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Buros v. Berryhill

United States District Court, W.D. Wisconsin

May 1, 2018

BRADLEY BUROS, Plaintiff,
v.
NANCY BERRYHILL, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Bradley Buros seeks judicial review of a final decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security, finding her not disabled under the Social Security Act. The administrate law judge found that Buros had several severe impairments, including type one diabetes. Although the ALJ found Buros's impairments to be severe, he nonetheless concluded that Buros retained the residual functional capacity to perform a significant number of jobs in the economy and denied his application for disability insurance benefits.

         On appeal, Buros contends that the ALJ made two errors that require remand: (1) failing to give proper weight to a treating physician's opinion that Buros's diabetes caused severe restrictions; and (2) relying improperly on daily activities to discount Buros's credibility. The treating physician opined that Buros's diabetes caused “frequent low blood sugar level episodes” that affected his ability to work. R. 422.[1] But a progress note that followed the opinion showed that his sugar levels were normal after receiving treatment. R. 536. Indeed, the treating physician himself later wrote that Buros's diabetes was “managed now” by treatment. R. 436. As for the credibility determination, the ALJ noted that Buros could walk his dogs for two to three miles, lift 100 pounds without much difficulty, and shoot his bow and arrows. Buros does not deny that he could engage in these activities. The ALJ did not err in considering his daily activities and concluding that Buros exaggerated his symptoms. Buros has not identified a reversible error, so the court will deny Buros's motion for summary judgment and affirm the Commissioner's decision.

         ANALYSIS

         The court reviews the final decision of an ALJ “to determine whether it applies the correct legal standard and is supported by substantial evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Stephens v. Berryhill, No. 16-4003, __ F.3d __ 2018 WL 1918711, at *2 (7th Cir. Apr. 24, 2018) (quoting Pepper v. Colvin, 712 F.3d 351, 361-62 (7th Cir. 2013)). The court reviews the record as a whole, but it cannot reconsider facts, weigh the evidence, decide questions of credibility, or otherwise substitute its own judgment for that of the ALJ. Id. at *2; Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

         A. A treating physician's opinion

          Duane Koons, one of Buros's treating sources, opined in three documents that Buros had severe impairments that precluded him from employment: a June 11, 2015 treatment note, R. 420-21; a July 29, 2015 “Work Excuse/Restriction” form, R. 422; and an April 4, 2016 treatment note, R. 436-38. On appeal, Buros contends that the ALJ erred in evaluating Koons's opinion in the July 29, 2015 Work Excuse/Restriction form. In that form, Koons opined that Buros could sit for 10 minutes at a time, stand for 15 minutes at a time, occasionally lift 15 pounds, and work two hours each day and eight hours each week. R. 422.

         He also opined that Buros would likely need unscheduled breaks and be absent from work for two or more days a month. Id. According to Koons, Buros had these restrictions because of two medical conditions: “labile brittle insulin dependent [diabetes] which causes frequent low blood sugar level episodes” and chronic lumbar radiculopathy (illness of nerve roots in the lower back) that caused back and leg pain. Id.

         The ALJ gave all three of Koons's opinions “lesser weight” for these reasons:

Dr. Koons' opinions are not consistent with the evidence of record that shows that with better carbohydrate monitoring and with his new insulin pump, the claimant is able to manage and control his diabetes, he has essentially eliminated his hypoglycemic episodes, and can even continue driving a car. Furthermore, Dr. Koons' opinions are not consistent with either the objective medical evidence or with the findings of the consultative medical examiner. Additionally, the undersigned notes that Dr. Koons repeatedly refers to the claimant's back pain as having a radiculopathy component, but physiatry specialist Evan R. Nelson, M.D. noted on August 26, 2015, that the claimant's pain does not radiate. Finally, Dr. Koons' opinions that the claimant cannot work are given no weight because the determination of disability is reserved to the Commissioner.

R. 22-23 (citations to the record omitted). Buros contends that the ALJ erred because, among other reasons, the ALJ should have given Koons's July 29, 2015 opinion controlling weight or given greater weight under the regulatory factors enumerated in 20 C.F.R. § 404.1527(c). Buros challenges the ALJ's evaluation of Koons's July 29, 2015 opinion as to his diabetes; he does not argue that the ALJ should have developed the record as to his diabetes or that the ALJ erred in evaluating Koons's opinion as to his other impairments, namely chronic lumbar radiculopathy, neck pain, and pulmonary embolus. R. 420-21, 436- 38.[2] The court concludes that even though the ALJ's reasoning might not be flawless, Buros has not identified a reversible error.

         A treating physician's opinion about the severity of a claimant's medical condition is entitled to controlling weight if “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); accord Stephens v. Berryhill, No. 16-4003, 2018 WL 1918711, at *3 (7th Cir. Apr. 24, 2018).[3] An ALJ who declines to give controlling weight to a treating physician's opinion must give “good reasons.” § 404.1527(c)(2); see also Israel v. Colvin, 840 F.3d 432, 437 (7th Cir. 2016). Those reasons must be supported by substantial evidence in the record. Vanprooyen v. Berryhill, 864 F.3d 567, 573 (7th Cir. 2017).

         When an ALJ does not give controlling weight to a treating physician's opinion, the ALJ must still evaluate the opinion under the regulatory factors enumerated in § 404.1527(c). Those factors include examining relationship, treatment relationship, supportability, consistency, specialization, and any other relevant information that tend to support or contradict the medical opinion. Id.; see also Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir. 2013). The ALJ need not explicitly discuss every factor. See Elder v. Astrue, 529 F.3d 408, 415-16 (7th Cir. 2008) (affirming the denial of benefits even though the ALJ discussed only two regulatory factors). The ALJ need only “minimally articulate his reasons-a very deferential standard that [the Seventh Circuit], in fact, deemed lax.” Id. at 415 (citation and internal quotation marks omitted).

         Buros contends that the ALJ should have given controlling weight to Koons's July 29, 2015 opinion on his diabetes. Koons opined that Buros's diabetes caused “frequent low blood sugar level episodes, ” R. 422, but the record shows that after improved carbohydrates monitoring and use of his new insulin pump, he no longer had the “frequent low blood sugar level episodes” that Koons had noted. Koons, a physician at the Vernon Memorial Healthcare, noted that Buros received treatment for his diabetes at the Mayo Clinic Health System. R. 420, 437. A treatment note from the Mayo Clinic dated January 7, 2016, months after Koons's July 29, 2015 opinion, showed that Buros's sugar levels were normal after receiving treatment. R. 536. (“His meter download shows that he has had no severe lows. He has gone into threshold suspend a few times but when he has checked his blood sugar, his blood sugar has always been within normal ...


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