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Mischler v. Berryhill

United States District Court, E.D. Wisconsin

January 23, 2018

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


          William C. Griesbach, Chief Judge

         This is an action for judicial review of the final decision of the Commissioner of Social Security denying Judith Mischler's application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. 42 U.S.C. § 405(g). Plaintiff challenges the decision by the Administrative Law Judge (ALJ) denying her benefits, arguing that he failed to follow Social Security Administration (SSA) rulings and regulations and is not supported by substantial evidence. For the following reasons, the decision of the Commissioner will be affirmed.


         On September 18, 2006, Mischler filed an application for SSI, claiming she had been disabled since her diaphragmatic hernia surgery on January 16, 2004. Her application was denied initially and on reconsideration, and she requested a hearing. ALJ John Kays conducted a hearing and on September 18, 2008, issued a decision in which he concluded Mischler was in fact disabled because of severe impairments consisting of depression and chronic abdominal pain. R. 66, 68. Mischler was thereafter awarded SSI benefits. Her benefits were later suspended because she was over the resource limit for SSI eligibility. R. 76-77. According to Mischler, “they found out about a business [she] and her husband owned and she was cut off after that and the couple had to sell the business.” R. 955. In any event, because the suspension was over a year, a new medical determination was required. R. 77, 176.

         Mischler filed a new application for SSI on October 25, 2013, again claiming that she had been disabled since her hernia surgery on January 16, 2004, due to “surgery on diaphragm and pain ever since.” R. 74. SSA denied Mischler's application on December 20, 2013. After her application and request for reconsideration were denied, Mischler requested an administrative hearing. ALJ Joseph D. Jacobson held a hearing on December 2, 2015. Both Mischler, who was represented by counsel, and a vocational expert (VE) testified at the hearing. R. 38-62.

         At the hearing, Mischler, who at the time was 44 years old, testified that she lived alone in her house in Pearson, Wisconsin. She completed the tenth grande of high school but eventually earned a GED and a CNA certificate. Mischler worked first as a CNA and then owned a sawmill with her husband until 2004. She testified that since her diaphragmatic hernia surgery, she has had a constant, unbearable burning pain in her chest. R. 48. She also testified that she suffers from depression and anxiety. R. 51.

         In a decision dated January 5, 2016, the ALJ determined Mischler was not disabled. R. 23-32. The ALJ concluded Mischler met the insured status requirements and had not engaged in substantial gainful activity since October 25, 2013, the application date. The ALJ found Mischler had four severe impairments: affective disorder, anxiety disorder, spine disorder, and pain disorder with chronic abdominal pain. R. 25. At step three, the ALJ determined that Mischler's impairments did not meet or medically equal any listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. Id. He reasoned that the medical evidence of record does not support a finding that Mischler experiences symptoms or limitations of a severity sufficient to meet or medically equal the requirements set forth in listings 1.04, 12.04, and 12.06. As to Mischler's mental impairments, the ALJ recognized that Mischler had depression and anxiety but concluded her mental impairments did not meet or medically equal the criteria of listings 12.04 and 12.06. He accepted and adopted “the opinions and supporting rationale of state agency physician Ellen Rozenfeld, Psy.D. in finding that the claimant has only mild restriction in activities of daily living; mild difficulties in social functioning; and moderate difficulties with regard to concentration, persistence or pace.” R. 27. He expressly noted that these limitations “are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process.” R. 28.

         The ALJ ultimately determined Mischler had the following residual functional capacity (RFC):

the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b) except occasional pushing, pulling, climbing of ramps and stairs, stooping, and crouching; no climbing of ladders, ropes, or scaffolds; frequent balance, kneel, and crawl; is limited to simple, routine, repetitive tasks in a low stress job (defined as one with only occasional decision making or changes in the work setting required); only occasional interaction with the public and coworkers (with no tandem tasks); no piece work or assembly line-type work; and must be allowed to be off task up to 10 percent of the work day, in addition to regularly scheduled breaks.

R. 28. With these limitations, the ALJ found that Mischler was unable to perform any past relevant work. R. 30. Nevertheless, he concluded she is capable of making a successful adjustment to other work that exists in significant numbers in the national economy, such as mail clerk, order filler, and shipping clerk. Based on these findings, the ALJ concluded Mischler was not disabled within the meaning of the Social Security Act. R. 32. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Mischler's request for review on October 4, 2016. R. 1. Thereafter, Mischler commenced this action for judicial review.


         The statute authorizing judicial review of decisions of the Commissioner of Social Security states that the findings of the Commissioner as to any fact, “if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is “such relevant evidence as a reasonable mind could accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and his conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the SSA's rulings and regulations in making a determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006). In reviewing the entire record, the court does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger ...

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