United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
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
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. “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.
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.
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).
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.
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. The court will assume that Bleck would
have qualified as disabled if the ALJ had credited all his
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
• 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 ...