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Pannunzio v. Berryhill

United States District Court, W.D. Wisconsin

February 19, 2019

JAMIE PANNUNZIO, Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Claimant Jamie Pannunzio seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, under 42 U.S.C. § 405(g), which denied her application for disability and disability insurance benefits based on problems with her left knee and right shoulder. On February 2, 2018, the court held oral argument regarding claimant's contention that the decision of Administrative Law Judge Michael Schaefer (the “ALJ”) was procedurally wrong for a laundry list of reasons. For the reasons discussed below, the Acting Commissioner's decision will be affirmed.

         FACTS

         A. Background

         Pannunzio filed a Title II application for disability and disability insurance on May 8, 2014, alleging that her disability began on April 1, 2013, corresponding with the date of one of her numerous knee surgeries. (AR 17, 21.)[1] Her claim was first denied on July 15, 2014, and again on reconsideration on January 31, 2015. (AR 17.) Claimant filed a written request for a hearing on March 18, 2015, which was followed by a video hearing on November 12, 2015, before the ALJ. (Id.) The ALJ then issued a written decision denying her application for benefits on November 27, 2015. (Id.)

         Born on September 10, 1982, Pannunzio was 30 at the time of her alleged onset date, making her a “younger individual” under the regulations. She has a degree in business management from Everest College, but did not return to work following surgery in early 2013 because she “cannot stand for any long periods of time” and “[t]he doctors never okayed [her] even to go back to work.” (AR 64.) Pannunzio also testified that: “I get really bad sharp pains whenever I stand for too long, or my leg will give out and I'll fall. And if I sit without moving it, [my leg] gets real sharp pain or it goes numb. And my leg also has to be elevated at all times.” (AR 74.)

         B. Medical Record and Reports

         Pannunzio's first knee surgery apparently was in 1998. (See AR 473.) Afterward, she tried physical therapy, but when told by her physical “therapist that her knee should be improving, ” she stopped going. (AR 471, 473.) In April 2013, she had her fifth knee surgery, which was the predicate for her disability claim. (See AR 270.) Pannunzio expected a long recuperation period from the surgery (id.), and she reported being “very happy with her knee's progress one week out from surgery” (AR 273). However, she did not immediately begin recommended physical therapy and had still not started in June, two months after her surgery. (See AR 450.) By August, she reported starting physical therapy, but admitted to missing appointments because of “schedule conflicts.” (AR 447.)

         In November 2013, Pannunzio's surgeon, Dr. Schoeppach, noted that: “She hasn't been in PT. It sounds like she wasn't making progress.” (AR 338.) A week later, the doctor's notes show that she “recently discontinued [therapy] at the recommendation of her therapist, ” but Dr. Cummins “recommend[ed] initiating therapy again or at the very least continuing with it and a home exercise program to work on quad strengthening.” (AR 444.) Around the same time, Pannunzio's medical records indicate that her surgeon “felt she was doing okay and recommended continuing to progress with therapy, ” although she was still using a cane in May 2014. (See AR 500.) And during the first half of 2015, Dr. Warren consistently noted that “Jamie feels she is doing well and has minimal discomfort and moderate swelling.” (AR 690, 697, 708, 714.) In March and April, he also noted that “[t]here is moderate swelling and good range of motion” (AR 708, 714), which improved to “minimal swelling and good range of motion” in June and July (AR 690, 697). In July, Pannunzio herself felt “like things [were] getting better, ” and reported that she was “getting back more range of motion.” (AR 674.) In April 2015, she was also back in physical therapy. (AR 706.) A June Physical Therapy Initial Evaluation noted “[g]ood rehab potential to reach established goals, ” such as to “ambulate with cane and equal weight bearing on left and right lower extremity up to 1000 feet; [s]tand/walk for 30 minutes with pain levels no greater than 4/10[; p]erform 60 minutes of aquatic therapy[; and be a]ble to go [u]pstairs with normal pattern.” (AR 693.)

         As for her shoulder, Pannunzio's self-reports are even more mixed. She reported in April 2012 having had “right shoulder problems for a long time.” (AR 290.) In June 2012, however, she denied having a history of shoulder problems. (AR 584.) Then, with shoulder surgery on the horizon months later, her medical records indicate that she again noted that “[t]he pain has been longstanding.” (AR 263.) Approximately six weeks after her right shoulder arthroscopy, Pannunzio's records show that “[t]he wound is healed and there is excellent range of motion. The arm can elevate against gravity.” (AR 460.) Finally, years later, she complained of “develop[ing] some discomfort with forward elevation.” (AR 679.)

         Pannunzio's medical records are further complicated by multiple references to drug-seeking or abusive behavior. (AR 452, 525564, 571, 576, 632.)[2] Her medical providers also expressed doubts as to the severity of her symptoms. (AR 447, 586.) There are also references to her being uncooperative. (AR 281, 297, 525, 576.)

         In the fall of 2015, Pannunzio's treating physicians completed “Medical Statement Regarding Knee Problems Forms.” In October 2015, Pannunzio's knee surgeon, Dr. Warren, checked off chronic pain, chronic stiffness, chronic swelling, chronic tenderness, limitation of motion, crepitus, instability, and quadriceps muscle atrophy for her left knee. (AR 766.) He also opined that she suffered from “moderate” pain; could work for 2 hours/day; could stand for 15 minutes; could sit for 2 hours at a time; occasionally and frequently lift 5 pounds; occasionally bend and climb stairs; and never stoop, balance, or climb ladders. (AR 767.) However, no written explanation or comments accompanied Dr. Warren's opinions. (Id.)

         As Pannunzio's primary physician, Dr. Schoeppach's November 2015 form was substantially similar. (AR 768-69.) Schoeppach checked off chronic pain, chronic stiffness, chronic swelling, chronic tenderness, limitation of motion, crepitus, instability, joint space narrowing, and inability to ambulate effectively for her left knee. (AR 768.) He further opined that: Pannunzio was suffering from moderate and severe pain; she could perform “light duty only, ” without indicating how many hours she could work each day; she could stand for 15 minutes at a time; that she “need[ed] frequent repositioning, ” without indicating how long she could sit for; she could never climb a ladder; she could “rare[ly]” (he created that option himself) bend, stoop, balance, or climb stairs; and she needed a cane or crutch to ambulate. (AR 769.) At the same time, Dr. Schoeppach declined to state how much she could lift on either an occasional or frequent basis, and indicated that he did not know if Pannunzio would miss more than three days of work a month. (Id.) Dr. Schoeppach's only written comment was “I support disability claim.” (Id.)

         C. ...


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