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Riser v. Berryhill

United States District Court, E.D. Wisconsin

April 3, 2018

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



         Plaintiff Anita Barnes Riser applied for social security disability benefits, alleging that she could no longer work due to back pain, obesity, and depression, but the Administrative Law Judge (“ALJ”) assigned to the case concluded that she could, despite these impairments, perform a range of sedentary work. Plaintiff now seeks judicial review of that decision.

         I. BACKGROUND

         A. Medical Evidence

         On February 15, 2011, plaintiff underwent a lumbar MRI, which revealed mild degenerative changes in the lumbar spine and a paracentral lesion at the L5-S1 level (either a nerve sheath tumor/neurofibroma or disc protrusion). (Tr. at 304-05.) On June 15, 2011, she saw a rheumatologist, Dr. John Fahey, with continued severe pain despite physical therapy and cortisone shots. (Tr. at 282-83.) On exam, her lower back was tender, and she could not bend over very well. Dr. Fahey assessed osteoarthritis of the knee, aggravated by obesity, and an abnormal MRI requiring further evaluation. He injected her knee and encouraged her to see a neurosurgeon about the MRI. (Tr. at 284.) On July 1 and 8, 2011, Dr. Fahey provided additional knee injections. (Tr. at 288-89, 292-93.)

         On July 21, 2011, plaintiff established primary care with Dr. Adnan Nazir and Katie Larson, NP, regarding obesity, neurofibroma, and chronic back pain. On review of symptoms, she complained of joint swelling, pain, and muscle aches. She denied sadness, difficulty sleeping, or mood changes. (Tr. at 378.) On musculoskeletal exam, NP Larson noted adequately aligned spine, intact range of motion, normal muscular development, and normal gait. Psychologically, plaintiff was oriented, able to demonstrate good judgment and reason, and without hallucinations, abnormal affect, or abnormal behaviors. She was referred to Dr. Cully White, a neurosurgeon, and pain management. (Tr. at 379.) On August 14, 2011, NP Larson noted similar exam findings. (Tr. at 377.) On September 19, Larson noted evidence of mild para-spinal spasm, but normal gait, reflexes, and muscle tone. (Tr. at 375.)

         On September 21, 2011, plaintiff saw Dr. White in consultation. On exam, she walked with a slow, stiff gait, and demonstrated evidence of reduced lumbar range of motion and positive straight leg raise. After discussing treatment options, they elected to proceed with L5-S1 epidural steroid injections. (Tr. at 318.)

         An additional MRI taken on October 28, 2011, showed a large disc herniation at L5-S1 (Tr. at 684), and on October 31, 2011, Dr. Jack Deckard performed an L5-S1 laminectomy, right L5-S1 formaminotomy L5-S1, and diskectomy on the right at L5-S1. (Tr. at 684, 690-91.) Between November 3 and 12, 2011, plaintiff completed an in-patient rehabilitation program. (Tr. at 683-86.) She followed up with NP Larson on November 28, 2011, December 14, 2011, and January 9, 2012, walking with a limp and a cane, and was referred to pain management and physical therapy. (Tr. at 372, 370, 368.)

         Plaintiff subsequently obtained treatment at the Center for Pain Management, receiving medications and injections. (Tr. at 653, 675, 705-06, 436, 547, 587-88, 600-01.) She generally reported significant pain relief following an injection, although the pain would eventually return. (Tr. at 532, 543, 552, 558, 563, 566, 572, 603, 606.) At times, she reported that her medications worked well, keeping her pain tolerable and allowing her to be functional (Tr. at 572, 575, 582, 595, 606, 623, 635, 647); on other occasions, however, her pain was not adequately controlled (Tr. at 592, 612, 616, 629). Water aerobics helped relieve some of her pain. (Tr. at 575.) Her exams generally revealed pain on palpation of the lumbar region, limited active range of motion, and positive bilateral straight leg raise. (Tr. at 654, 658, 660, 663, 665, 667, 669, 671, 539.) Plaintiff also continued to see NP Larson and Dr. Nazir, with their exams generally reflecting intact range of motion, normal muscular development, and normal gait, but with mild para-spinal tenderness and positive straight leg raise. (Tr. at 365, 362, 359, 357, 354, 352, 349, 347, 344, 341, 339, 336, 439, 442, 446, 450, 470.) Plaintiff reported periodic falls when her right leg gave out (Tr. at 666, 350, 347, 670, 535, 546, 609, 615), and NP Larson noted that plaintiff sat on the left hip to avoid pressure on the right hip (Tr. at 352, 349, 347, 344, 341, 339). At times, plaintiff also reported lower extremity swelling. (Tr. at 500-02, 602, 460.)

         A repeat MRI completed on August 23, 2012, revealed recurrence and increased size of the L5-S1 disc extrusion. (Tr. at 680.) However, further surgery was deferred until she could lose some weight. (Tr. at 676, 530, 538.) She followed up with Wisconsin Bariatrics, where she had previously undergone lap band surgery, but her weight loss progress stalled based on poor eating habits and limited exercise. (Tr. at 384-92.)

         On October 1, 2012, NP Larson completed a residual functional capacity questionnaire, listing diagnoses of herniated lumbar disc, hypertension, and morbid obesity, and symptoms of pain, fatigue, dizziness, numbness in the right leg, and limitations in ambulation, bending, and squatting. Larson opined that plaintiff's symptoms would frequently interfere with the attention and concentration needed to perform simple work-related tasks, and that her medications caused side effects of fatigue/drowsiness. Larson indicated that plaintiff could continuously walk one block, sit for 30 minutes, and stand/walk 30 minutes; in an eight-hour day, she could sit for four hours and stand/walk for four hours. She needed a job that allowed shifting positions at will from sitting, standing, or walking. (Tr. at 329.) She could occasionally lift 10 pounds, never more. She would likely be absent from work more than four times per month due to her impairments and was not physically capable of working a full-time schedule on a sustained basis. (Tr. at 330.)

         On January 26, 2014, Dr. Nazir completed a medical assessment form, listing diagnoses of asthma, chronic back pain, morbid obesity, and hypertension. He indicated that plaintiff's symptoms would not cause her to be off task at least 15% of the day. (Tr. at 496.) He opined that plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, or climb stairs at a reasonable pace. She needed a cane, or a walker at times, to ambulate. She could walk ½ block without rest or severe pain, continuously sit for 20 minutes before she had to stand or lie down, and stand for 10 minutes before she had to walk, sit, or lie down. (Tr. at 497.) In an eight-hour day, she could sit for less than two hours and stand/walk less than two hours. She needed six unscheduled breaks in an average workday and needed to elevate her legs at least two hours during a typical eight-hour daytime period. She could rarely lift less than 10 pounds, never more, and never twist or stoop. She could use her left hand to grasp and finger constantly, but her right hand less than occasionally. She could use her right arm to reach less than occasionally, her left arm occasionally. (Tr. at 498.) She would be absent more than four days per month due to her impairments. (Tr. at 499.)

         On July 20, 2015, plaintiff saw Dr. Rizwanullah Arain for a neurology consult related to right arm pain and numbness. (Tr. at 491.) Dr. Arain ordered an EMG study (Tr. at 493), which revealed mild right carpal tunnel syndrome (Tr. at 494). He ordered physical therapy and a right wrist splint. (Tr. at 491.) A September 9, 2015, note indicates that plaintiff never went to physical therapy. (Tr. at 488-89.)

         From October to December 2015, plaintiff received treatment for anxiety and depression at Acacia Wellness Center. (Tr. at 707-99.) During a psychiatric evaluation on October 8, 2015, Isaac Nagel, M.D., noted well-groomed appearance, cooperative attitude, depressed mood, stable affect, normal speech, goal-directed thought form, no suicidal/homicidal ideation, no evidence of delusions or hallucinations, intact cognition, and fair judgment/insight. (Tr. at 779-80.) He diagnosed episodic mood disorder and anxiety, with a GAF of 50, [1] continuing her on Wellbutrin and Cymbalta. (Tr. at 780.) During a subsequent office visit on October 22, 2015, plaintiff reported some improvement. She was working on raising money for her church.[2]On mental status exam, Dr. Nagel noted well-groomed appearance, normal gait, cooperative attitude, OK mood, stable affect, normal speech, goal-directed thought form, no suicidal/homicidal ideation, no evidence of delusions or hallucinations, intact cognition, and fair judgment/insight. He continued Cymbalta and Wellbutrin. (Tr. at 758.) On November 5, 2015, plaintiff told Dr. Nagel, “I am OK.” (Tr. at 740.) On mental status exam, she again displayed well-groomed appearance, normal gait, cooperative attitude, OK mood, stable affect, normal speech, goal-directed thought form, no suicidal/homicidal ideation, no evidence of delusions or hallucinations, intact cognition, and fair judgment/insight. Dr. Nagel continued her medications. (Tr. at 741.) Plaintiff participated in several group (Tr. at 769-70, 763-64, 747-48) and individual therapy sessions, discussing issues with her children and feelings of guilt for not working (Tr. at 728, 720). She reported panic attacks and crying spells every day (Tr. at 729), although the medications helped reduce the anxiety (Tr. at 732). She further reported staying in her room all day in a house robe. (Tr. at 715.) Mental status exams revealed normal behavior, normal speech, normal insight and judgment, organized thought processes, and no evidence of delusions or hallucinations. (Tr. at 721, 716.) She was discharged from treatment in February 2016 due to missed appointments and lack of contact. (Tr. at 712, 797.)[3]

         B. Procedural History

         1. Plaintiff's Application and Supporting Materials

         On August 31, 2012, plaintiff applied for benefits, alleging a disability onset date of May 30, 2011. (Tr. at 189-95, 222, 226.) She alleged that she could no longer work due to nerve damage in the right leg and arm, surgery complications, morbid obesity, and high blood pressure. (Tr. at 226.) In a function report, plaintiff indicated that since her October 2011 surgery she had severe nerve damage to her right arm and leg, which caused falls. She could not sit or stand for long periods of time. (Tr. at 235.) She spent most of her time lying down, used a cane or walker when she got up to use the bathroom, and needed help with personal care. (Tr. at 236.) She sometimes prepared meals but did no housework. (Tr. at 237.) She could drive, shop, and handle money. (Tr. at 238.) She reported hobbies of reading and watching TV. She could not exercise to lose weight. She communicated with others by phone and computer. (Tr. at 239.) She indicated that she could not walk a block, lift over five pounds, bend, twist, or climb stairs. (Tr. at 240.) She used a cane when going out, a walker in her home. (Tr. at 241.) She took medications for pain, nerve damage, depression, and anxiety, which made her drowsy. (Tr. at 242.)

         In a physical activities addendum, plaintiff reported that she stood 5'6-½” tall and weighed 285 pounds. She reported that she could continuously sit for 30 minutes, stand for 10 minutes, and walk for 10 minutes. In a day, she could sit for one hour, stand for 10 minutes, and walk for 30 minutes. Her provider, Katie Larson, had limited to her to lifting five pounds. (Tr. at 243.)

         2. Agency Decisions

         The agency denied the application initially on May 23, 2013 (Tr. at 75-76, 131), based on the review of Pat Chan, M.D., who concluded that plaintiff could perform sedentary work with postural limitations (Tr. at 83-84), and Deborah Pape, Ph.D., who found that plaintiff's affective disorder caused no more than mild mental limitations (Tr. at 81-82). Plaintiff sought reconsideration (Tr. at 140), but the agency denied that request on November 6, 2013 (Tr. at 127-28, 141), based on the review of Yacob Gawo, M.D. (Tr. at 107-09), and Larry Kravitz, Psy.D. (Tr. at 105-06), who largely agreed with the initial assessments. Plaintiff then requested a hearing before an ALJ. (Tr. at 147-48.)

         3. Hearing

         On February 2, 2016, plaintiff appeared with counsel before the ALJ. The ALJ also summoned a vocational expert (“VE”). (Tr. at 35.)

         Plaintiff testified that she was 47 years old with a high school degree and a cosmetology license. (Tr. at 40-41.) She last worked in 2011 doing hair; she stopped doing that work because of back pain. (Tr at 41-42.) Before that, she worked as a bank teller and manager at a fast food restaurant. (Tr. at 42-43.) She supported herself through W2 benefits; she had two minor children, ages 17 and 10, and acted as guardian for her five year old nephew; she also had an adult daughter, age 27. (Tr. at 44-45, 47.)

         Plaintiff testified that her 27 year old daughter did the shopping and the older two children did the housework. She did not do any of that. (Tr. at 48.) Her adult daughter came to her home every day to make sure the younger kids got on the bus and got home, prepared dinner, washed dishes, and made sure the clothes were clean. (Tr. at 55-56.) Plaintiff spent most of her time laying down, reading, and watching TV. (Tr. at 56.)[4]

         Plaintiff testified that she could no longer work an office job because she had to prop up her legs and could not sit or stand for long; she spent most of the day in bed. (Tr. at 49.) She also suffered from right carpal tunnel syndrome for which she had a splint. (Tr. at 50.) She indicated that she could lift just eight pounds, no more. (Tr. at 51.) She testified that she was on her feet most of the time and had to lift at least 80 pounds when working as a bank teller and restaurant manager. (Tr. at 53-54.) She also did hair on her feet. (Tr. at 54.)

         Plaintiff saw pain management, where she received medication and a series of injections. The injections gave her some relief. (Tr. at 57.) She had been using pain patches since 2014 and a cane since 2011. She had also been prescribed a walker in 2014 due to falls. (Tr. at 58-59.) When sitting, she elevated her legs because of swelling. (Tr. at 60.) She was not a candidate for further surgery unless she lost weight. She currently stood 5'4-½” tall and weighed 290 pounds. Her weight had fluctuated between 250 and 324 pounds over the past few years. (Tr. at 62.) She estimated that she could sit for about 20 minutes before she had to change positions. (Tr. at 63.) She testified that her entire right side was numb. She had pain across her lower back and down her left leg. The pain was excruciating. (Tr. at 63.) She had taken a ...

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