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Burmester 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 Bettie Burmester's application for a period of disability and disability insurance benefits under Title II 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 December 20, 2010, Plaintiff, age 51 at the time, completed an application for disability and disability insurance benefits, alleging disability beginning June 26, 2008. She listed depression, degenerative disc disease, pseudo gout in left knee, osteoarthritis in both knees and left thumb, and a heart condition as the conditions that limited her ability to work. R. 333. The application was denied initially on May 11, 2011 and upon reconsideration on October 3, 2011. Plaintiff then requested a hearing before an administrative law judge (ALJ). ALJ Patrick Morrison conducted a hearing on December 10, 2012. Plaintiff, who was represented by counsel, and a vocational expert (VE) testified. R. 71-121.

         During the hearing, Plaintiff, through counsel, amended her alleged onset date to September 1, 2009. R. 76. She was 5'9" and weighed 185 pounds. R. 76. She testified that her normal weight is 169 pounds. R. 77. Plaintiff stated she lived in a townhouse with her husband in Milwaukee, Wisconsin. Id. She completed high school and one year of technical college. R. 80. She worked as a material handler for Briggs and Stratton for many years. She then became a part-time suite attendant for the Bradley Center. R. 82. Her job duties involved ensuring that event goers had valid tickets and directing them to their seats. R. 83.

         When asked to rank her impairments by severity, she responded that her back spasms, the rheumatoid arthritis in her hands and feet, knee pain, and fibromyalgia prevent her from functioning. She explained she takes pain medication, applies ice, and sits in a whirlpool for thirty minutes to relieve her back pain. R. 85-86. As to the rheumatoid arthritis in her hands and feet, Plaintiff testified that she experienced flare-ups every day. R. 88. Her hands and feet swell and shake. R. 89. She also has arthritis in her knees, and explained her left knee pain is worse than the right. R. 90. Although Plaintiff participates in physical therapy, she claimed it made the pain worse. R. 91. The ALJ also noted she has chondromalacia, gout, and right shoulder issues. R. 92-93. Plaintiff reported her hypertension is fairly well controlled. R. 95. She claimed she gets about three migraine headaches each year. The headaches last two to three days. R. 98. Plaintiff also testified that she has been diagnosed with anxiety and depression, and had been considered clinically depressed for six months. R. 95, 111. She gets about three and a half hours of broken sleep each night. R. 100.

         As to her activities of daily living, Plaintiff testified that her husband helps her out of bed, but she is independent in her own self care. Her husband cooks, does the dishes, goes grocery shopping, and pays the bills, and a friend helps with the cleaning once a week. R. 101-02. Plaintiff testified that she tries to exercise and walks her dog half a block twice a day. R. 98. She goes to church once a week and out to dinner once a month. R. 103. She occasionally uses the computer to check her email and Facebook. R. 105-06. She testified that her treating physician prescribed a cane to walk with. R. 110.

         In a written decision dated January 17, 2013, the ALJ found Plaintiff was not disabled. R. 127-35. On December 31, 2013, the Appeals Council granted Plaintiff's request for review and remanded the case to the ALJ. R. 141-43. ALJ Morrison held a second hearing on June 3, 2014. R. 16-70. Both Plaintiff, who was again represented by counsel, and a VE testified. Plaintiff, through counsel, amended the alleged onset date to September 6, 2009, the day before her fiftieth birthday. R. 18.

         At the time of the second hearing, Plaintiff was 54 years old. She was 5'9" and weighed 169 pounds. R. 22. Plaintiff lived in a townhouse with her husband, her 33-year-old son, and her dog. R. 23. She testified that her physical impairments included degenerative disc and joint disease in her lumbar spine, right shoulder impingement syndrome, chondromalacia in the left patella, rheumatoid arthritis in her feet and hands, neck pain, gout, high blood pressure, trochanteric bursitis in her hips, and Type II diabetes. R. 29-30, 34-39. Plaintiff testified her rheumatoid arthritis makes her feet so swollen that she cannot walk or her hands are so swollen that she cannot do housework. She indicated she received Remicade infusions every six weeks. R. 31. She testified that she takes Percocet and uses morphine for her pain. R. 32. As to her mental impairments, Plaintiff testified that she has been diagnosed with anxiety and depression. R. 41. She reported having panic attacks every three months. R. 42. She testified she gets three and a half to four hours of sleep each night and does not take naps during the day. R. 48-49.

         Plaintiff testified that she wakes up with her husband every morning, and he dries her back after she gets out of the shower and ensures she is dressed before he leaves for work. She noted her son cooks meals and her husband grocery shops. R. 50. Although Plaintiff begins the housekeeping, her son or her husband finish the cleaning when she becomes too sore to continue. R. 51. She reported driving approximately once or twice a week, attending church twice a month, and going out to eat once a month. R. 24, 52-53. Plaintiff stated she lets her dog outside and walks around the backyard with him for 20 minutes. R. 55.

         In a decision dated July 16, 2014, the ALJ found Plaintiff was not disabled. R. 148-61. Following the Agency's five-step sequential evaluation process, the ALJ concluded at step one that Plaintiff met the insured status requirements through June 30, 2014 and has not engaged in substantial gainful activity since September 7, 2009. R. 150. At step two, the ALJ found Plaintiff had the following severe impairments: rheumatoid arthritis; fibromyalgia; degenerative disc and joint disease in the lumbar spine; right shoulder impingement syndrome with tendonitis and degenerative changes in the acromioclavicular joint; mild degenerative changes in the feet, knees, and hips; depression; and anxiety. Id. He found her neck pain, pseudo gout, diabetes mellitus, high blood pressure, history of a healed heart lesion, and migraine headaches to be nonsevere impairments. Id. At step three, the ALJ determined Plaintiff's impairments or combination of impairments did not meet or medically equal any listed impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 151.

         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), “except with no more than frequent reaching overhead with the right upper extremity and no work on ladders, ropes, scaffolding, or at unprotected heights. She also is mentally limited to simple, routine, repetitive tasks requiring only simple work-related decisions with few changes in the routine work setting and no more than occasional interaction with supervisors, coworkers, and the general public.” R. 153. With these limitations, the ALJ found at step four that Plaintiff is unable to perform her past relevant work as a hand packager. R. 159. At step five, however, the ALJ found that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as router, price maker, or routing clerk. R. 160. 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. Credibility

         Plaintiff asserts the ALJ improperly assessed the limiting effects of her symptoms. The Social Security regulations set forth a two-step procedure for evaluating a claimant'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 a 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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