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Brown v. Berryhill

United States District Court, W.D. Wisconsin

June 22, 2018

ROY PAUL BROWN, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Roy Paul Brown filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the case is remanded for further proceedings consistent with this opinion.


         Plaintiff Roy Brown is 49 years old and was a high school math teacher for 20 years. In 2011, he began having symptoms of what was later determined to be pudendal neuralgia, a thought-to-be rare condition that occurs when the pudendal nerve-which runs from the buttocks to the genitals and perineum area-becomes damaged or irritated. See https://www. (last visited June 19, 2018). This condition's main symptom is pelvic pain, which may be burning or shooting and is typically worse when sitting down and better when standing or lying down. Other symptoms include heightened sensitivity, numbness or “pins and needles” in the pelvic area, feeling as though there's swelling or an object in the perineum, urinary urgency, pain during sex and for men, erectile dysfunction. See (last visited June 19, 2018). Possible causes of the condition include compression of the pudendal nerve, prolonged sitting or cycling, or previous surgery, but it can occur even without a specific cause. Id.

         Although it is unclear what caused Brown's pudendal neuralgia, nearly every medical professional who has seen or evaluated Brown-and there have been many-agrees that he has the condition and that it causes pain. Indeed, one look at Brown's treatment record removes any doubt that Brown's condition is painful: he has attempted to relieve his pain with multiple nerve blocks, hundreds of hours of physical therapy, chiropractic care, laser treatments, dry needling, internal rectal massages and even invasive nerve decompression surgery. In addition, he takes low-dose opioids and other medications used to treat nerve pain. According to Brown, however, none of these procedures and therapies have adequately alleviated his pain. The only thing that Brown has found to relieve his pain is to lie in a reclined position, which he says he does for all but a total of three to four hours a day.

         The professionals who have examined Brown and provided opinions concerning his ability to work were unanimous that he would require substantial amounts of time lying down throughout the workday. Not one of them has suggested that Brown is exaggerating his symptoms. Indeed, one of the more skeptical physicians, Cassandra Schamber, M.D.[1], said that although Brown's level of dysfunction was “unusually severe” for someone with his condition and suggestive of Somatic Symptom Disorder[2], AR 1105, she saw no evidence of malingering, noting that “the mere fact that the patient has been willing to suffer through all the [nerve blocks and decompression surgery] is proof of that.” Id. Although Schamber thought the amount of time Brown spent in a supine position was excessive, she nonetheless recommended that he “be able to change positions every 15 minutes between standing, sitting, and lying down with a maximum of 30 minutes sitting per hour.” Id. Brown's treating physician (Dr. Pierpont) and a consulting physician (Dr. Quenemoen) who examined Brown twice thought Brown was even more restricted in his ability to sit or stand in a given day, as were two physical therapists (Richard Eilert and Vincent Kabbatz) who administered tests to Brown that measured his functional capacity.

         Nevertheless, the ALJ who adjudicated Brown's application for DIB found that Brown can perform light work (which is defined as lifting or carrying up to 20 pounds occasionally and 10 pounds frequently, and either standing or walking a good deal or sitting most of the time with some pushing or pulling of leg controls), provided that he had the ability to change from a seated to a standing position at will. (The ALJ also found that Brown had some mild mental limitations, but Brown raises no challenge to those findings.) In adopting this residual functional capacity, the ALJ placed “great weight” on the opinion of Dr. Andrew Steiner, a physical medicine and rehabilitation specialist who testified at the administrative hearing. Dr. Steiner testified that, after reviewing Brown's entire medical file, he could find few objective clinical findings to explain the severity of the symptoms Brown was reporting. In Steiner's view, the objective findings of record supported at most a restriction to light work with the ability to change position from seated to standing at will. Insofar as Brown's treating doctors had found more severe restrictions, Steiner said, those opinions “were based on limitations because of pain reports and not because of objective findings.” AR 88. Steiner, however, expressed no opinion whether Brown's treating physicians were reasonable in crediting his complaints of pain. AR 89.

         As a starting point, the agency has expressed a preference for the opinions of medical professionals who have treated-or at least examined-the claimant over those who have done neither, see 20 C.F.R. 404.1527. Nonetheless, the ALJ gave “great weight” to Dr. Steiner's opinion, agreeing that the opinions of Brown's treating and evaluating sources were flawed because their opinions were based largely on Brown's own reporting of his symptoms rather than on “objective findings.” The ALJ did not think Brown's reports concerning the intensity, persistence and limiting effects of his symptoms were reliable because they were “not entirely consistent with the medical evidence and other evidence in the record.” AR 26.

         Brown challenges both the ALJ's weighing of the medical opinions and his assessment of Brown's subjective complaints. In this case, these are two sides of the same coin.

         An ALJ is permitted to be skeptical of medical opinions that are based solely upon the claimant's subjective complaints rather than objective medical evidence. Ghiselli v. Colvin, 837 F.3d 771, 776 (7th Cir. 2016); Parker v. Astrue, 597 F.3d 920, 922-23 (7th Cir. 2010); Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008); White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005). Although Brown does his best to argue otherwise, the record supports the ALJ's finding that Dr. Pierpont, Dr. Quenemoen and the other physicians who opined that Brown was unable to work were relying largely on Brown's subjective description of his pain and other symptoms in reaching that conclusion. For example, Dr. Quenemoen did not note any abnormal findings during his examination of Brown other than some tenderness and deconditioning, and his report leaves the impression that he was merely reciting Brown's subjective complaints when he opined that Brown was “unable to sit or stand or walk for any length of time.” Likewise, Dr. Pierpont does not cite any objective evidence for his similar conclusion, and Dr. Collins seems to have been merely parroting Brown's own statements when she said that his pain syndrome “is that if he does get flared it can take a couple of days for him to recover.”

         At the same time, however, it is well-settled that an ALJ cannot reject a claimant's statements about pain solely because there is no objective medical evidence to confirm it. Parker, 597 F.3d at 923 (“It would be a mistake to say ‘there is no objective medical confirmation of the claimant's pain; therefore the claimant is not in pain'”); Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (an ALJ may not discredit a claimant's testimony about his symptoms “solely because there is no objective medical evidence supporting it.”); Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (same); Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (“Pain is always subjective in the sense of being experienced in the brain.”). This is reflected in the agency's rules, which describe a two-step process for evaluating a claimant's own description of his or her impairments. First, the ALJ “must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms, such as pain.” SSR 16-3p, at *2 (superseding SSR 96-7p)[3]; see also 20 C.F.R. § 404.1529. “Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities . . ..” SSR 16-3p, at *2.

         In requiring its ALJs to perform this second step, the agency recognizes that “some individuals may experience symptoms differently and may be limited by symptoms to a greater or lesser extent than other individuals with the same medical impairments, the same objective medical evidence, and the same non-medical evidence.” Id. Accord Johnson, 449 F.3d at 806 (“The etiology of pain is not so well understood, or people's pain thresholds so uniform, that the severity of pain experienced by a given individual can be ‘read off' from a medical report.”). Thus, SSR 16-3p, like former SSR 96-7p, requires the ALJ faced with a discrepancy between the objective evidence and the claimant's subjective complaints to consider “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” SSR 16-3p, at *4.

         In Brown's case, the ALJ found that Brown has pudendal neuropathy with chronic pelvic pain syndrome and that this impairment could reasonably be expected to produce his pain or other symptoms. AR 26. These findings obliged the ALJ to proceed to the second step of the analysis and consider the entire record to resolve the discrepancy between the objective evidence and Brown's self-reports. In reviewing the ALJ's decision on this point, the court looks to see whether the ALJ's credibility determination is “reasoned and supported, ” as it may be overturned only if it is “patently wrong.” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008). A credibility determination is patently wrong if it is illogical or “lacks any explanation or support.” Id.

         The ALJ's credibility determination in this case suffers from a number of logical flaws. First, the ALJ found that “[n]one of the claimant's treating providers have recommended the claimant spend as much time supine as he reports he does in a typical day, ” AR 33 (emphasis in original), and he cited this as reason to omit such a limitation from the RFC. However, Brown never claimed that he lied down as much as he did because his doctors said he should, but rather because it was the only position in which he was pain-free. As Brown points out, among the things an ALJ is to consider when assessing the severity of a claimant's symptoms is “[a]ny measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g. lying flat on his or her back, standing for 15 to 20 ...

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