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Boucher v. Berryhill

United States District Court, E.D. Wisconsin

March 5, 2018

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



         This is an action for judicial review of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Plaintiff Douglas Boucher challenges the Commissioner's decision denying his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. He contends that the decision is not supported by substantial evidence. In particular, he asserts that the Administrative Law Judge (ALJ) erred in failing to have a January 2015 MRI of his lower back assessed by a medical expert. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Boucher filed his application for disability and disability insurance benefits on May 21, 2013, alleging that he has been disabled since January 1, 2013, as a result of chronic back pain and Hepatitis C. R. 86. At the time of his application, Boucher was age 59 and lived with his wife in Marinette, Wisconsin. R. 86. While stationed in Germany with the Army in 1973, he spent multiple weeks in the hospital undergoing treatment for Hepatitis C. R. 47-48, 259. After he was honorably discharged from the army, he spent several years working in a variety of roles as a metal fabricator, including as a welder, and he eventually began working in the shipyard at Marinette Marine. R. 49, 267-68.

         During the late 1990s and early 2000s, Boucher had two surgeries (laminectomies) to address pain in his lower back. R. 60-62, 257, 442. Furthermore, by 2007 his Hepatitis C returned, causing him fatigue that ultimately prevented him from continuing his work as a welder, despite an initial effort to work reduced hours at the shipyard. R. 268. In 2008 he purchased a bar where he worked full time managing daily operations until 2010, when he claims he became too fatigued to continue working due to Hepatitis C treatments. R. 41-42, 50-51. Although he has not worked since 2012, Boucher still owns the bar where his wife works. R. 51.

         Boucher's benefits application was denied both initially in September 2013 and on reconsideration in July 2015. R. 93, 102. He requested a hearing before an ALJ, and ALJ Jeffry Gauthier held a hearing on February 22, 2016. R. 31-84, 122.

         At the hearing, Boucher, represented by counsel, and Vocational Expert (VE) Joe Entwisle both testified. R. 31-32. Boucher testified that the number one condition that was most severe and disabling was nausea, which he said he experienced in the morning and sometimes in the afternoon as well. R. 52. Boucher attributed the nausea to the treatment he received for Hepatitis C, though he had not required or received any treatment for it since 2010. R. 53. He said he would experience nausea five days out of the week, would sometimes vomit, and would not eat until 11:00 a.m. or noon. R. 54. Boucher also attributed his fatigue and weakness to Hepatitis C. R. 56. He testified that it limited his bike riding and walking to the point that he could not walk more than two miles. He would walk one or two miles with his wife three to four days a week for exercise. R. 57. His bike riding was limited to three to five miles, which would take 30 to 40 minutes, and then his back gets too sore. Boucher also attributed his lack of stamina in shoveling snow and “a real bad numbness” in his legs to his Hepatitis C. R. 57-59.

         The second problem Boucher discussed at the hearing was his back problem. He testified that he had two back surgeries in 1998 and 2003, but still has “a lot of pain” if he tries to do anything physical. He said if he's “not doing anything, pretty much just sitting around doing nothing, it's-it's not too bad.” R. 59. In response to the ALJ's questions, Boucher clarified that the problem was in the lumbar region of his back where he had the surgeries. Describing the problem further, Boucher stated: “I mean the problem I have with my back is like my four-year old grandson if I pick him up and carry him, my back is going to hurt in just a matter of hours. It's going to start hurting and I take Ibuprofen.” R. 60.

         In response to further questions from his attorney, Boucher testified that his back pain radiates up into his neck and down into his legs. R. 63. He alleviates the pain by lying down or sitting back with his legs elevated, which he said he does a couple of times a day for about 15 to 30 minutes. R. 64. He testified that on some occasions he gets up at night because of back pain. Id.

         In a ten-page decision dated August 24, 2016, the ALJ determined that Boucher is not disabled. R. 26. The ALJ's decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 19-20. At step one, the ALJ concluded that Boucher met the insured status requirements through June 30, 2017, and that he has not engaged in substantial gainful activity since January 1, 2013, the onset date of his alleged disability. R. 20. At step two, the ALJ concluded that Boucher has one severe impairment: degenerative disc disease. R. 20. Although the ALJ acknowledged that the Department of Veterans Affairs (VA) has determined that Boucher is 100% disabled as of June 4, 2012, due to fatigue associated with Hepatitis C, the ALJ concluded that it was not a severe impairment because it did not more than minimally limit his ability to perform basic work functions. In reaching this conclusion, the ALJ rejected Boucher's statements attributing his severe and disabling nausea to Hepatitis C because they were inconsistent with the medical and other evidence in the record. R. 21. At step three, the ALJ concluded that Boucher did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, noting in particular that his medical records did not indicate the presence of any of the criteria in listing 1.04 (disorders of the spine). R. 22.

         Before proceeding to step four, the ALJ assessed Boucher's Residual Functional Capacity (RFC) and determined that he is capable of performing light work as defined in 20 C.F.R. § 404.1567(b), subject to several exceptions. R. 23. Specifically, the ALJ found that Boucher is capable of performing light work “except frequent crouching and climbing of ramps and stairs; occasional crawling and kneeling; no climbing of ladders, ropes, or scaffolds; frequent work around moving mechanical parts; frequent operation of a motor vehicle; and no work at unprotected heights.” Id. Again in reaching this conclusion, the ALJ rejected Boucher's testimony and statements concerning the intensity, persistence, and limiting effects of his back pain because they were not “entirely consistent” with the medical and other evidence in the record. R. 24. The ALJ further found that Boucher “is expected to be off task less than 10 percent of the time in an eight hour workday, in addition to normal breaks.” R. 23.

         At step four, the ALJ then found that Boucher is capable of performing past relevant work. R. 26. The VE testified at the hearing that Boucher's work operating his bar fit the category of manager of a liquor establishment, which is classified as a light, skilled position and which Boucher actually performed at a light exertional level. Id. The VE further testified that Boucher's RFC did not preclude him from performing that past relevant work. Id. Relying on that testimony, the ALJ found that Boucher could perform his past relevant work managing a liquor establishment and therefore had not been under a disability since his alleged onset date of January 1, 2013. Id. Boucher requested that the Appeals Council review the ALJ's decision, but the Appeals Council declined to do so. R. 1, 12. Boucher thereafter sought review in this court.


         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) (quoting Richardson v. Perales, 404 U.S. 389, 401 (1971)). 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 ...

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