United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...