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Lanigan v. Colvin

United States District Court, W.D. Wisconsin

May 11, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


BARBARA B. CRABB District Judge.

Plaintiff Joshua Ray Lanigan has filed this action seeking judicial review of the social security commission’s denial of his application for disability benefits and supplemental social security income. Plaintiff contends that the commission erred in two respects when denying his application: (1) the administrative law judge failed to account for plaintiff’s moderate limitations in concentration, persistence and pace; and (2) the vocational testimony offered at the hearing was unsupported by substantial evidence because the expert failed to lay a proper foundation for his testimony. Plaintiff requests that the case be remanded for additional proceedings so that these alleged errors can be corrected.

After reviewing the parties’ briefs and the record before the administrative law judge, I conclude that remand is not warranted. Although the administrative law judge did not specifically refer to plaintiff’s problems with concentration, persistence and pace, these problems were nevertheless incorporated into the hypothetical questions posed to the vocational expert, who clearly was aware of these limitations. Moreover, plaintiff waived his objections both to the form of the hypothetical question and the vocational expert’s testimony by failing to raise these objections at the hearing. Plaintiff cannot sit idle during a hearing and then demand that the entire matter be remanded to correct technical errors he could have raised at the hearing or otherwise before a decision was rendered. Accordingly, I am upholding the administrative law judge’s decision.


A. Background

Plaintiff applied for disability insurance benefits and supplemental social security income in March 2012. In his applications, plaintiff stated that he had been disabled since May 28, 2009 because of back and neck pain, depression and anxiety. Plaintiff’s application was denied initially on June 11, 2012 and upon reconsideration on March 15, 2013. Plaintiff then requested a hearing, which was held on May 14, 2013 before Administrative Law Judge Joseph D. Jacobson in Madison, Wisconsin. Plaintiff appeared at the hearing and was represented by counsel. Allen J. Noll, an impartial vocational expert, also testified at the hearing. After the hearing, the administrative law judge issued a 10-page decision concluding that plaintiff was not disabled. This decision became the final decision of the commissioner on May 27, 2015 when the Appeals Council denied plaintiff’s request for review. Plaintiff filed suit on July 31, 2015 challenging the Appeals Council’s decision.

B. Medical Evidence

On May 28, 2009, plaintiff fell while pushing a heavy cart at work, sustaining injuries to his lower back and neck that caused him significant pain, stiffness and difficulty moving. He saw doctors on multiple occasions following the injury for both pain management and physical therapy. Although these interventions helped, they did not resolve his symptoms. Despite his back problems, however, plaintiff continued to work in low-wage unskilled jobs. His lower back pain continued and he eventually was given a diagnosis of “moderate multilevel degenerative disc disease.”

In late 2011, plaintiff was told he had diabetes. When he saw his doctor on January 26, 2012, he indicated that he was struggling with depression and anxiety, which he attributed to his diabetes diagnosis and the fact that he had recently lost his job. He saw a number of mental health professionals over the ensuing months and complained of “low self-worth, ” suicidal thoughts and being “somewhat limited in his social outlet.” On July 24, 2012, his diagnosis was “major depression with anxiety disorder” and “possibly atypical bipolar disorder.” However, plaintiff reported that his mental health problems improved with psychological help and anti-anxiety medications.

C. Hearing Testimony

At the administrative hearing conducted on May 14, 2013, plaintiff testified that he was 40 years old, had a high school education and was currently working part-time at a Michael’s retail store. He testified that he worked between 15 and 22 hours each week unloading goods from trucks, stocking the store and setting up displays. Although he interacted with customers on occasion, he found such interactions stressful. Plaintiff also testified that from 2011-12, he had held a full-time seasonal position at Target. Prior to that, plaintiff worked full-time for approximately twelve years as an equipment buffer and general laborer in an industrial setting.

With respect to his physical health, plaintiff testified that he had persistent back pain. He said that in order to get through a day of work, he needed various over-the-counter pain medications and muscle relaxers. He testified that he had significant difficulty sitting in one place for long periods of time, but he could stand on his feet with relative ease so long as he could move around and stretch. He also said he could lift 50 pounds occasionally and could lift 20 pounds regularly with ease.

When questioned about his mental health problems, plaintiff’s testimony related primarily to his anxiety around people. He said he would frequently have panic attacks and had a difficult time in social situations. He testified that while at work, he had to excuse himself often during his shifts, particularly when he had to interact with customers. However, he testified that his mental health problems never caused him to miss a shift at his then-current job. Plaintiff also testified that he occasionally had “black outs” and would engage in conduct that he could not remember. During one of these incidents, he reportedly shot out car windows with a pellet gun and was arrested.

The administrative law judge then questioned Andrew Noll, an impartial vocational expert. Noll testified that he had listened to plaintiff’s testimony (in fact, Noll asked plaintiff his own questions at one point during plaintiff’s testimony), reviewed plaintiff’s medical file and familiarized himself with plaintiff’s vocational background. The administrative law judge then asked Noll ...

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