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Gambsky v. Berryhill

United States District Court, E.D. Wisconsin

March 20, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          William C. Griesbach, Chief Judge

         Plaintiff Doris Gambsky filed this action for judicial review of a decision by the Commissioner of Social Security denying her application for supplemental security income under Title XVI of the Social Security Act. She contends that the ALJ erred in her decision denying her application. In particular, she asserts that the Administrative Law Judge (ALJ) erred in her assessment of a consultative examiner's medical opinion and in failing to include limitations as to Plaintiff's ability to maintain concentration, persistence, and pace (CPP) in the hypothetical question she posed to the vocational expert (VE) who testified at the hearing. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Plaintiff filed her application for supplemental security income on August 14, 2012, alleging that she has been disabled since November 15, 2008, as a result of arthritis, cervical fusion, asthma, depression, migraines, and obesity. R. 71, 154. Her application was denied both initially in November 2012 and on reconsideration in August 2013. R. 70, 94. Plaintiff requested a hearing before an ALJ, and a hearing was scheduled for January 2015. On the day of the scheduled hearing, ALJ Janice M. Bruning granted a postponement to allow Plaintiff time to obtain representation. R. 52, 106, 111. The hearing was rescheduled for May 27, 2015, and Plaintiff ultimately proceeded at that hearing without an attorney or other representative. R. 52, 134. Both Plaintiff and a VE testified at the hearing. R. 50.

         At the time of the hearing, Plaintiff was 44 years old, five feet three-and-one-half inches tall, and weighed 210 pounds. R. 52. She lived in Oshkosh, Wisconsin, with her husband, who was disabled, and one of her two sons. R. 53, 65. Plaintiff testified that she has not worked since 2012. R. 54. However, in 2014 she began volunteering at a St. Vincent DePaul store, where she priced clothing and put it on hangers. R. 54-55. She said that she volunteered there four days each week for two-and-a-half hours each day, and she had been doing so for about a year before the hearing. R. 55. Although she had looked for other, paid work, she has struggled to find a position that would allow her the flexibility not only to sit or stand whenever she chose, but also to miss work when she is “having a bad day” due to pain, anxiety, or depression. Id. By the time she finishes a two-and-a-half hour shift, Plaintiff testified she is usually in pain. R. 60.

         With regard to physical ailments, Plaintiff testified that she experiences pain in her feet, ankles, knees, hips, hands, neck, and back, with the majority of the pain occurring in the back of her hips. R. 57. She testified that she took Tylenol Arthritis for the pain, but it was not as effective as the Lyrica she took when she had insurance. R. 57-58. Plaintiff has diabetes, which she previously treated with an oral medication. R. 55. After undergoing “weight loss” surgery in January 2015, she discontinued the medication and instead focused on diet and exercise. R. 55-56. She uses an inhaler and occasionally uses a nebulizer when a cold or other respiratory ailment exacerbates her asthma. R. 56. She testified that on a daily basis she gets headaches, which she treats using ice packs, Tylenol, and on rare occasions Excedrin or shots in the emergency room. Id. Her headaches usually last anywhere from a few hours to a few days, but when she had health insurance she could afford a medication that reduced their frequency to once or twice a week. R. 56-57.

         As a result of her physical impairments, Plaintiff testified that, on a good day, she can walk approximately one block without stopping, but on a bad day she said that she can barely walk across a room. R. 60. She testified that she can stand for approximately ten to fifteen minutes without needing to sit, and she can sit for approximately thirty minutes at a time. Id. She can lift ten to fifteen pounds, with fifteen pushing her limit. R. 61. Plaintiff testified that she has difficulties climbing stairs, bending, stooping, crouching, crawling, kneeling, and reaching overhead. Id. If she is not lifting anything, she has no difficulties reaching in front of herself, but extending her arms completely causes pain. Id. Any use of her hands causes pain. Id.

         As for her mental condition, Plaintiff testified that she has low self-esteem, as well as difficulty concentrating, thinking, and focusing. R. 58. She testified that she was not aware of any memory loss, but stated she experiences crying spells daily. Id. Plaintiff testified that she has occasionally thought of harming herself and that she experiences paranoia but not hallucinations. R. 58-59. She further testified that she experiences daily panic attacks that, at their worst, last the entire day. R. 59. When she has a panic attack, she testified, the inside of her body feels like it is quivering, she feels weepy, shaky, and nervous, and she experiences diarrhea and stomach ache, as if she is going to throw up. Id. She further testified that the previous fall she met with a doctor on an emergency basis when she was feeling suicidal thoughts associated with her depression. R. 59-60.

         Finally, Plaintiff answered several questions about her daily activities. R. 61-65. She testified that she struggles to stay asleep and uses a C-PAP machine. R. 61. Despite her pain, she testified that she has no problems bathing or putting on clothes and that she is able to prepare a meal, wash dishes, go to the grocery store, vacuum, dust, mop, and sweep, although she noted that her son and husband do the laundry. R. 62. She testified that she drives almost daily, but she said that she prefers not to because it is a source of anxiety for her. Id. At the time of the hearing, her son was a senior in high school, and she testified that she drove him to school before he learned to drive. R. 63. Plaintiff testified that she usually attended her son's choir performances at school, but she also explained that she would intentionally sit in a place-such as an aisle seat-where she could stand without causing a disruption. R. 63-64. Likewise, she attended church periodically, but she usually sat in a location where she could move periodically. R. 64. She testified that she no longer read books, magazines, or newspapers because she struggled to concentrate on them. Id. The family kept several pets, and Plaintiff testified that she would sometimes brush their cat and feed and give fresh water to their birds. R. 65.

         In a nineteen-page decision dated August 25, 2015, the ALJ determined that Plaintiff is not disabled. R. 26-44. The ALJ's decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 26-28. At step one, the ALJ concluded that Plaintiff has not engaged in substantial gainful activity since her August 14, 2012 application date. R. 28. At step two, the ALJ concluded that Plaintiff has nine severe impairments: osteoarthritis, bilateral knees; status post-fusion, cervical spine; degenerative disc disease, lumbar spine; asthma; obstructive sleep apnea; headaches; obesity; affective disorder; and anxiety disorder. R. 28.

         At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 30. With regard to her physical impairments, the ALJ considered listings 1.02 (major dysfunction of a joint), 1.04 (spinal disorders), 3.03 (asthma), and 3.10 (sleep-related breathing disorders), as well as Social Security Ruling 02-1p, which requires the ALJ to account for obesity throughout the sequential evaluation process. R. 30, 35. With regard to her mental impairments, the ALJ considered listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders) and determined that Plaintiff did not have a sufficient combination of marked impairments and repeated episodes of decompensation to satisfy the “paragraph B” criteria for either listing. R. 36-37. Nor did the evidence support the existence of either listing's “paragraph C” criteria. R. 38.

         The ALJ next assessed Plaintiff's Residual Functional Capacity (RFC) and found that she can perform sedentary work as defined in 20 C.F.R. § 416.967(a), subject to a long list of additional limitations. Id. Specifically, the ALJ found that the Plaintiff can:

• Occasionally lift a maximum of 10 pounds;
• Frequently lift and/or carry less than 10 pounds;
• Walk and/or stand for about 2 hours total out of an 8-hour workday;
• Sit at least 6 hours out of an 8-hour workday with an option to stand for 1 to 2 minutes after sitting for 30 minutes; and • Push and/or pull to include operation of hand/or foot controls with the bilateral upper and lower extremities as ...

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