United States District Court, E.D. Wisconsin
GARY W. PRIESSNITZ, Plaintiff,
NANCY A. BERRYHILL, Defendant.
DECISION AND ORDER
William C. Griesbach, Chief Judge
an action for judicial review of a decision by the
Commissioner of Social Security. Plaintiff Gary Priessnitz
challenges the decision of the Commissioner denying his
application for a period of disability and disability
insurance benefits (DIB) under Title II of the Social
Security Act. He claims that the ALJ erred in denying his
application and the decision is not supported by substantial
evidence. Specifically, he argues that the Administrative Law
Judge (ALJ) articulated a Residual Functional Capacity (RFC)
that was not supported by substantial evidence and that the
ALJ gave insufficient weight to his subjective symptoms. For
the reasons set forth below, the decision of the Commissioner
will be affirmed.
24, 2014, Priessnitz filed an application for Social Security
Disability Insurance Benefits, alleging an onset date of
August 1, 2008, due to dyslexia, bulging discs in his back,
and a pinched nerve. R. 221-22, 248. Because of a final
decision denying an earlier application for the period ending
January 28, 2011, Priessnitz later amended his onset date to
January 29, 2011, at which time he was 49 years old. R. 113,
139. And because he was last insured under the Social
Security disability program on December 31, 2013, he was not
eligible for DIB unless his disability arose prior to that
time. R. 139, 147. Thus, to prevail, Priessnitz had to show
he was disabled or had become disabled during the almost
three-year period between January 29, 2011, and December 31,
on the review of the record by the doctors and disability
specialists at the state agency, Priessnitz' July 24,
2014 application was initially denied on November 5, 2014. R.
162. Priessnitz sought reconsideration, and his application
was again denied on May 12, 2015. R. 166. Priessnitz
requested a hearing, and on August 29, 2016, a hearing was
held before ALJ Jeffry Gauthier. R. 35. Both Priessnitz, who
was represented by counsel, and a vocational expert (VE)
testified at the hearing. R. 36.
hearing, Priessnitz testified that prior to his alleged onset
date he worked for many years in the paper industry, where he
set up and operated machines as a slitter, a laminator, and a
rewinder. R. 46-50. He claims he became disabled when he was
hit by a car while driving his motorcycle and injured his
right shoulder in 2008. R. 53. Priessnitz testified that he
has had chronic shoulder pain since that time despite two
surgeries on the shoulder in the year after the accident. R.
54-55. Other than the two surgeries and physical therapy,
Priessnitz denied he has received any other treatment for his
shoulder, and was currently taking only over-the-counter
medication for pain. R. 57. He stated that he continued to
exercise his shoulder to keep it limber, but it has grown
weaker over time with decreased muscle mass. R. 58.
testified that problems with his neck and back also prevented
him from working. R. 59. He said a doctor told him he had
arthritis in his neck, but could not recall when. R. 59. He
had surgery on his back but wasn't sure what was done. R.
59-60. He also said he had injections in his back within the
past year. R. 60-61. Though he had been having problems with
his back for several years prior to 2014, Priessnitz
testified that he did not see a doctor for his back and neck
until 2014, because he doesn't like doctors and put it
off until he couldn't stand the pain. R. 61. He also used
a cane which he said a doctor had prescribed for him five or
six years ago and which he used to attend every doctor's
appointment or whenever he had to walk from a parking lot to
wherever he was going. R. 62.
asked to describe a typical day during the relevant time
period, Priessnitz responded “my life is hell.”
R. 63. He testified that he was unable to throw a football or
a frisbee, or even to stand up for a typical shower. He was
unable to walk around the block. R. 64. On a typical day,
Priessnitz testified that he would get up at 5:00 a.m., have
a cup of coffee, go outside, and sit on the porch if it's
a nice day, and then watch TV and fall asleep on the couch.
If he felt able, he would walk out to his garage and organize
his tools. Then he would go back to the house and lie on the
couch, talk to his kids when they got home from school, and
fix them dinner. R. 65.
response to further questioning by his attorney, Priessnitz
testified that he was unable to raise his arms above shoulder
level without excruciating pain. R. 69. He also testified he
had difficulty opening jars, dressing himself, and washing
his hair. Every day, his neck pain would reach a 10 on a
10-point scale at least once for fifteen minutes to an hour,
regardless of what activity he undertook. R. 70-71. He
testified he was unable to look up and felt dizzy when he
looked down. R. 71-72. He said he could stand for about 20
minutes if he had something to lean against, otherwise only
15 minutes, but then had to lie down for about 10 minutes. R.
other hand, Priessnitz also testified that he went camping
with his family twice a year and rides a Honda 70 motorcycle
in order to get around the campgrounds. R. 79-80. He also
testified that in May of 2015, he fractured his right elbow
when he tripped over the trailer and fell while waxing one of
his two wave runner personal water crafts. R. 82-83. Finally,
Priessnitz acknowledged that when he had his back surgery in
July 2014, he told the doctor that he had been having
problems for about two years but was functioning fairly well
until 3 to 4 months earlier when the pain became worse and
finally unbearable in the last 2 to 3 months. R. 81.
eleven page decision dated November 2, 2016, the ALJ
determined that Priessnitz was not disabled during the
relevant time period. R. 148. The ALJ's decision followed
the five-step sequential process for determining disability
prescribed by the Social Security Administration (SSA). At
step one, the ALJ concluded that Priessnitz had not engaged
in substantial gainful activity between January 29, 2011, the
alleged onset date, and December 31, 2013, his date last
insured. R. 141. At step two, the ALJ concluded that
Priessnitz had three severe impairments during the period of
time under review: disorder of the spine, status post-right
shoulder surgeries, and obesity. Id. At step three,
the ALJ concluded that none of Priessnitz' severe
impairments met or medically equaled the severity of any of
the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. R. 142. Specifically, the ALJ considered listings
1.02 (major dysfunction of a joint) and 1.04 (disorders of
the spine), as well as Social Security Ruling 02-1p, which
requires the ALJ to account for obesity throughout the
sequential evaluation process, including when reviewing the
listings during step three. Id.
proceeding to step four, the ALJ assessed Priessnitz' RFC
and determined that he has the ability to perform light work
as defined in 20 C.F.R. § 404.1567(b), subject to the
following limitations: “no climbing of ladders, ropes
or scaffolds; no more than frequent overhead reaching with
the upper extremities bilaterally; and an allowance to be off
task less that 10% of the time in an 8-hour workday in
addition to normal breaks.” R. 143. The ALJ dedicated
four and a half pages to explaining the basis for this RFC
determination. R. 143-47. In particular, the ALJ assigned
great weight to the RFC opinions of state agency medical
consultants Dr. Mina Khorshidi and Dr. Benhamin Cortijo, and
he explained his bases for discounting Priessnitz'
subjective reports regarding his symptoms of pain. R. 145-47.
four, the ALJ determined that Priessnitz, based on his RFC,
is not capable of performing his past relevant work. R. 147.
But based on the testimony of the VE at the hearing, the ALJ
then concluded at step five that Priessnitz is capable of
performing other jobs that exist in significant numbers in
the national economy. R. 147. Specifically, the ALJ noted the
VE's testimony that Priessnitz is capable of performing
work as a deli worker, counter attendant, and marker/labeler.
R. 148. Accordingly, the ALJ concluded that Priessnitz was
not disabled between his amended alleged onset date of
January 29, 2011, and December 31, 2013, his date last
insured. R. 148.
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) (quoting Richardson v.
Perales, 404 U.S. 389, 401 (1971)). 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).
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 v. ...