United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
Pursuant to 42 U.S.C. § 405(g), plaintiff Gayle Scott seeks judicial review of a final determination by the Commissioner of Social Security finding that she was not disabled within the meaning of the Social Security Act. Scott principally contends that remand is warranted because the administrative law judge ("ALJ") failed: (1) to account for the limitations regarding her fibromyalgia; (2) to account for her limitations with respect to concentration persistence and pace ("CPP"); and (3) to account for the opinion of a treating physician properly. For the reasons set forth below, the case will be remanded to the Commissioner for further proceedings.
I. Procedural History
Gayle Scott claims disability beginning on August 19, 2003. The Agency denied Scott's March of 2006 application for social security benefits initially and upon reconsideration. After an evidentiary hearing (AR 186), ALJ Arthur Schneider also rejected Scott's disability claim, finding based on her residual functional capacity ("RFC") and the testimony of the vocational expert that Scott was capable of adjusting to other work existing in the national economy. (AR 198.)
Scott then appealed the ALJ's June 15, 2009, decision. (AR 260-61.) On April 10, 2010, the Appeals Council vacated the ALJ's decision denying her original application, remanding the case back to ALJ Schneider in order to: (a) address a treating source opinion; (b) give consideration to a functional capacity evaluation covering the entire claim period; and (c) if warranted, obtain supplemental evidence from a vocational expert. (AR 201-202.)
On remand from the Appeals Council, ALJ Schneider again held a hearing on August 3, 2010, during which Scott testified, as did state-appointed medical and vocational experts. (AR 25.) On October 1, 2010, the ALJ once again found that Scott was capable of adjusting to other work that existed in the national economy and, therefore, was not disabled. (AR 25-37.)
On October 31, 2011, the Appeals Council granted review of this second ALJ decision. This time, the Council advised it proposed to find Scott not disabled, but would consider any comments or new and material evidence Scott wished to submit. (AR 203-06.) On February 3, 2012, the Appeals Council went further by issuing a decision adopting the findings of the ALJ. In doing so, the Council assigned little weight to opinions from Merino and Dean, Scott's treating physicians, after taking notice that they were not evaluated by the ALJ. Accordingly, the Appeals Council found Scott not disabled, which would then become the final decision of the Commissioner. (AR 16-18.)
II. Relevant Medical Evidence
Since 2003, Scott has seen a number of health care providers for complaints of pain. Plaintiff provides an exhaustive list from her medical record in her opening brief, from which the court provides only highlights.
On August 8, 2003, Dr. Braco noted Scott "should avoid overhead work with the right shoulder... avoid heavy labor situations, " but "may still stand, walk, sit, drive, and work eight hours a day." (AR 847.) On September 4, Braco noted "[w]ork limitations kept as the same 30-pound carry limit and shoulder-level work of 5 to 6 pounds... These limits are not due to the work injury of 06/2003." (AR 841.)
On March 30, 2004, Scott saw Dr. Bentkowski, who noted that she had just gone to the Mayo Clinic for an evaluation of her chronic lower back pain, but was told surgery would not improve anything. Bentkowski went on to note that Scott "is currently on Darvocet N-100 every six hours as needed... she uses it less than once a day. She complains ...