Larsen v. Saul, No. 2:2018cv00858 - Document 17 (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 reversed, and pursuant to 42 U.S.C. § 405(g), sentence four, this matter is remanded for further rulings consistent with this decision. The Clerk shall enter judgment accordingly. (cc: all counsel)(blr)
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Larsen v. Saul Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ROBERT J. LARSEN, Plaintiff, v. Case No. 18-CV-858 ANDREW M. SAUL1, Commissioner of Social Security, Defendant. DECISION AND ORDER PROCEDURAL HISTORY Plaintiff Robert Larsen alleges that he has been disabled since October , , due to L -L disc herniation, L and S disc herniation, lumbar fusion, additional lumbar fusion due to failure of first surgery, left rotator cuff surgery, left frozen shoulder syndrome, uncontrolled insulin dependent diabetes, depression, hypothyroi[dism], and thyroid nodules. benefits. Tr. Tr. - reconsideration Tr. - . In November he applied for disability insurance . “fter his application was denied initially Tr. - - and upon , a hearing was held before an administrative law judge “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 on November , Tr. - . On January , concluding Larsen was not disabled. Tr. request for review on May , - , the “LJ issued a written decision . The “ppeals Council denied Larsen s . Tr. - . This action followed. “ll parties have consented to the full jurisdiction of a magistrate judge ECF Nos. , , and the 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 Larsen did not engaged in substantial gainful activity during the period from his amended alleged onset date of October , through his 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 . In order for an impairment to be considered severe at this step of the process, the impairment must significantly limit an individual s ability to perform basic work activities. Moore v. Colvin, th Cir. F. d , . The “LJ concluded that Larsen had the following severe impairments left shoulder degenerative joint disease and degenerative disc disease[.] Tr. . “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 . , . d C.F.R. Part , Subpart P, “ppendix and . called C.F.R. §§ . d, 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 Larsen 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 perform both physical and mental work-related activities on a regular and continuing basis despite his impairments. Moore, F. d at . In making the RFC finding, the “LJ must consider all of the claimant s impairments, including impairments that are not severe. . SSR C.F.R. §§ , - p. In other words, the RFC determination is a function by function assessment of the claimant s maximum work capability. Elder v. Astrue, th Cir. . F. d . The “LJ concluded that Larsen had the RFC to perform sedentary work as defined in CFR . a except he could never climb ladders, ropes, or scaffolds. He could frequently climb ramps and stairs, balance, kneel, crouch, and occasionally crawl and stoop. He could occasionally reach overhead with his left upper extremity. He must avoid all exposure to hazards such as unprotected heights and moving mechanical parts. He must avoid exposure to extreme cold. He could occasionally be exposed to concentrated dusts, gases, fumes, odors, and poor ventilation. , Tr. . “fter determining the claimant s RFC, the “LJ at step four must determine whether the claimant has the RFC to perform the requirements of his past relevant work. C.F.R. §§ . , construction worker. Tr. relevant work[.] . . Larsen s past relevant work was as a landscaper and a . The “LJ concluded that he was unable to perform any past Id. The last step of the sequential evaluation process requires the “LJ to determine whether the claimant is able to do any other work, considering his RFC, age, education, and work experience. “t this step the “LJ concluded that, considering Larsen s age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Larsen can perform. Tr. - . In reaching that conclusion, the “LJ relied on testimony from a vocational expert, who testified that a hypothetical individual of Larsen s age, education, work experience, and RFC could perform the requirements of callout operator, document specialist, and circuit board assembler. Tr. . “fter finding that Larsen could perform work in the national economy, the “LJ concluded that he was not disabled. Id. STANDARD OF REVIEW The court s role in reviewing the “LJ 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 “LJ s decision if it is supported by substantial evidence. Moore, F. d at . Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. quoting Richardson v. Perales, U.S. , Id. at . Thus, it is possible that opposing conclusions both can be supported by substantial evidence. Scheck v. Barnhart, , th Cir. - F. d . It is not the court s role to reweigh evidence or substitute its judgment for that of the “LJ. Moore, F. d at . Rather, the court must determine whether the “LJ complied with his obligation to build an accurate and logical bridge between the evidence and his conclusion that is sufficient to enable a court to review the administrative findings. Beardsley v. Colvin, Colvin, F. d , th Cir. F. d , th Cir. Thomas v. . This deference is lessened, however, where the “LJ s findings rest on an error of fact or logic. Thomas, F. d at . If the “LJ committed a material error of law the court cannot affirm the “LJ s decision regardless of whether it is supported by substantial evidence. Beardsley, Astrue, F. d , th Cir. F. d at Farrell v. . ANALYSIS Larsen argues that the “LJ erred in evaluating the objective medical evidence in evaluating and giving weight to the opinions of treating physician Michael W. Jung, M.D., and state-agency consultant Pat Chan, M.D.. and by improperly evaluating Larsen s statements concerning the intensity, persistence, and limiting effects of his symptoms.2 ECF Nos. , I. . Objective Medical Evidence A. Failed Back Syndrome Larsen argues that the “LJ failed to consider his failed back surgeries and failed back syndrome. ECF No. at . Failed back syndrome is a misnomer since it is not actually a syndrome but rather a very generalized term often used to describe the condition of patients who have not had a successful result with spine surgery. Taylor v. Colvin, No. CV , WL , at * C , WL , at * n. Barnhart, No. recommendation adopted, WL quoting Lucio v. N.D. Ill. Dec. , N.D. Ill. June N.D. Ill. July , , , report and . It refers to chronic back and/or leg pain that occurs after back spinal surgery, usually after laminectomy. Id. quoting Schilling v. Epic Life Ins. Co., No. W.D. Wis. Feb. , -cv- see Lambert v. Berryhill, F. -wmc, WL , th Cir. , at * n. Months later [a pain specialist] diagnosed [plaintiff] with failed back syndrome meaning he experienced continuous pain despite surgeries …. . Where an “LJ addresses all of a claimant s alleged back and leg problems which are nearly identical to those associated with [failed back syndrome][,] then failing to use the label [failed back syndrome] is not Larsen also argues that the ALJ mischaracterized the record. (ECF No. 8 at 18-20.) Since the court has decided that remand is necessary due to other errors, it will not address the “LJ s alleged mischaracterizations. 2 an error meriting remand or reversal because adding the label [failed back syndrome] would add nothing. C , WL Taylor, , at * WL at * N.D. Ill. “ug. , quoting Fratantion v. Colvin, No. . Larsen does not contend that he had any specific limitations arising from failed back syndrome that was ignored by the “LJ. The “LJ considered Larsen s ongoing lower back and right leg pain by identifying degenerative disc disease as a severe impairment Tr. , considering the effects of that impairment Tr. to state-agency consultant Dr. Pat Chan Tr. , and giving significant weight , who considered Larsen s medical history and concluded that [h]e retains the ability to perform at least sedentary work . See Lora S. S. v. Comm’r of Social Sec., No. Ill. May , -cv- -DGW, WL Tr. ,* - S.D. The “LJ identified degenerative disc disease of the lumbar spine as a severe impairment and considered the effects of that impairment. Plaintiff has not identified any additional limitations arising from failed back syndrome. . Therefore, given that the “LJ considered Larsen s ongoing lower back and right leg pain, specifically referencing Frantantion, failed back syndrome WL at * would not have altered her RFC analysis. See ”ecause the “LJ adequately considered [plaintiff s] lower back and leg pain, explicitly recognizing [failed back syndrome] would … have no effects on the “LJ s analyses at Step Three, the RFC assessment, or the credibility determination. It is true that the objective evidence demonstrates that [plaintiff s] first surgery was a failure, however, adding the label [failed back syndrome] would not have altered the outcomes at these Steps. . B. Other Medical Records Larsen argues that the “LJ chose selectively from the parts of an MRI exam without mentioning the portions of that exam that are favorable to [him]. . Citing Tr. - ECF No. at . However, as the Commissioner points out, the “LJ acknowledged that the MRI results supported [Larsen] having pain. ECF No. at . The “LJ limited [Larsen] to a less than full range of sedentary work with postural and environmental limitation due to, among other things, the lumbar MRI which reflects some deficits. Tr. - , , . Emphasis added. Therefore, the “LJ did not improperly ignore portions of the MRI that favored Larsen. Larsen also argues that the “LJ played doctor [b]y citing the MRI and matters involving evaluation of tests. th Cir. ECF No. at . Citing Israel v. Colvin, F. d , , he contends that the “LJ is not qualified to interpret the MRI or evaluate objective tests such as gait, range of motion, sensory changes, reflexes, strength and physical examinations. Id. at . However, unlike the “LJ in Israel, the “LJ here did not independently interpret medical records. The “LJ relied upon Dr. Jonathan Jenning s and Dr. Paul ”ullis s interpretations of the MRI see Tr. 3 The ALJ appears to have made a typo in citing F/ citing Tr. . The correct citation is F/ 3 . Tr. citing Tr. - , and simply and correctly observed that the medical records do not indicate that [Larsen] had ineffective ambulation, abnormal gait, and significant decrease in range of motion, sensory changes, reflex abnormalities, positive straight leg raises, or recommendations of another invasive treatment to support disabling back impairment during [Larsen s] relevant period of disability Tr. . “s such, the “LJ did not err in her evaluation of Larsen s medical records. II. Medical Opinion Evidence A. Dr. Michael W. Jung In November Larsen s treating physician, Dr. Michael Jung, approved a Performance Capability Chart concerning Larsen s physical limitations. He opined that Larsen is able to perform sedentary work for one-to-three hours in an eight-hour work day, stand/walk for less than one hour in an eight-hour work day, sit for one-to-three hours in an eight-hour work day, use hands for repetitive simple grasping and fine manipulation, occasionally perform overhead work, and perform work at shoulder level with both hands. ECF No. - . He also opined that Larsen is unable to bend, squat, climb, and use feet for repetitive movement. Id. For claims filed before March , a treating physician s opinion on the nature and severity of a medical condition is entitled to controlling weight if it is well-supported by medical findings and consistent with substantial evidence in the record. Johnson v. Berryhill, F. “pp x , th Cir. citing C.F.R. § . c Brown v. Colvin, F. d , th Cir. . If an “LJ does not give a treating physician s opinion controlling weight, the regulations require the “LJ to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician s specialty, the types of tests performed, and the consistency and supportability of the physician s opinion to determine how much weight to give the opinion. Moss v. Astrue, F. d , th Cir. citing C.F.R. § . c . While [a]n “LJ must offer good reasons for discounting a treating physician s opinion Campbell v. Astrue, F. d , th Cir. internal quotations and citations omitted , courts will uphold all but the most patently erroneous reasons for discounting a treating physician s assessment. Stepp v. Colvin, F. “pp x , th Cir. F. d , citing Luster v. Astrue, th Cir. . The “LJ gave little weight to Dr. Jung s opinion, concluding that it is not consistent with the overall evidence in the record during [Larsen s] relevant period as it is overly restrictive. Tr. - . She explained that Larsen had normal motor strength, normal gait and station, normal coordination, [and] normal reflexes. [ Tr. December . ] ”y his medical records continued to note that he was doing okay with his current medication regimen. [ Tr. .] Tr. . Larsen argues that [t]he “LJ picked out two pages from a voluminous record … to support her rejection of [Dr. Jung s opinion]. ECF No. at not mention every piece of evidence, Denton v. Astrue, F. d . “lthough an “LJ need , th Cir. , the Court of “ppeals for the Seventh Circuit has held that [a]n “LJ may not selectively discuss portions of a physician s report that support a finding of non-disability while Gerstner v. Berryhill, ignoring other portions that suggest a disability. th Cir. quoting Campbell v. Astrue, F. d , F. d th Cr. , . “lthough Larsen had normal motor strength, normal gait and station, normal coordination, [and] normal reflexes at a December pre-operation exam for his shoulder, the “LJ improperly ignored the other relevant medical records that appear to support Dr. Jung s opinion. Phillip M. v. Berryhill, No. , at * C.D. Ill. March , -cv- -SLD-EIL, WL “LJs are required to consider all relevant evidence in the record, including evidence dated before the alleged onset date and after the date last insured. citing Parker v. Astrue, v. Heckler, , , at * F. d n. , th Cir. Sucharski v. Astrue, No. th Cir. E.D. Wis. Sept. F. d , . On September , -C- Halvorsen , WL , about a month before the alleged onset date, Dr. Jung reported that Larsen had right sided low back pain that radiate[d] into his thigh and to his knees, reduced range of motion. Tr. . On September , antalgic gait, and moderately . Dr. Jung performed a lumbosacral joint injection. Tr. , Larsen cont[inued] to have increased pain along with [numbness and tingling] in the legs. Tr. . Megan Hackel, P“C, opined that Larsen would likely need [to continue with [R]oxicodone brings pain down to a tolerable level[.] mg one tid PRN] indefinitely as [it] Id. On October , , the alleged onset date, Larsen s activity level ha[d] decreased due to pain and he inquired about an increase in his pain medication dose. Tr. one tid to one qid PRN. . Ms. Hackel increased his Roxicodone use from Id. On December , lower back pain with radicular symptoms. Tr. , Larsen continued to complain of . He said he was doing ok with his current medication regiment, but he was interested in a spinal cord stimulator in hopes Id. of better functional improvement. The “LJ also erred by finding Dr. Jung s opinion to be overly restrictive, in part, because Larsen indicated on December medication regimen. See Tr. citing Tr. , , that he was doing ok with his current . The “LJ failed to mention that Ms. Hackel had to increase Larsen s Roxicodone use on October had decreased due to pain. Tr. , , because his activity level . Moreover, Larsen s statement that he was doing ok does not necessarily mean that his pain was controlled by his medication such that he was capable of full-time employment. One can be doing ok and yet still be disabled. Cf. Murphy v. Colvin, F. d , th Cir. The key is not whether one has improved …, but whether they have improved enough to meet the legal criteria of not being classified as disabled. Lechner v. Barnhart, F. Supp. d , E.D. Wis. One can be stable and yet disabled. . ”ecause of these errors, substantial evidence does not support the “LJ s decision to give little weight to Dr. Jung s opinion. On remand, the “LJ shall reevaluate Dr. Jung s opinion in light of the evidence in the record as whole. B. Dr. Pat Chan Dr. Pat Chan assessed Larsen s physical RFC. Tr. - . He opined that Larsen is able to occasionally lift and/or carry ten pounds, frequently lift and/or carry less than ten pounds, stand and/or walk with normal breaks for a total of two hours in an eight-hour workday, sit with normal breaks for a total of about six hours in an eight-hour workday, and push and/or pull including operation of hand and/or foot controls . Tr. . He explained [Larsen] has had more than one surgery fusion on his back because of pain. He is also diabetic and dependent on insulin. He has tried stimulators for the pain in his back with no help. With his last surgery on his back he has noted improvement in his abilities to do activities of daily living. He retains fairly good [range of motion] of his back but does have some tenderness to palpation. His pain is fairly well controlled with medication. He never showed neurological deficits throughout his surgeries and treatment. He retains the ability to perform at least sedentary work. Id. The “LJ gave significant weight to Dr. Chan s opinion, explaining Dr. Chan s opinion is given significant weight as it [is] consistent with the medical evidence and [Larsen s] testimony. However, the [“LJ] finds that the record supports additional limitations to less than a full range of sedentary work. This evidence includes [Larsen s] statements that he had difficulty lifting/standing, limited range of motion and use of his left arm, ongoing pain, and the lumbar MRI, which reflects some deficits. Tr. . Larsen argues that the “LJ improperly relied on Dr. Chan s opinion because that opinion is dated “pril , and [Dr. Chan] [did] not have the benefit of the records of shoulder, spine including the May, and opinions after “pril , . ECF No. MRI and other treatment records at - . The introduction of additional medical evidence to the record after a state-agency consultant issues his opinion does not necessarily prevent the “LJ from relying on the state-agency consultant s opinion. Alexis H. v. Berryhill, No. WL , at * th Cir. after “pril S.D. Ind. “ug. , -cv- citing Keys v. Berryhill, -DLP-JMS, F. “pp x - . “lthough Dr. Chan did not have the benefit of reviewing any records , , state-agency consultants Ronald Shaw, M.D., and Janis ”yrd, M.D., reviewed all of the records through December , —the date last insured—and indicated that Larsen had abilities in excess of Dr. Chan s RFC findings. Tr. see Keys, , F. “pp x at - , - It is true that [the state-agency consultants] did not review these reports, but [the plaintiff] has not provided any evidence that the reports would have changed the doctors opinions. . “s such, the “LJ did not err in giving significant weight to Dr. Chan s opinion. III. Symptom Evaluation In making his RFC determination, the “LJ must engage in a two-step process to evaluate a claimant s symptoms. First, the “LJ must consider whether there is an underlying medically determinable physical or mental impairment s that could reasonably be expected to produce the individual s symptoms, such as pain. SSR WL at * see also C.F.R. § . - p, . Second, once an underlying physical or mental impairment s that could reasonably be expected to produce the individual s symptoms is established, [the “LJ] 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 - p, WL at * . The “LJ s evaluation of a claimant s symptoms is entitled to special deference and will not be overturned unless it is patently wrong. Summers v. Berryhill, citing Eichstadt v. Astrue, F. d , - th Cir. F. d , th Cir. . Larsen testified that he could not work due to pain in his lower back, right leg, and his shoulder. Tr. . The “LJ found that Larsen s medically determinable impairments could not be reasonably expected to cause [his] alleged symptoms however, [Larsen s] statements concerning the intensity, persistence and limiting effects of [his] symptoms are not consistent with the medical evidence and other evidence in the record[.] Id. The “LJ then went on to evaluate the intensity, persistence, and limiting effects of Larsen s alleged symptoms. Tr. - . Since the “LJ went on to evaluate the intensity, persistence, and limiting effects of Larsen s alleged symptoms, it appears that she misspoke when she wrote that Larsen s medically determinable impairments could not be reasonably expected to cause [his] alleged symptoms. See id. Emphasis added. Nonetheless, on remand the “LJ shall reconsider whether Larsen s medically determinable impairments could reasonably be expected to cause his alleged symptoms, and, if so, the “LJ shall reevaluate the intensity, persistence, and limiting effects of those symptoms, taking into consideration Larsen s daily activities the location, duration, frequency, and intensity of his pain factors that precipitate and aggravate his symptoms the type, dosage, effectiveness, and side effects of his medication any treatment, other than medication, for relief of pain or other symptoms any measures Larsen uses to relieve pain or other symptoms and any other factors concerning Larsen s functional imitations and restrictions due to pain or other symptoms. SSR - p, WL at * - . IT IS THEREFORE ORDERED that the Commissioner s decision is reversed, and pursuant to U.S.C. § g , sentence four, this matter is remanded for further rulings consistent with this decision. The Clerk shall enter judgment accordingly. Dated at Milwaukee, Wisconsin this 9th day of July, 2019. _________________________ WILLIAM E. DUFFIN U.S. Magistrate Judge
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