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Bleck v. Saul

United States District Court, W.D. Wisconsin

September 10, 2019

KELLY RONALD BLECK, Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff Kelly Ronald Bleck seeks judicial review of a final decision of defendant Andrew Saul, Commissioner of the Social Security Administration, finding Bleck not disabled within the meaning of the Social Security Act. Bleck contends that the administrative law judge, Amy Rosenberg, erred by failing to adequately consider Bleck's subjective complaints of pain. The court will affirm the commissioner's decision. The oral argument scheduled for September 20, 2019, is cancelled.

         ANALYSIS

         Bleck seeks disability benefits from the period between May 1, 2011, and September 30, 2014, which was the date he was last eligible for benefits. In a March 2018 decision, the ALJ found that Bleck suffered from one severe impairment: left hip pain, which he first experienced while working on an oil rig in 2011. In light of Bleck's impairment, the ALJ found in her residual functional capacity assessment (RFC) that Bleck could perform sedentary work, with the additional restrictions that he could only occasionally climb, balance, stop, kneel, crouch and crawl. R. 18.[1] “A claimant can do sedentary work if he can (1) sit up for approximately six hours of an eight hour workday, (2) do occasional lifting of objects up to ten pounds, and (3) occasionally walk or stand for no more than about two hours of an eight hour workday.” Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995). Relying on the testimony of a vocational expert, the ALJ found that Johnson couldn't perform his past jobs as a roofer, digger operator, or lumberyard worker on a full-time basis but that he could perform other jobs, such as assembler or inspector.

         A threshold question relates to the scope of Bleck's appeal. In the heading for the argument section of his brief, Bleck says that the ALJ erred by “playing doctor and by making his own findings regarding Bleck's condition without medical support.” Dkt. 13, at 4. But Bleck's briefs don't actually address that issue. Rather, Bleck's briefs are devoted to the question whether the ALJ adequately considered Bleck's subjective complaints of pain. If Bleck intended to raise an argument about the ALJ making medical determinations without the assistance of an expert, he has forfeited that argument by failing to develop it.

         So the court will turn to the ALJ's handling of Bleck's subjective complaints. An ALJ must give specific reasons for declining to credit all of a claimant's statements. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). But if the ALJ gives these reasons, the court may not reweigh the evidence. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Rather, the court must defer to the ALJ's credibility decision unless it is “patently wrong.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013).

         In this case, Bleck points to his testimony that his pain is a “nine” on a scale of one to ten; it is a “ten” when he increases his activity, R. 44; he spends half the day lying down, R. 43; and his wife has to tie his boots for him, R. 41. He also points to his written statements in function reports that he is in constant pain, R. 230; he can only walk short distances and cannot sit for a “long time” without shifting his weight and moving, R. 234; he can't lift 10 pounds without pain, R. 234; and stair climbing is painful. R. 236.

         Not all of these statements are necessarily inconsistent with an ability to perform sedentary work, but some of them might be, such as those related to Bleck's pain and his ability to sit and stand.[2] The court will assume that Bleck would have qualified as disabled if the ALJ had credited all his statements.

         In determining that Bleck's statements about the intensity, persistence, and limiting effects of his symptoms were “not entirely consistent” with other evidence, the ALJ observed the following:

• Bleck testified at the hearing that he hadn't done any roofing work after 2011, but his medical records show that he was continuing to do that work in 2013, R. 15 (citing R. 345);
• radiographs revealed only a mild pathology of the left hip, R. 19;
• Bleck chose to treat his hip pain conservatively with medication and a cortisone injection, R. 19;
• two consulting physicians concluded that Bleck could perform sedentary work, R. 19;
• in August 2011, Bleck's treating physician stated that Bleck could continue with activities as ...

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