United States District Court, E.D. Wisconsin
TERESA R. MARX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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