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Brunette v. Saul

United States District Court, W.D. Wisconsin

September 25, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff Karen Louise Brunette is seeking review of a final decision denying her claim for disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). She contends that she has been unable to work since July 30, 2014 because of three severe medical impairments of left shoulder tendinitis, degenerative joint disease and fibromyalgia, and the mental impairment of anxiety.

         The Social Security Administration denied plaintiff's application for benefits, initially and on reconsideration. After plaintiff filed a request for a hearing, an administrative law judge found that, although plaintiff could no longer perform heavy work as a certified nurse assistant, she would be able to perform the job of certified nurse assistant if she worked at a medium level, as that job is generally performed. In addition, the administrative law judge concluded that plaintiff could also perform other jobs at the lower, light, level of work. After the Appeals Council upheld this decision, plaintiff brought this civil action, seeking reversal or remand of the commissioner's decision to deny her claim for disability insurance benefits under § 216(i) and § 223(d) of the Social Security Act. Plaintiff contends that the administrative law judge erred in a number of respects and that her claim should be returned to the commissioner for further consideration. From my review of the record, I conclude that it fails to show that either plaintiff's anxiety or her medical problems are sufficiently severe to support a finding that she is disabled for Social Security purposes.

         The following facts are drawn from the administrative record (AR).


         A. Plaintiff's Social Security Application

         Plaintiff filed an application for disability insurance benefits on April 30, 2015, alleging disability as of July 30, 2014, when she was 52 years old. AR 82. According to plaintiff, she had worked as a certified nurse assistant from May 1998 through April 2014, AR 30, but she did not perform substantial gainful activity after her July 30, 2014 onset date. The Social Security Administration determined that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2019.

         B. Administrative Hearing

         1. Plaintiff's testimony

         At the June 22, 2017 hearing before the administrative law judge, plaintiff testified that she had completed high school, was married and had a certified nurse assistant degree that was currently inactive. AR 41-42. In 2012, she had received a diagnosis of breast cancer and had had a lumpectomy, AR 62, followed by radiation and chemotherapy. Id. She worked in that year, as well as in 2013 and, for a few months in 2014, but has not worked since 2014, other than for a short time in 2015. AR 42. She stopped then because of pain that had worsened after her chemotherapy. Id. She believes that her fibromyalgia and arthritis are the present causes of her inability to work. AR 43-44.

         Plaintiff said that she took Tramadol [1] for her pain from headaches that she experienced at least four times a week. AR 44-45. In addition, she had problems with her memory and suffered from degenerative joint disease for which she wore a neck brace when needed. AR 45. Her left shoulder seemed to be causing her more pain that her right one and she thought this might be a result of rotator cuff surgery she had had 15 years earlier. Id. She said her back was always in pain and she often felt as if both her upper and lower back were burning, and her hips always hurt. Id. She had costochondritis [2] “a couple of times a month, ” which made her feel as if she were having a heart attack. She believes this condition is a result of her fibromyalgia. Id.

         Plaintiff has diverticulitis and bowel problems, AR 46, but she does not list these as reasons for her inability to work. She has fallen on a few occasions, although she says she has always been able to get up again, even when her husband is not around to help her. Id. Her fibromyalgia affects her ability to pick things up, AR 47, and also causes her pain that interferes with her sleep at night, so she naps during the day. Id. Often, when she wakes up, she cannot get up immediately and will sit at the edge of the bed for a couple of minutes before getting herself a cup of coffee. Id. She sits in her recliner for most of the day, except for walking around to keep herself from getting too stiff. Id. She can make herself lunch and go shopping for groceries with her husband. Id. She experiences neck pain that sometimes spreads out to her hands, causing her to lose her grip on things. Id.

         In addition to Tramadol, plaintiff takes Letrozole[3], which is used to treat breast cancer, and Prilosec, [4] for nausea. AR 48. Her doctors have encouraged her to get out and walk and she tries to go out each night with her husband and walk around the block. AR 49. (At AR 58, she amended the frequency of her walks to “every other night.”) After walking around the block, her upper back and knees hurt and she stops. AR 50.

         Plaintiff has never had any EMG [5] testing, She has a TENS [6] unit that she uses to relieve her pain. She finds that it helps, at least while it is on. AR 53. She tried physical therapy for a short time, but found that it only made her condition worse. AR 55. She sees someone every three months for pain management. Id. She can stand for only 10 to 15 minutes at a time, so she cannot make full meals; her husband does that for her, along with the rest of the household chores. AR 56. Plaintiff's two grown daughters stop in regularly to help, id., and twice a week one of them helps plaintiff help her wash her hair, because lifting her arms and shoulders causes her pain. AR 58. Plaintiff believes that her neck, shoulder and fibromyalgia are worse now than they have been. Id.

         2. Vocational expert's testimony

         Vocational expert Valerie Williams (referred to as “Holly Williams” in the transcript of the administrative hearing) assessed plaintiff's former job as a certified nurse assistant, which is generally classified as requiring medium strength, but Williams said it would be classified as “heavy” as plaintiff had performed it. AR 65. In Williams's opinion, plaintiff could perform the job as it is generally performed at the medium exertional level as defined in the Social Security Regulations, with the additional limitations that the hypothetical individual plaintiff could occasionally climb ramps and stairs but could never climb ladders, ropes or scaffolds and could occasionally kneel, stoop, crouch and crawl. AR 66. Otherwise, if the person was capable only of working work at a light level, there would be no transferable skills from the certified nurse assistant position, but such a person could work as a ticket taker, cashier II or fast food worker. AR 66-67. In the first category, there would be 65, 000 jobs nationally; in the second category, there would be 560, 000 jobs; and in the third category, there would be 750, 000 jobs. However, if the person had to take unscheduled breaks of at least 30 minutes each day because of pain and fatigue, the person could not perform any jobs of which the vocational expert was aware. AR 67.

         C. Plaintiff's Medical Record

         1. Plaintiff's physical problems

         a. Dr. Laura Wyer

         At a May 2014 appointment, plaintiff's doctor, Laura Wyer, listed plaintiff's medical problems as including chronic pain syndrome, fibromyalgia (which had been diagnosed in 1999), nausea with vomiting, left shoulder pain and breast invasive ductal carcinoma. AR 387-91. On July 29, 2014, Dr. Wyer prescribed a number of medications for plaintiff, including a course of oxycodone-acetaminophen three times a day, with Percocet[7] for breakout pain and Lorazepam[8] for muscle relaxation and tension. AR 414.

         b. Dr. Randal Vosters

         On September 3, 2014, plaintiff saw a sports medicine specialist, Dr. Randal Vosters, for an evaluation of her left shoulder pain. AR 404-06. The doctor suspected rotator cuff impingement and secondary AC joint inflammation. AR 406. He recommended that plaintiff apply ice to the affected area up to five times a day and complete her home exercise program as recommended. AR 406.

         c. Dr. Niravkumar Naik

         Plaintiff saw Dr. Niravkumar Naik, the oncologist who had been treating her breast cancer, on October 7, 2014. She told him she had had nausea and frequent vomiting over the preceding two months and an increase in fibromalgia-related pain. AR 478-79. The doctor recommended a EGD (esophagoscopy gastroscopy duodenoscopy) and a referral to a gastroenterologist. AR 480. Plaintiff returned to Dr. Naik on January 5, 2015, reporting ...

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