United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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)).
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 ...