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Bachim v. Berryhill

United States District Court, W.D. Wisconsin

October 20, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          STEPHEN L. CROCKER Magistrate Judge

         This is an action for judicial review of an adverse decision of the Commissioner of Social Security brought pursuant to 42 U.S.C. § 405(g). On July 27, 2015, an administrative law judge issued a decision finding that plaintiff Katrina Bachim was not disabled at any time between February 15, 2010 and March 31, 2015 and therefore was not entitled to a period of disability or disability insurance benefits under Section II of the Social Security Act. That decision eventually became the final decision of the commissioner when the Appeals Council denied plaintiff's request for review. Plaintiff now seeks a remand pursuant to sentence four of 42 U.S.C. § 405(g). She contends that the ALJ committed two errors: (1) his credibility determination failed to account for all of plaintiff's impairments and resulting limitations; and (2) he failed to afford appropriate weight to the opinion of an advanced nurse practitioner, who endorsed disabling limitations. Having reviewed the ALJ's decision, the parties' briefs and the record, I am rejecting plaintiff's arguments and affirming the ALJ's decision.


         Plaintiff was born on January 5, 1984, making her 31 years old on the date of the ALJ's decision. She has a high school education, having earned her GED after dropping out of high school her senior year. She has worked as a cashier, a waitress and a dietary aide, but has not worked since 2010 except for selling Avon products for a while in 2014. She was married in 2010 and had three children between 2011 and 2013. At the time of the hearing in July 2015, she was in the process of divorcing her husband and was living on her own with primary custody of her three children. She also has an 11-year old son from a prior relationship who lives with her on alternating weekends.

         Plaintiff has a long history of low back pain that she attributes to a fall from a horse in 2007. AR 543. Lumbar x-rays ordered in May 2012 showed only mild degenerative changes in the spine, however, and a lumbar MRI was normal. Plaintiff also suffers from depression, anxiety, all-over body pain, migraines and fatigue. In September 2012, she was diagnosed with fibromyalgia. AR 669. She has been diagnosed with major depressive disorder, recurrent, generalized anxiety disorder, and post-traumatic stress disorder stemming from incidents of childhood sexual abuse. In addition, plaintiff is obese: her weight of 200 pounds on a 5'1" frame results in a Body Mass. Index of about 38, which corresponds to Level II obesity under the social security rulings. SSR 02-1p.

         Plaintiff has seen various health providers at various clinics for these conditions. Treatment mostly has consisted of medications to help manage her pain, depression and anxiety. She has also been advised by various providers to participate in a regular exercise program and psychotherapy. In November 2012, plaintiff was referred to Kathryn Baker, Ph.D., a pain psychologist, who opined that plaintiff had a long-standing mood disorder that was complicating her pain management and that plaintiff was unlikely to experience significant improvement until she got her mood under control. AR 687. Baker referred plaintiff to behavioral health but plaintiff did not pursue counseling at that time.

         Plaintiff's compliance with her doctor's recommendations has been inconsistent: plaintiff often discontinued medications because she thought they were ineffective or because she was pregnant; she did not follow through with exercise because she said it made her feel worse; and it appears that she never engaged in a regular psychotherapy program. She did, however, attend physical therapy and visit a chiropractor for her back pain, but she experienced little improvement.

         Plaintiff applied for Title II social security benefits on October 19, 2012, alleging that she had been disabled since February 15, 2010 as a result of fibromyalgia, depression, anxiety, migraines and back pain. As part of the state disability agency's initial review of her application, she had a consultative psychological examination with Steven Benish, Ph.D., on February 13, 2013. AR 692-694. Benish noted that plaintiff's primary complaints were chronic pain and migraines. Plaintiff reported that it would be difficult to live independently, but she was able to cook, clean, self-care and bathe. She said she avoided grocery shopping but she did not elaborate. She reported being good friends with her sister but denied having friends, belonging to a church or any groups in which socialization normally takes place. Plaintiff lived with her husband and 2 children and described her quality of life as “good.” Benish diagnosed plaintiff with a mood disorder and panic with agoraphobia. He opined that her prognosis for her mental impairments was good if she got appropriate treatment, noting that she had not worked with a psychologist. In Benish's opinion, plaintiff would be able to understand and remember simple and complex instructions, handle workplace stress and adapt to change, although she might become irritable with coworkers or supervisors.

         Reviewing plaintiff's application at the initial level, medical consultants reviewed plaintiff's medical records and offered opinions concerning her impairments and their severity. On March 1, 2013, Esther Lefevre, Ph.D, determined that plaintiff had the medically determinable impairments of a mood disorder and a panic disorder, but concluded that these impairments imposed only mild difficulties in maintaining social functioning and therefore were not severe. AR 84. That same day, Mina Khorshidi, M.D., determined that plaintiff was capable of meeting the demands of light work (lifting 20 pounds occasionally, 10 pounds frequently and sitting or standing for up to 6 hours in an eight-hour workday), but should only occasionally climb ladders, ropes or scaffolds. These findings were largely affirmed at the reconsideration level, with David Biscardi, Ph.D., indicating that plaintiff had no more than mild mental limitations and Diane Manos, M.D., affirming the prior physical residual functional capacity assessment. AR 90-104.

         After her application was denied at the reconsideration level, plaintiff requested an administrative hearing, which was held on May 19, 2015. The ALJ heard testimony from plaintiff, who was represented by counsel, and a vocational expert. Plaintiff testified that she was separated from her husband and was living with her three children, aged four, three and one; her 11-year-old stayed with her at times also. She testified that she suffers from daily migraines for which medication did not seem to help and gets only four-six hours of sleep every night. Being around other people causes anxiety as does “certain noises, certain smells, ” and she gets panic attacks. AR 28. Plaintiff said she had post-partum depression after the birth of her last child and that she was still depressed. She got help 2-3 times a week with child care and cleaning from her neighbor, husband, mom or sister. Plaintiff testified that she was unable to do chores such as vacuuming and mopping and can't lift more than 20 pounds, including her children. Plaintiff testified that she would not be able to be gainfully employed because she would not be reliable and is limited in her ability to walk, lift or sit. Plaintiff estimated that she could sit for 10 minutes and walk about 25 feet without needing a break. AR 34.

         Plaintiff did not produce any opinions from any of her treating or examining physicians that suggested greater limitations than those found by the state agency physicians. However, she submitted a Fibromyalgia Questionnaire completed by Cindi Griffin, an Advanced Practice Nurse Practitioner at the Gundersen Muscoda Clinic, that was dated May 18, 2015. AR 805-810. On the form, Griffin indicated that plaintiff had been seen monthly for three months for medical reasons, that plaintiff met the American Rheumatological criteria for fibromyalgia and that she also suffered from post traumatic stress disorder, migraines, myofascial pain and chronic back pain. Griffin opined that plaintiff had chronic, ongoing pain that would frequently interfere with her ability to concentrate and severely limit her ability to deal with work stress. She further indicated that plaintiff was very limited in her ability to lift, sit, stand, walk or use her upper extremities and was likely to be absent from work more than three times a month. In response to the question asking “What is the earliest date that the description of symptoms and limitations in this questionnaire applies?, ” Griffin answered, “2004.” AR 809 (emphasis in original).


         The ALJ issued a decision denying plaintiff's application on July 27, 2015. Evaluating plaintiff's claim in accordance with the five-step process set out by the Social Security regulations, 20 C.F.R. § 404.1520(a), the ALJ made the following findings: plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date of February 15, 2010 through her date last insured of March 31, 2015 (step one); she had the severe impairments of fibromaylgia, degenerative disc disease, obesity and anxiety disorder (step two); none of the impairments singly or combined were equal in severity to any impairment that the Commissioner considers to be severe enough to prevent a person from doing any gainful activity (step three); plaintiff was unable to return to any of her past relevant work as a bartender, diet clerk, server, front desk clerk, file clerk or salesperson (step four); and plaintiff could nonetheless make a vocational adjustment to a significant number of jobs existing in the Wisconsin economy, such as housekeeper (7, 300 jobs), usher/ticket taker (1, 200 jobs) and stock clerk (4, 300).

         As a predicate to his conclusions at steps four and five, the ALJ assessed plaintiff's residual functional capacity, which is the commissioner's term for what a person can do both physically and mentally on a sustained basis in spite of limitations caused by her impairments. 20 C.F.R. §§ 404.1520(3); 404.1545. At this step, the ALJ concluded that plaintiff retained the residual functional capacity to perform a modified level of light work. Specifically, he found that plaintiff was able to perform light work (which is defined as lifting or carrying up to 20 pounds occasionally and 10 pounds frequently, standing or walking for at least four hours of an 8-hour day and sitting for 6 hours a day) but was precluded from climbing ropes, ladders, or scaffolding, performing more than occasional stooping, bending, crouching, kneeling, crawling, or ramp or stair climbing, and ...

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