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Stolzer v. Colvin

United States District Court, E.D. Wisconsin

March 8, 2016

DEAN STOLZER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration Defendant.



Dean Stolzer appeals the denial of his application for Supplemental Security Income disability insurance benefits (DIB). His claim for benefits was denied initially and upon reconsideration. Thereafter, an Administrative Law Judge (ALJ) conducted a hearing on October 10, 2012, at which Stolzer was represented by counsel; Stolzer and a vocational expert (VE) testified. On November 2, 2012, the ALJ denied benefits. The Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner.

Stolzer seeks judicial review pursuant to 42 U.S.C. § 405(g), claiming disability beginning November 17, 2004. The parties agree that Stolzer must establish that he was disabled by September 30, 2007 (his “date last insured”), to obtain DIB.

Under § 405(g), “the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” This court will overturn the Commissioner's final decision only if it lacks support by substantial evidence, is grounded in legal error, or is too poorly articulated to permit meaningful review. Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 699 (7th Cir. 2009). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000). The court views the record as a whole but does not reweigh the evidence or substitute its judgment for that of the ALJ. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000). The ALJ is not required to address every piece of evidence or testimony presented, but must provide a “logical bridge” between the evidence and his or her conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Evidence favoring as well as disfavoring the claimant must be examined by the ALJ, and the ALJ’s decision should reflect that examination. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001).

The Social Security Administration (SSA) has adopted a sequential five-step process for determining whether a claimant is entitled to DIB. 20 C.F.R. §§ 404.1520. Familiarity with the five-step process is presumed. Here, the ALJ concluded Stolzer’s case at step four.


A. Step Two and Step Four/RFC Issues

1. Impairments

At step two, the ALJ determines whether the claimant has a severe physical or mental impairment. In this case, the ALJ found that Stolzer had the severe impairments of “status-post hip arthropathy, arthritis, diabetes mellitus, and obesity.” (Tr. 16.) The ALJ noted that the medical record included references to depression, but found that

the claimant does not have a “severe” mental impairment, as he has not had consistent, regular or ongoing care for any mental impairment. He has only mild limitations in terms of daily activity and concentration, persistence and pace. He has no limitation in terms of social functioning and has not experienced episodes of decompensation of extended duration.


At step four, the ALJ determines the claimant’s residual functional capacity (“RFC”) and whether the claimant can perform his past relevant work. If he can perform past relevant work then he is not disabled. RFC is the most the claimant can do in a work setting despite his limitations. 20 C.F.R. § 404.1545(a)(1); SSR 96-8p; Young v. Barnhart, 362 F.3d 995, 1000-01 (7th Cir. 2004). The ALJ must consider all of the claimant’s known, medically determinable impairments (not just the severe impairments) when assessing RFC. § 404.1545(a)(2), (e). Moreover, the ALJ is to consider medical and nonmedical evidence. § 404.1545(e).

In the present case, the ALJ determined that through the date last insured Stolzer had the RFC

to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except he is limited to only occasional stooping, crouching, kneeling, and crawling; he is unable to climb ramps, stairs, ladders, ropes, and scaffolds; he must avoid exposure to heights and hazards; he must be allowed to alternate between sitting and standing at will; and he will be off task ten percent of the day, in addition to regularly scheduled breaks.

(Tr. 17.) In determining RFC, the ALJ discussed Stolzer’s complaints regarding his hip, arthritis, diabetes mellitus, and obesity. (Tr. 17.) Next, the ALJ determined that Stolzer could perform his past relevant work as a shipping clerk. (Tr. 18.)

Missing from the ALJ’s decision is a discussion of or even a reference to consideration of Stolzer’s back pain, hearing impairment, headaches, knee condition, and hand tremors. On his disability application Stolzer listed back pain as an impairment preventing him from working (in addition to his hip issues, arthritis, diabetes, and depression and several other conditions). (Tr. 136.) Stolzer’s medical records from 2004 to 2008 include references to back pain, chronic low-back pain, limitations on activities due to severe back pain, and inability to exercise due to back injury and pain. (Tr. 237, 238, 246, 248, 250, 277.) In a function report Stolzer said he could not cook a meal because of back and hip pain and that he could not walk more than twenty feet before experiencing hip and back pain. (Tr. 168.) At the hearing, Stolzer testified that he gets spasms and pain in his back. (Tr. 56.) In describing Stolzer’s interview for a mental status examination in December 2007 (only shortly after the date last insured), Dr. Joy Abraham wrote that Stolzer supported himself with a cane, limped, and was stiff when attempting to sit down. (Tr. 277.) Yet the ALJ failed to consider Stolzer’s back injury or back pain, though Stolzer’s medical records mentioned back pain and hip pain in the same reports.

The ALJ also ignored Stolzer’s hearing impairment. Stolzer’s disability application mentioned “hearing problems” and the function report completed in 2001 stated that he used and needs a hearing aid for his right ear. (Tr. 136, 171, 172.) Also, a new-patient questionnaire for one of Stolzer’s providers shows that Stolzer checked the box for hearing loss. (Tr. 269.) Moreover, Dr. Abraham’s mental-health evaluation noted that Stolzer’s past history included impaired hearing. (Tr. 277.) Further, Stolzer had surgery on his right ear following a vehicle accident in 2000 and reported that he has had a hearing ...

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