United States District Court, W.D. Wisconsin
D. PETERSON District Judge
Connie Carlson-Berry seeks judicial review of a final
decision of defendant Carolyn W. Colvin, the Acting
Commissioner of Social Security, finding her not disabled
within the meaning of the Social Security Act. The court held
a telephonic hearing on Carlson-Berry’s motion for
summary judgment on July 5, 2016. For the reasons summarized
here and stated more fully at the hearing, the court will
remand this case to the Commissioner for further proceedings.
suffers from a back injury, right shoulder problems, hand
problems, hip problems, right knee problems, fibromyalgia, an
inability to sleep, restless leg syndrome, high blood
pressure, and thyroid problems. Nevertheless, the ALJ found
that Carlson-Berry had the residual functional capacity (RFC)
to perform sedentary work with additional limitations. R.
Specifically, Carlson-Berry can lift or carry 10 pounds
occasionally, less than 10 pounds frequently; she can stand
or walk for two hours out of an eight-hour workday; she can
sit for six hours out of an eight-hour workday; she can
balance frequently; she can occasionally stoop, crouch, and
crawl; she is not to kneel; she can occasionally reach,
handle, and finger with the left upper extremity; she can
reach, handle, and finger with the right upper extremity
greater than frequently, but less than continuously.
Id. Based on this RFC, the ALJ determined that
Carlson-Berry can perform jobs in the economy and was thus
asserted that the ALJ committed six errors in his decision.
The court agrees that two of these errors warrant remand.
Failure to include shoulder limitation in RFC
contends that the RFC wrongfully omitted a restriction on her
ability to reach overhead with her right arm. The ALJ
discussed Carlson-Berry’s right shoulder issues, but
noted that her rotator cuff test showed normal strength and
functioning, and that she tested negative on multiple other
assessments. R. 25. The ALJ also acknowledged that “her
right shoulder had a slight limited range of motion that is
chronic, ” based on Carlson-Berry’s self-report,
and that Carlson-Berry had reported “tenderness to
palpation over the upper trapezius muscle.”
hearing, Ollie Raulston, MD, a board-certified orthopedic
surgeon, testified that Carlson-Berry should do “[n]o
overhead reaching with the right upper extremity.” R.
95. The ALJ apparently accepted Dr. Raulston’s opinion,
repeating his recommendation that “she is not to reach
overhead with her right arm, ” and giving the opinion
“significant weight.” R. 26. The consultative
examiner, E. Carlsen, MD, diagnosed Carlson-Berry with status
post right shoulder surgery, and his opinion was also given
“significant weight.” R. 26-27.
the ALJ recognized Carlson-Berry’s right shoulder
problems, he did not properly account for them in the RFC.
The RFC actually assigns greater restriction to
Carlson-Berry’s left side. The RFC states that
“she can reach handle and finger with the right upper
extremity greater than frequently but less than
continuous.” R. 23. This simply does not square with
the opinions of the consulting physicians. If the ALJ had
incorporated the medical opinions that he credited, then
Carlson-Berry would not have the capacity to reach with her
right arm at all, let alone with the regularity provided in
the RFC. The RFC thus overstates Carlson-Berry’s
ability to use her dominant right side. An accurate appraisal
of her capacity to use her right arm is particularly critical
because Carlson-Berry would be limited to sedentary jobs that
would likely involve work with her hands. Accordingly, the
case will be remanded for reconsideration of
Carlson-Berry’s right arm limitations.
Unresolved conflict between the VE testimony and the
also contends that the vocational expert’s (VE)
testimony was inconsistent with the Dictionary of
Occupational Titles (DOT), and that the ALJ failed to
reconcile the discrepancy. The VE testified that
Carlson-Berry could work as a telemarketer. The DOT
categorizes the telemarketer job as requiring a specific
vocation preparation (SVP) level of three. R. 117. However,
the VE testified that he considered the job unskilled and
sedentary, and so only an SVP level two. Neither the ALJ, nor
Carlson-Berry’s attorney, followed up on the VE’s
testimony or asked the VE to explain his departure from the
DOT, so the discrepancy remained unexplained.
there is an apparent conflict between VE testimony and the
DOT, the ALJ has “an affirmative responsibility”
to “obtain a reasonable explanation for the apparent
conflict. Prochaska v. Barnhart, 454 F.3d 731, 735
(7th Cir. 2006) (citing SSR 00-4p) (emphasis omitted).
Despite this responsibility, the ALJ failed to obtain any
explanation from the VE about why he considered the
telemarketing job unskilled, sedentary, or requiring an SVP
level of only two instead of three. The Commissioner’s
answer is that the error was harmless, because even if
Carlson-Berry were disqualified from the telemarketer
position, she could still perform the surveillance system
monitor job. As the court observed at the hearing, the
surveillance system monitor position is often cited as
employment of last resort, because it can be performed by a
person who is almost completely physically incapacitated.
When the claimant is so highly restricted that she is able to
perform only a few jobs (or perhaps only one), the ALJ must
be particularly careful to identify those jobs that are truly
within the claimant’s capacity. The ALJ failed to
reconcile the apparent conflict between the DOT and the
VE’s testimony, which has a meaningful effect on the
jobs available. This issue also requires remand.
did not challenge the ALJ’s credibility determination
in this case, presumably because it is reviewed
deferentially: it should be upheld unless it is patently
wrong. Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir.
2015). The ALJ’s credibility determination here might
not be patently wrong, but it rests on dubious grounds.
Accordingly, on remand, the ALJ should reconsider
credibility evaluation gets off on the wrong foot by using
often-criticized boilerplate language that
Carlson-Berry’s “testimony is only credible to
the extent her testimony is consistent with the conclusion
she can do the work described herein.” R. 24. But the
more fundamental problem is the ALJ’s use of
Carlson-Berry’s activities of daily living. The ALJ
found that despite Carlson-Berry’s limitations, she
“engaged in a somewhat normal level of daily activity
and interaction.” R. 24. He noted that she drives,
takes care of her daughter and pets, prepares meals, cleans
the house, does laundry, watches television, and goes to
family gatherings, among other activities. Id. The
ALJ then concluded that “the physical and mental
capabilities requisite to performing many of the tasks
described above as well as the social interactions replicate
those necessary for obtaining and maintaining
employment.” Id. Carlson-Berry’s
activities are varied, but it is a mistake to regard them as
the equivalent of full-time employment. Moore v.
Colvin, 743 F.3d 1118, 1126 (7th Cir. 2014) (The Seventh
Circuit has “long bemoaned” the tendency to
equate “the ability to engage in some activities with
an ability to work full-time.”). Carlson-Berry’s
testimony was that her ...