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Beahm v. Berryhill

United States District Court, W.D. Wisconsin

November 28, 2017

OPAL BEAHM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          BARBARA B. CRABB District Judge

         Plaintiff Opal Beahm is seeking review of a final decision by defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying her claim for disability insurance benefits and supplemental security income under the Social Security Act. 42 U.S.C. § 405(g). Dkt. #9. Plaintiff contends that the administrative law judge who decided the case erred in two ways: (1) she did not properly consider the opinions of plaintiff's providers, particularly with respect to plaintiff's need for unscheduled breaks; and (2) she did not lay a proper foundation for a 10 percent off-task limitation in her hypothetical question to the vocational expert. Lanigan v. Berryhill, 865 F.3d 558, 566 (7th Cir. 2017) (finding administrative law judge failed to build bridge between 10 percent off-task limitation and record as whole).

         For the reasons explained below, I am remanding this case so the administrative law judge can lay a proper foundation for the limitations she included in her residual functional capacity assessment and hypothetical to the vocational expert and better explain her reasoning with respect to the weight given the opinions of plaintiff's treating providers.

         The following facts are drawn from the administrative record (AR).


         Plaintiff contends that she became disabled on April 12, 2012 because of back pain and continuing problems following bilateral knee replacement surgery. AR 19, 48-49. Plaintiff last worked in April 2012 at a Subway shop. AR 47. She was 45 years old when she applied for benefits on March 6, 2013. AR 19, 170.

         Critical to plaintiff's appeal are the reports of Dr. Timothy Johnson, Dr. Roland Erickson and Physician Assistant R.S. Oshan, all of whom treated plaintiff for one or more of her various conditions. The three providers reached similar conclusions about plaintiff's physical limitations from 2013 to 2015.

         On October 21, 2013, Dr. Johnson examined plaintiff and made the following “estimates” with respect to work restrictions: lift 10 pounds rarely; sit, stand and walk occasionally with position changes at least every 30 minutes; no kneeling, squatting, climbing, reaching overhead, pushing or pulling; and rare horizontal. AR 383 and 454.

         On November 8, 2013, Oshan assessed the following work restrictions for plaintiff:

lifting and carrying up to 10 pounds; occasional sitting, standing, walking and overhead reaching; rare kneeling and squatting; one hour repetitive tasks or material handling at a time; no prolonged bending; no exposure to hazards; a change of positions every 30 minutes; no heavy pushing or pulling; and keeping work close and relatively light. AR 445.

         Dr. Erickson has treated plaintiff for 15 years. On August 21, 2014, he found that plaintiff was limited to lifting 10 pounds occasionally and rarely squatting, kneeling or reaching horizontally and overhead. AR 53, 471-72. He also stated that plaintiff needed a sit and stand option with a change of position every 30 minutes and breaks every 30 minutes. Id. Dr. Erickson affirmed those limitations on April 9 and May 28, 2014. AR 53, 492-94. On July 27, 2015, Dr. Erickson completed a “work excuse/restrictions form” on which he wrote that plaintiff could sit for 20 minutes and stand for 15 minutes at a time before rotating her position, needed unscheduled breaks and would be absent from work two or more days per month. AR 509.

         Two state agency physicians also provided opinions on plaintiff's physical ability. During the initial review of plaintiff's application for benefits, Dr. Mina Khorshidi reviewed plaintiff's medical records and concluded on October 9, 2013 that plaintiff could perform sedentary work. AR 27, 68-69. On March 10, 2014, at the reconsideration level of review, Dr. George Walcott found that plaintiff was capable of light work with some postural limitations. AR 27, 90-91. Neither physician discussed whether plaintiff would have to change positions or take unscheduled breaks.

         On August 26, 2015, Administrative Law Judge Debra Meachum held an administrative hearing at which plaintiff and a vocational expert testified. AR 44-45. Plaintiff testified that she uses a cane to walk, has trouble standing more than 10 minutes at a time and lies down a lot. She said she could sit for 15 minutes. AR 48. The administrative law judge did not discuss plaintiff's health with the vocational expert except to the extent of presenting the expert a series of hypothetical questions involving an individual limited to sedentary exertion with several additional limitations that included a sit and stand option while at the work station and being off-task up to 10 percent of the workday. AR 56. Although the vocational expert testified that such an individual could perform work in the national economy, she noted that there would be no jobs available for an individual with the same limitations who also needed unscheduled breaks. AR 57-58.

         The administrative law judge issued a written decision on October 5, 2015, finding that despite plaintiff's severe impairments of osteoarthritis and allied disorders, degenerative disc disease, back and right shoulder disorders, status post bilateral knee replacements, diabetes mellitus and obesity, she retained the residual functional capacity to perform a limited range of sedentary work, including the limitation that, “[i]n addition to the regular breaks required by OSHA (including two 20-minute breaks and one 30-45 minute lunch break), she may be off task up to 10 percent of the workday.” AR 22-23. In reaching this decision, the administrative law judge considered the opinions of plaintiff's treating providers and gave partial weight to the opinions of Dr. Johnson, Dr. Erickson and Oshan “to the extent that [they] are consistent” with the overall evidence and the residual functional capacity assessment. AR 26-27. The administrative law judge gave some weight to the findings of the state agency physicians, ...

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