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Underwood v. Berryhill

United States District Court, W.D. Wisconsin

March 20, 2019

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Gerald Underwood, who is proceeding pro se, is seeking review of a final decision by defendant Nancy Berryhill, Acting Commissioner of Social Security, denying his claim for disability benefits under the Social Security Act. 42 U.S.C. § 405(g). The administrative law judge (ALJ) who denied his claim concluded that even though Underwood has several severe impairments, he was not disabled because he could perform sedentary work with some additional limitations. Also before the court is Underwood's motion for assistance in recruiting counsel to file a reply brief and motion for an extension to find an attorney to submit a reply brief. Dkts. 17-18. For the reasons explained below, I am upholding the ALJ's decision and denying Underwood's motions regarding counsel for the submission of a reply brief.

         The following facts are drawn from the Administrative Record (AR), filed with the Commissioner's answer in this case:


         I. Procedural Background

         This is Underwood's second appeal in this court regarding his claim for benefits. He initially applied for supplemental security income (SSI) and disability insurance benefits (SSDI) in July 2011, alleging that he has been disabled since December 1, 2008 because of numerous impairments, including chronic vertigo, panic attacks, depression, chronic obstructive pulmonary disease (COPD), arthritis, diabetes, and gastroesophageal reflux disease (GERD). AR 237. His date last insured with respect to SSDI was June 30, 2009, when he was 47 years old. AR 33, 232.

         Underwood's SSI application was denied because his assets exceeded the statutory limit, but he did not appeal that decision. AR 819. After the local disability agency denied his SSDI application initially and upon reconsideration, Underwood appealed and had a hearing before ALJ Ken Terry, who denied his claim on June 19, 2013. AR 35, 114-29, 130. Underwood filed suit in this court in May 2015 (case no. 15-cv-305-bbc), and the parties stipulated to a voluntary remand. AR 651-65. The Appeals Council remanded the case to ALJ Joseph Jacobson, who held a hearing in June 2016, at which Underwood appeared with counsel. AR 540. ALJ Jacobson denied Underwood's claim in September 2016. AR 671-82. Underwood appealed and the Appeals Council remanded to a third ALJ. AR 662-64, 829. He appeared with counsel at a hearing before ALJ Brent Bedwell on June 18, 2017. AR 448. On August 14, 2017, ALJ Brentwell denied Underwood's claim, and that decision is the subject of Underwood's current appeal. AR 448-61.

         II. Relevant Treatment and Opinions [1]

         A. Treating Physicians

         On September 22, 2006, psychologist Dr. David Black wrote that Underwood suffered from generalized anxiety disorder that affected his concentration and motivation and that his ability to maintain employment depended on how well he managed this disorder. Dr. Black noted that Underwood responded well to therapy. AR 1225. Although Dr. Black last saw Underwood in 2010, AR 560, he issued an opinion on July 2, 2012, in which he stated that Underwood had been seen intermittently at his clinic since 1996 for symptoms of anxiety, depression, and panic attacks, but “it is less likely than not” that Underwood's anxiety, depression, and mood disorder would render him incapable of working, AR 364.

         On April 29, 2009, Underwood saw Dr. David Rowe for problems with vertigo, for which he had been seen previously in 2005 and 2006. AR 330, 332-34. Dr. Rowe recommended exercises and he prescribed meclizine as a preventative measure. AR 330. Dr. Rowe also wrote a letter to Underwood's employer, stating that Underwood suffered from peripheral vertigo that was more likely than not benign positional vertigo, and that Underwood may feel unstable from time-to-time, limiting his effectiveness in the workplace. AR 331. Dr. Rowe did not see Underwood again, but on April 2, 2013, Dr. Rowe completed a physical residual functional assessment form for Underwood, in which he checked a box indicating that Underwood had speech discrimination scores of 40% or less in his better ear and another box indicating that Underwood did not have a severe speech or language disorder. Dr. Rowe did not assess any functional limitations for Underwood. AR 409-10.

         Underwood saw Dr. Jason Welch on May 21, 2010 to establish primary care. AR 420. In a “medical form” completed on July 8, 2013, Dr. Welch stated the opinion that Underwood may be able to perform part-time sedentary work but his vertigo, deep vein thrombosis, panic attacks, and back and leg pain had prevented him from working full time since 2006. AR 430.

         B. State Agency and Third-Party Opinions

         Following an interview with Underwood on September 13, 2006, Department of Vocational Rehabilitation (DVR) Counselor Susan Munger completed a functional assessment rating in which she noted that Underwood had been diagnosed with generalized anxiety disorder that caused him to be severely limited in self-direction. She specifically noted that Underwood has a great deal of difficulty with decision making, life goals, and concentration and attention to tasks. AR 1034-36.

         On January 30, 2012, Randall Ebben, Underwood's friend of 26 years, completed a third-party function report. AR 270. Ebben stated that although Underwood is sometimes limited because of panic attacks and vertigo, he provides care for his wife who has cerebral palsy (including feeding and driving), feeds and cares for his dogs, does all types of household chores, drives, shops, golfs three to five days a week, visits friends, walks up to half a mile before needing to rest five to 10 minutes, and attends music events. AR 271-77.

         During the initial and reconsideration levels of review on November 22, 2011 and January 30, 2012, state agency physicians Dr. Sunita Patel and Dr. R. James Mabry noted that there was insufficient evidence in the record from which they could conclude that Underwood had any severe impairment or disabling symptoms. AR 117, 125-26. In addition, state agency psychologists Dr. Thomas Conger and Dr. Sanford Golin found that there was insufficient evidence from which they could assess Underwood's alleged mental impairments prior to June 30, 2009. AR 118 and 126.

         III. Administrative Decision

         In denying Underwood's application on August 14, 2017, the ALJ determined that Underwood was severely impaired by diabetes mellitus, obesity, and vestibular/vertigo disorder during the relevant period of December 1, 2008 to June 30, 2009. AR 451. He found that even though there was evidence that Underwood suffered from other medical conditions (such as GERD, depression, anxiety, arthritis, deep vein thrombosis, leg edema, and cellulitis in his ankle), those conditions either did not rise to the level of a severe impairment during the relevant period or had not yet developed prior to the expiration of Underwood's insured status in 2009. See AR 451-55, 457-58 (ALJ's extensive discussion of records related to these other conditions). The ALJ determined that Underwood retained the RFC to perform sedentary work limited to occasional decision making and changes in work setting; no climbing ropes, ladders, and scaffolds; no kneeling or crawling; avoiding exposure to heights, hazards, and moving machinery; and occasional stooping, crouching, and climbing ramps and stairs. AR 456.

         In reaching his decision, the ALJ found it significant that there were very few physician opinions identifying any specific job-related limitations for Underwood during the relevant period; at most, Underwood had received intermittent medical attention revealing generally unremarkable findings consistent with short-term conditions. In addition, the ALJ noted that Underwood's use of medications was conservative and on an “as needed” basis. AR 457, 458. The ALJ considered all of the medical and non-medical opinions in the record and found that most did not relate to the relevant period of alleged disability. He placed some weight on the findings of state agency physicians, Dr. Black's 2012 statement, and Dr. Welch's 2013 sedentary work restriction. AR 458-59. He also considered and gave some weight to the third-party statements of Ebbens and Munger. The ALJ noted that Underwood's activities during the relevant six-month period (including those reported by Ebbens) and the overall lack of contemporaneous medical evidence failed to support the degree of debilitation alleged by Underwood. AR 457-58.

         Relying on the testimony of the vocational expert Jacquelyn Wenkman, the ALJ found that Underwood could perform work existing in significant numbers in the national economy, ...

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