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Hanson v. Saul

United States District Court, W.D. Wisconsin

September 25, 2019

ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         This is an appeal from an adverse decision of the Commissioner of Social Security brought pursuant to 42 U.S.C. § 405(g). Plaintiff Joleen Hanson challenges the Commissioner’s determination that she is not disabled and therefore not entitled to supplemental security income under Title XVI of the Social Security Act. Specifically, Hanson contends that the administrative law judge who denied her claim at the hearing level committed the following errors: (1) failed to give adequate weight to the opinion of one her treating physicians, Dr. Popp; (2) failed to consider the side effects of Hanson’s medication on her ability to work; (3) failed to discuss Hanson’s limited daily activities; and (4) incorrectly accepted the VE’s opinion that Hanson could make a vocational adjustment to jobs in the national economy. As discussed below, the first three challenges are unpersuasive and the fourth is waived. Accordingly, this court will affirm the decision of the Commissioner.


         A. Overview of Claimant

         Hanson was born on July 4, 1974. She applied for supplemental security income on October 23, 2013, alleging that she had been disabled since June 15, 2013. This made Hanson: 38 years old on the alleged onset of her disability in 2013; 39 years old when she applied for disability later that year; and 42 years old at the time of her second administrative hearing in August 2016.

         Hanson has a high school education, and obtained a two-year culinary arts degree. She is able to communicate in English, and has past work experience as a cashier and personal care attendant. She last worked in June 2013. In her initial application, Hanson claimed disability based on Lyme disease, residual limitations from right hand and shoulder surgeries, speech impairment, neuropathy, chronic joint pain, irregular heartbeat, blurred vision on the right, and headaches. (AR 261.)

         B. Overview of Medical Evidence[2]

         Hanson’s medical records document a variety of physical impairments. In June 2013, she underwent right rotator cuff repair and right carpal tunnel release surgery, with positive results. By October of that year, her orthopedic surgeon, Dr. Thomas Kaiser, indicated that she could return to work lifting a maximum of 20 pounds. Although Hanson was concerned that she reinjured the shoulder in March 2014, an x-ray showed only minimal abnormalities and Dr. Kaiser did not see any evidence of re-injury. However, he did order an MRI of her cervical spine, which showed mild central canal and neural foraminal narrowing at the C4-C5 level and moderate to severe neural foraminal narrowing at the C5-C6 level.

         Hanson’s records also show periodic complaints of left ankle and knee pain, and lower extremity pain and weakness. However, x-rays of the ankle and knee were largely normal, and an MRI of the lumbar spine in July 2014 showed no significant pathology. At a visit with Hanson on July 7, 2014, neurologist Christopher Bixler, M.D., encouraged Hanson to “remain active.” (AR 1509.) In October 2014, a rheumatologist diagnosed Hanson with fibromyalgia after finding her to be tender in 18 of 18 of the fibromyalgia trigger points, but the doctor did not prescribe any treatment other than medication management by her primary physician. On September 25, 2014, Hanson’s primary care physician, Dr. Jeffrey Eichten, opined that Hanson’s intermittent lumbar back pain was secondary to weak core muscles, obesity, and fibromyalgia.

         On April 10, 2014, Hanson began seeing Dr. Megan Popp, a physical medicine and rehabilitation specialist, for complaints of a “pins and needles” sensation in all four extremities and the lower half of her face, along with muscle tenderness, particularly in her neck area. (AR 652.) Hanson also complained of generalized weakness, stating that she had trouble opening and closing car doors, opening caps, and writing. The physical examination was largely unremarkable, with Hanson demonstrating normal reflexes, fine motor coordination, range of motion and strength. Dr. Popp observed that Hanson’s gait was steady. Dr. Popp later referred Hanson to physical therapy, which Hanson attended for 11 sessions. However, Hanson stopped attending therapy before discharge. (AR 580.)

         At a follow-up with Dr. Popp on July 1, 2014, Hanson reported that her symptoms were overall improved as a result of some medication changes and that she had lost 11 pounds by dieting. She said she was doing her physical therapy exercises at home but was not finding it very helpful; according to Hanson, she felt like her legs would give out on her. On physical examination, Hanson was able to sit comfortably, rise independently from the chair, and had a steady gait. Hanson asked about a four-wheeled walker, stating that a friend would go for her with walks outside but Hanson did not feel stable enough to walk unsupported. Dr. Popp issued one even though she was hesitant to do so, advising Hanson that she should not be using it all times and should rely on it less and less as she became stronger. (AR 637-38.)

         Meanwhile, Hanson had begun working with a dietician to lose weight in advance of planned gastric bypass surgery. On October 8, 2014, she reported that she was keeping a food journal and had been walking daily for 15-20 minutes. (AR 815). On December 10, 2014, she told her dietician that she was “outside everyday” doing farm chores, cutting trees, stacking wood, and shoveling for “hours.” (AR 976.)

         Less than a month later, on January 6, 2015, Hanson saw Dr. Popp and asked her to complete paperwork outlining her work restrictions. Dr. Popp went through the form with Hanson and completed it based on Hanson’s statements and Dr. Popp’s physical examination. Hanson said her primary complaint was lower back pain radiating into her lower extremities, but she had multiple other painful areas and intermittent numbness in both hands. Hanson said she had to change positions frequently to stay comfortable, could tolerate being on her feet no more than 5 hours a day, could sit no more than 6 hours a day, and could lift no more than a gallon of milk. Dr. Popp’s notes from her physical examination did not note any abnormalities, but noted that Hanson arrived using a manual wheelchair. (AR 963-64.)

         On March 17, 2015, Dr. Kaiser, an orthopedist, saw Hanson for complaints of right wrist pain that she said resulted from a fall on the ice in December 2014. (AR 913.) An MRI on April 23, 2014, showed Hanson had some torn tendons and cartilage in the wrist, and an EMG showed residual carpal tunnel syndrome in the right wrist, with moderate carpal tunnel on the left. (AR 1055.) Dr. Kaiser, who was soon to retire, referred Hanson to Dr. Kuzel, who injected the right wrist with a steroid on August 16, 2015.

         Hanson saw Dr. Kaiser in follow up on September 25, 2015. She reported that after the steroid injection, her pain increased and her fingers swelled up to the point where she could not move them. Although Dr. Kaiser did not see much swelling, Hanson held her hand in a guarded position and did not use it much. Dr. Kaiser had Hanson do some exercises with her hand and fingers and by the end of the appointment, her motion had improved. He showed Hanson exercises that he wanted her to do at home, and set her up for “aggressive rehab to regain function in the hand.” (AR 1306.)

         Hanson had a follow-up visit with Dr. Kaiser on October 9, 2015. (AR 1485-86.) Hanson reported working hard on the hand exercises that Dr. Kaiser had shown her and her symptoms had greatly improved. Hanson still reported some tingling in the fingers in her right hand and some ulnar joint pain, but overall her motion and function was much better. She was able to fully extend and spread all of her fingers on the right, make a fist, and oppose her thumb to the base of the little finger. Dr. Kaiser opined that Hanson had mild carpal tunnel syndrome in the right wrist and moderate on the left, and that her right wrist pain was related to a cartilage tear. Her recommended that she continue rehabbing the right hand, wrist and elbow, and work with Dr. Popp on range of motion and strengthening.

         Hanson saw her family practitioner, Dr. Eichten, on November 12, 2015. Hanson had a large disability form that she asked Dr. Eichten to fill out, explaining that she was applying for disability because of psychiatric disorders. Hanson said she could not work because of panic attacks. Dr. Eichten did not have enough information about her psychiatric condition to provide an opinion about her ability to work. However, he said he thought Hanson could work and he encouraged her not to apply for disability. (AR 1431.) He also ordered an occupational therapy assessment to determine what she could do physically, noting that her physical limitations seemed “a bit vague, likely mostly related to her psychiatric issues.” (AR 1432.)

         Hanson saw Dr. Popp on December 1, 2015. (AR 1423-24.) Hanson was wearing a wrist brace all the time and had not been using her hand at all, reporting that it hurt just to touch it or move it even a little. Dr. Popp noted that Dr. Kaiser had recommended ongoing rehab, but Hanson had not been participating in any outpatient occupational therapy. Hanson was scheduled to see Dr. Hoxie, a hand specialist, later that month. Hanson asked Dr. Popp to complete paperwork regarding her workability status, and to update it to address the progressive symptoms of her right wrist and hand.

         Dr. Popp noted that Hanson’s right hand and fingers were cooler and a bit duskier compared to the left. Hanson could wiggle her fingers a little, but reported increased sensitivity. Dr. Popp opined that Hanson was developing a complex pain syndrome in the right wrist and hand. She wrote that if Dr. Hoxie did not find any underlying structural or vascular dysfunction, then Hanson should receive more aggressive rehab programming likely with occupational therapy and possibly an injection block to get Hanson’s symptoms to calm down. Dr. Popp updated Hanson’s paperwork to reflect her “current level of functioning.” Dr. Popp found that Hanson could: (1) lift and carry up to 10 pounds occasionally and 5 pounds frequently with her left arm, but could do no activities requiring use of the right arm, hand or fingers; (2) stand and walk no more than 5 hours a day; (3) walk no more than 1 block without pain or needing to rest; (4) rarely twist or bend and never crouch or squat; and (5) sit no more than 5 hours a day. Dr. Popp further opined that Hanson needed a four-wheeled walker and frequent position changes and that her symptoms would cause her to miss work more than twice a month. (AR 784-88). On August 16, 2016, Dr. Popp provided an updated opinion on which she added that Hanson would need to take a 10-minute break every 2 hours as a result of her impairments. (AR 1517.)

         For much of the time period covered by the medical records, Hanson was morbidly obese, weighing 292 pounds at a height of 5’ 2”. However, Hanson had gastric bypass surgery on June 22, 2015. By the time of the hearing, she weighed 154 pounds.

         C. Administrative Proceedings

         After two denials, Hanson’s application eventually was heard by an administrative law judge (“ALJ”), who held two hearings at which Hanson was represented by counsel and testified. The ALJ also heard testimony from L. David Russell, a vocational expert.

         Hanson testified that she can lift at most three pounds with her left hand and walk at most a few feet. She said she needs to use a walker at all times and cannot stand without it unless she has something else to hold on to. She further testified that she is only able to bend at the waist about 35 degrees; she is right hand dominant and cannot use her right hand to do anything (such as screw on a nut, button a button, or eat); she has difficulty taking care of her own needs such as bathing, getting dressed, and putting on her shoes; and she takes a number of medications that cause side effects, including dizziness, stomach ...

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