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Wolvin v. Saul

United States District Court, E.D. Wisconsin

October 3, 2019

EDWARD S. WOLVIN, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         1. Procedural History

         Edward S. Wolvin alleges that he is disabled due to degenerative disc disease, depression, and anxiety. This is the third time his claim for benefits under the Social Security Act is before this court. On April 28, 2009, the Honorable Aaron E. Goodstein reversed the decision of the Commissioner and remanded the matter for further proceedings. Wolvin v. Astrue, No. 08-CV-476, 2009 U.S. Dist. LEXIS 36771 (E.D. Wis. Apr. 28, 2009). On remand, an ALJ issued a partially favorable decision, finding that Wolvin was disabled as of October 20, 2013, but not before. Wolvin again sought review in this court, and the parties jointly agreed to remand. See Wolvin v. Berryhill, 16-cv-1228-LA (E.D. Wis.).

         On remand the question was whether Wolvin was disabled between July 27, 2005, and October 19, 2013. (Tr. 1275.) The ALJ concluded Wolvin was not disabled in this period but rather had the residual functional capacity (RFC) to perform sedentary work with the additional limitations of “only occasional decision making and changes in the work setting, ” “no climbing of ladders, ropes and scaffolds and no operation of foot controls, ” only “occasional stooping, crouching, kneeling, crawling and climbing of ramps and stairs, ” and “after sitting or standing for thirty minutes, [he] must be allowed to change position for a stretch break for a few minutes.” (Tr. 1282.) Consequently, he was capable of working as a “weight checker, ” “document preparer, ” or “order clerk.”

         2. Standard of Review

         The court's role in reviewing the ALJ's decision is limited. It does not look at the evidence anew and make an independent determination as to whether the claimant is disabled. Rather, the court must affirm the ALJ's decision if it is supported by substantial evidence. Moore, 743 F.3d at 1120. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 1120-21 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Thus, it is possible that opposing conclusions both can be supported by substantial evidence. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). If the ALJ committed a material error of law, however, the court cannot affirm the ALJ's decision regardless of whether it is supported by substantial evidence. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014); Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012).

         3. Analysis

         3.1. Severity of Symptoms / SSR 16-3p

         An ALJ must engage in a two-step process to evaluate a claimant's symptoms. First, the ALJ “must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain.” SSR 16-3p; see also 20 C.F.R. § 416.929. “Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms is established, [the ALJ] evaluate[s] the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work related activities ....” SSR 16-3p. “The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p.

         The ALJ concluded that Wolvin's symptoms were not as severe as he alleged and offered two broad reasons for his conclusion. “First, the medical records fail to substantiate fully the claimant's allegations of disabling symptoms and limitations.” (Tr. 1285.) The ALJ then offered a lengthy discussion of the medical evidence that, in his view, did not support the alleged severity of Wolvin's symptoms. (Tr. 1285-88.) He summarized his conclusions as follows:

Physical examinations … typically show the claimant to be in no distress with normal gait, strength, sensation, coordination and balance, normal bulk and tone, negative straight leg raise testing and intact ability to walk on heels and toes and do deep knee bends. Further, the claimant's allegations of significant to extreme pain levels conflict with clinical findings. Moreover, the claimant's mental health conditions required little treatment prior to his established onset date and did not manifest in persistent abnormalities on mental status examinations.

         (Tr. 1285.) The second reason the ALJ gave for concluding that Wolvin's symptoms were not as severe as he alleged was that he “retained the capacity for a good range of activities despite his complaints of pain.” (Tr. 1288.)

         Wolvin argues that the ALJ did not address certain portions of the record (ECF No. 22 at 18) and that “[t]he ALJ's analysis is simply contrary to the substance of” certain records (ECF No. 22 at 16).

         “However, an ALJ need only ‘minimally articulate his or her justification for rejecting or accepting specific evidence of a disability.'” Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (quoting Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988)). “[T]he ALJ need not provide a written evaluation of every piece of evidence.” Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). Only if the evidence “would support strongly a claim of disability” must the ALJ explain “why he does not credit [the] evidence” “or why he concludes that such evidence is outweighed by other evidence.” O'Connor-Spinner v. Astrue, 627 F.3d 614, 621 (7th Cir. 2010). Wolvin has not shown that the evidence the ALJ failed to discuss “would support strongly a claim of disability.” Therefore, the ALJ did not error in not discussing the evidence.

         Nor is remand appropriate simply because evidence supports a contrary conclusion. The court's review is to determine whether the ALJ's conclusion was supported by substantial evidence. “A s the Supreme Court explained in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), this standard requires more than 'a mere scintilla' of proof and instead 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Id. at 401.” Walker v. Berryhill, 900 F.3d 479, 482 (7th Cir. 2018). Two contrary conclusions may each be supported by substantial evidence. And, specifically with respect to an ALJ's finding regarding the severity of the claimant's symptoms, the court can upset that finding only if it is “patently wrong.” Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). A finding is not “patently wrong” if “the ALJ had ‘many specific reasons supported by the evidence'” for his conclusion. Id. at 510-11 (quoting Hall v. Berryhill, 906 F.3d 640, 644 (7th Cir. 2018)). The court finds that substantial evidence-as reflected in the ALJ's lengthy discussion of the medical evidence and his assessment of Wolvin's activities-supports the ALJ's conclusion.

         The court also rejects Wolvin's contention that the ALJ misinterpreted what medical practitioners meant when they recorded Wolvin as being in “no acute distress” during visits. The court finds insufficient support for Wolvin's contention that the term means only that the “patient will probably not become unstable in the next 5 minutes.” See Wanserski v. Colvin, No. 1:14-cv-1033-DKL-JMS, 2015 U.S. Dist. LEXIS 129970, at *18 n.6 (S.D. Ind. Sep. 28, 2015) (quoting Dave Chauvin, D.O., and Lisa Hohler, C.P.C., “Physician Documentation - No Acute Distress, ” Premier Physician Services website (http://www.premierdocs.com/about-us/news/2013-02-14-physician-documentation-no-acute-distress) (viewed Sept. 22, 2015)). The court has no basis for concluding that a medical professional uses the term differently than a lay person-i.e., at that moment, the patient did not exhibit outward signs of severe or intense pain. If a person is able to sit in a physician's office and not exhibit signs of pain, one inference is that he is not in pain. A person not exhibiting signs of pain when meeting with a physician would be inconsistent with a claim that he is in constant, extreme pain. Of course, another conclusion is that the person is exceptionally good at concealing his pain. It was not error for the ALJ to accept the former inference and to rely on it throughout his decision.

         Finally, the court rejects Wolvin's suggestion that the ALJ erred by equating his activities of daily living to an ability to work fulltime. (ECF No. 22 at 21 (citing Hughes v. Astrue, 705 F.3d 276, 278-79 (7th Cir. 2013)).) In accordance with SSR 16-3p, the ALJ appropriately considered Wolvin's activities and ...


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