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Priessnitz v. Berryhill

United States District Court, E.D. Wisconsin

March 1, 2018

GARY W. PRIESSNITZ, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge

         This is 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.

         BACKGROUND

         On July 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, 2013.

         Based 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.

         At the 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.

         Priessnitz 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.

         When 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.

         In 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. 75-77.

         On the 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.

         In an 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.

         Before 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.

         At step 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.

         LEGAL STANDARD

         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) (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).

         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 v. ...


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