United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
fourth time, plaintiff Frances Rider appeals from a denial of
her application for disability insurance benefits, first
filed in 2005. Before the court are the parties'
dueling motions. The Commissioner moves for yet another
remand for further proceedings. (Dkt. #8.) In contrast,
plaintiff moves for summary judgment and for judgment as a
matter of law (dkt. ##10, 14), seeking to reverse the
Commissioner's decision outright and award plaintiff
obvious issue is whether the factual record now before this
court permits an outright award of benefits or whether yet
another remand for further proceedings is
required. Plaintiff argues the Commissioner's
four previous denials of plaintiff's application for
benefits exhibit a stubbornness that should no longer be
tolerated, while conceding that the Seventh Circuit advises
“[o]bduracy is not a ground on which to award benefits;
the evidence properly in the record must demonstrate
liability.” Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 357 (7th Cir. 2005). This is
because the court only has the authority to award benefits
for the reasons set forth in 42 U.S.C. § 423, “an
award of benefits is appropriate only if all factual issues
have been resolved and the record supports a finding of
disability.” Id. at 356. Put differently, a
direct award of benefits is appropriate only if plaintiff is
able to establish clearly her eligibility for disability
benefits and “the outcome on remand [is]
pre-determined.” Allord v. Astrue, 631 F.3d
411, 417 (7th Cir. 2011).
so, plaintiff can be forgiven for expecting finality after
almost thirteen years in this process, and to her credit
argues that she has made the necessary showing that the ALJ
should have found disability based on the testimony of the
medical and vocational experts at the fourth hearing.
Nevertheless, the court must disagree.
October 9, 2015, ALJ Thomas issued a nine-page decision
finding plaintiff not disabled between February 11, 2004, her
claimed onset date, and December 31, 2006, her date last
insured. (AR 1014.) Despite finding that Rider had severe
impairments of major depressive disorder, hearing impairment,
shoulder bursitis, obstructive sleep apnea and obesity, the
ALJ determined that Rider had the following residual
functional capacity (“RFC”):
To perform light work as defined in 20 CFR 404.1567(b) except
that she was limited to occasionally kneeling, crouching, and
crawling, frequently climbing stairs, ramps, ladders, ropes,
and scaffolds, frequently balancing and stooping, could not
be exposed to unprotected heights or similar hazards, could
be exposed to noisy environments or very loud noises or be
allowed to use hearing protection, was limited to repetitive
3-4 step tasks, and could have no more than brief and
superficial contact with others, defined as an 8 in the 5th
digit of the DOT code.
(AR 1016, 1018-19.)
issuing his decision, ALJ Thomas held a hearing at which an
impartial medical expert, Mary L. Stevens, Ph.D., and an
impartial vocational expert, Robert A. Brezinski, appeared
and provided testimony. (AR 1014.) Relying on their
testimony, the ALJ again found the plaintiff not disabled.
would fault the ALJ's evaluation of the testimony of
these two experts. First, plaintiff points to the medical
expert's opinion testimony at the hearing, which was
based on her review of the medical records. The expert
testified that Rider was capable of “three- to
four-step repetitive work tasks with brief and superficial
contact with others.” (AR 1231.) Relatedly, plaintiff
then cites the following exchange between her counsel, who
also represents her in this appeal, and the medical expert:
Q: You indicated . . . “she's capable of three- to
four- step repetitive work duties, ” right?
Q: Now does that mean like processes or does that mean
A: Because I'm not a vocational expert, I'm not able
to differentiate on that. I would defer to Mr. Brezinski
about the ...