United States District Court, E.D. Wisconsin
CLAUDE E. MICHALSKI Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.
DECISION AND ORDER
ADELMAN, DISTRICT JUDGE.
Claude Michalski applied for social security disability
benefits, alleging that he could not work due to neck and
back pain, depression/anxiety, and sleep apnea. The
Administrative Law Judge (“ALJ”) assigned to the
case concluded that plaintiff's impairments, while
severe, did not prevent him from performing his past work as
a surveillance monitor at a casino. In this action for
judicial review, plaintiff primarily argues that the ALJ
erred in finding that he could still do this
Because the basis for the ALJ's finding on this point is
unclear, I must remand the matter for further proceedings.
STANDARDS OF REVIEW
applies a five-step, sequential test for determining
(1) Is the claimant currently working, i.e., engaging in
“substantial gainful activity”
(2) If not, does the claimant suffer from any
(3) If so, do any of those impairments meet or medically
equal the requirements of one of the conclusively disabling
impairments listed in the regulations (the
(4) If not, does the claimant have the residual functional
capacity (“RFC”) to return to his past relevant
work,  either as he actually did it or as it is
generally performed in the economy?
(5) If not, can he can make the adjustment to other work in
the national economy?
See 20 C.F.R. § 404.1520(a)(4).
claimant bears the burden of presenting evidence at steps one
through four, but if he reaches step five the burden shifts
to the agency to show that the claimant can make the
adjustment to other work. The agency may carry this burden
either by relying on the testimony of a vocational expert
(“VE”), who evaluates the claimant's ability
to work in light of his limitations, or through the use of
the “Medical-Vocational Guidelines” (a.k.a.
“the Grid”), a chart that classifies a person as
disabled or not disabled based on his exertional ability,
age, education, and work experience. See, e.g.,
Neave v. Astrue, 507 F.Supp.2d 948, 953 (E.D. Wis.
court reviews an ALJ's decision to determine whether it
applies the correct legal standards and is supported by
substantial evidence. Summers v. Berryhill, 864 F.3d
523, 526 (7th Cir. 2017). Substantial evidence
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Id.
While the court may not, under this deferential standard,
re-weigh the evidence or substitute its judgment for the
ALJ's, id., the court will nevertheless conduct
a critical review, considering both the evidence that
supports, as well as the evidence that detracts from, the
ALJ's decision; the decision cannot stand if it lacks
evidentiary support or an adequate discussion of the issues.
Scrogham v. Colvin, 765 F.3d 685, 695
(7th Cir. 2014). The court limits its review to
the reasons supplied by the ALJ in his decision; the
Commissioner's lawyers cannot bolster a deficient
decision on appeal. See, e.g., Meuser v.
Colvin, 838 F.3d 905, 911 (7th Cir. 2016).
Plaintiff's Application/Supporting Materials and Agency
applied for benefits on October 12, 2012, alleging a
disability onset date of April 1, 2011. (Tr. at 199.) He
reported past work as a service technician for
AT&T/Digital Electronic Group from 2001 to March 31,
2011, which required him to be on his feet most of the day
and lift 80 pounds. He also worked as a surveillance monitor
at a casino from 1997-2000, which required walking/standing
about one hour and sitting seven hours, and lifting up to 20
pounds. This job also involved the use machines, tools or
equipment; technical knowledge or skills; and the completion
of reports. (Tr. at 217, 229, 238, 241.)
function report, plaintiff indicated that he experienced
constant back pain, lack of sleep, depression, and anxiety.
(Tr. at 245.) He wrote that his impairments interfered with
personal care, such as dressing and using the toilet. (Tr. at
246.) He further indicated that he socialized little and
spent his time watching TV and listening to the radio. (tr.
at 249.) He stated that he could not lift more than five
pounds, walk 1/4 mile before experiencing back pain, and had
to alternate standing and sitting. He further indicated that
he could pay attention for about 10 minutes and did not
follow written or spoken instructions or handle stress or
changes in routine well. (Tr. at 250-51.) In a physical
activities addendum, plaintiff wrote that he slept five to
six hours per night, reduced due to racing thoughts, tingling
and numbness in his arms and hands, and back pain. He could
continuously sit for ½ hour, stand for ½ hour,
and walk for 15 minutes; in a day, he could sit for three
hours, stand for three hours, and walk for 15 minutes. His
doctor had limited him to lifting 10 pounds. (Tr. at 253.)
agency sent plaintiff for a psychological evaluation,
completed by Jeremy Meyers, Ed.D., on March 18, 2013. (Tr. at
474.) Dr. Meyers diagnosed mood disorder, depression, anxiety
disorder, and alcohol dependence in short-term remission,
with a GAF of 48. (Tr. at 477-78.) He concluded:
Mr. Claude Michalski should be able to understand and
remember simple instructions, but being able to carry them
out may be difficult because of his physical condition. He
should be able to respond appropriately to supervisors and
coworkers and maintaining concentration and attention should
be manageable. He may have difficulty meeting work pace
demands again because of [a] combination of his weight and
orthopedic pain. Withstanding anything more than routine work
stress will test his ability to cope, but he should be able
to respond to any job site changes he would find in most
semi-skilled work environments.
(Tr. at 478.)
agency denied the application initially on April 23, 2013,
relying in the reports of George Walcott, M.D., and Roger
Rattan, Ph.D., who on review of the record concluded that
plaintiff could perform unskilled, light work. (Tr. at
101-13, 137.) Plaintiff requested reconsideration (Tr. at
143), but on November 19, 2013, the agency maintained the
denial based on the review of James Greco, M.D., who found
plaintiff capable of light work with certain additional
postural, manipulative, and environmental limitations, and
Ellen Rozenfield, Psy.D., who found that plaintiff could
perform simple, routine tasks on a sustained basis in a work
setting with only occasional workplace changes. (Tr. at
then requested a hearing before an ALJ. (Tr. at 150.) Prior
to the hearing, he submitted a report from his primary
physician, Dr. Timothy Grass, who listed a diagnosis of
cervical and lumbar disc disease, with a poor prognosis. Dr.
Grass indicated that plaintiff experienced pain that
constantly interfered with the attention and concentration
needed to perform simple work-related tasks. He further
opined that plaintiff could, in an eight-hour workday, sit
for one hour, stand for one hour, and walk for one hour. (Tr.
at 551.) Dr. Grass also endorsed significant limitations in
simple grasping, pushing/pulling, and fine manipulation.
Plaintiff could lift 0-5 pounds 20% of the day, 5-10 pounds
10% of the day, and 11-20 pounds 5% of the day (Tr. at 552);
could bend 10% of the day, squat 5% of the day, crawl 5% of
the day, never climb, and reach 5% of the day (Tr. at 553).
He also needed to avoid all exposure to unprotected heights
and moderate exposure to other hazards and environmental
irritants. Finally, he would require unscheduled breaks
during the workday. (Tr. at 553.)
21, 2015, plaintiff appeared with counsel for his hearing
before the ALJ. The ALJ also summoned a VE. (Tr. at 49.)
testified that he was 6 feet tall, 275 pounds, and lived in
an apartment with his wife. (Tr. at 54-55.) He had a high
school diploma with some additional education in the
military. (Tr. at 55-56.) Plaintiff testified that from 2001
to 2011 he worked for AT&T/Digital Electronic Group
performing maintenance on outside lines, working inside homes
and businesses, troubleshooting problems and installing new
lines (Tr. at 58-59), which involved climbing and lifting a
ladder weighing 80 pounds (Tr. at 60, 84). He was terminated
from this job due to attendance (Tr. at 60), missing days
because of his back and neck (Tr. at 84). Prior to that,
plaintiff worked doing surveillance for a casino, which
involved working “inside the office, keeping an eye on
the people and at times working the floor, walking a lot . .
. looking for trouble or cheaters.” (Tr. at 59.) He was
terminated from this position at some point in
2000. (Tr. at 97.)
testified that he could no longer work because of back pain,
difficulty sleeping due to numbness and sleep apnea, and neck
stiffness. (Tr. at 61.) He indicated that he had to change
positions after about ½ hour due to pain and numbness.
(Tr. at 62.) He also experienced worsening pain after walking
for about 15 minutes. (Tr. at 62-63.) To relieve the pain, he
used a TENS machine, ice, and muscle relaxers. (Tr. at 63.)
He had been on Oxycodone, but it stopped working. (Tr. at
64.) He had also received cortisone injections and nerve
blocks, with temporary relief. (Tr. at 66, 81.) The muscle
relaxer seemed to be helping. (Tr. at 66.) He was also taking
medications for depression. (Tr. at 67.) His doctors had
recommended exercise, but he could not do it. (Tr. at 68.) He
testified that some days he could lift about 40 pounds, like
when he was bringing in the ...