Geer v. Berryhill

276 F. Supp. 3d 876
CourtDistrict Court, E.D. Wisconsin
DecidedMarch 23, 2017
DocketCase No. 15-C-1470
StatusPublished
Cited by7 cases

This text of 276 F. Supp. 3d 876 (Geer v. Berryhill) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geer v. Berryhill, 276 F. Supp. 3d 876 (E.D. Wis. 2017).

Opinion

DECISION AND ORDER

William' C. Griesbhch, Chief Judge United States District Court"

. Plaintiff Sharon Geer brought this action challenging the decision of the Commissioner of Social Security denying disability benefits. She claims that the ALJ erred in failing to properly assess and assign controlling weight to the opinion of her treating Rheumatologist and in failing to assign any weight to. the conclusions set forth in an unsigned Functional Assessment Rating (FAR) form provided by the Wisconsin Division of Vocational Rehabilitation as part of a psychological evaluation. Plaintiff also claims that, the ALJ’s credibility determination is not supported by substantial evidence. For the reasons given below, I conclude that the ALJ erred in failing to explain- why no weight was given to the FAR. For this reason,, the decision of the Commissioner will be reversed and remanded. On remand, the ALJ is also directed to provide a more complete explanation for his credibility assessment,

BACKGROUND

On June 7, 2012, Plaintiff filed her applications for Social Security Disability Insurance Benefits and Supplemental Security Income, alleging disability with an onset date of January 1, 2011. A previous application was denied on January 4, 2008, on initial determination with no further appeal. With respect to her 2012 application, Plaintiff identified the conditions that limited her ability, to work as chronic asthma, major feet problems, vision problems, nerve ¡damage in her brain, and major headaches. R. 280-31. In. .a Function Report submitted on July 20, 2011, after her [878]*878alleged onset’ date but before the- 2012 application, Plaintiff described how'her illnesses, injuries, or conditions limit her ability to work: “feet hurt, can’t walk much or put weight on feet, back pain makes it hard to stand or lift, can’t see well, hip hurts when sitting too long.” R. 207. She said she could only walk five minutes before she would have to rest ten minutes and could only lift five pounds. R. 212. She was living with her daughter and her family in a trailer home at the time, and her day consisted of watching television, making coffee, washing dishes and laundry, playing with her grandchildren, and taking a nap. She stated she stayed in her room and watched television a lot. R. 208. Her only medications consisted of an inhaler and Tylenol. R. 214.

The medical record dates back to November 2007, when Plaintiff, then a resident of Texas, apparently filed her first application for disability benefits on allegations of “asthma/heart attack/arthritis/back/carpal tunnel.” R. 283. Plaintiff was seen by Dr. Raj Saralaya in Amarillo and provided a history of steadily worsening low back pain, arthralgias, bilateral foot pain, migratory pain in her hands and wrists, and asthma (though she continued to smoke a pack per day). Plaintiff 'also claimed she had been hospitalized for a heart attack in March 2006, but had no chest pain since. R. 284. The physical examination performed by Dr. Saralaya was essentially normal, as were the x-rays taken of her spine. R. 285-90. ■

Most of the medical records’ in the file concern Plaintiffs foot problems. An October 2008 x-ray report notes hallux valgus and bunion deformity on her left foot with soft tissué swelling and edema noted. If symptoms persisted, additional imaging was recommended for further evaluation. R. 306; On July 25, 2012, a disability consultative examination was performed by Dr. Hector Ortiz in response to Plaintiffs current application alleging disability due to asthma, pain in her left foot, decreased vision, and headaches. R. 311-13. Plaintiff was then smoking two packs per day, despite her complaints of asthma, and gave a history of having broken her left foot in 1976. R. 311. Plaintiffs claim that she fractured her foot in 1976 is noteworthy in light of the fact that x-rays of her left foot in 2008 revealed no evidence of a fracture, old or new, and the accompanying report indicates no history of a prior injury to the left foot. R. 306-09. In any event, Plaintiff stated that the pain in her left foot had been going on for several years and was getting worse. She said the pain was aggravated by tight shoes and heels, and by standing and walking, and was associated with swelling on the lateral aspect of the foot and ankle and stiffness of the ankle along with pins and needles sensations in the foot. R. 311. She also reported a history of headaches, for which she took Tylenol, and blurry vision with the left eye worse than the right. She indicated she was supposed to wear glasses but could not afford them. Id.

On exam, Dr. Ortiz noted Plaintiffs, gait was. slow and unsteady with difficulty standing on her left heel and toes. Bending forward caused back and left hip pain, but straight leg raising was negative with alignment and position of legs being bilaterally symmetrical. R. 314. Plaintiff had some restriction of range of motion in her spine and left ankle and toe, but normal range of motion in her other extremities. She had 5/5 strength in all muscles of upper and lower extremities on restricted maneuvers, and there was no evidence of fasciculations (twitching), atrophy, or rigidity. Her deep tendon reflexes were symmetrical, her grip was 5/5 bilaterally, • and her fine finger movements were normal. Her sensory exam was also normal in intact to light touch, pin and position. R. 314-15. Chest x-rays revealed her cardiac [879]*879size and pulmonary vascularity were normal. R. 818.

Plaintiff was next seen on August 17, 2012, for a complaint of injury to her left foot. X-rays confirmed the bunion reported previously, but there was no evidence of osseous or soft tissue injury to the foot. R. 321. X-rays of the right foot taken at the same time also showed no evidence of injury and a normal right ankle. R. 322.

Based on a review of this record, Dr. Leigh McCary, a consulting physician, concluded on September 12, 2012 that Plaintiff was capable of light work with only minor postural limitations and that she could walk, stand, and sit for six hours of an eight-hour day. R. 347-54. Dr. McCary found that the severity of the symptoms Plaintiff alleged were not supported, and that while she had a hallux deformity, there was no evidence of neuropathy. Dr. McCary specifically found that Plaintiffs walking limitations were unsupported. R. 354. An examination or record review in November 2012 by Dr. Theresa Fox indicated no evidence of statutory blindness. R. 373. As a result, on March 12, 2013, the previous determination that Plaintiff'was not disabled and was capable of performing her previous work ás' a housekeeper was left unchanged. Id.

In the meantime, in February 2013, Plaintiff moved in with her brother in Me-nasha, Wisconsin. R. 73. On February 15, 2013, Plaintiff presented at the Fox Cities' Community Clinic for an annual physical and to establish care at her new residence. R. 486. She was seen by Advanced Practice Nurse Practitioner (APNP) Ryan Ger-hartz. Plaintiff was blind in her left eye and had cataracts in her right. She gave a history of a heart attack four years ago, but NP Gerhartz noted no chest pain, palpitations or abnormal pulse and there was no ankle edema. She reported a history of asthma, but denied cough, wheezing or shortness of breath, and was again down to smoking a pack a day. Under review of musculoskeletal system, NP Gerhartz listed “possible arthritis of right foot and knees.” And under neurologic, NP' Ger-hartz noted “reports facial pain all over, seen in Texas—Trigeminal'Neuralgia;” Id.

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Bluebook (online)
276 F. Supp. 3d 876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geer-v-berryhill-wied-2017.