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Friedlund v. Colvin

United States District Court, W.D. Wisconsin

August 26, 2016

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


          WILLIAM M. CONLEY U.S. District Court Judge

         Pursuant to 42 U.S.C. § 405(g), plaintiff James Friedlund seeks judicial review of a final determination that he was not disabled within the meaning of the Social Security Act. After full briefing, the court heard oral argument on June 2, 2016, to consider plaintiff's principal contentions that: (1) the administrative law judge (“ALJ”) erred in determining that Friedlund's mental impairments did not rise to the level of severe impairments; (2) the ALJ lacked a sufficient basis to find Friedlund not disabled at step five of the evaluative process established by the Social Security Administration (“SSA”); and (3) the ALJ failed to develop the record adequately by having a physician review additional medical evidence. For the reasons provided below and discussed during oral argument, the court will remand for further consideration of Friedlund's capability to work at step five.


         A. RFC Determination

         Plaintiff James Friedlund claims a disability onset date of February 28, 2011, based on an inability to work due to problems with his hip, knees and back, for which he had multiple surgeries, as well as depression, anxiety and asthma. In reaching his decision, the ALJ credited Friedlund's claim to four, severe impairments: status post total left knee and total right hip replacement, degenerative disc disease, status post left shoulder arthroscopy and obesity. (AR 20.) In contrast, after noting reasons to doubt Friedlund's credibility, the ALJ found that Friedlund's depressive and anxiety disorders, and his two, medically-determinable mental impairments, were not severe. (AR 21.) In arriving at the latter determinations, the ALJ credited the opinions of the state agency psychological consultants, who reached the same conclusion. (AR 21.) Finally, after according “great weight” to state agency medical consultants, the ALJ determined that Friedlund could perform some light work despite limitations in his residual functional capacity (“RFC”).[2] (AR 25-27.) Specifically, the ALJ found that Friedlund:

has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with additional limitations. He is precluded from any crawling, kneeling or climbing of ladders, ropes, or scaffolds. He is precluded from more than occasional stooping, bending, crouching, or climbing ramps or stairs.

(AR 23.)

         Central to plaintiff's challenge on appeal, he faults the ALJ for discounting the significance of additional medical records from appointments and procedures that post-dated the SSA's denial of his application, particularly without an opinion from his treating physician or a state agency medical consultant as to how this additional evidence might affect Friedlund's residual functional capacity, if at all. Instead, the ALJ himself opined in an additional paragraph of his decision that this new evidence did not support finding limitations that rose to the level claimed by Friedlund. (AR 25.)

         B. Discussion with the VE

         At plaintiff's hearing, the ALJ asked the VE whether the skills Friedlund learned as a sheet metal worker were transferrable to other light work, to which the VE responded with a list of several transferrable skills. (AR 62-63.) The ALJ then asked the VE whether a hypothetical claimant with Friedlund's “age, education and work history” could perform any jobs in Wisconsin if “limited to light work, ” precluded from “any crawling, kneeling or climbing of ropes, ladders or scaffolds, ” and unable to undertake “more than occasional stooping, bending, crouching or climbing of ramps or stairs.” (AR 63.) In response, the VE named several jobs listed in the Dictionary of Occupational Titles, such as security guard, general office clerk, health care support worker, stock clerk and sales representative. (AR 63-64.) The ALJ asked no further questions of the VE.

         Later, in his written decision, the ALJ held that the “[t]ransferrability of job skills is not material to the determination of disability because using the Medical-Vocational rules as a framework supports a finding that the claimant is ‘not disabled, ' whether or not the claimant has transferrable job skills.” (AR 27.) The ALJ went on to explain that:

If the claimant had the residual functional capacity to perform the full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.11. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, I asked the vocational expert whether jobs exist in the national economy. The vocational expert testified that, given all of these factors, the individual would be able to perform representative occupations such as: security guard (6, 700 jobs in Wisconsin), office clerk (10, 000 jobs in Wisconsin), health care support worker (1, 500 jobs in Wisconsin), stock clerk (8, 000 jobs in Wisconsin), and sales representative (3, 300 jobs in Wisconsin). I find this to be a significant number of jobs.
Pursuant to SSR 00-4p, I have determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, I conclude that, considering the claimant's age, education, work experience, and residual functional capacity, the claimant is capable of performing other work that exists in significant numbers in the national economy. A finding of “not ...

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