Blanchard v. Saul, No. 2:2018cv01166 - Document 18 (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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Blanchard v. Saul Doc. 18 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN MYRON G. BLANCHARD, Plaintiff, v. Case No. 18-CV-1166 ANDREW M. SAUL1, Commissioner of Social Security Defendant. I. DECISION AND ORDER INTRODUCTION Plaintiff Myron ”lanchard alleges that he has been disabled since September , , due to a bulging lumbar disc, degenerative disc disease, depression, ulnar nerve relocation in left arm, and back fusion. See Tr. , . In October disability insurance benefits and supplemental security income. Tr. applications were denied initially Tr. - he applied for - and upon reconsideration Tr. , a hearing was held before an administrative law judge “LJ on January - . On March , . “fter his , , Tr. , the “LJ issued a written decision concluding ”lanchard was 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. 1 Dockets.Justia.com not disabled. Tr. May , - . The “ppeals Council denied ”lanchard s request for review on . Tr. - . On July March , , ”lanchard filed an action in this court challenging the “LJ s decision. Tr. - . On September , , this court remanded the matter for further proceedings and ordered the “LJ to consider ”lanchard s testimony about the need to elevate his legs Tr. - and explain how a limitation of being off task for % of the workday coupled with unskilled work adequately accounts for ”lanchard s moderate limitations in concentration, persistence, or pace Tr. - . The “ppeals Council then instructed an “LJ to offer ”lanchard the opportunity for a second hearing, consolidate ”lanchard s additional claims for benefits, take any further action needed to complete the administrative record, and issue a new decision. Tr. “ second hearing was held before the same “LJ on March On May , - . , . Tr. - . the “LJ issued a written decision, concluding that ”lanchard was not disabled prior to “ugust , , but became disabled on that date and has continued to be disabled through the date of [the “LJ s] decision Tr. decision of the Commissioner. See Tr. - - C.F.R. § , which became the final . [W]hen a case is remanded by a Federal court for further consideration, the decision of the administrative law judge will become the final decision of the Commissioner after remand on your case unless the “ppeals Council assumes jurisdiction of the case. . This action followed. “ll parties have consented to the full jurisdiction of a magistrate judge. ECF Nos. , . 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 ”lanchard has not engaged in substantial gainful activity since the alleged onset date[.] 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. § . a . The “LJ concluded that ”lanchard has the following severe impairments disorders of the spine with status post surgeries, left ulnar neuropathy, obesity, and depression[.] 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 . , . C.F.R. Part , Subpart P, “ppendix d , 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 ”lanchard has not had an impairment or combination of impairments that meets or medically equals 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 work activities on a regular basis despite limitations from [his] impairments. Ghiselli v. 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 ”lanchard has the RFC to perform sedentary work as defined in CFR . a and . a except he is unable to climb ladders, ropes or scaffolds he can occasionally stoop, crouch, kneel, crawl, and climb ramps and stairs he must be allowed to change positions between sitting and standing every minutes, for a few minutes, before returning to sitting or standing he is unable to operate foot controls he is limited to frequent handling and fingering with the nondominant left upper extremity he is limited to unskilled work and he is limited to jobs having only occasional decision making and changes in work setting. Tr. . . th Cir. “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. §§ repairer. Tr. . , . . ”lanchard s past relevant work was as a maintenance . The “LJ concluded that ”lanchard has been unable to perform any past relevant work[.] Tr. . 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, [p]rior to “ugust , , the date [”lanchard s] age category changed, considering [his] age, education, work experience, and [RFC], there were jobs that existed in significant numbers in the national economy that [he] could have performed[.] Tr. . In reaching that conclusion, the “LJ relied on testimony from a vocational expert, who testified that a hypothetical individual of ”lanchard s age, education, work experience, and RFC could perform the requirements of representative occupations such as an order clerk, sorter, and polisher. Tr. . “fter finding that ”lanchard could perform work in the national economy, the “LJ concluded that he was not disabled prior to “ugust , . Id. 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, F. d , th Cir. citing U.S.C. § g Jelinek v. Astrue, F. d , th Cir. . 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 “lthough it s unclear, ”lanchard seems to argue that the “LJ erred in evaluating his statements concerning the intensity, persistence, and limiting effects of his pain and numbness in his left lower extremity, and elevate his legs. ECF No. I. the impact of his obesity on his need to . Left Lower Extremity 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. . ”lanchard alleged an inability to work due to disorders of the spine, radicular leg symptoms, a back fusion, ulnar nerve relocation in the left arm, anxiety, and depression. Tr. . He asserted that he suffered from back pain, numbness and pain in the left lower extremity, and numbness in the fingers of the left hand that he elevated his legs over fifty percent of the day and that these conditions affected his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember, complete tasks, concentrate, understand, follow instructions, use his hands, and get along with others. Id. The “LJ found that ”lanchard s medically determinable impairments could reasonably be expected to produce [his] alleged symptoms however, [his] statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record. Tr. . “s a result, the “LJ concluded that ”lanchard s symptoms affect [his] ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence. Id. “s part of the “LJ s evaluation of ”lanchard s symptoms, the “LJ addressed ”lanchard s testimony that he elevated his legs during the day. testified at the March Tr. . ”lanchard hearing Q “ll right. Do you spend time during the day elevating your legs now? “ Yes. Q How much time? “ Well I, I can t -- I d say over percent of the time just because that s the chairs we have. “nd while I m sitting I put them up quite often. Q Does elevating your legs make any difference? “ It does as long as I don t over walk to begin with. If I, if I over walk or over exert them it doesn t matter what I do. That -- once the pain gets there -- there s, there s not much I can do but -- time. You know laying down and fighting to go to sleep. Q “ll right. “nd is it a recliner kind of chair that I guess I m thinking about when you re sitting down or is it some other kind of a chair? “ Yeah, it s a recliner. Q Sit down, tip back, prop your feet up? “ Yeah. Q Okay. Tr. . The “LJ concluded [“] thorough review of the medical evidence does not reveal any reference or recommendation by a doctor or care provider for leg elevation. While [”lanchard] may elevate [h]is legs during the day, without objective medical evidence establishing the necessity for such, the undersigned is not convinced such limitation must be included in the [RFC] finding herein. The need for such leg elevation limitation has not been established by the evidence of record. “ccordingly, the undersigned finds that a limitation within the [RFC] about leg elevation is not supported by the overall evidence of record. Tr. . Citing Smith v. Astrue, F. “pp x th Cir. , ”lanchard argues that the “LJ failed to link any evidence to his conclusion regarding [”lanchard s] need for leg elevation. ECF No. at . In Smith, the plaintiff alleged that the “LJ failed to explain why she rejected her assertion that she must elevate her leg, arguing [T]he “LJ made only a cursory comment on this point The medical records do not support the limitations alleged by the claimant that she is medically required to elevate her legs. The “LJ failed to link any of the evidence to her conclusion regarding leg elevation, …, and … the Commissioner [tried] to salvage the “LJ s conclusion through post hoc rationalization. F. “pp x at . The Court of “ppeals for the Seventh Circuit agreed with Smith, explaining The “LJ here did cite to some medical records mostly from Dr. Shah s review but did not explain how the records undermined Smith s testimony that she needed to elevate her leg. Contrary to the [lower court s] conclusion, there was evidence in the record that Smith had to elevate her leg, including her hearing testimony the reports she and her husband filled out for the agency shortly after she filed her application records from her hospital stay, which included instructions to keep the leg elevated after discharge and records from the two follow-up appointments, at which the edema in her leg was characterized as either moderate or severe. The “LJ did not explain why she disregarded this evidence and instead credited Dr. Shah s evaluation. This error cannot be deemed harmless because we cannot say with great confidence that the result would be the same on remand. Id. at - emphasis in original and internal citations omitted . Unlike the plaintiff in Smith, ”lanchard does not present any evidence, besides his own testimony, showing that he needs to elevate his legs during the day. While ”lanchard points to objective medical findings that indicate pain and numbness in his left lower extremity ECF No. at - , the “LJ conducted a thorough review of the medical evidence and correctly found that there was no reference or recommendation by a doctor or care provider for leg elevation. , , , , , , see also, e.g., Tr. Tr. , , , , , all indicating that ”lanchard had no edema or swelling in his lower extremities . In addition, the “LJ gave some weight to the opinions of stateagency consultants Ronald Shaw, M.D., and Mina Khorshidi, M.D., both of whom opined that ”lanchard had the ability to stand and/or walk for at least two hours and sit for at least six hours in an eight-hour work day. Tr. - , - , . The “LJ also restricted ”lanchard to work that allowed [him] to change positions between sitting and standing every minutes, for a few minutes, before returning to sitting or standing Tr. to accommodate ”lanchard s reports of pain and abnormal sensations in the back and lower extremities. Tr. see Tr. stating that ”lanchard can stand for about minutes before he needs to sit down Tr. / I need to be able to change my position regularly sit- stand- raise [legs] occasionally to relieve excessive pain. . “s such, the court finds that substantial evidence supports the “LJ s conclusion that ”lanchard s statements concerning his need to elevate his legs were inconsistent with the overall evidence in the record. II. Obesity “s a general rule, an “LJ is required to consider the combined effects of all of the claimant s impairments, even those that would not be considered severe in isolation. Terry v. Astrue, F. d , th Cir. C.F.R. § . c . In cases where obesity is an issue, [a]n assessment should … be made of the effect obesity has upon the individual s ability to perform routine movement and necessary physical activity within the work environment. SSR - p, WL at * . [T]he “LJ must specifically address the effect of obesity on a claimant s limitations because, for example, a person who is obese and arthritic may experience greater limitations than a person who is only arthritic. Villano v. Astrue, at * F. d , th Cir. SSR - p, WL The combined effects of obesity with other limitations may be greater than might be expected without obesity. . The “LJ took note of ”lanchard s extreme obesity, listed it as a severe impairment, and considered its effect, explaining in relevant part The undersigned notes there is no medical listing for obesity. The undersigned has considered [”lanchard s] impairment of obesity using the criteria for the musculoskeletal, respiratory, and cardiovascular impairments under Listings . Q, . I, and . F, as required by Social Security Ruling - p. However, the evidence does not support a finding that [”lanchard s] obesity results in the severity of the symptoms required to meet or equal a medical listing. … “lthough [”lanchard s] ”MI placed him in Level III [ extreme obesity ], there was no evidence of any quantifiable impact of the obesity on his pulmonary, musculoskeletal, endocrine, or cardiac functioning. … [Dr. Jared Tyson s] opinion finds support in the medical evidence showing that [”lanchard] had disorders of the spine, neuropathy and obesity, but he still exhibited adequate function during a number of musculoskeletal and neurological examinations during the period at issue[.] … [T]he undersigned gives some weight to Dr. Khorshidi s assessment indicating that [”lanchard] required postural limitations. This assessment finds support in the evidence showing that [”lanchard] reported chronic pain and abnormal sensations due to his disorders of the back. This opinion also finds support in the evidence showing that [”lanchard] had a ”MI over kg/m , which likely affected his ability to engage in some postural activities. Tr. , , , , . ”lanchard argues that the “LJ failed to consider his obesity when assessing his need for leg elevation. ECF No. at - . However, ”lanchard does not cite to any medical opinions or evidence showing that his obesity exacerbates his alleged need to elevate his legs. See Bruce W. v. Saul, No. S.D. Ind. June , -cv- -MJD-SE”, WL , at * [Claimant] does not present any evidence specifically showing that his obesity combined with his other impairments … reduce his RFC to a greater degree than the limitations that the “LJ found were supported by the record. Cruzado v. Colvin, No. [W]hile C , WL , at * N.D. Ill. “ug. , Claimant suggests that her obesity aggravates her swollen legs, she does not provide any medical opinions or evidence in support of this conclusion. This is not enough for Claimant to show that her obesity impairs her work abilities. F. d , th Cir. Prochaska v. Barnhart, No medical opinion in the record identified [claimant s] obesity as significantly aggravating her back injury or contributing to her physical limitations. She also fails to point to any other evidence suggesting that her obesity exacerbated her physical impairments. ”ecause [claimant] failed to specify how [her] obesity further impaired [her] ability to work, and because the record relied upon by the “LJ sufficiently analyzes her obesity, any error on the “LJ s part was harmless. . Therefore, the “LJ did not err in failing to discuss the effect of ”lanchard s obesity on his alleged need to elevate his legs. See, e.g., Rohan v. Chater, F. d , th Cir. “LJs must not succumb to the temptation to play doctor and make their own independent medical findings. Armstrong v. Barnhart, F. Supp. d , N.D. Ill. explaining that playing doctor occurs when an “LJ draws medial conclusions without relying on evidence for it . 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 th day of July, . _________________________ WILLI“M E. DUFFIN U.S. Magistrate Judge
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