


         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)).


         Boeck 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.

         A. ...

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