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Dudley v. Berryhill

United States District Court, E.D. Wisconsin

March 5, 2018




         This is an action for judicial review of a decision of the Commissioner of Social Security denying Plaintiff Bonnie Dudley's application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Dudley contends that the Administrative Law Judge (ALJ) erred by failing to properly account for limitations on her ability to maintain concentration, persistence, and pace when articulating her Residual Functional Capacity (RFC) and by failing to assign appropriate weight to the opinion of an examining psychologist. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Plaintiff filed her application for disability and disability insurance benefits (DIB) on May 9, 2013, alleging that she has been disabled since July 24, 2012, as a result of anxiety, panic attacks, depression, attention-deficit disorder, arthritis, chronic back pain, and pain in her hip and leg. R. 77. At the time of her application, Plaintiff was 47 years old and lived in Gillett, Wisconsin, with her husband, daughter, and four granddaughters. R. 46. Her last insured date for purposes of DIB was December 31, 2013. R. 45. Prior to 2012, she worked in nursing homes, primarily as a cafeteria cook but also periodically cleaning dishes or doing laundry and other housekeeping. R. 48, 63-65. Her application was denied both initially in October 2013 and on reconsideration in April 2014. R. 91, 108. She requested a hearing before an ALJ, and ALJ Edward Studzinski held a hearing on October 9, 2015. R. 41, 156-57.

         Both Plaintiff, who was represented by counsel, and a vocational expert (VE) testified at the hearing. Plaintiff testified that she lived in Gillett, Wisconsin in a mobile home with her husband, who was receiving disability, her 31-year-old-daughter, and four grandchildren. She was five feet, two inches tall and weighed 190 pounds, though her normal weight was 145 pounds. She had a high school diploma and a technical college degree in dietary management. Plaintiff testified that she last worked in 2012 doing cooking, dishes, and laundry at a nursing home, but the last substantial gainful employment she had was in 2002. R. 46-48.

         Plaintiff testified that she was unable to work because of pain and anxiety. She testified that she had pain all over depending on what she was doing. She had pain in her lower back when she worked with her arms and had constant pain in her legs, hips, and upper back that worsened with activity. On a scale of one to ten, with ten meaning she needed to be at the hospital, she said her pain was at an eight. She testified she had been treating her pain with Vicodin for about three years which was prescribed by Dr. Asma, who she was seeing with the help of Medical Assistance. R. 49-50. She had previously tried physical therapy and a chiropractor, but had declined injections because she'd “heard bad things about injections.” R. 51.

         Plaintiff testified she could sit for only 30 minutes before her legs would fall asleep and she would have to readjust to lessen the pain. The pain was always there, however, and she testified she normally would not sit for 30 minutes. She testified she could stand for 15 minutes and then had to sit down to take the pressure off her back. She estimated the total amount of time she could stand in an eight-hour day at two hours, but would probably be unable to do even that five days in a row. She estimated she could lift a gallon of milk, but not if she had to do it off and on for two hours. If she attempted to exceed those limitations she would hurt more. R. 51-53. During the course of a day, Plaintiff testified that she would lie down off and on for two hours over an eight hour period. She would rotate between sitting, standing, and lying down all day long, but seldom sleep. Even with Vicodin, her pain remained at a level eight. She was unable to bend down to tie her shoes or pick something up from the floor, though she could pick things up if she crouched. She also had difficulty reaching with her arms. R. 54-55.

         For her anxiety, Plaintiff testified that she took Alprazolam, Zoloft, and Adderall. She said she had difficulty focusing or concentrating, and comprehending what she was reading. She had only basis computer skills. Everything made her anxious-leaving the house, driving, people. She would go grocery shopping with her husband but only at certain times of the day. She seldom drove other than to the grocery store or to pick up her grandson. When she went to meet her mother in De Pere, she said her husband drove. R. 56-57. She had panic attacks a couple times a week that could last more than thirty minutes. R. 59.

         Plaintiff testified she was able to cook a meal and make the kids cereal for breakfast. She seldom cleaned because it was difficult to work with her arms in front of her. Her main activity or entertainment was watching TV, though she also tried to attend her grandchildren's events at school. No doctor, however, had ever limited her activity for medical reasons. R. 60-61.

         In an eleven page decision dated December 10, 2015, the ALJ determined that Plaintiff was not disabled. R. 22-31. 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 Plaintiff had not engaged in substantial gainful activity between July 24, 2012, her alleged onset date, and December 31, 2013, her date last insured. R. 24. At step two, the ALJ concluded that Plaintiff had five severe impairments during the period of time under review: anxiety disorder, depression, attention deficit hyperactivity disorder (ADHD), degenerative disc disease, and degenerative joint disease. R. 24 At step three, the ALJ concluded that none of Plaintiff's 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. 24.

         Before proceeding to step four, the ALJ assessed Plaintiff's RFC and found that she is capable of “perform[ing] a range of light work” as defined in 20 C.F.R. § 404.1567(b), subject to a lengthy set of limitations:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, and has no limitations in her ability to sit, stand or walk throughout an 8-hour workday. The claimant needs to alternate her position between sitting, standing, and walking for no more than five minutes out of every hour. While doing so, she would not need to be off task. The claimant can occasionally climb ramps and stairs, and she can occasionally stoop, kneel, balance, crouch and crawl, but [she] can never climb ladders, ropes or scaffolds. The claimant is limited to working in non-hazardous environments, i.e., no driving at work, operating moving machinery, working at unprotected heights or around exposed flames and unguarded large bodies of water, and [she] should avoid concentrated exposure to unguarded hazardous machinery. The claimant is further limited to simple, routine and repetitive tasks, work involving no more than simple decision-making, no more than occasional and minor changes in the work setting, and work requiring the exercise of only simple judgment. She can tolerate an average production pace, but not above average or variable pace. She is further precluded from work involving direct public service, in person or over the phone, although the claimant can tolerate brief and superficial interaction with the public, which is incidental to her primary job duties. She is unable to work in crowded, hectic environments. The claimant can tolerate brief and superficial interaction with supervisors and co-workers, but is not to engage in tandem tasks.

         R. 26. In arriving at this RFC, the ALJ found Plaintiff's testimony and statements concerning the intensity, persistence, and limiting effects of her pain and other symptoms less than credible. The ALJ noted that “[w]hile medical records including examination observations and findings, and prescribed treatment, support the existence of medically determinable impairments, they do not document conditions which could reasonably be expected to give rise to the degree of limitation alleged.” R. 27.

         Following this statement of Dudley's RFC, the ALJ found at step four that Dudley would not be capable of performing her past relevant work as a cafeteria cook. R. 29. This determination relied on the VE's characterization of Dudley's previous work as performed at the medium exertional level. R. 29-30. At step five, however, the ALJ found that as of December 31, 2013, Dudley was capable of performing other jobs that exist in significant numbers in the national economy. R. 30. Relying on further testimony from the VE, the ALJ found that Dudley is capable of performing work as ...

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