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Rider v. Berryhill

United States District Court, W.D. Wisconsin

March 20, 2018

FRANCES RIDER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         For a fourth time, plaintiff Frances Rider appeals from a denial of her application for disability insurance benefits, first filed in 2005.[1] 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 benefits directly.

         The 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.[2] 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).

         Even 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.

         BACKGROUND

         On 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.)[3] 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.)

         Before 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.

         Plaintiff 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?
A: Correct.
Q: Now does that mean like processes or does that mean instructions?
A: Because I'm not a vocational expert, I'm not able to differentiate on that. I would defer to Mr. Brezinski about the ...

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