United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
• 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 ...