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Elsen v. Saul

United States District Court, W.D. Wisconsin

December 13, 2019

ANDREW SAUL, Commissioner, Social Security Administration, Defendant.



         Plaintiff Linda Key Elsen seeks judicial review of a final decision of defendant Andrew Saul, Commissioner of Social Security, denying her application for disability benefits. The administrative law judge (ALJ) found that Elsen had several severe impairments but determined that she retained the residual functional capacity (RFC) to perform light work with several additional movement restrictions. The ALJ concluded that Elsen could meet the demands of her past work as a teacher aide, so the ALJ found her not disabled.

         On appeal, Elsen contends that the ALJ erred by relying on outdated medical opinions from state agency consultants and by attempting to interpret later medical findings herself. Elsen notes that if the ALJ had deemed her capable of sedentary work rather than light work, the medical vocational guidelines would have directed a finding that she was disabled. But Elsen fails to point to evidence that would support such a limitation in the period between the agency consultant opinions and Elsen's date last insured. Although Elsen underwent a total hip replacement in July 2016, the record shows that the surgery was effective and that Elsen recovered quickly. The ALJ did not err by relying on medical records documenting this improvement, or by failing to solicit updated agency consultant opinions. So the court will affirm the commissioner's decision.


         The ALJ determined that between September 1, 2014 (Elsen's alleged disability onset date) and June 30, 2017 (her date last insured), Elsen suffered from numerous severe impairments, including degenerative disc disease of the lumbar spine; osteoporosis; degenerative joint disease of the left hip; left trochanteric bursitis; mild degenerative joint disease of the right hip; and degenerative joint disease of both knees. R. 30.[1] In light of these impairments, the ALJ found in her RFC assessment that Elsen could perform light work, with the additional restrictions that she could only occasionally climb, stoop, kneel, crouch, and crawl; and only frequently reach overhead with her left arm. R. 32. Relying on the testimony of a vocational expert, the ALJ found that Elsen could perform her past relevant work as a teacher aide. R. 36-37.

         A. Agency consultant opinions

         The ALJ gave “significant weight” to the opinions of two state agency medical consultants, Drs. Mina Khorshidi and Ronald Shaw. R. 36. At the initial level, Khorshidi opined that Elsen was capable of light exertional work with only frequent stooping. R. 111-12. She based this assessment on medical records received from Elsen's health care providers, which indicated that despite complaints of significant pain, Elsen had reported that “she was doing much better and had ceased her pain meds on her own accord.” R 111. At the time that Khorshidi issued this opinion on August 12, 2015, the medical records she reviewed were current as of that summer. See R. 109 (indicating that Elsen's medical records were received in June and July of 2015).

         At the reconsideration level, Shaw found the same functional limitations that Khorshidi had. R. 122. He based his assessment on the same records that Khorshidi reviewed, plus some additional physical therapy records received in October and November of 2015. R. 117-18. He issued his opinion on December 8, 2015.

         B. Subsequent medical developments

         Elsen does not contend that Khorshidi and Shaw's opinions failed to capture her limitations at the time they issued them. Instead, Elsen says that in the nearly 30 months that passed between the agency consultant opinions and the ALJ's decision on April 27, 2018, she experienced several medical events that further limited her functional capacity. She points specifically to developments in the condition of her right foot, left shoulder, and left hip. She asserts that “[a]ny of these three conditions could have reduced [her] ability to stand or lift such that Elsen would be no longer able to perform light work, ” which, given Elsen's age, would have rendered her disabled under the medical vocational guidelines.[2] Dkt. 10, at 10 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.14).

         Regarding her foot, x-rays taken in October 2015 revealed a metatarsal deformity and hammertoe deformity, and Elsen's provider discussed possible surgical interventions to address the problem.[3] R. 364. The ALJ noted these deformities and mentioned that Elsen's doctor scheduled the surgery for January 29, 2016. R. 34 (citing R. 366). The parties don't say whether this surgery ever happened, and Elsen cites no additional records related to her foot problems.

         Regarding her shoulder, x-rays taken in May 2017 revealed left shoulder impingement, for which Elsen received two injections. R. 1133 and R. 1158. The ALJ made note of this. R. 35. The ALJ also noted that Elsen reported to her doctor in June 2017 that the injection, taping, and chiropractic care “had been helping her shoulder pain, and that overall her shoulder pain was fairly controlled.” Id. In February 2018 (almost eight months after Elsen's date last insured), Elsen's doctor discussed operative and nonoperative treatment possibilities for her shoulder. R. 1250. Elsen indicated that she wanted a total shoulder arthroplasty, but that surgery had not yet been scheduled as of July 25, 2019, when she filed her brief in this case. Dkt. 10, at 15.

         The most significant medical development Elsen experienced in the period between the agency consultant opinions and the ALJ decision concerned her hip. An x-ray taken on March 11, 2016 showed “severe narrowing of the left hip joint with spurring, reactive sclerosis, and subchondral cysts on either side” that had “worsened in appearance since the last exam.” R. 433. Her doctor characterized it as “severe osteoarthritis. She is bone on bone.” R. 406. He concluded that her “severely arthritic left hip” was “inhibiting her from many day-to-day activities, ” and that a total hip arthroplasty was reasonable under the circumstances. R. 406. So on July 11, 2016, Elsen underwent a total hip replacement. R. 725-26. The ALJ recounted all of this in her opinion, and noted that two weeks post-surgery, Elsen reported that she “was doing well, was controlling her pain with medication, was able to ambulate with the assistance of her walker, and was doing well with her exercises.” R. 34-35 (citing R. 425-26). ...

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