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Michalski v. Berryhill

United States District Court, E.D. Wisconsin

September 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.



         Plaintiff 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 job.[1] Because the basis for the ALJ's finding on this point is unclear, I must remand the matter for further proceedings.


         A. Disability Standard

         The ALJ applies a five-step, sequential test for determining disability, asking:

(1) Is the claimant currently working, i.e., engaging in “substantial gainful activity” (“SGA”)?
(2) If not, does the claimant suffer from any “severe” impairments?
(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 “Listings”)?
(4) If not, does the claimant have the residual functional capacity (“RFC”) to return to his past relevant work, [2] 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).

         The 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.[3] See, e.g., Neave v. Astrue, 507 F.Supp.2d 948, 953 (E.D. Wis. 2007).

         B. Judicial Review

         The 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).


         A. Plaintiff's Application/Supporting Materials and Agency Decisions

         Plaintiff 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.)

         In a 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.)

         The 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.[4] (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.)

         The 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 114-31, 144.)

         Plaintiff 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.)

         B. Hearing

         On May 21, 2015, plaintiff appeared with counsel for his hearing before the ALJ. The ALJ also summoned a VE. (Tr. at 49.)

         1. Plaintiff

         Plaintiff 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.[5] (Tr. at 97.)

         Plaintiff 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 ...

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