United States District Court, E.D. Wisconsin
ERIC C. McCURTIS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER REVERSING THE COMMISSIONER'S
DENIAL OF SOCIAL SECURITY DISABILITY BENEFITS AND REMANDING
FOR FURTHER PROCEEDINGS PURSUANT TO SENTENCE FOUR OF 42
U.S.C. § 405(G)
PAMELA PEPPER United States District Judge.
McCurtis has appealed the denial of his application for
Social Security Disability benefits. Dkt. No. 1. The
administrative law judge (ALJ) found that the plaintiff's
degenerative disc disease of the neck was a severe
impairment-one that caused “more than a minimal effect
on the [plaintiff's] ability to perform basic work
activities” under 20 C.F.R. § 404.1520(c). Dkt.
No. 13-1 at 22. The ALJ denied the plaintiff's
application for benefits, however, reasoning that the
plaintiff had the residual functional capacity to perform a
significant number of jobs that exist in the national
economy. Id. at 23-27.
statutory definition of disability in the Social Security Act
has two parts. “First, it requires a certain kind of
inability, namely, an inability to engage in any substantial
gainful activity. Second it requires an impairment, namely, a
physical or mental impairment, which provides reason for the
inability.” Barnhart v. Walton, 535 U.S. 212,
217 (2002). On appeal, the district court's role is to
determine whether the ALJ applied the correct legal
standards, and whether the ALJ's decision is supported by
substantial evidence. Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Barnett v.
Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).
plaintiff was forty-eight years old in 2014, when he appeared
and testified, unrepresented, at the hearing before the ALJ.
Dkt. No. 13-1 at 23. At the time, he was living in a
two-story home with his mother. Id. In December
2009, the plaintiff had been in a car accident, resulting in
“injuries causing neck and left arm pain and numbness
in the lower back.” Id. at 24. He underwent
surgery in April of 2011-a C3-C5 decompressive laminectomy
with lateral mass screw placement and laminectomy.
Id. The plaintiff testified at the 2014 hearing that
he “continue[d] to have intermittent difficulties with
his left leg going numb with activity, numbness in his left
hand, and hypersensitivity in his right hand.”
Id. The ALJ concluded, however, that the
“objective medical findings are not consistent with a
finding of total disability. Rather, [the plaintiff]
benefitted from treatment, and was able to manage a range of
daily activity and functioning.” Id. at 27.
According to the ALJ, the plaintiff “remained capable
of performing a range of sedentary work with appropriate
additional accommodations for symptoms of his physical
impairments, . . . .” Id.
hearing, the ALJ posed hypotheticals to a vocational expert
in an effort to ascertain the plaintiff's ability to
perform jobs available in the national economy. Dkt. No. 13-1
at 85-91. The plaintiff argues on appeal that the ALJ erred
by failing to incorporate the following limitations into the
hypotheticals: occasional gripping, grasping, fingering, and
fine manipulation with his hands, in addition to an option to
sit/stand at will with the use of an assistive device for
walking activities. The Commissioner counters that the ALJ is
required to include in the hypotheticals only such
limitations as are supported in the record and that the ALJ
finds credible. The limitations the plaintiff claims the ALJ
failed to include, however, are supported by a Functional
Capacity Evaluation performed on January 29, 2014. Dkt. No.
13-2 at 172. The ALJ afforded “substantial
weight” to the FCE, without qualification, Dkt. No.
13-1 at 26, yet he failed to include the above-mentioned
limitations in his hypotheticals to the vocational expert. At
a minimum, remand is necessary for the ALJ to clarify this
court also finds that the ALJ erred when he rejected the
opinion of the plaintiff's treating neurosurgeon, Dr.
Zikel. According to Dr. Zikel, the plaintiff is unable to
work more than four hours per day and requires frequent
breaks. Dkt. No. 13-2 at 160-61. A treating physician's
opinion is entitled to controlling weight if it is
well-supported by medical findings and is not inconsistent
with other substantial record evidence. Yurt v.
Colvin, 758 F.3d 850, 860 (7th Cir. 2014). The ALJ did
not afford the treating physician's opinion that weight,
however, because he found that Dr. Zikel's opinion was
“not consistent with the claimant's treatment
history, including routine and conservative care, largely
benign clinical findings with the exception of neck
stiffness, or the claimant's self-reported ability to
carry out all of his activities of daily living with only
mild restriction.” Dkt. No. 13-1 at 23.
reaching this conclusion, the ALJ equated the plaintiff's
ability to undertake basic activities of daily living, such
as doing laundry, washing dishes, and performing other
household chores, with the ability to work on a full-time
basis. This analysis ignores the “critical differences
between activities of daily living and activities in a
full-time job . . . .” Bjornson v. Astrue, 671
F.3d 640, 647 (7th Cir. 2012). A person “has more
flexibility in scheduling the former than the latter, can get
help from other persons . . ., and is not held to a minimum
standard of performance, as [he] would be by an
employer.” Id. The plaintiff, for example,
testified that he can do most household chores, but it
“just takes [him] longer.” Dkt. No. 13-1 at 70.
this reason, the ALJ's credibility assessment was not
supported by substantial evidence. See SSR 96-7p
(listing factors to consider when assessing the credibility
of an individual's statements, including the
individual's daily activities). In describing his daily
routine, the plaintiff explained that he gets up in the
morning, does some stretches for physical therapy, then
showers and cools down. Dkt. No. 13-1 at 69-70. The need for
a “cool down” period is consistent with Dr.
Zikel's opinion that the plaintiff requires frequent
breaks. Dkt. No. 13-2 at 160-61. Ultimately, the ALJ relied
on the plaintiffs ability to perform basic activities of
daily living, but ignored the difficulties the plaintiff
encountered while doing them. The ALJ also emphasized the
fact that the plaintiff continued looking for work past his
onset date, but the plaintiff made clear that he was looking
for work within the restrictions imposed by Dr. Zikel,
i.e., part-time work. See SSR 96-8p (person
who cannot work full-time is disabled).
the plaintiff argues that the ALJ did not develop a full and
fair record because he was not represented by counsel.
See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.
2000). The plaintiff did not elaborate much on this argument,
but because this court is remanding the case to the ALJ for
further proceedings, it is worth noting that an ALJ deciding
on the application of a pro se claimant may need to
focus more on development of the record.
court ORDERS that the Commissioner's
denial of benefits is REVERSED, and the
court REMANDS this case for further
proceedings pursuant to 42 U.S.C. §405(g) (sentence
four). The court directs the clerk of court to enter judgment
 At the time the plaintiff filed his
appeal, Carolyn Colvin was the acting commissioner of the
Social Security Administration. Nancy A. Berryhill succeeded
Carolyn Colvin as the acting ...