Roberts v. Saul, No. 2:2018cv00773 - Document 19 (E.D. Wis. 2019)
Court Description: DECISION AND ORDER signed by Magistrate Judge William E Duffin. IT IS ORDERED that the Commissioner's decision is affirmed and this action is dismissed. The Clerk shall enter judgment accordingly. (cc: all counsel)(blr)
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Roberts v. Saul Doc. 19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN JEANINE J. ROBERTS, Plaintiff, v. Case No. 1 -CV- 3 ANDREW M. SAUL1, Commissioner of Social Security, Defendant. DECISION AND ORDER PROCEDURAL HISTORY Plaintiff Jeanine Roberts alleges that she has been disabled since December , , due to postural orthostatic tachycardia syndrome POTS , syncope, supraventricular tachycardia, syringomelia, degenerative disc disease, chronic obstructive pulmonary disease COPD , fibromyalgia, and migraines. applied for disability insurance benefits. Tr. initially Tr. - Tr. - and upon reconsideration Tr. administrative law judge “LJ on March , , . In December she . “fter her application was denied Tr. , a hearing was held before an - . On May , , the “LJ 1 As of June 4, 2019, Andrew M. Saul is the Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), he is substituted as the named defendant in this action. Dockets.Justia.com issued a written decision concluding Roberts was not disabled. Tr. Council denied Roberts s request for review on “pril , - . The “ppeals . Tr. - . This action followed. “ll parties have consented to the full jurisdiction of a magistrate judge ECF Nos. , , and this matter is now ready for resolution. ALJ’S DECISION In determining whether a person is disabled an “LJ applies a five-step sequential evaluation process. “t step one, the “LJ determines whether the claimant has engaged in substantial gainful activity. The “LJ found that Roberts did not engage in substantial gainful activity during the period from her alleged onset date of December , through her date last insured of December , . Tr. . The analysis then proceeds to the second step, which is a consideration of whether the claimant has a medically determinable impairment or combination of impairments that is severe. C.F.R. §§ . c, . c . “n impairment is severe if it significantly limits a claimant s physical or mental ability to do basic work activities. C.F.R. § . impairments a . The “LJ concluded that Roberts had the following severe postural orthostatic tachycardia syndrome obstructive pulmonary disease COPD . Tr. POTS and chronic . “t step three the “LJ is to determine whether the claimant s impairment or combination of impairments is of a severity to meet or medically equal the criteria of the impairments listed in C.F.R. Part , Subpart P, “ppendix C.F.R. §§ . d, . , . d , and . called The Listings . If the impairment or impairments meets or medically equals the criteria of a listing and also meets the twelvemonth duration requirement, C.F.R. § . , the claimant is disabled. If the claimant s impairment or impairments is not of a severity to meet or medically equal the criteria set forth in a listing, the analysis proceeds to the next step. The “LJ found that Roberts did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. . In between steps three and four the “LJ must determine the claimant s residual functional capacity RFC , which is [the claimant s] ability to do physical and mental Ghiselli v. work activities on a regular basis despite limitations from her impairments. Colvin, F. d Cir. . In making the RFC finding, the “LJ must consider all of the claimant s , th Cir. quoting Moore v. Colvin, impairments, including impairments that are not severe. SSR F. d C.F.R. §§ , . th , . - p. In other words, the RFC determination is a function by function assessment of the claimant s maximum work capability. Elder v. Astrue, F. d , . The “LJ concluded that Roberts had the RFC to perform sedentary work as defined in CFR . a except as limited by the following. [Roberts] could occasionally climb ramps and stairs but never ladders, ropes, or scaffolds. She could occasionally balance, stoop, kneel, crouch, and crawl. [Roberts] could tolerate occasional exposure to and/or work around extreme cold and heat, wetness, humidity, fumes, gases, and other pulmonary irritants. She could not work around hazards such as moving machinery or unprotected heights. [Roberts] could not do any commercial driving. th Cir. Tr. . “fter determining the claimant s RFC, the “LJ at step four must determine whether the claimant had the RFC to perform the requirements of her past relevant work. C.F.R. §§ . , . . The “LJ concluded that Roberts was capable of performing [her] past relevant work as a secretary. The work did not require the performance of work-related activities precluded by [Roberts s] [RFC]. Tr. . “lthough the “LJ found that Roberts could have returned to her past relevant work as a secretary, she made evaluation process. Tr. alternative findings for step five of the sequential . The fifth step of the sequential evaluation process requires the “LJ to determine whether the claimant is able to do any other work, considering her RFC, age, education, and work experience. “t this step the “LJ concluded that, considering [Roberts s] age, education, work experience, and [RFC], there are jobs that existed in significant numbers in the national economy that [she] also could have performed. Id. In reaching that conclusion, the “LJ relied on testimony from a vocational expert, who testified that a hypothetical individual of Roberts s age, education, work experience, and RFC would have been able to perform the requirements of occupations such as appointment clerk, sorter, and document archiver. Tr. . “fter finding that Roberts could have performed work in the national economy, the “LJ concluded that she was not under a disability at any time from December , , the alleged onset date, through December , , the date last insured. Tr. . STANDARD OF REVIEW The court s role in reviewing an “LJ s decision is limited. It must uphold an “LJ s final decision if the correct legal standards were applied and supported with substantial evidence. LD.R. by Wagner v. Berryhill, § g Jelinek v. Astrue, F. d F. d , , th Cir. th Cir. citing U.S.C. . Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Astrue, Summers v. Berryhill, F. d , F. d th Cir. , quoting Castile v. th Cir. . The court is not to reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment for that of the Commissioner. Burmester v. Berryhill, F. d rel. Lopez v. Barnhart, th Cir. F. d , , quoting Lopez ex th Cir. . Where substantial evidence supports the “LJ s disability determination, [the court] must affirm the [“LJ s] decision even if reasonable minds could differ concerning whether [the claimant] is disabled. L.D.R. by Wagner, F. d at quoting Elder v. Astrue, F. d , th Cir. . ANALYSIS Roberts argues that [t]he “LJ, in considering the two Holter monitor tests … overlooked the objective finding at [Tr.] . ECF No. at . Transcript page is a progress note from an appointment Roberts had with Lakshmi Deep, M.D., in October more than a year prior to Roberts s alleged onset date of December , , which states in relevant part The patient is a -year-old female who comes in complaining of having sinus infection. Was treated for infection. Was still having dizzy spells. …. Had a Holter monitor done which shows 3 occasions she has had dizziness which correlates with the sinus tachycardia. Walking up and down the stairs she has been feeling dizzy. Finished her prednisone and antibiotics. She has had Holter done, echocardiogram done. MRI of the brain shows sinusitis. No other complaints. No headaches or blurred vision currently. Tr. . Emphasis added. Roberts contends that [t]he “LJ was required to make further inquiry as to the daily dizziness being a contributing factor to inability to stay on task, the required - % of the time. ECF No. at - . “s the Commissioner points out, Roberts fails to explain how this older evidence reflects her condition as of December . ECF No. at . Roberts fails to cite to any objective medical tests or opinion evidence that demonstrate that she experienced these dizziness spells around or after her alleged onset date of December , . The “LJ correctly found that the medical evidence of record contains essentially normal physical examinations and generally unremarkable other testing during and close to the period at issue, explaining December treatment notes indicate that [Roberts] had been diagnosed with POTS that was associated with episodes of gazing off or staring into space and sometimes passing out however, the extensive work up to that point had been negative [ Tr. ]. Later that month at a cardiovascular follow up appointment, it was noted that despite some episodes of her heart beating quickly, [Roberts s] heart rate had clearly improved after starting a low-dose beta-blocker [ Tr. ]. Notes from the associated physical examination indicate that [Roberts] was alert and oriented with a normal affect, and no obvious focal findings were observed [ Id. ]. During an electrophysiology consultation less than a week later, [Roberts] was again observed to be grossly intact neurologically, and she had a stable gait [ Tr. ]. [Roberts] then wore an event monitor for days beginning December , , and there were no VT, SVT, atrial fibrillation, atrial flutter, significant brandycardia, or pauses noted [ Tr. ]. The results from a tilt table test done in February were also negative [ Tr. ]. Tr. . In making that finding, the “LJ did not rely on her own reading of Roberts s treatment records. She gave great weight to the opinion of impartial medical expert “shok G. Jilhewar, M.D., who reviewed Roberts s medical treatment records and opined that Roberts was limited to sedentary-level work with various non-exertional limitations Tr. , and some weight to the opinions of state-agency medical consultants Mina Khorshidi, M.D., and “ndrew Przybyla, M.D., both of whom opined that Roberts was able to perform a range of sedentary exertional level work that included postural and environmental limitations Tr. - , - . Tr. . Given the absence of any objective medical evidence suggesting that Roberts was still experiencing dizzy spells in December Green v. Saul, No. - , WL , at * not discuss every piece of evidence in the record. th Cir. progress note. See , the “LJ did not err in not discussing the October th Cir. July , Knox v. Astrue, [“]n “LJ need F. “pp x , There is no presumption of truthfulness for a claimant s subjective complaints rather, an “LJ should rely on medical opinions based on objective observations and not solely on a claimant s subjective assertions. . Roberts also argues that the “LJ failed to consider the side effects of her medications. ECF No. at . However, the “LJ gave great weight to the opinion of Dr. Jilhewar, who testified that the only medication on Roberts s list of medications that could cause significant side effects was milligrams of Meclizine taken three times a day on a day-in-and day-out basis. Tr. - . There is no evidence in the record that Roberts was taking Meclizine three times a day, every day. “s such, the “LJ did not err by not considering the side effects of Roberts s medication. IT IS THEREFORE ORDERED that the Commissioner s decision is affirmed and this action is dismissed. The Clerk shall enter judgment accordingly. Dated at Milwaukee, Wisconsin this st day of July, . _________________________ WILLI“M E. DUFFIN U.S. Magistrate Judge
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