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DeCamp v. Berryhill

United States District Court, E.D. Wisconsin

March 19, 2018

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


          William C. Griesbach, Chief Judge

         This is an action for judicial review of the final decision of the Commissioner of Social Security denying Plaintiff Debara DeCamp's applications for a period of disability and disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. She claims the decision is not supported by substantial evidence and violates several of the Commissioner's own rules and regulations. For the reasons set forth below, the Commissioner's decision will be affirmed.


         On April 6, 2011, Plaintiff, age 47 at the time, completed applications for disability and DIB as well as SSI with her alleged disability beginning February 20, 2009. She listed a brain tumor, neck fusion, bipolar disorder, and a broken neck as the conditions that limited her ability to work. R. 177. At the time she submitted her applications, she was 5'8" and weighed 160 pounds. Id. Following the denial of her applications initially and on reconsideration, Plaintiff requested a hearing before an administrative law judge (ALJ). ALJ Debra Meachum conducted a hearing on December 17, 2012. Plaintiff, who was represented by counsel, and a vocational expert (VE) testified. R. 44-74. At the time of the hearing, Plaintiff lived with a roommate, her dog, and her bird in her two-story house. R. 48. Plaintiff testified that she had completed high school and began working as a server at a women's club. She left that position for a bartending position. Her job duties included opening the bar; getting ice out of the bins; restocking shelves with beer, wine, and soda; cutting limes and lemons; answering the phone; and taking orders. R. 49-50.

         On January 23, 2009, Plaintiff sustained an injury to her back in a car accident in Oregon, where she was living at the time. R. 668-69. She received chiropractic care over the next several months, R. 253-64, but continued to complain of pain and presented for an enhanced MRI in late April 2009. R. 244-47. The MRI showed mild degenerative disc disease and grade 1 spondylolisthesis at ¶ 5-S1. The other discs in the lumbar spine appeared normal. The physician also noted mild narrowing of the L5 foramina which he thought might be associated with minimal irritation of exiting L5 nerve roots. R. 270.

         Within the following year, Plaintiff got married, quit her job, and moved to Wisconsin. She presented at Waukesha Memorial Hospital on March 15, 2010, with a complaint of back pain. R. 269. On April 26, 2010, Plaintiff underwent a L5-S1 posterior lumbar interbody fusion. R. 266. Her husband subsequently passed way in 2010. R. 50.

         When asked how her physical impairments keep her from working, Plaintiff responded the pain in her left leg and back surgery make it hard to stand and walk. R. 51. Prior to her car accident, Plaintiff said she had been involved in a work accident that resulted in a neck injury. R. 55-56. She reported she had rods and plates put in her neck. R. 55. Plaintiff testified that she also has bad headaches, has a small pineal tumor in her head, and has difficulty sleeping. R. 51, 53. She further claimed she has pain in her hands and reported having carpal tunnel surgery only in her right hand due to insurance restraints. R. 51. Her hand pain causes her to drop things. Plaintiff testified that on top of everything else, she is bipolar, which leaves her feeling depressed and agitated. R. 56.

         Plaintiff then testified about her average day. She stated she wakes up but does not shower every day. She testified that she spends the day sitting on the couch or a chair, or walking around the house. R. 57. She usually watches movies or reads magazines and takes one nap lasting 45 minutes to an hour. R. 57, 59. Plaintiff testified she does not leave her house because she is not a people person. She reported her roommate does the household chores, including the laundry and cleaning the bathroom. R. 57. Plaintiff claimed she cooks frozen dishes and soup and puts her dishes in the sink. R. 58. She testified she does not drive, not because her concentration affects her ability to drive, but because she is in a lot of pain and does not want to drive with a numb leg. Id. Plaintiff asserted she could walk five to seven minutes at a time, stand for five minutes, and sit for five to seven minutes. R. 59-60. She testified she could lift and carry about two pounds. R. 60.

         In a written decision dated January 14, 2013, the ALJ concluded Plaintiff was not disabled. R. 16-26. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making ALJ Meachum's decision the final decision of the Commissioner. R. 6. Having exhausted her administrative remedies, Plaintiff filed a complaint in June 2014 in the United States District Court for the Eastern District of Wisconsin, seeking judicial review of the ALJ's decision. The matter was ultimately reversed and remanded for further proceedings based upon a stipulation of the parties. R. 832-44; see DeCamp v. Colvin, 2:14-cv-00646-RTR (E.D. Wis.).

         ALJ Meachum held a second administrative hearing on remand on June 24, 2015. Both Plaintiff, who was again represented by counsel, and a VE testified. R. 780-806. At the time of the second hearing, Plaintiff lived with her husband (she had remarried) in a house in Elkhorn, Wisconsin. R. 785. Plaintiff testified that the conditions that prevented her from working include the chronic pain in her back that radiates down her left leg and her migraines. R. 784. She attributed her back pain to the 2009 motor vehicle accident. R. 790. She stated the pain in her leg affects her ability to walk and causes a limp. Id. She wears her back brace every day. R. 793. Plaintiff testified that she can stand for five minutes and sit for fifteen minutes. R. 792. As to her migraines, Plaintiff indicated she gets a day-long migraine four times a week. R. 786. Although the medication helps with her headaches, she feels drowsy when she takes it. R. 786. Plaintiff testified that she currently weighed 200 pounds. R. 784. She testified that her weight affects her ability to get in and out of a chair and to walk. R. 789-90. Plaintiff also claimed she has problems in her right hand and elbow. R. 792. She stated she got injections in her elbow, though the injections did not relieve the pain. R. 792, 795. She wears a wrist brace on her right hand. R. 795. She also claimed that she started having pain in her left hand. R. 793. With respect to her mental impairments, Plaintiff testified that she has bipolar depression. Id. She stated she gets extremely cranky at times and loses her patience with people. R. 794. Though she had a history of drug and alcohol abuse, she testified she did not have a current problem. R. 796.

         Plaintiff testified that she when she wakes up in the morning, she puts ice on her back and takes her pain pills and anti-depressant medications. Then she sits on the couch for the rest of the day and watches television or reads magazines. R. 785. She uses the computer to communicate with her family, who live in Portland, Oregon. R. 788. If the weather is nice, she sits outside, reads magazines, and takes a nap. Then she goes back inside to take another nap. R. 785. She testified that she lays down approximately four times a day. R. 789. Plaintiff walks to the mailbox every day, which is about 30 yards from the house, to get the mail. R. 786. She is able to get her own coffee, make a sandwich, and shower on her own. Id. She noted that her husband does the shopping and cooking, and she hires a friend to help with the cleaning once a week. R. 785. Although she participated in pool therapy, she has not been able to attend her classes because her husband works more hours and is unable to drive her to the pool. R. 787. Plaintiff testified that she stopped driving because it hurt her back. Id.

         In a decision dated July 31, 2015, the ALJ found Plaintiff was not disabled. R. 737-54. Following the agency's five-step sequential evaluation process, the ALJ concluded at step one that Plaintiff met the insured status requirements since March 31, 2014 and has not engaged in substantial gainful activity since February 20, 2009. R. 740. At step two, the ALJ found Plaintiff had the following severe impairments: history of cervical discectomy in 2003; right carpal tunnel release in 2004; L5-S1 lumbar fusion in 2010; chronic back pain; longstanding neoplasm of the pineal gland; headaches; history of substance abuse; and affective and anxiety disorders. She also noted Plaintiff received treatment for other impairments that do not meet the definition of severe, including a non-malignant lesion on her right breast, right elbow pain, a dog bite, a tick bite, and obesity. At step three, the ALJ determined Plaintiff's impairments or combinations of impairments did not meet or medically equal any listed impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.

         After reviewing the record, the ALJ concluded Plaintiff has the residual functional capacity (RFC) to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following limitations: “She can only occasionally stoop, crouch, kneel, crawl, and flex or extend her neck. She is limited to unskilled work, SVP-2 or less, with no fast-paced production line or tandem tasks and few if any, changes in the work setting, meaning that the workplace and tasks change no more than occasionally and only one to two times per month, at most. She can only occasionally interact with coworkers, supervisors, and the public. She may be off task up to 10 percent of the workday, in addition to normal breaks.” R. 744. With these limitations, the ALJ found at step four that Plaintiff is unable to perform her past work as a bartender and server. Nevertheless, at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as machine tender, sorter, and office helper. R. 753. Based on these findings, the ALJ concluded Plaintiff 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 Plaintiff's request for review. Thereafter, Plaintiff 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 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 facts, 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. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).


         A. Evaluation of Alleged Symptoms

         Plaintiff asserts the ALJ failed to apply the appropriate standard in evaluating her symptoms. The Social Security regulations set forth a two-step procedure for evaluating a claimants's statements about the symptoms allegedly caused by her impairments. See 20 C.F.R. § 416.1529. First, the ALJ determines whether a medically determinable impairment “could reasonably be expected to produce the pain or other symptoms alleged.” Id. § 404.1529(a). If so, the ALJ then “evaluate[s] the intensity and persistence” of the claimant's symptoms and determines how they limit the claimant's “capacity of work.” Id. § 404.1529(c)(1). In evaluating the intensity and persistence of a claimant's symptoms, the ALJ looks to “all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating and nontreating source, or other persons about how your symptoms affect you.” Id. The ...

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