Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wichelman v. Berryhill

United States District Court, W.D. Wisconsin

May 31, 2019

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



         Plaintiff 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.

         On 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.


         A. Rheumatoid arthritis and fibromyalgia

         The ALJ 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.

         The 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.

         Second, 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.

         Ayub's 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.

         The 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.

         1. Daily activities

         The ALJ 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.

         First, 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).

         Second, 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.[1] 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.

         Third, 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 work.

         In sum, none of the daily activities cited by the ALJ support her decision ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.