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Hoeppner v. Berryhill

United States District Court, E.D. Wisconsin

March 14, 2019

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


          William C. Griesbach, Chief Judge United States District Court

         This is an action for judicial review of a decision by the Commissioner of Social Security denying the applications of Plaintiff Robert Hoeppner for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. Hoeppner first filed his applications nine years ago in March 2010, alleging disability due to nerve damage in his lower back and right leg with an onset date of January 15, 2009, when he was thirty years old. Following the denial of his applications, both initially and on reconsideration, Hoeppner requested a hearing before an administrative law judge (ALJ). R. 196, 205, 214. An ALJ issued a decision on February 17, 2012, finding that Hoeppner had severe impairments of “right ilioinguinal mononeuropathy; sacral cyst; somatoform disorder with psychological factors and medical condition; depression chronic; learning disorder, N.O.S.; and rule out borderline intellectual functioning, ” but concluding that Hoeppner was not disabled. R. 178-85.

         Hoeppner appealed, and the Social Security Administration (SSA) Appeals Council remanded the case to an ALJ on February 12, 2013. R. 192-93. After a second hearing, an ALJ issued a decision on September 4, 2014, again concluding that Hoeppner was not disabled. R. 24-38. After Hoeppner sought review of the ALJ's decision in this court, the parties jointly stipulated to remand the case back to the SSA in September 2016. R. 1074-75, 1081-83. The Appeals Council issued an order of remand setting forth the issues that the ALJ must resolve and ordering that a subsequent, duplicative claim for Title XVI benefits that Hoeppner filed be consolidated. R. 1081-83.

         On September 6, 2017, the ALJ held a video hearing where Hoeppner, who was represented by counsel, and a VE testified. R. 945, 953-90. In a 22-page decision dated October 16, 2017, the ALJ thoroughly described and analyzed the evidence before him and concluded that Hoeppner was not disabled. R. 914. The ALJ found that Hoeppner met the Social Security Act's insured status requirements through June 30, 2013, and had not engaged in substantial gainful activity since January 15, 2009, the alleged onset date. R. 915-16. The ALJ found that Hoeppner had the following severe impairments: peripheral neuropathy, affective disorder, somatoform disorder, and a learning disorder. R. 916. The ALJ then concluded that Hoeppner did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 917.

         After consideration of the entire record, the ALJ ultimately determined that Hoeppner had the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), “except he must avoid even moderate exposure to unprotected heights, hazards, and use of moving machinery. The claimant is also limited to simple, routine, and repetitive tasks, with no fast-paced work, only simple work-related decisions, occasional workplace changes, and only occasional interaction with the public and supervisors.” R. 919. The ALJ determined that these limitations made Hoeppner unable to perform any past relevant work, but that there were jobs that existed in significant numbers in the national economy that he could perform, such as laminator, assembler, and table worker. R. 932-33. Based on these findings, the ALJ determined that Hoeppner was not under a disability, as defined in the Social Security Act, from January 15, 2009, through the date of the decision. R. 933-34. Hoeppner now seeks judicial review. See 42 U.S.C. § 405(g).

         Hoeppner does not challenge the ALJ's findings with respect to his physical impairments. Instead, he claims that the ALJ failed to adequately incorporate the moderate limitations in concentration, persistence, or pace (CPP) caused by his mental impairments into the residual functional capacity (RFC) determination and the corresponding hypothetical questions posed to the vocational expert (VE), thereby failing to comply with an Appeals Council remand order. Hoeppner also claims the ALJ erred in the weight assigned to a treating source opinion. For the reasons set forth below, the Commissioner's decision will be reversed and remanded for further proceedings.


         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 “such relevant evidence as a reasonable mind could accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). 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)).


         After the ALJ's decision was remanded by stipulation, the Appeals Council issued a remand order setting forth the issues the ALJ needed to resolve. See R. 1081-83. The remand order stated that the ALJ's decision contained an inadequate evaluation of Hoeppner's mental RFC. More specifically, the order stated that the decision relied on the opinions of State agency psychologists Kyla King and Joan Kojis, but not all of the mental limitations that Drs. King and Kojis assessed were incorporated into the RFC. The Appeals Council further noted that the decision failed to explain the basis of its RFC finding with respect to these mental limitations.

         After listing the issues to resolve and explaining the prior decision's defects with respect to Drs. King and Kojis' assessments, the remand order directed that, “[u]pon remand, the Administrative Law Judge will”: (1) if necessary, obtain evidence from a medical expert to clarify the nature and severity of Hoeppner's impairments; (2) give further consideration to Hoeppner's RFC and provide rationale with specific references to evidence in support of the assessed limitations, and in so doing, further evaluate and explain the weight given to the treating, nontreating, and nonexamining source opinions; and (3) obtain supplemental evidence from a VE to clarify the effect of the assessed limitations on Hoeppner's occupational base, making sure that the hypothetical questions posed to the VE reflect the specific capacity/limitations established by the record as a whole. R. 1082.

         Hoeppner contends that the ALJ failed to comply with the Appeals Council's remand order under 20 C.F.R. §§ 404.977(b) and 416.1477(b) because the ALJ failed to adequately account for Hoeppner's moderate limitations in CPP in the RFC determination and in the hypothetical questions posed to the VE. While Hoeppner also argues that the ALJ did not follow the Appeals Council's guidance with respect to the opinions of Drs. King and Kojis, his argument that the ALJ failed to follow the Appeals Council's guidance is essentially the same argument he makes on the merits: the ALJ failed to properly incorporate Hoeppner's limitations in CPP into the RFC determination and hypothetical questions posed to the VE. It is to that issue that I now turn.

         At his step 3 assessment of Hoeppner's mental impairments, the ALJ found that, “[w]ith regard to concentrating, persisting, or maintaining pace, the claimant has a moderate limitation.” R. 918. In his more thorough consideration of the evidence that followed, the ALJ considered the May and September 2010 opinions of State agency psychologists Drs. King and Kojis, as well as the May 2016 opinions of State agency psychologist Ellen Rozenfeld. As to Hoeppner's CPP, the ALJ explained that the State agency psychologists opined that Hoeppner had moderate limitations, “including his ability to understand, remember and carry out detailed instruction; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and to complete a normal workday or workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.” R. 929. The ALJ further noted that, “[w]hile Dr. Kojis opined that the claimant had no worse than moderate ...

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