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Lemerande v. Berryhill

United States District Court, E.D. Wisconsin

February 26, 2018

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



         This is an action for judicial review of the final decision of the Commissioner of Social Security denying Plaintiff Kathy G. Lemerande's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. For the reasons set forth below, the Commissioner's decision will be affirmed.


         On May 14, 2012, Kathy Lemerande, then age 45, filed an application for DIB and SSI with an alleged onset date of June 22, 2004 due to depression, hypothyroidism, high blood pressure, gastroesophageal reflux disease (GERD), arthritis, flat feet, graves disease, and migraines. R. 85, 189. The Social Security Administration (SSA) denied the application initially on September 25, 2012. R. 129. After her application and request for reconsideration were denied, Lemerande requested an administrative hearing. ALJ Brian Lucas held a hearing on August 5, 2015. Both Lemerande and a vocational expert testified. R. 32-82.

         At the time of the hearing, Lemerande was 5'2" and weighed 238 pounds. R. 66. Lemerande testified that she completed high school in 1984. She worked in food service as an employee of Burger King. R. 47. After obtaining a CNA certificate in 2002, Lemerande provided in-home health care. R. 38-39. She then worked a full-time seasonal position as a cashier for a restaurant in Wisconsin Dells. R. 44-45. In April 2011, Lemerande worked at a McDonalds for three days but had to quit because of the pain in her feet. At the time of the hearing, Lemerande worked “very part-time” for a company called IRIS providing in-home, supportive care for two autistic children. R. 42-43.

         Lemerande testified that the physical problems that prevented her from working included her knees, her left ankle, the second toe on her left foot, her shoulders, her left hip, her hands, and migraines. She testified that her knees were the primary physical problem. She testified she has a torn meniscus and is unable to kneel or even take a bath. She stated she has difficultly going up or down stairs, can stand for about ten to fifteen minutes if she keeps changing positions and can sit for about ten minutes before her legs are “sore and achy” and she has to move them around. R. 52-53. Once her knees hurt, Lemarande testified that “everything hurts, my feet, my hips, my back, lower back.” R. 53. She testified the pain in her knees was constant at a level of 9 out of 10 with the left worse than the right. Id. At night she would wake up from pain, and it would take from two to three minutes for her to straighten out her legs. Elevating her legs and constantly changing positions gave some relief. She testified she had previously had some injections and was taking over-the-counter medications such as Aleve. R. 54-55.

         Lemerande also testified that the pain in her left ankle was constant, a level 10, and made walking very difficult. She could walk fifteen minutes but would then be done and unable to move anymore. R 56-57. She testified to constant pain in the second toe on her left foot which she described as deformed and arthritic. R. 56. She also testified to level 8 pain in her shoulders that would come on sometimes without any activity precipitating it and that could only be alleviated by holding her arms above her head. R. 57. Arthritis in her hip caused constant level 8 pain, and in her hands level 10. Lemerande testified that “everything is so connected that there are days that my whole body aches. I can hardly move.” R. 58-59. She also testified to severe migraines two to three times a month that would last a day. R. 60.

         With respect to mental impairments, Lemerande testified that she thought she had depression because she liked to be alone in her room, felt like there was a black cloud over her, and experienced a dull feeling that made it difficult for her to get through the day. R. 61. She testified she took Buspirone for depression and Lorazepam for panic attacks as needed, as well as Wellbutrin. R. 61-62. She testified she experienced panic attacks or anxiety two or three times a week and did not like being around crowds or other people. R. 64.

         In a decision dated October 7, 2015, the ALJ found Lemerande was not disabled. R. 15. The ALJ concluded Lemerande met the insured status requirements since June 30, 2016 and has not engaged in substantial gainful activity since June 22, 2004, the alleged onset date. R. 17. The ALJ found Lemerande had the following severe impairments: dysfunction of major joints, obesity, and osteoarthrits. R. 18. He determined Lemerande's hyperlipidemia, hypertension, gastric esophageal reflux disease (GERD), thyroid disorder, diabetes, migraine, depression, and anxiety were nonsevere because they do not cause more than minimal limitation in her ability to perform basic mental work activities. R. 19. At step three, the ALJ determined Lemerande's impairments did not meet or medically equal any listed impairments under 20 C.F.R. § 404, Subpart P, Appendix 1.

         The ALJ ultimately determined Lemerande had the following residual functional capacity (RFC): “[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a) except for the allowance for alternative sitting and standing at will with no loss of productivity, no greater than frequent use of hands, would likely be absent 1 day per month, and would likely be off task 5 percent in addition to normal breaks due to pain.” R. 21. With these limitations, the ALJ found that jobs exist in significant numbers in the national economy that Lemerande can perform. R. 25. Based on these findings, the ALJ concluded Lemerande was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Lemerande's request for review on December 7, 2016. R. 1. Thereafter, Lemerande commenced this action for judicial review.


         The Commissioner's final decision will be upheld if the ALJ applied the correct legal standards and supported his decision with substantial evidence. 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 conclusions. 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 acts, 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. ...

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