Bettie Burmester v. Nancy Berryhill

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-2106
BETTIE BURMESTER,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:15-cv-01393-WCG — William C. Griesbach, Chief Judge.
ARGUED DECEMBER 4, 2018 — DECIDED APRIL 5, 2019
Before BAUER, KANNE, and BRENNAN, Circuit Judges.
BAUER, Circuit Judge. Bettie Burmester applied for disability
insurance benefits claiming she was unable to work due to
physical impairments affecting her joints, chronic pain, and
poor mental health. The Social Security Administration
(“SSA”) denied her application. Burmester appeals the decision
2 No. 18-2106
of the ALJ that held she was not disabled and the district court
opinion affirming the ALJ’s denial of benefits. For the follow-
ing reasons, we agree with the district court and affirm.
I. BACKGROUND
On December 20, 2010, Burmester applied for disability
benefits alleging a June 26, 2008, onset of her disability. She
claimed her ability to work was limited by degenerative disc
disease, pseudo-gout in her left knee, osteoarthritis in both
knees and left thumb, a heart condition, and depression. The
application was denied on May 11, 2011, and on October 3,
2011. Burmester requested a hearing.
On December 10, 2012, ALJ Patrick Morrison conducted a
hearing. Burmester testified that she lived in a townhouse with
her husband, and had completed high school and one year of
technical college. She worked as a hand packager for the
manufacturing company Briggs & Stratton for many years. She
was employed as a part-time attendant at the Bradley Center,
an arena located in Milwaukee. Her job duties included
checking the validity of tickets and directing event goers to
their seats.
Burmester amended the onset date of her disability to
September 1, 2009. When asked to rank her impairments by
severity, she listed back spasms, rheumatoid arthritis in her
hands and feet, knee pain, and fibromyalgia as her most
limiting conditions. The ALJ also noted that Burmester had
chondromalacia (also known as “runner’s knee”), gout, and
right shoulder issues. Burmester testified that her hypertension
was under control, that she gets about three migraine head-
No. 18-2106 3
aches a year, and that she had been diagnosed with anxiety
and depression.
For her daily activities, Burmester testified that her husband
helped her out of bed but she was otherwise independent in
her own self care. Her husband did the cooking, cleaning, paid
the bills, and went grocery shopping and a friend helped with
cleaning once a week. Burmester was able to go to church once
a week; out to dinner once a month; use the computer to check
her email and social media accounts; and walk her dog half a
block twice a day. Her treating physician prescribed the use of
a cane.
On January 17, 2013, in a written decision, the ALJ deter-
mined that Burmester was not disabled. Burmester successfully
appealed that decision to the Appeals Council, and her case
was remanded to the ALJ for further hearings.
The second hearing was held on June 3, 2014. Burmester
again amended her disability onset date to September 6, 2009.
She testified that she suffered from degenerative disc and joint
disease in her lumbar spine, right shoulder impingement
syndrome, chondromalacia in the left patella, rheumatoid
arthritis in her feet and hands, neck pain, gout, high blood
pressure, trochanteric bursitis in her hips, and Type II diabetes.
She took Percocet and morphine for pain management, and
received Remicade infusions every six weeks to treat her
rheumatoid arthritis. Burmester stated again that she had been
diagnosed with anxiety and depression, and reported having
panic attacks every three months.
At the time of the hearing, she lived with her husband and
adult son who cooked her meals and did the grocery shopping.
4 No. 18-2106
She would do some cleaning, but her son or husband would
finish it when she inevitably became too sore to continue. She
reported attending church twice a month, and going out to eat
once a month. She also let her dog outside and walked around
the backyard with him for twenty minutes at a time.
On July 16, 2014, the ALJ found that Burmester was not
disabled; he concluded that “based upon the overall objective
diagnostic imaging, physical examination, and mental status
findings, the claimant’s admitted high level of daily function-
ing contradicting her hearing testimony, as well as her multiple
inconsistent statements (such as regarding drug use, short and
long-term memory, and ability to concentrate), the under-
signed finds that her allegations of disability are not fully
substantiated in the record.” The ALJ found that she had the
residual function capacity (RFC) to perform light work,
except with no more than frequent reaching
overhead with the right upper extremity and no
work on ladders, ropes, scaffolding, or at unpro-
tected heights. She also is mentally limited to
simple, routine, repetitive tasks requiring only
simple work-related decisions with few changes
in the routine work setting and no more than
occasional interaction with supervisors, cowork-
ers, and the general public.
Based on the testimony of a vocational expert, the ALJ found
that Burmester could not continue her past relevant work as a
hand packager, but that a significant number of jobs existed in
the national economy that Burmester could perform—such as
router, price marker, or routing clerk. The Appeals Council
No. 18-2106 5
denied Burmester’s request for a review and the ALJ’s decision
became final. The district court upheld the ALJ’s decision.
II. LEGAL STANDARD
We will uphold an ALJ’s final decision if the correct legal
standards were applied and supported with substantial
evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811
(7th Cir. 2011). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010).
The court is not to “reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute [its] judgment for that of
the Commissioner.” Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003). Where substantial evidence supports the
ALJ’s disability determination, we must affirm the decision
even if “reasonable minds could differ concerning whether [the
claimant] is disabled.” Elder v. Astrue, 529 F.3d 408, 413 (7th
Cir. 2008.)
III. ANALYSIS
Burmester argues that the ALJ improperly relied on
boilerplate language in discussing Burmester’s credibility
without giving a proper explanation for his decision. She
contends the ALJ failed to consider the entire time period at
issue and unduly relied on Burmester’s daily activities as
evidence that Burmester could work.
The fact that the “ALJ used boilerplate language does not
automatically undermine or discredit the ALJ's ultimate
conclusion if he otherwise points to information that justifies
his credibility determination." Pepper v. Colvin, 712 F.3d 351,
6 No. 18-2106
367–68 (7th Cir. 2013). While the ALJ used boilerplate language
here, he went further and included information that supported
the decision. The fourteen-page opinion contains a detailed
recitation of the medical evidence in this case. The ALJ deter-
mined Burmester was unable to perform her past relevant
work but found she was capable of light work, subject to
limitations which included no work on ladders or scaffolds,
being limited to simple routine tasks requiring simple deci-
sions, and having to face limited interactions with the general
public. This finding was more limiting than that of any state
agency doctor or psychologist, illustrating reasoned consider-
ation given to the evidence Burmester presented.
The ALJ did not equate Burmester's ability to perform
certain activities of daily living with an ability to work full
time. Instead, he used her reported activities to assess the
credibility of her statements concerning the intensity, persis-
tence, or limiting effects of her symptoms consistent with the
applicable rules at the time the ALJ made his decision in 2014.
See SSR 96-7p, 1996 SSR LEXIS 4, 1996 WL 374186 (July 2, 1996)
(superseded prospectively by SSR 16-3p, 2016 SSR LEXIS 4,
2016 WL 1119029 (Mar. 16, 2016)).1 We may disturb the ALJ's
credibility finding only if it is “patently wrong.” See Curvin v.
Colvin, 778 F.3d 645, 651 (7th Cir. 2015). Here, the ALJ’s
1
Burmester cited several cases in which this court applied SSR 16-3p
retroactively, including Cole v. Colvin, 831 F.3d 411 (7th Cir. 2016). Subse-
quent to Colvin, the Social Security Administration gave additional
guidance that reviewing courts should apply the regulation that was in
force when the ALJ made his decision. See Evaluation of Symptoms in
Disability Claims, 82 Fed. Reg. 49463, 49463-4 (Oct. 25, 2017). We follow that
guidance here and apply SSR 96-7p.
No. 18-2106 7
determination was not patently wrong because of the many
specific reasons the ALJ cited from the record. See Hall v.
Berryhill, 906 F.3d 640, 644 (7th Cir. 2018) (Symptom analysis
not “patently wrong” because the ALJ had “many specific
reasons supported by the evidence.”). These include: diagnos-
tic imaging documenting only mild to moderate findings in
Burmester’s back, hips and feet; normal findings of strength
and range of motion; and having intact memory and good
communication skills. The ALJ also noted that Burmester’s
daily life demonstrated a high level of daily functioning,
“suggesting she is not as limited as her allegations of disabling
symptoms would indicate.”
Next, Burmester argues that the ALJ erred in finding she
had moderate difficulties in her ability to sustain concentration,
persistence or pace (“CPP”), while failing to include those
limitations in the residual capacity evaluation or questions to
the vocation expert. It is well-established that “both the
hypothetical posed to the VE and the ALJ's RFC assessment
must incorporate all of the claimant's limitations supported by
the medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir.
2015) (quoting Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014)).
However, an ALJ may reasonably rely upon the opinion of a
medical expert who translates these findings into an RFC
determination. See Johansen v. Barnhart, 314 F.3d 283, 289 (7th
Cir. 2002) (citing Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir.
1987) (“All that is required is that the hypothetical question [to
the VE] be supported by the medical evidence in the record.”)).
Here, the ALJ gave great weight to the opinion of
Dr. Jeremy Meyers, who stated in the “Statement of Work
8 No. 18-2106
Capacity” portion of his assessment that Burmester had the
“ability to understand, remember and carry out simple
instructions subject to physical limitations,” that “maintaining
concentration and attention should be manageable” and that
she “should be able to withstand routine work stress and adapt
to typical job site changes.” These limitations were given to the
vocational expert. The ALJ gave the VE the hypothetical of a
person “limited to simple, routine, repetitive tasks which
would require only simple work-related decision making and
would require few changes in the routine work setting with no
more than occasional interaction with supervisors, coworkers,
and the general public.”
Earlier in his report, Dr. Meyers also stated that “[i]t is the
opinion of the examiner that Ms. Burmester is able to devote an
hour to an enjoyed activity such as reading before feeling a
need to go on to something else.” Burmester argues that the
ALJ improperly ignored this limitation on CPP in his hypothet-
ical to the vocational expert. If Dr. Meyers intended for this
statement to be a conclusion that Burmester was unable to
concentrate for more than an hour at work, Dr. Meyers would
have included that limitation in his “Statement of Work
Capacity.” Instead Dr. Meyers states that maintaining concen-
tration for Burmester should be “manageable.” The ALJ
summarized Dr. Meyers’ report as concluding that Burmester
was able to maintain concentration and attention. The ALJ
appropriately relied on the narrative statement in crafting the
hypothetical to the vocation expert and the RFC. See Baldwin v.
Berryhill, 746 F. App'x 580, 584 (7th Cir. 2018) (ALJ did not err
in ignoring a finding that plaintiff was moderately limited in
concentration and pace where the psychologist's narrative in
No. 18-2106 9
the same report indicated plaintiff had the concentration and
pace “necessary to fulfill a normal workday” and where
subsequent medication improved plaintiff’s mental health and
mood).
There was no other finding in the report that Burmester
was unable to concentrate on work, unlike in DeCamp v.
Berryhill, 916 F.3d 671, 675–6 (7th Cir. 2019). In DeCamp, the
plaintiff’s doctors listed moderate difficulties in concentration
in a checkbox section of their reports, but did not include such
limitations in their narrative conclusions. Id. The ALJ presented
a hypothetical to the vocational expert based solely on the
narratives, omitting any reference to limitations on concentra-
tion at work, instead limiting plaintiff to “unskilled work” with
no “fast-paced production line or tandem tasks.” Id. at 675. We
noted that we have “repeatedly rejected the notion that a
hypothetical … confining the claimant to simple, routine tasks
and limited interactions with others adequately captures
temperamental deficiencies and limitations in concentration,
persistence, and pace.” Id. at 676. Here, there was no such
checkbox indicating a moderate limitation, there was only the
Statement of Work Capacity indicating that concentrating at
work would be manageable for Burmester. The report did not
conclude that work must be limited to one hour increments to
be manageable for Burmester.
The ALJ’s interpretation of Dr. Meyers’ report is also
consistent with the rest of the record. Dr. Rattan, who reviewed
Dr. Meyers opinion, also concluded there was no limitation on
Burmester’s concentration. Her mental health treatment notes
showed mostly normal findings. Burmester herself stated she
could finish what she started and follow instructions.
10 No. 18-2106
Burmester also argues that the ALJ failed to properly weigh
medical opinions when he rejected the opinion of her treating
physicians. The ALJ was required to give “controlling weight”
to a treating physician's medical opinion on the nature and
severity of an impairment if it is (1) “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques” and (2) “not inconsistent with other substantial
evidence.” Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010); 20
C.F.R. § 404.1527(c)(2); SSR 96-2p, 1996 SSR LEXIS 9. The
exclusion of the treating physicians was not unsupported in the
ALJ opinion. Instead, the ALJ provided detailed reasons for his
finding that the opinions of Dr. Bustos and Dr. Centena were
not supported by the record.
Dr. Bustos’ July 2011 assessment of Burmester was the most
physically limiting of any of the reports given to the ALJ.
Dr. Bustos indicated that Burmester could rarely lift ten
pounds, required a cane, was unable to bend or stoop, and that
her pain was enough to constantly interfere with her concen-
tration. The assessment, consisting of a series of checked boxes,
was internally inconsistent. Dr. Bustos stated that Burmester
could sit and stand for more than two hours, but also found
she was unable to sit and stand for more than two hours in an
eight-hour workday. Dr. Bustos’ own notes also contradicted
the assessment, stating that Burmester exhibited a normal gait
and had no difficulties with heel and toe walking. Dr. Bustos
was also contradicted by other medical evidence. The state
agency medical consultants found Burmester capable of light
work and she was observed carrying ten pound weights up
and down stairs. Further, Burmester admitted that she spent
three or four hours a day reading, contradicting Dr. Bustos’
No. 18-2106 11
finding that her pain constantly interfered with her concentra-
tion.
Dr. Centena provided the most mentally limiting opinion,
describing Burmester as having no useful ability to regularly
attend work or complete a normal workday. This opinion was
inconsistent with the record and Dr. Centena’s own notes
which showed Burmester had logical thought processes,
functioning memory, and intact judgment. The state psycholo-
gists found Burmester was doing well and stable on her
medications for depression and anxiety. Additionally,
Burmester admitted that she could follow simple instructions,
and that she cooked, cleaned, shopped and managed money.
IV. CONCLUSION
The ALJ did not improperly evaluate Burmester’s credibil-
ity, nor did he erroneously reject the opinions of medical
experts. The ALJ’s opinion that Burmester was not disabled
was supported by substantial evidence. The ALJ’s decision,
and the district court opinion, are AFFIRMED.