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Hermes v. Berryhill

United States District Court, E.D. Wisconsin

December 29, 2017




         Plaintiff Lillian Hermes filed this action challenging the decision of the Acting Commissioner of Social Security denying her applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. She contends that the decision is not supported by substantial evidence. In particular, she asserts that the Administrative Law Judge (ALJ) failed to fully develop the record because she did not properly consider Hermes' impairments in combination with each other and she substituted her own opinions for those of medical professionals who examined Hermes. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Hermes filed applications for disability, disability insurance benefits, and supplemental security income on March 20, 2013, alleging that she has been disabled since July 1, 2010, as a result of bipolar disorder, insomnia, fibromyalgia, anxiety, depression, and a learning disability. R. 149, 164. At the time of her applications, Hermes was age 32 and lived at a homeless shelter in Manitowoc, Wisconsin. R. 149. During the four years preceding 2010, she worked primarily as a seasonal housekeeper in Door County, Wisconsin, for approximately five months at a time during the spring, summer, and early fall. R. 84-86, 1251. She also supplemented the seasonal cleaning work with seasonal kitchen work, including as a cook and washing dishes. R. 85, 1251. Although she walked out on some of these jobs-as she has with other jobs, over the years-she was also hired back each season because the employers appreciated the quality of her work. R. 57-58, 90. She stopped working the seasonal jobs in Door County only because it was too expensive for her to commute or live up there. R. 88.

         Since filing her applications in 2010, Hermes has worked irregularly for short periods of time. For a few weeks in the late spring and early summer of 2010, she worked as a house cleaner in Door County, but she stopped working that job because she was experiencing pain from the bending the work required and, in any event, she could no longer travel to it due to car troubles. R. 57. For a short time in 2012 Hermes worked at The Linen Press in Sturgeon Bay, where she ran cleaned cloth napkins through a press machine, but she walked out on that job “because of blowing up with [her] supervisor and . . . manager” after feeling disrespected by them. R. 57-58. In April 2015, she also worked for several hours in the City of Kewaunee water plant as part of a training placement through the Division of Vocational Rehabilitation (DVR) within the Wisconsin Department of Workforce Development. R. 57-58, 1254-63.

         Hermes' benefits applications were denied both initially in September 2013 and on reconsideration in February 2014. R. 163, 178, 200, 218. She requested a hearing before an Administrative Law Judge (ALJ), and ALJ Roxanne J. Kelsey held a hearing on November 5, 2015. R. 52, 235-36. At the hearing, Hermes, her boyfriend Eric Fonseca, and Vocational Expert Timothy Tansey all testified. R. 53.

         In a comprehensive twenty-seven page decision dated April 21, 2016, the ALJ determined that Hermes is not disabled. R. 44-45. The ALJ's decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 20-21. At step one, the ALJ concluded that Hermes met the insured status requirements through March 31, 2014, and that she has not engaged in substantial gainful activity since July 1, 2010, the onset date of her alleged disability. R. 21. At step two, the ALJ concluded that Hermes has five severe impairments: fibromyalgia, depression, anxiety, substance addiction, and a personality disorder. R. 22.

         At step three, the ALJ concluded that Hermes did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 22. Specifically, the ALJ considered listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), 12.08 (personality disorders), and 12.09 (substance addiction disorders) and determined that Hermes did not have a sufficient combination of marked impairments and repeated episodes of decompensation to satisfy the “paragraph B” criteria for any of those listings. R. 22-23. Nor did the evidence support the existence of any listing's “paragraph C” criteria. R. 23-24. The ALJ next assessed Hermes' residual functional capacity and found that she can perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). R. 24. Regarding this capacity, the ALJ found that Hermes could engage in “unlimited climbing of ladders, ropes, or scaffolds and frequent climbing of ramps and stairs” and that she “may frequently stoop, kneel, crouch, and crawl.” R. 24. Although moderate limitations in her pace would preclude her from performing work at a production or assembly-line pace, the ALJ found she could handle work that allows a more flexible pace. R. 24. Finally, the ALJ found that Hermes “would be absent or tardy or need to leave early about once every other month because of symptoms” and that she “may have occasional, brief, and superficial contact with supervisors, coworkers, and the general public because of moderate difficulties in social functioning.” R. 24.

         In support of this residual functional capacity conclusion, the ALJ engaged in a detailed, nineteen-page discussion of the record. R. 24-43. After summarizing hearing testimony by Hermes and her boyfriend, the ALJ methodically outlined Hermes' available medical records, some of which date to 2008, and explained that this “review of the longitudinal record establishes a history of mental health treatment and polysubstance dependence.” R. 27. Rather than reproduce this comprehensive review of Hermes' medical records-which the ALJ helpfully supported with frequent and precise citations to particular pages within the record exhibits-the ALJ's summary of the record encapsulates her findings:

The record clearly documents a history of mental health treatment with symptoms of depression and anxiety as well as elements of a personality disorder. However, these records also show that the claimant tends to experience exacerbated symptoms when she is abusing substances, including abuse of prescription medication. Her involvement in volatile personal relationships only serves to compound the problem. Notwithstanding, the record documents this history going back to at least 2008, yet, the claimant has been fairly consistent with regard to performing seasonal housekeeping work despite her substance abuse and relationship issues. The claimant has admitted that she has walked off several jobs due to conflict but also testified that her employers have rehired her when the season begins because she was a good worker who was very detail oriented and willing to work hard. . . .
Mental status examinations have typically shown a logical thought process and intact memory but show agitation when the claimant is experiencing problems related to obtaining medication or does not feel that treating sources are in agreement with her diagnoses and resulting limitations.

R. 39-40. Hermes takes issue with the ALJ's treatment of particular documents and opinions within her medical records, and those sources will be discussed in greater detail as in the analysis below.

         Based on the residual functional capacity determination, the ALJ found that Hermes is capable of performing her past relevant work as a housekeeper. R. 43. This conclusion relied on the vocational expert's characterization of Hermes' past housekeeper work as unskilled, light in exertional demand, and performed at the medium level. R. 43. In the alternative, the ALJ also found that Hermes is capable of performing other jobs that exist in the national economy, citing the positions of handpacker, cafeteria attendant, and mail clerk, all identified by the vocational expert at the hearing. R. 43-44.

         After finding that Hermes could perform past relevant work or, in the alternative, that she could perform other work that exists in significant numbers in the national economy, the ALJ found that Hermes had not been under a disability since her alleged onset date on July 1, 2010. R. 44-45. Hermes requested that the Appeals Council review the ALJ's ...

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