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Wilke v. Berryhill

United States District Court, W.D. Wisconsin

March 13, 2019

NANCY BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         Plaintiff Cheri Lee Wilke seeks judicial review of a final decision of defendant Nancy Berryhill, Acting Commissioner of Social Security, denying her application for disability benefits. The administrative law judge (ALJ) found that Wilke had several severe impairments, including fibromyalgia and multiple sclerosis, but he ultimately concluded that Wilke retained the residual functional capacity to perform light work, including her previous work as a medical assistant and appointment coordinator. So he deemed her not disabled and denied her claim for benefits.

         Wilke challenges three aspects of the ALJ’s analysis on appeal. She contends that the ALJ erred by (1) improperly rejecting the opinion of Dr. Timothy Ablett, one of the physicians who evaluated Wilke; (2) improperly “playing doctor” by drawing independent medical conclusions from the evidence; and (3) failing to properly credit Wilke’s subjective reports of pain. The case is scheduled for oral argument on March 14, 2019, but the court concludes that oral argument is unnecessary. The court concludes that Wilke has failed to identify any reversible error and that the ALJ’s decision applies the proper standards and is supported by substantial evidence. The court will deny Wilke’s motion for summary judgment and affirm the commissioner’s decision.


         Wilke applied for social security benefits on March 18, 2014. Her claim was denied both initially and upon reconsideration, so she filed a written request for a hearing, which was held before ALJ Michael Hellman on March 30, 2017. The ALJ found that Wilke suffered from the following severe impairments: fibromyalgia; multiple sclerosis; Crohn’s disease in remission; lumbar degenerative disc charges; and scoliosis. He nonetheless determined that Wilke had the ability to perform a full range of light exertional work, and that she was capable of performing her past relevant work as a medical assistant and appointment coordinator. R. 20, 29.[1]

         The issues Wilke presses on appeal primarily relate to the ALJ’s handling of a medical opinion provided by Dr. Timothy Ablett, an occupational medicine specialist who examined Wilke on January 8, 2014. Ablett was not Wilke’s treating physician, but he examined Wilke and completed a work capability assessment at the request of her treating physician. In his notes from that exam, he observed that Wilke appeared “comfortable and alert” and was “able to change position from sitting to standing to walking but in a somewhat uncomfortable and antalgic manner.” R. 351. Although she had some abdominal tenderness, low back discomfort when bending over, and was “very unstable when squatting to the floor and coming back into a standing position,” she had good grip strength and normal bilateral bicep strength. Id. Ablett relied on these findings along with Wilke’s primary care provider’s treatment notes to complete a “work capability assessment.” He limited her to very light work; lifting no more than five pounds; never bending, squatting, twisting, or climbing; and working for no more than four hours per day. R. 1075. He deemed these “permanent restrictions [that] preclude Ms Wilke from finding gainful employment at this time.” R. 1074.

         The ALJ accorded little weight to Ablett’s opinion, citing several reasons. R. 28. He noted that Ablett was not Wilke’s treating physician, that he only saw her once, and that Ablett had stated that his opinion was based in part on a third-party source (i.e., Wilke’s “primary care provider’s recent indication of her inability to work.” R. 1094). Ablett also stated that he based his findings in part on Wilke’s use of sedating medications, but the ALJ noted that nothing in the record suggested that Wilke ever experienced deficits of alertness and orientation.

         The ALJ also explained that Ablett’s opinion was inconsistent with other evidence in the record, including evidence that Ablett himself provided. Ablett’s exam notes state that Wilke “appeared comfortable alert” during the exam and “was able to change position from sitting to standing to walking,” which the ALJ deemed inconsistent with the extensive physical limitations Ablett listed in his opinion. R. 28. The ALJ also observed that treatment records from Wilke’s care providers indicated that she was busy and active, and that Wilke herself testified that she tries to remain physically active and that her medications are effective at relieving her pain and help her to move around. He further noted that Ablett’s limitation of Wilke to lifting no more than five pounds was inconsistent with Wilke’s testimony that she was able to lift her twenty-pound daughter.

         The ALJ also deemed Ablett’s opinion inconsistent with the opinions offered by two non-examining state agency medical consultants, Drs. Mina Khorshidi and Wallace Wells. Khorshidi and Wells opined that Wilke could perform light work with no postural, environmental, visual, communicative, or environmental limitations. See R. 80–84, 98–102.

         The ALJ gave these opinions great weight, see R. 29, a decision that Wilke does not challenge on appeal. Both Khorshidi and Wells analyzed Ablett’s opinion, and both discounted it as overly reliant on subjective symptom reports and unsupported by the totality of the evidence. See R. 81, 83, 98–99, 100–01.

         Wilke contends that the ALJ committed several errors in analyzing Ablett’s opinion. The court turns to those alleged errors now.


         The court reviews the final decision of an ALJ “to determine whether it applies the correct legal standard and is supported by substantial evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018). The court reviews the record as a whole, but it cannot reconsider facts, weigh the evidence, decide questions of credibility, or otherwise substitute its own judgment for that of the ALJ. Id. When it comes to the weighing of treating source opinions, courts will typically “uphold all but the most patently erroneous reasons for discounting a treating physician’s assessment.” Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015) (citations and internal quotation marks omitted).

         Wilke contends that the ALJ erred by (1) failing to comply with the regulations governing an ALJ’s consideration of medical source opinions, 20 C.F.R. § 404.1527; (2) substituting his own judgment for Ablett’s without relying on other medical ...

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