United States District Court, E.D. Wisconsin
DECISION AND ORDER AFFIRMING COMMISSIONER'S
William C. Griesbach, United States District Court Chief
an action for judicial review of the final decision of the
Commissioner of Social Security denying Plaintiff Donald
Deschler's application for disability insurance benefits
and supplemental security income under Titles II and XVI of
the Social Security Act. 42 U.S.C. § 405(g).
Plaintiff's counsel withdrew his representation on
November 7, 2016. Plaintiff, now proceeding pro se,
filed his initial brief on February 1, 2017, arguing that the
Commissioner's decision should be reversed and the case
remanded for further proceedings. The Commissioner filed a
response brief on June 8, 2017. Plaintiff did not file a
reply brief within fifteen days as required by this
court's April 26, 2017 Order and has not requested
additional time to file a reply. Accordingly, this matter is
fully briefed and ripe for disposition. For the following
reasons, the decision of the Commissioner will be affirmed.
January 27, 2011, Plaintiff, age 38 at the time, completed an
application for a period of disability, disability insurance
benefits, and supplemental security income with his alleged
disability beginning November 19, 2010. R. 167-77. Plaintiff
worked as a forklift driver and general laborer prior to his
alleged onset date. He stopped working on November 19, 2010
because he got laid off, not because of his medical
conditions. R. 212. He had worked a third-shift job at a
pallet plant for three weeks in late-November 2014, but he
quit this job four days before his administrative hearing
because his shoulder pain interfered with his work. The ALJ
generously considered this work to be an unsuccessful work
attempt. R. 16.
the denial of his applications initially and on
reconsideration, Plaintiff requested a hearing before an
administrative law judge (ALJ). R. 116-17. ALJ Carla Waters
conducted a hearing on February 4, 2013 at which Plaintiff,
proceeding pro se, and a vocational expert
testified. R. 33. In a written decision dated May 14, 2013,
ALJ Waters determined Plaintiff was not disabled. R. 95. The
Appeals Council remanded Plaintiff's case to ALJ Patrick
Halligan to review new medical evidence submitted by
Plaintiff regarding his knee pain. R. 101.
December 9, 2014, Plaintiff appeared at an administrative
hearing before ALJ Halligan. At the outset, the ALJ advised
Plaintiff that he had the right to representation and asked
if he wanted time to retain counsel. Plaintiff responded he
was confident that he could represent himself. R. 62.
Plaintiff stated he lived at home with his wife who was also
unemployed. He testified that he was 5 feet, 5½ inches
tall and weighed 220 pounds. R. 68. Although Plaintiff
initially listed Wolff-Parkinson-White syndrome (WPW), a
heart condition that causes a rapid heartbeat, as the reason
he sought benefits, he testified at the hearing that his
insomnia, restless leg syndrome, and the arthritis in his
lower back, shoulders, and left knee make it difficult to
function and limited his ability to work. R. 64-65. He was
also diagnosed with depression, anxiety, and hypertension. R.
65. He explained that he gets “stressed out” and
is irritable when he does not feel well, which prevents him
from working. R. 70. Plaintiff noted that he takes medication
for his anxiety and depression but no longer takes medication
for WPW. R. 68-69. He testified that a doctor instructed him
to get rotator cuff surgery in both of his shoulders. R. 78.
Although Plaintiff asserted he does not do much at home, he
indicated in his function report that he makes breakfast and
dinner; does light housework and yard work; and walks, feeds,
and cares for his pets. R. 69, 227-28. His wife testified
that he has difficulty doing little things at home such as
cooking, cleaning, and vacuuming. R. 72. The ALJ asked
Plaintiff if he could work in a safe, indoor, unskilled,
well-defined sedentary position, rather than the third-shift,
heavy-lifting work he had performed in the past. Plaintiff
responded he was unsure if he could perform such a job. R.
vocational expert (VE) also testified at the hearing. R. 73.
The ALJ asked the VE whether there were any jobs for a
hypothetical person who has a combination of cardiac,
orthopedic, and mental impairments; can sit three hours at
one time with a daily total of no more than six hours; can
walk one hour at a time with a daily total of no more than
three hours; can stand three hours at one time for a daily
total of six hours; cannot kneel; can crouch to chair level
but not lower; can stoop deep enough to reach his hands to
mid-calf level but not lower; can occasionally climb stairs;
can lift ten pounds frequently and twenty pounds
occasionally; and can learn, remember, and execute
three-step, well-defined unskilled work sequences. R. 74-75.
The VE answered that there are jobs in the Wisconsin labor
market that would fit those criteria, including packager,
production assistant, inspector, office helper, and food
preparer. R. 75-76. Plaintiff asked the VE where these jobs
were located in Wisconsin. He noted that he would apply for
those jobs if he knew where they were. R. 77-78.
12-page decision dated December 19, 2014, the ALJ found
Plaintiff was not disabled. R. 14-26. The ALJ's decision
followed the Social Security Administration's five-step
sequential process for determining whether an individual is
disabled. At the first step, the ALJ concluded Plaintiff met
the insured status requirements through September 30, 2013.
Although Plaintiff had worked for three weeks in
late-November 2014, the ALJ considered this an unsuccessful
work attempt. Accordingly, he concluded Plaintiff had not
engaged in substantial gainful activity since November 19,
2010. R. 16.
two of the disability analysis, the ALJ listed
Plaintiff's soreness in his shoulders and neck, WPW,
restless leg syndrome with insomnia, anxiety, depression,
left knee stiffness, and obesity as severe impairments.
Nevertheless, at step three, the ALJ concluded Plaintiff did
not have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R.
17. The ALJ noted that although Plaintiff has mild
restriction in his activities of daily living, he is fully
independent in all self care and his testimony revealed a
fair range of activities. While Plaintiff has moderate
difficulties with concentration, persistence, or pace, he can
manage his fatigue and anxiety by choosing predictable,
non-complex work at light or lower exertional levels.
concluded Plaintiff retained the residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b), except for the
following limitations: he can sit for three hours at one time
for a total of six hours; walk for one hour at a time for a
total of three hours; never kneel; crouch to chair level but
not lower; stoop deep enough to reach his hands to mid-calf
level but not lower; learn, remember, and execute three-step,
unskilled work sequences; lift up to ten pounds frequently
and 20 pounds occasionally; climb stairs occasionally; only
work indoors; concentrate 98% of the time; attend work 98% of
the time; respond appropriately to rule-based supervision and
quality control feedback; interact with coworkers,
supervisors, and the public occasionally; and tolerate stress
and maintain a competitive work-production pace so long as
the work is predictable. R. 19. The ALJ indicated that his
RFC is more restrictive and more detailed than the one
created by ALJ Waters in 2013. R. 20. In making this RFC
finding, the ALJ relied upon Plaintiff's own
self-assessment of his abilities and found Plaintiff to be
generally credible. He noted, however, that the RFC is more
“optimistic” than what Plaintiff alleged he could
do because an RFC is meant to be the most an individual can
also reviewed Plaintiff's medical records. Plaintiff
testified he had not had any strong WPW episodes since the
February 4, 2013 hearing with ALJ Waters. Instead, Plaintiff
and his doctors believed that he was affected by poor sleep.
R. 20. Plaintiff alleges that when he sleeps, his heart beats
very fast and causes him to wake up in the middle of the
night. R. 227. His rapid heart rate is also provoked by
exertion. R. 291. The medical evidence demonstrates that
tests and exams have not revealed the source of
Plaintiff's alleged episodes of heart racing. R. 282.
Plaintiff was assured by doctors that his symptoms are benign
and advised that he lose weight and exercise to reduce the
symptoms. R. 293-94. At the hearing, Plaintiff testified that
he is trying to lose weight but is unable to exercise due to
his constant fatigue. R. 68.
further relied on a June 14, 2011 examination, that was
conducted approximately seven months after Plaintiff's
alleged onset date, in forming the RFC. At the examination,
Plaintiff indicated that he goes grocery shopping, walks the
dog, does housework and yard work, and services his car on a
weekly basis. R. 319. He stated that he could walk up to one
mile and could stand for up to three hours, though he would
likely have knee pain. Id. Plaintiff noted that he
has tightness and spasms in his shoulders and neck. R. 320.
He takes Tylenol two to three times a week for the pain.
Id. The examiner concluded Plaintiff has the ability
to perform work such as sitting, standing, walking, lifting,
handling objects, seeing, hearing, speaking, and traveling.
R. 323. She noted that Plaintiff did not experience any
fatigue or pain throughout the examination. Id.
on this examination, the ALJ acknowledged that Plaintiff
experienced some renewed symptoms of pain in his shoulders
and neck, but he had full ranges of motion and no pain or
sensory signs of palpation. R. 21. The ALJ observed that
Plaintiff's treating physicians did not support
Plaintiff's alleged disabling symptoms. The record did
not contain a statement from a treating source opining about
Plaintiff's physical or mental work capacity or
functional level. Id. The ALJ thus relied upon the
opinions of the state agency medical experts who studied and
summarized Plaintiff's entire record. Id. The
state agency physicians concluded Plaintiff could perform
light, unskilled, uncomplicated work. R. 328, 336. Even
though the state agency physicians reviewed Plaintiff's
file in 2011, prior to the Appeals Council remanding the case
to ALJ Halligan, the ALJ concluded the additional materials
submitted by Plaintiff regarding his knee pain did not
require that he disregard their assessments. He noted the RFC
takes full account of the new medical evidence that was not
reviewed by the state's experts in that it prohibits
Plaintiff from performing any jobs that require kneeling. R.
his discussion of the medical record and Plaintiff's
subjective complaints, the ALJ found at step four that
Plaintiff was unable to perform his past relevant work as a
forklift truck driver. R. 24. He noted that Plaintiff has a
limited education. Based on Plaintiff's age, education,
work experience, and RFC, the ALJ concluded there are jobs
that exist in significant numbers in the ...