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Jacobs v. Berryhill

United States District Court, W.D. Wisconsin

March 30, 2018

ROY JACOBS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Pursuant to 42 U.S.C. § 405(g), plaintiff Roy Jacobs seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, which denied his application for Supplemental Security Income. On March 6, 2018, the court held oral argument regarding claimant's contention that the ALJ erred in his (1) assessment of the limiting effects of Jacobs' fibromyalgia; and (2) classification of Jacobs' past relevant work at a gas station as a composite job. For the reasons provided below, the court will reverse the Commissioner's determination and remand this case for proceedings consistent with this opinion.

         BACKGROUND

         A. Overview of Claimant

         Jacobs, who was 59 at the time of his hearing, suffers from fibromyalgia and degenerative joint disease. (AR 21.)[1] He filed an application for Supplemental Security Income on the basis of these conditions and affective disorder. (Id.) He last worked in a gas station primarily as a cashier but also had some additional stocking responsibilities.

         B. Medical Record

         Jacobs was first diagnosed with fibromyalgia by Dr. JoAnn Kriege in 2010. Still, on October 30, 2012, Jacobs' treating physician, Dr. Adam Balin, found he possessed normal mental activity, was alert and possessed normal speech. (AR 23.) While Jacobs's gait was slow, it was stable with independent transfers. (Id.) Coordination, circulation and mental state were all normal. (Id.) Dr. Balin also found no acute inflammation in the joints and normal neck range motion. (Id.) These findings remained consistent throughout 2012, with the exception of a case of suspected pan-sinusitis where antibiotics were prescribed. (Id.)

         Between an emergency room visit in November 2013 and December 2014, no further medical treatment occurred. (AR 23.) Nevertheless, Dr. Balin issued a residual functional capacity (“RFC”) opinion in February 2014, which found that Jacobs was unable to continuously sit for more than 30 minutes or stand for more than 20 minutes. (AR 318.) In an eight-hour working day, Dr. Balin also found that Jacobs could only stand and walk for less than two hours and would need to be able to shift positions between sitting, standing and walking at will. (Id.) Dr. Balin further found that Jacobs would require unscheduled breaks every one to two hours for 10 to 30 minutes during an eight-hour working day. (Id. at 318-19.) Finally, he found that Jacobs could only occasionally lift and carry amounts of 20 pounds or less and would likely need to miss work about twice a month. (Id. at 319-20.)

         C. ALJ's Decision

         On December 26, 2012, Jacobs filed for Supplemental Security Income claiming disability beginning on November 18, 2012. A hearing was held before an ALJ and the vocational expert (“VE”) in 2012, and the claim was denied both initially and upon reconsideration. A request for a hearing was filed on December 21, 2013 and a hearing took place on December 4, 2014, before the same ALJ with the VE again testifying. While the ALJ found that fibromyalgia and degenerative joint disease were severe impairments, while finding that affective disorder was not, he concluded that Jacobs was capable of light work in his relevant past work as a cashier though with certain limitations. (AR 21-22.)

         OPINION

         Jacobs raises two challenges on appeal: (1) that the ALJ failed to properly assess the limiting effects of his fibromyalgia; and (2) that the ALJ failed to classify his past relevant work at the gas station as a composite job. The court will address each in turn.

         I. Fibromyalgia

         When this court reviews a final decision under 42 U.S.C. § 405(g), the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . .” Substantial evidence requires more than a “mere scintilla” of evidence and instead is “such relevant evidence as a reasonable mind might accept as adequate to support a ...


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