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Ellias v. Colvin

United States District Court, W.D. Wisconsin

May 23, 2018

SARA ELLIAS, Plaintiff,



         Pursuant to 42 U.S.C. § 405(g), plaintiff Sara Ellias seeks judicial review of a final decision of defendant Carolyn W. Colvin, the former Commissioner of Social Security, which denied her application for Social Security Disability Insurance Benefits. For the reasons provided below, notwithstanding the number of severe impairments credited by the ALJ, the record and explanation of the ALJ more than adequately explain her rejection of the treating physician's opinion here, as well as the finding that plaintiff could engage in light work with certain restrictions. Accordingly, the court will affirm the Commissioner's determination and enter judgment in defendant's favor.


         On July 9, 2012, Ellias filed a Title II application for a period of disability beginning December 31, 2011. Her claim for disability insurance benefits was denied on January 24, 2013, and upon reconsideration on August 22, 2013. Ellias then requested an evidentiary hearing before an Administrative Law Judge, which took place on December 18, 2014, before ALJ Mary M. Kunz.

         The ALJ found Ellias suffered from a variety of severe impairments, including obesity, migraine headaches, chronic pain syndrome (or fibromyalgia), hiatal hernia repair, mild osteoarthritic changes in the hip, degenerative disc disease of the lumbar spine and facet osteoarthritis, degenerative disc disease of the cervical spine, minimal osteoarthritis changes in the left knee, plantar fasciitis and left shoulder bursitis. (AR at 22.) The ALJ found that several other health issues were not severe impairments, including a history of gall bladder surgery without ongoing limitations, history of sarcoid, bony abnormalities, vertigo and ADD. (Id. at 22-23.)

         The ALJ denied Ellias's claims on January 16, 2015, making an RFC finding that she was capable of light work under 20 CFR 404.1567(b). (AR at 27.) The ALJ cautioned against work at unprotected heights or near hazards requiring balance, and placed other restrictions on physical activity. (Id.) While finding that Ellias should work near a restroom, the ALJ did not assume a need for rest breaks beyond what is typical. (Id.)


         This court must defer to an ALJ's decision to deny benefits unless it is unsupported by substantial evidence or based on an error of law. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Ultimately, the ALJ must create an “accurate and logical bridge” between the evidence and the conclusion that the claimant is not disabled. McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)).

         “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ).” Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). A reviewing court will not “reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Still, the court must conduct a “critical review of the evidence” before affirming a decision to deny benefits. McKinzey, 641 F.3d at 889.

         Here, plaintiff raises seven issues on appeal, arguing that the ALJ failed to: (1) account for a need for rest breaks beyond the traditional two fifteen minute rest periods and one thirty minute lunch break during an eight hour work day; (2) properly analyze side effects of plaintiff's medications; (3) consider the impact of obesity on plaintiff's ability to work; (4) give adequate weight to a treating physician; (5) consider diagnosed fibromyalgia in the SSR-12-2p context; (6) consider plantar fasciitis; and (7) properly assess plaintiff's mental RFC. The court will address each claim in turn.

         I. Additional Rest Breaks

         Plaintiff argues the ALJ did not sufficiently credit her testimony about difficulties with bowel control, making the ALJ's conclusion she should work near a restroom overly vague. Under Social Security Ruling 96-7p, an ALJ must follow a two-step process in evaluating a plaintiff's description of her impairments. The ALJ must determine whether an “underlying medically determinable physical or mental impairment” could reasonably be expected to produce the individual's pain or other symptoms; and if so, the ALJ must evaluate the “intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.” Social Security Ruling (SSR) 96-7p, 1996 WL 374186, *2 (1996); see also Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004).

         Here, the ALJ found that plaintiff's testimony about bowel control was “not corroborated by the objective medical record.” (AR at 31.) Specifically, the ALJ noted “no complaints of loss of bowel control to any treating source, ” which she found to be “a course of treatment completely inconsistent with her allegations in testimony at the hearing.” (Id. at 32.) Such credibility findings are entitled to deference and will be upheld unless “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006); see also Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006) (“Credibility determinations can rarely be disturbed by a reviewing court, lacking as it does the opportunity to observe the claimant testifying.”); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (“It is only when the ALJ's determination lacks any explanation or support that [the court] will declare it to be ‘patently wrong.'”). Additionally, the VE testified during the RFC determination that a significant number of jobs place workers close to the restroom.

         II. ...

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