United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE.
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.
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.
following facts are drawn from the administrative record
Plaintiff's Social Security Application
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.
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.
said that she took Tramadol  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  “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.
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.
addition to Tramadol, plaintiff takes Letrozole, which is used to
treat breast cancer, and Prilosec,  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.
has never had any EMG  testing, She has a TENS  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.
Vocational expert's testimony
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.
Plaintiff's Medical Record
Plaintiff's physical problems
Dr. Laura Wyer
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 for breakout pain and
Lorazepam for muscle relaxation and tension. AR 414.
Dr. Randal Vosters
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.
Dr. Niravkumar Naik
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 ...