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Marx v. Berryhill

United States District Court, E.D. Wisconsin

March 23, 2018

TERESA R. MARX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Teresa Marx filed this action for judicial review of a decision by the Commissioner of Social Security denying her applications for disability, disability insurance benefits (DIB), and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. She contends that the decision is not supported by substantial evidence. In particular, she asserts that the Administrative Law Judge (ALJ) failed to properly evaluate the physical and mental components of her Residual Functional Capacity (RFC), allocated insufficient weight to the opinion of a treating nurse practitioner, and improperly evaluated her subjective symptoms of impairment. For the reasons set forth below, the decision of the Commissioner will be reversed.


         Plaintiff filed applications for disability, DIB, and SSI on May 28, 2013, alleging that she has been disabled since April 26, 2013, as a result of degenerative disc disease, neck and back problems, anxiety, memory loss, incontinence, and muscle spasms. R. 141, 345. She is 5' 11" tall and weighed approximately 309 pounds on the date of the hearing. R. 141, 1027. Although Plaintiff lived in Georgia at the time she originally filed her applications, she has since moved to Green Bay, Wisconsin, where she lives in an apartment with two of her sons. R. 219, 1003-04.

         In October 2013, Plaintiff's benefits applications were denied both initially and on reconsideration. R. 345. An ALJ affirmed the denial, but the Appeals Council reversed the ALJ's decision and remanded for further consideration of her applications. R. 18, 363-65. Shortly before the date scheduled for the new hearing on remand, Plaintiff amended her alleged onset date to June 1, 2014, a few days short of her fiftieth birthday. R. 18. ALJ Jeffry Gauthier subsequently held the hearing on remand on February 22, 2016. R. 995. Both Plaintiff, who was represented by counsel, and a vocational expert (VE) testified at the hearing. R. 996.

         Plaintiff testified that in the years prior to her alleged onset date she worked primarily as a substitute school bus driver. R. 1008-09. However, she also has a certificate in early childhood education from Georgia Technical College, and she previously worked part time as a nursery school supervisor in addition to her work as a bus driver. R. 1007-10. With regard to her work as a bus driver, she noted that several job duties aggravated the pain from her alleged impairments, particularly bending to conduct bus inspections and to buckle into place wheelchairs used by students with disabilities. R. 1030-31.

         At the hearing, Plaintiff identified knee pain as the most severe of the medical conditions that allegedly keep her from working. R. 1010-11. Her primary problems come from her left knee, which has no cartilage. R. 1011. Her right knee is also degenerating, but at a slower pace. R. 1016. Although she has received cortisone and Euflexxa injections, those treatments are no longer effective. R. 1011. She has been told by a doctor that a left knee replacement will be the next step to address her pain, but on the date of the hearing she had not yet made concrete plans to have the surgery. R. 1012-14. The knees cause her constant pain. R. 1014. She sometimes loses her balance, and she generally uses either a cane or a walker when walking. R. 1014-15. When she goes to the grocery store once or twice a month, she also uses the motorized scooters that are available. R. 1031-32. Cold weather, bending, sitting, and standing all aggravate her knee pain. R. 1031.

         Plaintiff identified pain in her feet and back as her next most disabling impairments. R. 1016-17. She has tendinitis in her right foot, and she wears a brace and orthotics for both feet. Id. As for her back, she experiences pain as a result of a degenerative disc in her lower back. R. 1017. Pain from the lower back also radiates up into her middle back and neck in the form of muscle spasms. R. 1018. She has received an epidural for the back pain, and a doctor has prescribed her hydrocodone with acetaminophen. Id. Related to these conditions, Plaintiff testified that both her knee doctor and her foot doctor have advised that her weight may exacerbate her pain. R. 1025-26.

         As for mental impairments, Plaintiff testified that she experiences mood swings. R. 1019. She said that these occur approximately three times each week. R. 1020. When the mood swings occur, she testified that she becomes sad quickly, usually when thinking about the recent death of her sister or when she becomes confused. R. 1020-21. She testified that these mood swings have gotten progressively worse since they first started occurring in 2003. R. 1021. Medication has not improved her mental health conditions, and she testified that her prescribed medications do not work approximately two days each week. R. 1022-24.

         Plaintiff testified that her typical day begins around 10 a.m., at which time she eats breakfast and takes her medication. R. 1029. She then goes back to sleep for several hours, arising again around 4 p.m., when her son gets home from school. Id. After talking with her son and taking her evening medication, she then sleeps for up to another three hours. Id. Although she previously swam for approximately twenty minutes once a week in an effort to reduce her weight, she testified that, at the time of the hearing, she was not swimming or otherwise exercising due to difficulties with walking to the bus caused by winter weather. R. 1026-28. At home, she testified, her back pain and problems walking up and down stairs prevent her from washing dishes, making beds, mopping, and doing other household chores. R. 1032. She testified that she cannot stand for more than eight minutes without needing to sit down. R. 1032-33. She is separated from her husband, but she testified that he sometimes comes to her apartment to help around the home. R. 1032. Aside from frequent interaction with her immediate family and larger family gathering around the holidays, she has minimal social interaction. R. 1034.

         In a thirteen-page decision dated June 6, 2016, the ALJ once again determined that Plaintiff is not disabled. R. 18-30. 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 Plaintiff met the insured status requirements through June 30, 2018, and that she has not engaged in substantial gainful activity since her amended alleged onset date of June 1, 2014. R. 20. At step two, the ALJ concluded that Plaintiff has four severe impairments: degenerative disc disease, osteoarthritis of the feet and knees, obesity, and affective disorder. R. 21.

         At step three, the ALJ concluded that Plaintiff 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. R. 21-23. With regard to her physical impairments, the ALJ considered listing 1.04 (spinal disorders), as well as Social Security Ruling 02-1p, which requires the ALJ to account for obesity throughout the sequential evaluation process. R. 21. With regard to her mental impairments, the ALJ considered listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders) and determined that Plaintiff did not have a sufficient combination of marked impairments and repeated episodes of decompensation to satisfy the “paragraph B” criteria for either listing. R. 21-22. Nor did the evidence support the existence of either listing's “paragraph C” criteria. R. 22-23.

         The ALJ next assessed Plaintiff's RFC and found that she can perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). R. 23. That RFC finding is subject to several limitations:

[T]he claimant is limited to pushing and pulling bilaterally with feet on an occasional basis and reaching overhead bilaterally on an occasional basis. She can utilize ramps or stairs occasionally. She should never use ladders or scaffolds. The claimant can stoop, kneel, crouch and crawl on an occasional basis. She should never work at unprotected heights or around moving mechanical parts. She is limited to performing simple, routine and repetitive tasks and making simple work-related decisions. She can respond appropriately to supervisors on a frequent basis. She can respond appropriately to coworkers and the public on an occasional basis. She can tolerate occasional changes in routine work setting. In addition to normal breaks, she would be off task less than 10% of the time in an eight-hour workday.

Id. In support of the RFC finding, the ALJ conducted a five and half page discussion of Plaintiff's testimony and medical records. R. 23-28.

         At step four, the ALJ concluded that Plaintiff did not have any past relevant work experience because neither her work as a school bus driver nor her work as a nursery school supervisor rose to the level of substantial gainful employment (SGA). R. 28. The ALJ noted the VE's additional testimony that, even if those two jobs did constitute SGA, Plaintiff's RFC would preclude her from performing either. R. 28-29. At step five, the ALJ then further relied on the VE's testimony that a person with Plaintiff's age, educational background, work experience, and RFC would be able to perform work that is available in significant numbers in the national economy. R. 29. Specifically, the VE testified that Plaintiff would be capable of performing work as a housekeeper, order filler, or ...

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