United States District Court, E.D. Wisconsin
KATHY G. LEMERANDE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
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
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.
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.
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.
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.
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.
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.
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.
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).
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. ...