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Heine v. Saul

United States District Court, E.D. Wisconsin

October 8, 2019

JODI R. HEINE, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         1. History

         The Commissioner of Social Security concluded that Jodi R. Heine was not disabled at any time between August 30, 2009 (her alleged onset date) and September 11, 2017 (the date of the Commissioner's decision). His final decision denying Heine's applications for disability insurance benefits and supplemental security income is set forth in an administrative law judge's (ALJ) September 11, 2017 decision (Tr. 12-23), which became the final decision of the Commissioner when the Appeals Council denied review (Tr. 1-3).

         The ALJ concluded that Heine had the following severe impairments: “s/p gastric bypass and revision; history of ventral hernia; torn labrum; depression; anxiety; sedative dependence and opioid dependence.” (Tr. 17.) She had the residual functional capacity (RFC)

to perform light work … except stand or walk no more than 2 hours in an 8-hour workday; needs a cane to ambulate; jobs that can be performed sitting or standing; never use ladders, scaffolds, and ropes; occasionally use ramps, stairs, stoop, kneel, crouch, or crawl; avoid walking on uneven surfaces; occasionally bend, twist, or turn at the waist; do only simple, unskilled work; no jobs requiring teamwork or work with the public; low stress work and no fast paced work or work where the pace is set by another.

(Tr. 19.)

         Although Heine's limitations precluded her from performing her past relevant work, based on testimony from a vocational expert the ALJ concluded Heine was able to work at jobs such as “assembler (DOT# 729.684-054), inspector (DOT# 727.687-062), packager (DOT# 559.687-074), and product processor (DOT# 729.687-014).” (Tr. 23.) Therefore, she was not disabled.

         Heine argues that the ALJ committed various errors and asks this court to remand her claim for rehearing.

         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

         In assessing the severity of Heine's symptoms, the ALJ noted that Heine's “physical treatment since the surgeries is limited to pain management-injections and medications-and is conservative at best.” (Tr. 21.) In his view, “[t]his supports some ongoing pain but does not suggest physical debilitation.” (Tr. 21.) He also relied on Heine's “conservative care” to dismiss the opinion of her treating physician that she would be absent twice per month. (Tr. 21.)

         The court cannot say this conclusion is “consistent with and supported by the evidence, ” as required by SSR 16-3p. There is no evidence that any sort of more aggressive treatment would ever be appropriate for impairments like those Heine suffered as a result of her gastric bypass surgery. Perhaps the treatment Heine received, which the ALJ deemed “conservative, ” was the most aggressive treatment available for her sort of impairment. Thus, there is no reason to conclude that Heine's prescribed treatment suggested a lack of severity of the underlying impairment.

         As to Heine's musculoskeletal impairments, the ALJ overlooked a significant explanation for the lack of further treatment-Heine's “[s]uper morbid obesity.” (Tr. 581.) Although physicians disagreed as to whether surgery was appropriate for her conditions (compare Tr. 1537 with Tr. 1838, 1842;), one stated he would not recommend surgery for Heine's hips unless she lost substantial weight (Tr. 1537; see also Tr. 507 (noting “she ...


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