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.