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Norek v. Berryhill

United States District Court, E.D. Wisconsin

July 3, 2018

RITA NOREK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Rita Norek seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying her claim for a period of disability and disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). Since filing this lawsuit, the Social Security Administration found Norek disabled as of December 7, 2016. Thus, Norek requests review of a closed period between her alleged onset date of September 29, 2012 to December 6, 2016. For the reasons stated below, the Commissioner's decision is reversed and the case is remanded for further proceedings consistent with this decision pursuant to 42 U.S.C. § 405(g), sentence four.

         BACKGROUND

         Norek filed an application for a period of disability and disability insurance benefits, alleging disability beginning September 29, 2012, due to fibromyalgia, osteoarthritis, brain lesions, memory/cognitive impairment, migraines, severe muscle and tendon cramping and spasms, and severe fatigue. (Tr. 204-05.) A hearing was held before an Administrative Law Judge on November 16, 2015. (Tr. 34.) Norek, represented by counsel, appeared and testified at the hearing, as did Beth A. Hoynik, a vocational expert.

         In a written decision issued February 1, 2016, the ALJ found Norek had the severe impairments of fibromyalgia, osteoarthritis, torn meniscus of the right knee, and degenerative disc disease of the lumbar spine. (Tr. 20.) The ALJ further found that Norek did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (the “Listings”). (Tr. 22.) The ALJ found Norek had the residual functional capacity (“RFC”) to perform light work, except she can only occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs and she cannot climb ladders, ropes, or scaffolds. (Id.) The ALJ further limited Norek to only occasional exposure to unprotected heights and precluded her from exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants, and extreme heat and cold. (Id.)

         The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the plaintiff's request for review. (Tr. 1.) On her subsequent re-application for benefits, Norek was approved for benefits beginning June 2017 with an onset date of December 7, 2016. (Docket # 17-1.) Thus, Norek clarified that her appeal is only for the closed period of Norek's alleged onset date of September 29, 2012 to December 6, 2016. (Pl.'s Reply Br. at 1, Docket # 17.)

         DISCUSSION

         1. Applicable Legal Standards

         The Commissioner's final decision will be upheld if the ALJ applied the correct legal standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is not conclusive evidence; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (internal quotation and citation omitted). Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the SSA's rulings and regulations in making a determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006). In reviewing the entire record, the court does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).

         2. Application to this Case

         Norek alleges that the ALJ erred in two ways. First, she argues the ALJ improperly assessed her RFC by failing to account for her nonexertional limitations, specifically her problems with fatigue, memory, and concentration, and failing to include upper extremity limitations. Second, Norek alleges the ALJ improperly weighed the opinions of her treating medical providers, specifically, Dr. John Fahey (a rheumatologist), Dr. Paul Zuzick (a family medicine doctor), and Dr. David Tylicki (a pain management specialist). I will address each argument in turn.

         2.1 RFC Assessment

         Norek argues the ALJ erred in determining her RFC in two ways. First, she argues the ALJ failed to account for her nonexertional limitations in the RFC, specifically, fatigue and impaired attention, concentration, and memory. Second, she argues ...


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