United States District Court, W.D. Wisconsin
MICHAEL R. WICHELMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
OPINION AND ORDER
D. PETERSON, DISTRICT JUDGE
Michael R. Wichelman seeks judicial review of a final
decision of defendant Nancy Berryhill, Acting Commissioner of
Social Security, finding him not disabled under the Social
Security Act. The administrative law judge (ALJ) concluded
that Wichelman had the severe impairments of rheumatoid
arthritis and fibromyalgia, but no severe impairments related
to mental health. The ALJ determined that Wichelman had the
residual functional capacity (RFC) to perform his past work
as a design engineer or purchasing agent, and to perform
light work, with only a few additional limitations.
appeal, Wichelman contends that the ALJ's decision was
rife with errors. The court will organize Wichelman's
arguments into four groups: (1) the ALJ erred in her
assessment of Wichelman's rheumatoid arthritis and
fibromyalgia; (2) the ALJ erred in her assessment of
Wichelman's depression; (3) the ALJ erred by ignoring
evidence of severe headaches; and (4) the ALJ erred by
leaving other alleged impairments out of the RFC. The court
concludes that the first three grounds warrant remand.
Rheumatoid arthritis and fibromyalgia
found that Wichelman had two severe impairments: fibromyalgia
and rheumatoid arthritis. R. 17. After a lengthy discussion
about these impairments, the ALJ concluded that Wichelman was
still capable of light work, and could frequently perform
fine manipulation, sit for up to six hours per day, and stand
or walk for up to six hours per day. R. 23. She did not
include any restrictions related to absences or time away
from work. In reaching this conclusion, the ALJ disagreed
with several medical opinions in the record, as well as
Wichelman's own testimony about his symptoms.
court will focus on Wichelman's treating rheumatologist,
Dr. Semi Ayub, who gave two opinions about Wichelman's
functional ability. First, in 2015, Ayub opined that
Wichelman could perform only sedentary work, with the
additional restrictions that he could sit for no more than 30
minutes at a time up to three hours a day, stand or walk for
no more than 15 minutes at a time up to two hours a day, only
occasionally reach, handle, or finger, and never reach
overhead or push or pull objects. R. 639-44. The ALJ gave
“little weight” to this opinion because she
believed it contradicted Wichelman's reported daily
activities, and because Wichelman's
“musculoskeletal findings, particularly his gait,
station, coordination, sensation and muscle strength were
generally normal.” R. 26.
in 2017, Ayub opined that Wichelman had improved and could
perform light work, but that he still had greater
restrictions than those included in the RFC: he could sit for
30 minutes at a time up to four hours a day, could stand or
walk for 20 minutes at a time up to two hours a day, and
could only occasionally use his hands and fingers. R. 645-49.
The ALJ gave “some weight” to this opinion
because it “illustrate[d] improvements in the
claimant's symptoms with continued treatment.” R.
26. But the ALJ did not explain why, if she gave weight to
Ayub's opinions about Wichelman's improvements, she
disagreed with Ayub's opinions about the extent of his
improvement. The ALJ also dismissed Ayub's opinion that
Wichelman would be off-task for 15 percent of the day and
absent for more than four days per month due to flare-ups, R.
648, because “the record does not support [it.]”
R. 26. But the ALJ did not explain how the record
contradicted that opinion.
opinions were not outliers. A state-agency physician, Dr. Syd
Foster, also opined that Wichelman was limited to less than
sedentary work. R. 132. And Wichelman provided his own
testimony about how on bad days he is homebound due to pain.
R. 67-68. But Ayub's opinion is particularly significant
because for claims filed before March 27, 2017, a treating
physician's opinion regarding the nature and severity of
a medical condition is entitled to controlling weight
“if it is well supported by medical findings and not
inconsistent with other substantial evidence in the
record.” Clifford v. Apfel, 227 F.3d 863, 870
(7th Cir. 2000) (citing 20 C.F.R. § 404.1527(d)(2)).
(For claims filed after March 27, 2017, treating sources'
opinions are not entitled to any specific evidentiary weight.
See 20 C.F.R. § 404.1520(c).) “An ALJ who
does not give controlling weight to the opinion of the
claimant's treating physician must offer ‘good
reasons' for declining to do so.” Larson v.
Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (citing 20
C.F.R. § 404.1527(d)(2)). Here, the ALJ did not assign
controlling weight to Ayub's opinions and she did not
give good reasons for declining to do so.
Commissioner argues that the bases for the ALJ's decision
can be reasonably discerned, even if the ALJ did not
articulate how the record contradicted Ayub's 2017
opinion. Reading the decision generously, it seems that the
ALJ gave less than controlling weight to Ayub's 2017
opinion for the same reasons that she assigned little weight
to the 2015 opinion: (1) Wichelman's daily activities and
(2) evidence of normal tests throughout the record. For the
reasons explained below, neither reason adequately supports
the ALJ's decision.
said that Wichelman's part-time job as a janitor, his
hobbies, and ability to drive a car all demonstrate that he
has the functional capacity to perform light work with fewer
restrictions than those opined by Ayub. But the ALJ does not
explain how any of these three activities demonstrate an
ability to perform full-time work.
the ALJ highlighted that Wichelman works part-time as a
janitor for a church. She said that because janitorial work
typically involves medium exertional duties, Wichelman must
be able to perform at least some medium work. R. 25. But
part-time work is generally not good evidence of an ability
to engage in full-time employment, Vanprooyen v.
Berryhill, 864 F.3d 567, 571 (7th Cir. 2017), and that
is especially true when, as here, the claimant works
extremely limited hours and is given significant
accommodations in the work place. Wichelman works on a
limited, on-call basis, and his shifts are never longer than
four hours. R. 41-42. He also testified that, while at work,
the pastor of the church allows him to take frequent breaks
whenever necessary to deal with his pain. R. 43. “A
person can be totally disabled for purposes of entitlement to
social security benefits even if, because of an indulgent
employer or circumstances of desperation, he is in fact
working.” Gentle v. Barnhart, 430 F.3d 865,
867 (7th Cir. 2005). The ALJ also cited Wichelman's
decision to work extra hours at the church over the Easter
holiday in 2016, R. 25, but this information was in the
record only because Wichelman complained to his doctor that
the extra hours put a lot of physical stress on his body. R.
682. A single, ill-advised attempt to engage in activities
beyond the claimant's capability does not support the
conclusion that he is capable of performing equivalent work
full-time. See Scrogham v. Colvin, 765 F.3d 685, 700
(7th Cir. 2014).
the ALJ said that Ayub's opinions were undermined by
Wichelman's hobbies. She said Wichelman likes fishing and
woodworking, and that he told his physical therapist that he
enjoys walking along the river in the summer. R. 24, 26. But
although Wichelman used to fish, there is no evidence that he
has gone fishing since the alleged onset date, and Wichelman
says that he has not. R. 54, 343. For woodworking, the ALJ cites
evidence that Wichelman was able to stand for 4 to 6 hours to
build cabinets in April 2014. R. 508. But again, this was
before the alleged onset date. Even if it weren't, the
ALJ does not explain how the ability to complete one project
reflects an ability to stand for six hours every day
as part of one's full-time employment. See Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (ALJ may
not equate occasional daily activities with the rigors of the
workplace). Finally, the ALJ seems to have misunderstood
Wichelman's statement about walking along the river. It
appears that Wichelman actually said that he liked walking
in the river as a form of water therapy. R. 511. He
made the comment in the context of his water therapy program,
and his therapist responded by telling him to use a
“controlled pool” instead of a river. Wichelman
was not clambering across wet rocks along the riverbank as
suggested by the ALJ.
the ALJ said that Wichelman's ability to drive and go
shopping contradicted Ayub's opinion, but she did not
explain how. (The ALJ's discussion of how Wichelman's
ability to drive undermined his alleged mental impairments is
discussed later in this opinion.) Wichelman reported that he
was unable to drive more than 30 miles at a time, R. 340,
which is consistent with Ayub's opinion that Wichelman
cannot sit for more than 30 minutes. And both activities are
consistent with Ayub's opinion that that Wichelman's
pain is intermittent, R. 648, and with Wichelman's
statement that his ability to drive or shop depends on the
severity of his symptoms. R. 637. Wichelman's ability to
occasionally perform activities when his symptoms subside is
not necessarily indicative of an ability to perform fulltime
none of the daily activities cited by the ALJ support her