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Cihlar v. Colvin

United States District Court, W.D. Wisconsin

September 12, 2016

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


          BARBARA B. CRABB District Judge

         Plaintiff Tanya Beth Cihlar has filed this action seeking judicial review of the social security commission's denial of her application for supplemental social security income. Plaintiff contends that the commission's decision was erroneous for two reasons: (1) the administrative law judge found moderate limitations in concentration, persistence or pace, but failed to account for these limitations in his residual functional capacity assessment and the hypothetical question he posed to the vocational expert; and (2) the vocational expert's testimony regarding the number of jobs available to plaintiff was “suspect” and conflicted with the Dictionary of Occupational Titles. 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, I conclude that plaintiff is not entitled to a remand. In his residual capacity assessment and hypothetical question to the vocational expert, the administrative law judge accounted properly for plaintiff's various mental limitations underlying his step three conclusion that she had moderate limitations with concentration, persistence or pace. Moreover, I conclude that the vocational expert's testimony did not conflict with the Dictionary of Occupational Titles and that plaintiff should have raised any objection regarding the foundation for the vocational expert's testimony at the hearing. Accordingly, I am denying plaintiff's motion for summary judgment and affirming the administrative law judge's decision.


         Plaintiff applied for supplemental social security income in January 2010. In her application, plaintiff alleged that she had been disabled since February 1, 2008. (Plaintiff later amended the alleged disability onset date, changing it from February 1, 2008 to January 1, 2011.) A hearing was held in October 2012 before an administrative law judge, who decided that plaintiff was not disabled. Plaintiff filed a request for review of the administrative law judge's decision, which the Appeals Council granted. The Appeals Council vacated the administrative law judge's decision and remanded plaintiff's application for further consideration.

         A second hearing on plaintiff's application was held in July 2014. Plaintiff was represented by counsel and testified at this hearing. The administrative law judge also took testimony from an impartial vocational expert. In August 2014, the administrative law judge issued his decision, again concluding that plaintiff was not disabled. Plaintiff filed another request for review with the Appeals Council, but this request was denied, making the administrative law judge's August 2014 decision the final decision of the Commissioner.

         In his decision, the administrative law judge performed the required five-step sequential analysis set forth in 20 C.F.R. § 404.1520. At step one, he determined that plaintiff had not engaged in substantial gainful activity since January 1, 2011, the amended alleged disability onset date. Although plaintiff worked after this date with her boyfriend tearing down barns and reselling the reclaimed lumbar, this work did not qualify as “substantial gainful activity” because the income from this work was not reflected in her earnings record.

         At step two, the administrative law judge considered plaintiff's alleged impairments and determined that plaintiff had two “severe” impairments: (1) degenerative disc disease of the lumbar spine with a history of disc replacement surgery and (2) a learning disorder. This determination was based on the administrative law judge's review of the medical records, which indicated that plaintiff received her first diagnosis of degenerative disc disease in January 2010, when an x-ray showed that her disc was degenerating at the L5-S1 level. At a March 2010 appointment with an orthopedist, plaintiff described her back problems as “unbearable.” Plaintiff's orthopedist recommended that she undergo disc replacement surgery, which was eventually performed in September 2010. Between the time of the surgery and July 2012, plaintiff would frequently go to the emergency rooms of different hospitals complaining of significant back pain. Her pain was treated with over-the-counter medications, injections and narcotic painkillers, including Vicodin and Percocet. However, after July 2012, plaintiff did not report any lower back pain until a February 2014 emergency room visit, which was the last time she received any medical care for her lower back condition.

         Plaintiff's learning disorder was first diagnosed following a consultative evaluation conducted in September 2010 by Robert J. Schedgick, Ph.D. Schedgick reported that plaintiff had a verbal IQ of 76, a performance IQ of 86 and full scale IQ of 72, which fell within the borderline range of intellectual functioning. Following his examination, Schedgick's diagnosis was generalized anxiety disorder, attention deficit disorder and a learning disorder. (Plaintiff does not challenge the administrative law judge's findings that plaintiff's generalized anxiety disorder and attention deficit disorder were not severe impairments.) Schedgick noted that plaintiff had mild difficulties focusing and concentrating and had “significant anxiety.” However, he reported that plaintiff could interact “very nicely with supervisors, coworkers and the public” and that she “could attend adequately to a task if not bound by time.”

         In addition to the conditions set out above, the administrative law judge considered plaintiff's treatment in February 2014 for depressive symptoms, anxiety and panic attacks. However, the administrative law judge determined that these conditions did not “cause more than minimal limitations in [plaintiff's] ability to perform basic mental work activities and [were] therefore nonsevere.” All told, the administrative law judge determined that there was “little objective evidence regarding [plaintiff's] mental impairments” and that plaintiff “required almost no medical care for her mental symptoms.”

         At step three, the administrative law judge determined that plaintiff's impairment of degenerative disc disease of the lumbar spine did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 1.04. The administrative law judge also determined that plaintiff's mental impairments did not meet or medically equal any condition in Listing 12.02. In reaching this conclusion with respect to plaintiff's mental impairments, the administrative law judge considered the “paragraph B” criteria and determined that plaintiff had no limitations in activities of daily living, no episodes of decompensation, mild restriction in her social functioning and “a moderate limitation in her ability to maintain adequate concentration, persistence or pace.” AR 37.

         After making his step three finding that plaintiff's degenerative disc disease and learning disorder were severe impairments, but were not necessarily disabling, the administrative law judge evaluated plaintiff's residual functional capacity. He concluded that after consideration of the entire record, plaintiff possessed the residual functional capacity to perform the following:

[L]ight work . . . that is unskilled in nature, routine with no constant decision-making or work place changes, no production pace rate, only occasional postural activities with no rope/ladder/scaffold climbing, and continuous standing or walking of no more than 45 minutes without a 1-to-2 minute period of position change.

Id. The limitation to light work with only occasional postural activities, no rope, ladder or scaffold climbing and no continuous standing or walking was intended to account for plaintiff's degenerative disc ...

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