Fernstrom, Glenn v. Bisignano, Frank

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GLENN FERNSTROM,
on behalf of Brietta Vasser,
Plaintiff,
v.
FRANK BISIGNANO, 1
Commissioner of the Social Security Administration,
Defendant.
OPINION and ORDER
24-cv-471-jdp
Plaintiff Glenn Fernstrom brings this social security appeal on behalf of his wife, Brietta
Vasser, who died in May 2023. Fernstrom seeks judicial review of a final decision of defendant
Frank Bisignano, Commissioner of the Social Security Administration, finding that Vasser was
not disabled within the meaning of the Social Security Act. Fernstrom asserts multiple
objections to administrative law judge (ALJ) Michael Schaefer’s decision, all grounded in a
contention that the ALJ did not adequately explain his reasoning. The court agrees that the
ALJ did not adequately explain why he rejected the opinions of Vasser’s treating providers or
how he considered Vasser’s subjective symptoms, so this case will be remanded to the
commissioner for further consideration.
1 The court has updated the caption in accordance with Federal Rule of Civil Procedure 25(d).
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BACKGROUND
Vasser applied for disability benefits in 2015, alleging disability beginning in March
2014. R. 283.2 Vasser has been denied benefits at the administrative level three times, and this
is her third appeal to this court. See Vasser v. Saul, No. 19-cv-781-slc (W.D. Wis. Jan. 20,
2021); Vasser v. Kijakazi, No. 21-cv-355-jdp (W.D. Wis. Sept. 8, 2022).
After the most recent remand, this case was reassigned to ALJ Michael Schaefer, who
found in a March 2024 decision that Vasser suffered from multiple severe impairments: major
depressive 	disorder, 	an 	anxiety 	disorder, 	post-traumatic 	stress 	disorder, 	fibromyalgia,
asthma/chronic 	obstructive 	pulmonary 	disease, 	and 	obesity. 	R. 	2003. 	Based 	on 	these
impairments, the ALJ found that Vasser had the residual functional capacity (RFC) to perform
light work, with additional physical and mental restrictions, including the following:
• 	She can occasionally climb ramps or stairs, stoop, kneel, crouch, or crawl. She
can never climb ladder, ropes, or scaffolds.
• 	She must avoid all exposure to extremes of cold, heat, wetness, humidity, or
vibration. She must avoid all exposure to pulmonary irritants (including fumes,
odors, dusts, or gases) or poorly ventilated areas.
• 	she can frequently reach in any direction with the bilateral upper extremities;
• 	she is limited to a low stress work environment, defined as: (1) understanding,
remembering, or carrying out only simple instructions and routine, repetitive
tasks; (2) a work environment with few, if any, changes in the work duties or
expectations; (3) a work environment with no fast-paced production quota or
rate (any production requirements should be more goal oriented, such as based
on a daily, weekly, or monthly quota); and, (4) she is capable of occasional
interactions with the public, co-workers, or supervisors.
R. 2005.
2 Record cites are to the administrative transcript located at Dkt. 5.
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The ALJ found that Vasser was unable to perform her past relevant work as an
inspector/hand packager. But relying on the testimony of a vocational expert, the ALJ found
that Vasser was not disabled because she could perform jobs that are available in significant
numbers in the national economy, such as merchandise marker, router, and routing clerk.
R. 2012.
Vasser again appeals to this court. On appeal, the court’s role is to review the ALJ’s
decision for legal errors and to determine whether the decision is supported by substantial
evidence. See Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020). The substantial evidence
standard is not high and requires only “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. But the ALJ’s decision must identify the
relevant 	evidence 	and 	build 	a 	“logical 	bridge” 	between 	that 	evidence 	and 	the 	final
determination. Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014).
ANALYSIS
Fernstrom raises multiple challenges to the ALJ’s decision, all of them grounded in
contention that the ALJ failed to articulate the reasons for his conclusions. Fernstrom’s primary
objection relates to how the ALJ evaluated the opinions of Vasser’s treating providers. He also
objects to the ALJ’s consideration of Vasser’s reaching ability, subjective symptoms, treatment
history, and obesity.
A. Treating providers
Fernstrom contends that the ALJ failed to give sufficient weight to the opinions of
Vasser’s treating physician Carrie Torgerson and her treating psychologist Krista Demuth.
Under the administrative regulations in effect at the time of Vasser’s application, the ALJ had
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to give a treating provider’s opinion controlling weight if it was “well-supported and not
inconsistent with other substantial evidence.” 3 Stage v. Colvin, 812 F.3d 1121, 1126 (7th Cir.
2016); 20 C.F.R. § 404.1527(c)(2)–(6). If the ALJ did not give the opinion controlling weight,
then the ALJ had to assign it a weight based on factors including the length and nature of the
physician-patient relationship, the opinion’s consistency with the record, and the provider’s
area of specialty. 20 C.F.R. § 404.1527(c)(2); Kaminski v. Berryhill, 894 F.3d 870, 875 (7th Cir.
2018). On review, court’s role is to determine whether the ALJ considered these factors and
minimally articulated his reasons for discounting the treating provider’s opinion. Olivas v. Saul,
799 F. App’x 389, 391 (7th Cir. 2019) (citing Elder v. Astrue, 529 F.3d 408, 415 (7th Cir.
2008)).
1. 	Torgerson
Torgerson, an internal medicine physician, first examined Vasser in October 2014 and
then at least six more times over the next six years. R. 515 (record of first appointment).
Torgerson provided two medical opinions in support of Vasser’s application for disability
benefits. First, in February 2016, Torgerson completed a fibromyalgia medical source statement
in which she opined that Vasser had pain in every body part listed on the form, was limited to
less than sedentary work, would need regular unscheduled breaks, and would be absent from
work at least four days per month. R. 570–76. Fernstrom does not challenge the ALJ’s rejection
of this opinion, so the court need not consider it further.
3 The treating provider rule applies only to claims like Vasser’s that were filed before March
27, 2017, when the regulations changed prospectively. 20 C.F.R. § 404.1527; Gerstner v.
Berryhill, 879 F.3d 257, 261 (7th Cir. 2018)
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Second, in January 2020, Torgerson completed a functional capacity form indicating
that Vasser was limited to no more than occasional lifting and carrying of up to 20 pounds, no
more than occasional reaching with her upper extremities, that she would need to change
positions frequently while working, and that she would be absent from work at least three days
each month. R. 1986–89. Fernstrom contends that the ALJ’s explanation for discounting
Torgerson’s 2020 opinion fails to comply with 20 C.F.R. § 404.1527, for two reasons: first,
because the ALJ failed to minimally articulate his reasoning, and second, because the ALJ failed
to consider Torgerson’s lengthy treating relationship with Vasser. The court agrees on the first
point, so it need not consider the second.
In discounting Torgerson’s 2020 opinion, the ALJ explained only that “many of the
limitations are an overstatement of the claimant’s limits, are not explained, and are not
supported over the entire course of the period at issue.” R. 2010. These reasons are conclusory
because the ALJ doesn’t say why Torgerson’s medical notes do not support or explain her
opinion. And the statement that Torgerson’s opinion was an “overstatement of [Vasser’s]
limits” improperly assumes the ALJ’s conclusion, because the ALJ’s job in evaluating the
medical opinions and other evidence was to determine those very limits.
In 	his 	response 	brief, 	the 	commissioner 	argues 	that 	the 	ALJ 	properly 	rejected
Torgerson’s 2020 opinion because it was inconsistent with Vasser’s physical examinations, in
which Vasser routinely demonstrated full strength and normal gait. R. 2009. The ALJ gave that
reason only in the context of rejecting Torgerson’s 2016 opinion, so it’s not clear that it even
applies to the 2020 opinion. In any event, it’s not an adequate explanation, because it’s not
obvious that the physical exams are inconsistent with Torgerson’s opinion and the ALJ didn’t
elaborate. This is essentially the same reason that the court rejected the last time it remanded
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Vasser’s case. See Vasser v. Kijakazi, 2022 WL 4103178, at *4. As the court explained then, the
ability to walk or lift for a short period of time doesn’t necessarily imply that a person can do
those things for a longer period of time. So the ALJ needed to explain more fully why he
believed Vasser’s physical exams were inconsistent with Torgerson’s opinion that Vasser
couldn’t walk for more than two hours or lift more than occasionally. Id.
The commissioner also argues that the ALJ properly rejected Torgerson’s opinion
because the opinion was based primarily on Vasser’s subjective complaints. R. 2009. The ALJ
also gave that reason only in the context of rejecting Torgerson’s 2016 opinion. It’s obvious
why the ALJ believed that the 2016 opinion was based on Vasser’s subjective complaints
because Torgerson wrote on the form, “[patient] describes all over pain.” R. 571. But it’s not
clear whether the ALJ also thought Torgerson’s 2020 opinion was based on Vasser’s subjective
complaints. If he did, he provided no basis for that belief.
2. 	Demuth
Demuth, a licensed counselor, provided Vasser with regular therapy between October
2015 and March 2023. In January 2020, Demuth completed a mental health report opining
that Vasser would experience marked difficulties in social functioning, would often experience
difficulties in concentration, persistence, and pace, would repeatedly suffer episodes of
deterioration or decompensation, would be absent from work about twice a month, and could
work only about four to five hours a day. R. 1991–95.
The ALJ gave the following explanation for rejecting Demuth’s opinion about Vasser’s
functional limitations:
Ms. DeMuth’s treatment notes often note the claimant being
“sad,” “depressed,” or “anxious” (Ex. 6F/6, 9, 7F/3, 14F/97, 93,
21F/47, 44, 41, 38, 35, 31, 27, 22, 18, 15, 30F/72, 75, 88, 91,
93), but also find her thought process and though content to be
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without limit and attention, concentration, and memory, are
routinely, if not always, noted as “intact,” normal, or with no
noted limits (Ex. 7F/7, 4, 14F/103, 102, 101, 99, 98, 41, 19F/20,
21F/55, 50, 8, 3, 30F/68, 78, 82, 85, 32F/8, 31F/45, 33F/31, 78).
Although many of those notes are by telephone or video, they still
reveal 	a 	capacity 	to 	communicate, 	focus, 	and 	engage 	in
meaningful therapy even when her mood is poor or affected in
some way. These are Ms. Demuth’s notes of her observations and
they do not appear to support the marked or very significant
limits she assesses in her opinion.
R. 2010. This explanation presents a classic example of improper cherry-picking, in which the
ALJ pointed to medical evidence that supported a finding of non-disability while ignoring
contrary evidence. Denton v. Astrue, 596 F.3d 419 (7th Cir. 2010). The ALJ acknowledged that
Demuth’s treatment notes contained a variety of normal and abnormal findings about Vasser’s
mental functioning. But he relied only on the normal findings, declining even to cite instances
in which Vasser’s thought processes, attention, concentration, or memory were not normal,
even though he admitted that those records exist. Further, many of the treatment notes the
ALJ referred to simply describe Vasser as being in a positive mood when she reported to
therapy. R. 554, 557, 747, 804, 805. The court of appeals has repeatedly observed that mental
health symptoms often wax and wane, so the fact that Vasser’s mood was sometimes positive
in no way undermines Demuth’s opinion that Vasser had significant deficits in mental
functioning. See Mandrell v. Kijakazi, 25 F.4th 514, 519 (7th Cir. 2022).
B. Reaching ability
Fernstrom 	also 	contends 	that 	the 	ALJ 	erred 	by 	concluding 	that 	Vasser 	could
“frequently” reach with her upper extremities. Fernstrom argues that the ALJ should have
adopted Torgerson’s opinion that Vasser could only occasionally reach with her upper
extremities. Other medical experts disagreed with Torgerson and opined that Vasser had no
reaching limitations at all. R. 90, 120, 2061. But the court is remanding the case so that the
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ALJ can reconsider Torgerson’s opinion more generally, so the ALJ will have to reconsider
Torgerson’s opinion of Vasser’s reaching ability as well.
C. Subjective symptoms and treatment history
Fernstrom next asserts that the ALJ failed to articulate his reasons for discounting
Vasser’s subjective symptoms and treatment history. Fernstrom raises these as two separate
arguments, but they are really a single issue, which is how the ALJ evaluated Vasser’s credibility.
Social Security regulations instruct ALJs to evaluate the credibility of a claimant’s reported
symptoms by considering a variety of factors, including her treatment history and daily
activities. 20 C.F.R. § 404.1529(c)(2). Courts review an ALJ’s credibility determination
deferentially, overturning it only if it is patently wrong. Deborah M. v. Saul, 994 F.3d 785, 789
(7th Cir. 2021). But the ALJ must give ”specific reasons for the credibility finding . . . The
finding must be supported by the evidence and must be specific enough to enable the claimant
and a reviewing body to understand the reasoning.” Craft v. Astrue, 539 F.3d 668, 678 (7th
Cir. 2008) (internal citations omitted).
Here, the court need not determine whether the ALJ considered the relevant factors in
evaluating Vasser’s credibility, because the ALJ failed to provide any reasons at all for rejecting
Vasser’s subjective report of her symptoms. He acknowledged in his decision that Vasser
reported difficulties with activities of daily living, including getting dressed, bathing, cooking,
and cleaning, and that she testified to difficulties concentrating, remembering things, and
getting along with others. R. 2004, 2007. But he mentioned Vasser’s symptoms only in the
context of summarizing the medical evidence, and “a summary isn’t a substitute for
analysis.” Plemon v. Kijakazi, No. 21-cv-148-jdp, 2022 WL 842914, at *3 (W.D. Wis. Mar. 22,
2022). The ALJ provided no specific reasons for discounting Vasser’s subjective complaints,
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nor did he explain how he considered those complaints in determining Vasser’s functional
limitations. The lack of reasoning in the ALJ’s decision precludes meaningful appellate review,
so remand is required on this issue as well.
D. Obesity
Finally, Fernstrom challenges the ALJ’s handling of Vasser’s obesity. Social Security
Ruling (SSR) 12-2p requires ALJs to consider the limiting effects of a claimant’s obesity in
combination with her other impairments. See 2019 WL 2374244 (SSA May 20, 2019); Arnett
v. Astrue, 676 F.3d 586, 593 (7th Cir. 2012). The commissioner concedes that the ALJ did not
meet this requirement. He acknowledged Vasser’s obesity as a severe impairment, but his only
other mention of it in his decision was a single sentence in his summary of the evidence: “The
claimant has reported that she is 5’4” tall and weighs two hundred and fifteen pounds.
[Consulting physician] Dr. Golub testified at the hearing that the claimant was morbidly
obese.” R. 2009.
Nevertheless, the court agrees with the commissioner that the ALJ’s failure to consider
Vasser’s obesity was harmless because “the ALJ indirectly took obesity into account by
adopting limitations suggested by physicians who were aware of or discussed [her] obesity.”
Arnett v. Astrue, 676 F.3d 586, 593 (7th Cir. 2012); see also Skarbek v. Barnhart, 390 F.3d 500,
504 (7th Cir. 2004). Consulting physician Steven Golub testified at the administrative hearing
about the functional effects of Vasser’s obesity in combination with her other conditions.
R. 2052–62. The functional limitations the ALJ adopted were essentially the same ones
proposed by Golub. Fernstrom identifies no evidence that the ALJ overlooked, and he offers
only speculation that Vasser’s obesity limited her more than what the ALJ found in his RFC
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assessment. Rennaker v. Saul, 820 F. App’x 474, 481 (7th Cir. 2020) (ALJ’s failure to consider
obesity harmless when plaintiff does not explain how obesity worsened her condition).
ORDER
IT IS ORDERED that that that the decision denying Brietta Vasser’s application for
disability insurance benefits is REVERSED and REMANDED under sentence four of
42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
Entered January 20, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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