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Thompson v. Berryhill

United States District Court, E.D. Wisconsin

January 31, 2019

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


          LYNN ADELMAN District Judge

         Plaintiff Kimberly Thompson seeks judicial review of the denial of her application for social security disability benefits. For the reasons that follow, I affirm the Commissioner's decision and dismiss this action.


         A. Plaintiff's Application and Administrative Decisions

         Plaintiff applied for benefits on January 29, 2013, alleging that she became disabled as of August 30, 2012, due to depression, bipolar disorder, neck and back problems.[1] (Tr. at 15, 420.) The agency denied the application initially on November 6, 2013, with the agency's reviewing consultants, Drs. Walls and Mamaril, finding insufficient evidence to substantiate the presence of a disorder or impairment.[2] (Tr. at 140-51.)

         On November 7, 2013, plaintiff underwent a consultative orthopedic exam with Dr. Linford. Plaintiff presented with a chief complaint of neck and right shoulder pain, reporting that she underwent posterior C3-4 spinal fusion surgery following a motor vehicle accident in 1997. She reported pain mostly on the upper right side of her neck with some radiation into her shoulder on the right. She further indicated that she usually ambulated with a cane, although she did not have one with her that day. (Tr. at 768.) On exam, cervical range of motion was somewhat decreased with forward flexion. She was mildly tender about her right shoulder, but she had no tenderness to palpation about her lumbar spine. Neurologic exam revealed normal strength, and she had negative straight leg raises bilaterally. Exam of the bilateral upper extremities revealed normal alignment and painless functional range of motion of the shoulders, elbows, wrists, and digits. She had full rotator cuff strength of the right shoulder. She was also able to reach over head and had preserved grip strength and manual dexterity. Lower extremity exam showed normal alignment and painless functional range of motion of the hips, knees, ankles, and feet. She walked with a normal heel-to-toe pattern without any assistive devices and was able to rise on her toes and heels, arise from a chair comfortably, and get on and off the exam table without difficulty. (Tr. at 769.) Dr. Linford concluded that while plaintiff had relatively preserved cervical range of motion, due to her neck pain, “she would not tolerate any overhead activity or lifting heaving loads, pushing or pulling heavy loads repetitively.” (Tr. at 770.)

         On June 24, 2014, plaintiff underwent a consultative medical exam with Dr. Hafeez for evaluation of her back problem, stomach pain, and eye issues. Plaintiff reported lower back pain since the 1997 auto accident. She had another accident in 2012, when she slipped at home and hurt her back again. She reported using a walker and cane, and needing help from others with housework. However, she did not bring her cane to the exam. She also reported joint pain and hand stiffness, indicating that she was scheduled to see a rheumatologist. She further reported right knee pain since 1997. Finally, she reported that her distance vision was fine, but she believed she needed reading glasses. (Tr. at 789.) On exam, she appeared in no acute distress. Snellen chart examination without glasses revealed 20/20 vision on each side. She had good hand grips, with no inflammatory signs over the hands or wrists. She had no limitation in the movement of either shoulder and full range of movement at the neck. (Tr. at 790.) Her lumbosacral spine was tender, but straight leg raise was negative bilaterally, she was able to flex to 90 degrees, and gait was normal. (Tr. at 791.) For his impression, Dr. Hafeez noted lower back pain as a result of the 1997 accident, aggravated again in 2012. Plaintiff reported needing a cane and at times having difficulty walking, but during the exam she had a normal gait, did not appear to have any difficulty walking and bending, and straight leg raise was negative. As for her joint pain, she brought a paper indicating her rheumatoid factor was elevated, but clinically she did not show any signs of rheumatoid arthritis. As for her stomach pain, plaintiff denied this was happening anymore. As for her eye problem, she had difficulty reading close but at distance she did fine on the Snellen chart examination. (Tr. at 791.) Dr. Hafeez ordered an x-ray of the lumbosacral spine, which revealed mild degenerative disc disease at several levels, most pronounced at L3-4. (Tr. at 792.)

         On July 8, 2014, plaintiff underwent a psychological consultative evaluation with Dr. Dolezal, indicating that she had been unable to work since her surgery in 1997. (Tr. at 795.) Dr. Dolezal diagnosed mood disorder, generalized anxiety disorder, alcohol abuse, and history of opioid abuse, with a GAF of 60.[3] In a statement of work capacity, Dr. Dolezal wrote:

[Plaintiff] appears to have the ability to understand, remember, and carry out simple instructions if she chooses to. However, multi-step or multitasks may be difficult for her to remember. With regard to her ability to interact appropriately with supervisors and coworkers, she is likely to experience moderate difficulty at times based on her mood shift. She appears to be able to maintain attention and concentration adequately to do limited or low skill employment. Her work pace may be slowed due to physical limitations; however, this would need to be assessed by a physician. She presented to the evaluation with psychomotor slowing. She may have mild impairment of her ability to withstand routine work stresses and to adapt to changes due to symptoms of anxiety and depression. [Plaintiff] would benefit from continuing to receive individual psychotherapy and psychopharmacological treatment.

(Tr. at 800.)

         On July 24, 2014, the agency denied plaintiff's request for reconsideration of the initial denial (Tr. at 298), relying on the review of Dr. Biscardi, who found that plaintiff could mentally handle simple, routine work involving limited interactions with others (Tr. at 162-63) and Dr. Bente, who opined that plaintiff could physically perform a range of light work (Tr. At 164-66). Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 300.)

         B. Hearing

         On July 20, 2016, plaintiff appeared with counsel before an ALJ. The ALJ also summoned a vocational expert (“VE”) to the hearing. (Tr. at 87.)

         1. Plaintiff

         Plaintiff testified that she was then 47 years old and lived with her 17 year old daughter; she had two other, adult children. (Tr. at 92.) She had completed high school and obtained an associate's degree or certificate in criminal justice. (Tr. at 94-95.) She reported previous employment as a part-time bus driver and cleaner, but the ALJ concluded ...

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