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Schiltz v. Berryhill

United States District Court, E.D. Wisconsin

March 19, 2018

MICHELLE JOYCE SCHILTZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court.

         This is an action for judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying Plaintiff's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. 42 U.S.C. § 405(g). Plaintiff claims that the Administrative Law Judge's (“ALJ”) erred in failing to explain the basis for his finding that she retained limited use of her right arm and could lift up to five pounds. Upon review of the record, I find that the ALJ did in fact explain how he arrived at Plaintiff's residual functional capacity and substantial evidence supports his finding concerning Plaintiff's use of her right arm. The decision of the Commissioner is therefore affirmed.

         BACKGROUND

         On October 23, 2014, Plaintiff Michelle Schiltz, then age 44, filed an application for DIB and SSI with an alleged onset date of January 25, 2013, due to back problems, deterioration, pinched nerves, and fibromyalgia. R. 68, 86. The onset date was later changed to October 24, 2013, to avoid any overlap with the denial of a previous application. R. 19. In any event, the SSA denied the applications initially on April 23, 2015, and upon reconsideration on August 25, 2015. R. 151-58, 161-70. After her application and request for reconsideration were denied, Plaintiff requested an administrative hearing. ALJ Timothy Malloy held a hearing on June 7, 2016. R. 39. Plaintiff, who was represented by counsel, and David Oswald, a vocational expert, both testified. R. 40.

         At the hearing, Plaintiff testified that she last worked on 2013. Her last several jobs had been as a cook in a restaurant. She had also worked as a cashier in retail stores and in factories through temporary employment agencies. R. 44-46. At the time of the hearing, Plaintiff testified she had been living in an apartment with her teen-age daughter and her oldest daughter's four children for whom she had been appointed guardian, though she had recently moved to a hotel by herself due to overcrowding. She was enrolled in Wisconsin Works (W-2), a temporary assistance program for low income parents, from which she received $608 per month, which was supplemented by sporadic child support payments from her ex-husband. Although the W-2 program was intended to last for only two years, Plaintiff had been on it for seven-and-a-half years due to repeated extensions. She testified that at first, she had been looking for a job, but discontinued her search because of her health. R.47-49. She also acknowledged that her criminal record made it hard to get jobs, and that her employment history even before her alleged onset date was sparse. R. 52-53, 56.

         As to her physical condition, Plaintiff testified that she had problems with her right shoulder, her lower back and her neck sometimes. R. 56. She had undergone three separate surgeries, a cervical discectomy depression and fusion at ¶ 6-7 in March of 2014, and two rotator cuff repairs on the shoulder of her right (non-dominant) arm, also in 2014. R. 49-50. With respect to her cervical problem, Plaintiff testified that she had “good days and bad days with the pain.” R. 51. She did not believe her surgeries had significantly improved her pain in her shoulder and neck. Plaintiff also complained of pain in other regions of her body which she attributed to lumbar disc problems and fibromyalgia. R. 58-59. Finally, Plaintiff testified her family physician prescribed unspecified medication for her depression, but she had not seen a psychiatrist or psychologist. R. 55-56.

         In a June 21, 2016 decision, the ALJ determined that Plaintiff was not disabled. R. 16-33. Following the five-step sequential process prescribed by the Social Security Administration (SSA), the ALJ concluded at step one that Plaintiff has not engaged in substantial gainful activity since October 23, 2014. R. 21. At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease, degenerative joint disease, COPD, obesity, anxiety, and depression. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled on of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then determined that Plaintiff had the residual functional capacity (“RFC”):

to perform light work as defined in 20 C.F.R. § 416.967(b) except she can never climb ladders, ropes and scaffolds; she must avoid moderate exposure to the use of moving machinery and unprotected heights; she cannot reach overhead with the right upper extremity; she is limited to lifting and carrying five pounds with her right upper extremity; she must avoid moderate exposure to irritants such as fumes, odors, dusts, and gases; she is limited to unskilled work performing simple, routine and repetitive tasks; she will be off-task ten percent of the workday in addition to regular breaks; she is limited to occasional decision making and changes in her work setting; and she can only perform work that allows for a flexible pace.

R. 25.

         Based on the testimony offered by the vocational expert at the hearing, the ALJ determined at step four that considering her age, education, and work experience, Plaintiff would not be able to return to her past work. R. 62-63. The ALJ concluded at step five, however, again based on the testimony of the vocational expert, that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as counter attendant, marker/labeler, and shipper weigher. R. 32-33. Based on these findings, the ALJ determined Plaintiff was not disabled. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on October 5, 2016. R. 1.

         LEGAL STANDARD

         On judicial review, a court will uphold the Commissioner's decision if the ALJ applied the correct legal standards and supported the decision with substantial evidence. 42 U.S.C. § 405(g). “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, 402 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 v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). The ALJ must provide a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the Agency's own 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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