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Seward v. Berryhill

United States District Court, W.D. Wisconsin

March 31, 2019

BRUCE ALLEN SEWARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Pursuant to 42 U.S.C. § 405(g), plaintiff Bruce Allen Seward seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, which denied his application for Social Security Disability Insurance Benefits and Supplemental Security Income. On January 17, 2018, the court held oral argument regarding claimant's two bases for reversal: (1) that the RFC finding was unsupported by substantial evidence; and (2) that the RFC finding relied on a flawed determination of Seward's credibility. For the reasons provided below, the court will affirm the Commissioner's determination, enter judgment in defendant's favor, and close this case.

         BACKGROUND

         A. Claimant

         Seward was 54 at the time of his hearing and had experienced numerous medical issues, including most prominently a history of severe back problems. He claimed disability on the basis of shoulder problems, numbness in his legs, arthritis, degenerative disk disease, lower back pain, diabetes, high blood pressure and eye problems. (AR 23.)[1] At the time of his hearing, Seward had past relevant work as a clerk, maintenance worker and kitchen helper.

         B. Medical Record

         Seward's chronic back pain began with an incident during his military service in 1987. (AR 23.) In 2009, he underwent a discogram correlated at the L3-L4 and L5-S1, but not L4-L5, for reproducing his back pain. (Id.)[2] After attempting a variety of treatments, Seward exacerbated his back condition with a fall, and he was referred for an osteopathic assessment in March 2013. (Id.) Several back problems were then discovered through an MRI. (Id.) After another MRI in April of 2014 revealed worsening disk protrusion at ¶ 5-S1, Seward underwent a L5-S1 diskectomy in September 2014. (Id.)

         Two months after Seward's surgery, he reported a ninety-percent improvement in his condition, at which time his treating physician advised that he could return to work with a permanent twenty-five pound restriction. (Id.) By the time of his hearing in February 11, 2016, however, Seward complained that his back problems were worsening and had become disabling.

         C. ALJ's Decision

         Following the evidentiary hearing, the ALJ issued an opinion dated August 11, 2016.[3] While the ALJ ultimately concluded that Seward was not disabled, he did find that Seward's “degenerative disk disease and degenerative joint disease of the right shoulder” were severe impairments under the Social Security Administration's five-step evaluation process for determining disability. (AR 21.) At the same time, the ALJ did not find any of the other diagnoses in the record to be severe impairments under the Act, including diabetes, gastro-esophageal reflux disease and obesity. (AR 21-22.) Relying on the assessments of state agency psychological consultants, the ALJ also found that Seward did not have a severe mental impairment. (AR 22.)

         In particular, despite severe impairments of degenerative disk and joint disease, the ALJ found that Seward possessed the residual functional capacity (“RFC”) to perform light work as defined in 20 CFR § 404.1567(b). (AR 22.) This finding resulted from a variety of restrictions, including limits on pushing and pulling, the ability to stand or sit at will, and the need to be off-task up to ten percent of the time outside of scheduled breaks. (Id.) His RFC finding also necessitated an adverse credibility determination of Seward's subjective testimony that his symptoms were of a great enough severity to prevent him from functioning in a routine work setting. (AR 23.)

         The ALJ gave little weight to a form prepared by a nurse practitioner indicating Seward suffered from a permanent disability on the ground that it was not a full functional analysis, did not apply Social Security Act standards, and was not considered an acceptable source under regulatory guidance. (AR 24.) Conversely, the ALJ gave “great weight” to the assessments of two state agency medical consultants, both of whom found that Seward was able to perform light work. (Id.) Because these evaluations occurred before a 2014 MRI revealed worsening conditions in Seward's back and his subsequent surgery, the ALJ included additional restrictions based on the expanded record, which included an opinion from a treating physician after the operation. (Id.) Finally, after concluding that Seward could not perform his past relevant work, the ALJ found that sufficient work still existed for Seward in the national economy as a counter attendant, office helper, and packager. (AR 26.)

         OPINION

         Seward raises two, specific challenges on appeal: (1) the RFC finding was unsupported by substantial evidence; and (2) the RFC finding relied on a flawed determination of ...


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