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Strangis v. Saul

United States District Court, W.D. Wisconsin

September 30, 2019

BERNICE STRANGIS, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY, District Judge

         Plaintiff Bernice Strangis seeks judicial review of a final decision denying her application for Social Security Disability Insurance (“SSDI”) and Social Security Supplemental Insurance (“SSI”) Benefits under 42 U.S.C. § 405(g). On appeal, plaintiff raises four challenges: (1) the Administrative Law Judge (“ALJ”) Charles J. Thorbjornsen failed to resolve an evidentiary conflict in the testimony of the vocational expert (“VE”); (2) the ALJ failed to appropriately weigh the opinions of two treating health care providers; (3) there is no medical expert or evidentiary basis for finding that Strangis could stand or walk for two hours in an eight-hour day; and (4) the ALJ improperly discredited or failed to explain his basis for rejecting Strangis’s account of her limitations. For the reasons that follow, the court will reverse the Commissioner’s holding and remand for further proceedings consistent with this opinion and order.

         BACKGROUND[1]

         A. Overview of Claimant

          Strangis was born on June 23, 1955. She applied for benefits on March 26, 2015, claiming an alleged onset disability date of May 21, 2014. This made Strangis 58 years-old on the alleged onset date of her disability in 2014; 59 years-old when she applied for disability in 2015; and 61 years-old at the time of her hearing in 2017. As the ALJ acknowledged in his decision, Strangis was “of advanced age” at the alleged onset date and changed to “closely approaching retirement age” during her application process. 20 C.F.R. §§ 404.1563(e), 416.963(e). (AR 27.)

         Strangis has at least a high school GED education, is able to communicate in English, and has past work experience as a bartender and food products service representative. Strangis last engaged in substantial gainful activity at her alleged onset disability date in 2014, though she has worked on a very limited, part-time basis as a bartender since then. In her initial application, Strangis claimed disability based on lower back pain, right hip pain, numbness in right foot and pain in both shoulders. (AR 66.)

         B. Medical Records

         1. Records Predating Alleged Disability Onset Date

         Before her alleged disability onset date, Strangis saw a chiropractor from May through September 2013 for shoulder and back pain, rating her pain between a two and a six on a ten-point scale and complaining that work exacerbated her symptoms. (AR 319-23.) On May 7, 2013, Strangis also saw Brian K. Konowalchuk, M.D., an occupational medicine doctor for a follow-up evaluation of chronic shoulder pain. Based on the results of an updated MRI, Dr. Konowalchuk did not recommend shoulder surgery at that time, but he encouraged her to engage in home exercise, noting her lack of compliance with the recommended exercises to date. (AR 336-37.) However, shoulder pain, does not appear to be a basis for her appeal, which instead focuses on back pain. Next, on August 9, 2013, plaintiff saw Leah Jacobs, N.P., for sinusitis. On May 14, 2014, she saw John W. Ingalls, M.D., for fevers and chills. (AR 380-81.) The court notes these appointments to point out that Strangis’s treatment relationships with the two providers were established at least by 2013 and 2014.

         2. Pain Treatment May 2014 - November 2015

          After her alleged disability onset date of May 21, 2014, Strangis continued with chiropractic care, rating her pain in her low back and shoulders as ranging between a two and an eight out of ten. (AR 316, 324-39.) In June 2014 appointments with Jacobs for allergies and pain, Jacobs noted “[s]omewhere in her history she has a diagnosis of fibromyalgia. Which she agrees with but doesn’t agree with; she is contradictory throughout our visit regarding this.” (AR 383-84.) Strangis also indicated that she was not interested in medication for fibromyalgia. (AR 384.)

         In a June 25, 2014, appointment with Danielle K. Redburn, DPM, Strangis complained about burning and numbness in both feet for years. (AR 385-87.) Redburn recommended consultation with neurology and an EMG. (AR 452.) Consistent with that recommendation, Strangis was seen by Gurdesh Beti, M.D., on July 28, 2014, for numbness, burning and stinging pain in feet. (AR 387-89.) Dr. Beti diagnosed Strangis with small fiber neuropathy, noting that the EMG did not show any clear evidence of large fiber neuropathy. Dr. Beti recommended labs to check various levels, indicated that he suspected lumbosacral radiculopathies given low back pain, and scheduled her for an MRI. The MRI was completed on July 30, 2014, revealing “[m]ultilevel disc disease and bony arthropathy. There is moderate degree of stenosis at ¶ 4-5 in the transverse plane, produced by facet arthropathy and ligamentous hypertrophy. The intervertebral foramina at all levels appear patent.” (AR 374-75.)[2]

         On September 9, 2014, Strangis returned for a follow-up appointment with Dr. Beti. (AR 400-01.) During that appointment, she reported that she could not tolerate Gabapentin, indicating that she experienced a lot of drowsiness and did not feel that there was much pain relief anyways. Strangis described her pain as starting in hips and travelling laterally toward the sides, and occasionally shooting down to her feet. She also stated that she experiences tingling in her feet. Dr. Beti suggested starting her on Cymbalta, referring her to a spine surgeon and having her touch base with Dr. Ingalls, her treating physician, to discuss the orthopedic components.

         On November 17, 2014, Strangis was seen by N.P. Jacobs. (AR 404-06.) The physical examination revealed, “[l]umbar spine exam is abnormal with tenderness and pain that radiates bilaterally to the hips and upper legs. There is diminished strength. She is able to [d]o a toe raise but with pain. She is unable to raise on her heals. She walks with an antalgic gait. ROM is reduced due to significant pain. She reports numbness into her right great toe.” (AR 405.)

         On November 26, 2014, Nayyer M. Mujteba, M.D., who specializes in physical medicine and rehabilitation, saw Strangis. (AR 338-39.) Dr. Mujteba noted that Strangis’s chief complaint was low back pain, and specifically noted that “[p]ain increases with prolonged rest, as well as standing/walking and activities in general.” (AR 338.) Mujteba also noted that Strangis had tried physical therapy but it did not help. Mujteba reviewed her July 2014 MRI, which revealed “significant loss of disk height at ¶ 4-L5 and L5-S1 level. There is mild disk protrusion into inferior aspect of left intervertebral foraman. She does have some mild to moderate spinal stenosis. Significant facet joint arthropathy noted as well.” (AR 339.) He also reviewed a September 2014 EMG, noting that it “raised the possibility of mild chronic/resolved lumbosacral radiculopathy affecting L5 and S1 nerve roots.” (AR 339.) X-rays obtained that day showed “mild degenerative changes” in her hips. (AR 339; AR 347-51 (x-rays).) His physical exam revealed “quite tender about L4-L5 and L5-S1 level. Back pain greatly increases with facet loading.” (AR 339.) Mujteba’s plan was to do some joint injections and have Strangis seek another neurosurgical opinion if that did not work.

         On December 3, 2014, Strangis met with Obioma J. Igboko, MBBS for pain management for lumbar facet joint injections. (AR 341-43.) During that appointment, she rated her pain as 9 out of 10. Dr. Igboko noted that “[h]er pain is aggravated by any kind of activity and prolonged standing or sitting. It is relieved by rest and sometime hydrocodone, but it makes her very tired so she is not keen on opioid medications.” (AR 342.) While Igboko noted that she “does appear to be in quite a bit of painful discomfort, ” he also stated “[h]er pain appears to be somewhat exaggerated.” (AR 342.) Strangis tolerated the injections.

         On January 7, 2015, Strangis returned for a follow-up appointment with Dr. Mujteba. (AR 345-46.) She reported that she is experiencing a “great deal of low back pain, constant pain. Pain increases with minimal activities.” She also reported that the injections did not provide any relief. Mujteba suggested lumbar spine epidural injections, a different type of injection than she had tried previously, but Strangis declined, instead opting for physical therapy and an assessment with the spine center.

         On January 20, 2015, Strangis saw Christopher Alcala-Marquez, M.D., a spine center surgeon. (AR 362-64.) During the appointment, she indicated that she is currently taking Aleve and reported negative side effects with hydrocodone. During his examination, like Dr. Igboko, Dr. Alcala-Marquez also noted “Waldell signs for overreaction superficial pain.” (AR 364.) Based on the MRI, Alcala-Marquez diagnosed Strangis with “lumbar spondylosis worse at ¶ 4-L5 and L5-S1, ” but determined that she was not a good surgery candidate, instead recommending that she try an interlaminar epidural steroid injection, which was administered on January 27, 2015. (AR 366-67.)[3]

         On March 18, 2015, Strangis had another appointment with Dr. Alcala-Marquez. (AR 359-60.) She reported that the L4-L5 interlaminar epidural steroid injection did not provide relief but that a Medrol Dosepak (prednisone) did provide “very good relief of her back pain.”[4] (AR 359.) Dr. Alcala-Marquez noted that Strangis had “almost complete disc collapse with minimal stenosis.” (AR 360.) He encouraged Strangis to continue with physical therapy, start anti-inflammatory medication, try a steroid injection, but did not recommend surgery.

         In a September 1, 2015, appointment also with Jacobs, Jacobs noted that Strangis presents with pain and depression because of the pain. (AR 497.) As part of the physical examination, Jacobs noted “[s]he has 18 of 18 positive fibromyalgia tender points. She was crying in pain by the end of the evaluation.” (AR 499.) Jacobs also noted that Strangis was diagnosed with fibromyalgia over two years ago by Dr. Ayub, though that specific record does not appear in Strangis’s medical record as far as the court can discern. Jacobs started Strangis on Prozac to see if that would help, and while Strangis noted in a follow-up appointment with Jacobs on October 26, 2015, that it was helping with the depression (although not with the fibromyalgia (AR 517)), she ultimately could not tolerate it and was tapered off of it. (AR 521-23.)

         3. Foot and Ankle Injuries

          On February 21, 2015, Strangis was separately seen in the ER by Thomas Hinck, M.D. (AR 434-36; AR 376-78 (x-rays of foot).) Strangis had tripped over an electrical cord, fell and heard a pop. Her foot was swollen and she was diagnosed with a left foot strain. During a subsequent appointment with Dr. Redburn on February 26, 2015, Strangis was diagnosed with a Lisfranc’s dislocation, which was treated conservatively with a CAM boot and crutches. (AR 437-38; AR 442-43 (Mar. 12, 2015 appointment).) In an April 1, 2015, follow-up appointment, Dr. Redburn indicated that Strangis’s foot injury seems to have resolved, that she denied any weakness or numbness, she was back to working on her feet, the swelling had resolved, and she was “doing very well.” (AR 451.)

         In June 2016, Strangis also fell and broke her ankle. (AR 586-88.) She had surgery where hardware was placed on July 5, 2016. (AR 636-37.) In follow-up appointments with the surgeon, he indicated that she was doing “reasonably well.” (AR 590-93.)

         4. Physical ...


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