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Balsewicz v. Berryhill

United States District Court, E.D. Wisconsin

May 18, 2018

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


          LYNN ADELMAN, District Judge

         Plaintiff Jacqueline Balsewicz seeks judicial review of the denial of her applications for social security disability benefits. Plaintiff alleged that she could not work due to back, shoulder, knee, wrist, and hip pain, but the Administrative Law Judge (“ALJ”) assigned to the case concluded that plaintiff retained the ability to perform the full range of “light” work, that plaintiff's past job was light as she performed it, and that she could still do that job. Plaintiff argues that the past job was actually “medium” level work, beyond her capacity. She further argues that the ALJ erred in discounting the opinion of an examining consultant, and that the ALJ failed to consider her good work history in evaluating the credibility of her statements. Finding no reversible error, I affirm the ALJ's decision.


         A. Disability Standard

         In determining disability, the ALJ applies a sequential, five-step test. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the ALJ asks whether the claimant is currently working, i.e., engaging in “substantial gainful activity” (“SGA”). If not, he proceeds to step two, determining whether the claimant suffers from any “severe” impairments. An impairment is “severe” if it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). At step three, the ALJ determines whether any of those severe impairments meet or medically equal the requirements of one of the conclusively disabling impairments listed in the regulations (the “Listings”).

         If the impairments do not meet or equal a Listing, the ALJ proceeds to step four, determining whether the claimant has the residual functional capacity (“RFC”) to return to her past relevant work. RFC is the most an individual can still do, on a regular and continuing basis, despite her impairments. SSR 96-8p, 1996 SSR LEXIS 5, at *5. RFC is often expressed, at least in part, in terms of an exertional category: “sedentary, ” “light, ” “medium” and “heavy” work. As is pertinent here,

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.

20 C.F.R. § 404.1567(b). “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” Id. § 404.1567(c).

         At step four, a claimant will be deemed “not disabled” if it is determined that she retains the RFC to perform: (1) the actual functional demands and job duties of a particular past relevant job; or (2) the functional demands and job duties of the occupation as generally required by employers throughout the national economy. SSR 82-61, 1982 SSR LEXIS 31, at *4. In evaluating a job as performed, the ALJ will often rely on the claimant's reports and statements regarding how she did the job. In evaluating the job generally, the ALJ will often rely on the generic job descriptions contained in the Dictionary of Occupational Titles (“DOT”). Id. at *5. Some jobs “have significant elements of two or more occupations and, as such, have no counterpart in the DOT.” Id. When dealing with one of these so-called “composite jobs, ” the ALJ will focus on the job as performed. See, e.g., Michalski v. Berryhill, No. 16-C-1590, 2017 U.S. Dist. LEXIS 149090, at *17 (E.D. Wis. Sept. 14, 2017) (discussing composite jobs).

         Finally, if the claimant cannot perform her past work, the ALJ will proceed to the fifth and final step, determining whether she can, given her age, education, work experience, and RFC, make the adjustment to other work in the national economy. The claimant bears the burden of presenting evidence at steps one through four, but if she reaches step five the burden shifts to the Commissioner to show that the claimant can make the adjustment to other work. The Commissioner may carry this burden by relying on the Medical-Vocational Guidelines (i.e., the “Grid”), a chart that classifies a person as disabled or not disabled based on her age, education, work experience and exertional ability, or by summoning a vocational expert (“VE”) to offer an opinion on other jobs the claimant can do despite her limitations. E.g., McQuestion v. Astrue, 629 F.Supp.2d 887, 892 (E.D. Wis. 2009).

         B. Standard of Review

         The reviewing court does not redetermine disability but rather decides whether the ALJ's decision applies the correct legal standards and is supported by substantial evidence. Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Legal conclusions are reviewed de novo, but factual findings are reviewed deferentially. Casey v. Berryhill, 853 F.3d 322, 326 (7thCir. 2017). The court will not in reviewing the ALJ's findings re-weigh the evidence or substitute its judgment for that of the ALJ. Summers, 864 F.3d at 526. Findings supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion will be upheld. Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018). The ALJ must provide an accurate and logical bridge between the evidence and his conclusions, but he is not required to address in writing every piece of evidence and testimony in the record. Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014).


         A. Plaintiff's Application and Supporting Materials

         Plaintiff applied for disability insurance benefits in February 2013 and supplemental security income in March 2013, alleging in both applications a disability onset date of June 15, 2012. (Tr. at 18, 189, 1995.) In a disability report, plaintiff indicated that she worked as a general laborer from 1990 to 2010. (Tr. at 213.) She reported that in that job: “I would run a machine, pack cans in boxes, stack them and print labels for cans and bottles.” (Tr. at 214.) “I would lift cases of cans weighing 10-15 pounds and did about 200 cases a day.” (Tr. at 214.) She indicated that the heaviest weight she lifted was 20 pounds, and the weight she “frequently” lifted (1/3 to 2/3 of the day) was 10 pounds. (Tr. at 214.) In doing this job, she would walk eight hours, stand eight hours, sit 0.5 hours, and stoop (bend down and forward at the waist) four hours. (Tr. at 214.)

         In a function report, plaintiff indicated that she prepared simple meals, performed household chores like cleaning and laundry, used public transportation, shopped in stores, and handled her own finances. (Tr. at 221-22.) She further reported hobbies of watching TV and knitting. (Tr. at 223.) She indicated that her back, shoulder, and hip impairments limited her ability to lift, bend, stand, reach, walk, sit, kneel, climb stairs, and understand and complete tasks. She estimated that she could walk one-half to one block before she had to rest for 20 minutes. (Tr. at 224.) She further reported using a knee brace because her leg gave way. (Tr. at 225.)

         B. Agency Review

         The agency arranged for a consultative examination with Nebojsa Stevanovic, M.D., in October 2013.[1] Plaintiff complained of low back pain for 30 years, which got worse in 2010. “She retired and developed bulging discs.” (Tr. at 328.) She reported pain intensity of 5/10, 8/10 with standing. She also reported some right leg weakness, knee instability, and shoulder pain with decreased range of motion. She indicated that she could lift a gallon of milk but not carry it far. She reported that she could stand for 10 minutes, sit for 10 minutes, and walk half a block before developing shortness of breath. Her medical history included a shoulder surgery in 2010 and right knee arthroscopic surgery in 2007. (Tr. at 328.) On exam, she displayed normal range of motion of the neck, decreased lumbar range of motion, and mild tenderness of the paravertebral muscles. Upper and lower extremities had normal range of motion except for the left shoulder, which had decreased abduction and extension; she could not reach overhead with her left arm. Gait and station were normal, and she used no assistive devices. She had positive straight leg raising test in the left leg, but negative on the right. Sensory responses were normal except decreased vibration in the left foot. Muscle tone and strength were 5/5 in all four extremities. Station, balance, and coordination were good, as was her ability to arise from the chair and get on and off the examining table. She could walk on her heels, toes, and tandem walk. Grip strength, fine finger dexterity, and gross manual dexterity were good. “There is no need to change position or posture of the body during the examination.” (Tr. at 329.) Dr. Stevanovic concluded: “The claimant's ability to perform work- related physical activities such as sitting, standing, walking, lifting, carrying, and handling objects is moderately decreased because of back pain.” (Tr. at 329.)

         The agency denied the applications initially on November 5, 2013 (Tr. at 117) based on the review of Antonio Medina, M.D., who concluded that plaintiff could perform medium work with postural limitations: frequent climbing of ramps/stairs, no climbing of ladders/ropes/scaffolds, frequent balancing, occasional stooping and crouching, and frequent kneeling/crawling (Tr. at 84-85). Plaintiff sought reconsideration (Tr. at 122), [2] but the agency maintained the denial on February 26, 2014 (Tr. at 123) based on the review of Pat Chan, M.D., who concluded that plaintiff could perform light work with no postural or other limitations (Tr. at 104-05). Plaintiff then requested a hearing before an ALJ. (Tr. at 141.)

         C. Hearing

         On December 18, 2015, plaintiff appeared with counsel for her hearing before the ALJ. The ALJ also summoned a VE. (Tr. at 33-34.)

         1. Plaintiff

         The ALJ asked plaintiff about the various impairments she alleged. Plaintiff testified that she experienced back pain, worse since 2012 or 2013, for which she received pain medication, which helped; her doctors wanted to do injections, but she was afraid of needles and unsure they would help. (Tr. at 44-45.) She denied side effects from her medications. (Tr. at 55.) She indicated that her back hurt if she stood or sat for more than 15-20 minutes. (Tr. at 55.) Plaintiff denied any treatment for her hips. (Tr. at 46.) She had surgery done on her right knee in 2007 but received no treatment since then. (Tr. at 46-47.) She also had surgery on her left shoulder in 2010, receiving physical therapy and medication thereafter. (Tr. at 47.) She further reported breaking her wrist in June 2015, with continued pain and trouble lifting. (Tr. at 47-48.) She testified that she had been diagnosed with anxiety and prescribed Lorazepam by her primary doctor, which she took off and on; she received no other mental health treatment. (Tr. at 52-53.)

         Plaintiff testified that she lived alone in an apartment and got around by public transportation. (Tr. at 48.) In her previous submissions, she reported shopping, doing household chores, and handling her own money, which she indicated was accurate; she also cared for her dog. (Tr. at 48-49.) She spent no more than an hour at a time doing household chores. (Tr. at 55.) She tried to get out of the house at least twice a week, walking to Speedway about two blocks away, which took about 20 minutes. (Tr. at 56.) She indicated that she could walk about ½ block before she had to stop and rest. (Tr. at 57.) She said that she could not carry anything over 15 pounds. She spent her time in a typical day doing small chores around the house or talking to other people in her apartment building community room. (Tr. at 58.)

         Plaintiff testified that she last worked in 2011 as a silk screener/printer at a chemical plant. That job ended when she got upset and quit after her supervisor tried to add to her duties. She had worked there for 19 years. She did not try to get a different job after she left. (Tr. at 50.) She testified that the most she lifted in her past job was 25 pounds (box and cans). (Tr. at 50, 52.) She was on her feet all day doing that job. She was primarily a silk screener but at times she performed packing duties. The job title was general labor. (Tr. at 51.) She elaborated that the job was mostly tending a machine when she was printing, but she also packed and unpacked boxes, lifting 20 ounce and 16 ounce cans. (Tr. at 61.) She would pull a forklift with the boxes up to her machine, take a box off, open it, take out a can, put it on the machine, and take it off. She carried whole boxes full of these cans. (Tr. at 63.) She spent most of her time printing. (Tr. at 62.)

         2. VE

         The VE classified plaintiff's past job as a screen printing machine operator (DOT # 652.686-038, unskilled, medium work) and hand packager (DOT # 920.587-018, unskilled, medium work). (Tr. at 63-63.) The ALJ then asked a hypothetical question, assuming a person of plaintiff's age, education, and work experience, able to perform medium work as defined in the regulations, but limited to no more than frequent climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; frequent balancing, kneeling, and crawling; and occasional stooping and crouching. (Tr. at 64.) The VE testified that such a person could not perform plaintiff's past job because it involved frequent stooping. (Tr. at 66.)

         The ALJ then reviewed the job description from plaintiff's pre-hearing disability report, in which plaintiff said she lifted no more than 20 pounds. (Tr. at 66-67.) The VE testified that, if that description were used, the job would be light as performed. (Tr. at 67.) The ALJ then asked a second hypothetical, assuming a person limited to light work, with no more than frequent climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; frequent balancing, kneeling, and crawling; and occasional stooping and crouching. The VE testified that the past work could not be done under this hypothetical because of the limit on stooping. (Tr. at 68-69.) Finally, if the person were simply limited to light work (without the additional limitations), the person could perform the past work.[3] (Tr. at 69.) Plaintiff's counsel asked the VE no questions. (Tr. at 72.)

         D. ...

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