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Perez v. Berryhill

United States District Court, E.D. Wisconsin

March 21, 2019

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



         Plaintiff Abigail Perez filed this action for judicial review of a decision by the Commissioner of Social Security denying her application for disability insurance benefits under Title II of the Social Security Act. Perez contends that the administrative law judge's (ALJ) decision is flawed and requires remand for three reasons: (1) the ALJ failed to properly consider the supplemental vocational opinion of Paula Santagati, a senior vocational rehabilitation counselor; (2) the ALJ failed to properly assess the medical opinions of consulting examining psychologist Steven Krawiec and the non-examining state agency consultants; and (3) the ALJ failed to account for Perez's moderate limitations with regard to concentration, persistence, or pace when posing hypotheticals to the vocational expert (VE) and in her residual functional capacity (RFC) analysis. For the reasons that follow, the decision of the Commissioner will be reversed.


         In August of 2013, Perez filed a Title II application for disability insurance benefits, alleging that her disability began on September 26, 2012. She listed anxiety disorder, high blood pressure, chronic neck and back pain, mental illness, severe depression, and bipolar disorder as the conditions that limited her ability to work. R. 229. Following the denial of her application, both initially and on reconsideration, Perez requested a hearing before an ALJ. On April 27, 2016, ALJ Janice M. Bruning conducted a video hearing where Perez, who was represented by counsel, and a VE testified. R. 50-77. At the hearing Perez amended her onset date to January 10, 2013. R. 63.

         Perez, who was 48 at the time of the hearing, has a GED, is certified to be a CNA, is separated from her husband, and was receiving state-funded food assistance and health insurance. R. 52-53. Perez testified that she has difficulties sleeping, for which she takes medication, and uses both a CPAP and VPAP at night. R. 55, 69-70. Perez testified that she has periodic headaches, carpal tunnel syndrome, and difficulty standing, walking, climbing stairs, and bending. R. 56-57, 67. Perez also testified that she has difficulties reaching overhead due to her fibromyalgia and prior surgeries to her neck and back and that her arms get swollen and numb. R. 57-58, 66. Although she had both neck and back surgery, Perez stated that the surgeries did not improve her symptoms, steroid injections only provide limited relief, she still has pain in her legs, and her legs give out while walking despite the use of a cane. R. 65-67. Perez further testified that she experiences pain everywhere as a result of fibromyalgia and that therapy has been ineffective.

         Regarding her mental health, Perez testified that she has anxiety issues, PTSD, difficulties interacting with people and being around crowds of people, anger issues, hears voices in her head, is bi-polar, and that she takes various medications to address these symptoms. R. 64-65, 68-69. Due to her mental health issues, Perez stated that she has difficulties concentrating for more than five minutes at a time. R. 69.

         Perez stated she receives assistance with her personal care, laundry, and cleaning from a friend and that she does not drive, and has difficulties leaving her home, usually only once a month, due to her depression. R. 58-60, 63-64, 71. Perez testified that she watches some Spanish soap operas and checks Facebook daily. R. 60-61. Perez also testified that she is in alcohol and drug abuse treatment and has a DUI conviction. R. 62-63.

         In a written decision dated October 28, 2016, the ALJ concluded Perez was not disabled. R. 18-40. Following the agency's five-step sequential evaluation process, the ALJ concluded that Perez had not engaged in substantial gainful activity since January 10, 2013 at step one. R. 20. At step two, the ALJ found Perez had the following impairments: past cervical and lumbar surgery, degenerative joint disease of the left knee, fibromyalgia, obesity, attention disorder, affective disorder, anxiety disorder, and substance and alcohol abuse disorder. R. 20. At step three, the ALJ determined Perez's impairments or combination of impairments did not meet or medically equal any listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 22. At step four, the ALJ concluded Perez has the RFC to perform sedentary work, except

she can never climb ladders, ropes, or scaffolding. She can no more than occasionally climb ramps and stairs, balance, stoop, crouch, kneel, crawl, bend, and twist. She should avoid concentrated exposure to work hazards such as unprotected heights and dangerous moving machinery. She should have a sit/stand option where after sitting for 30 minutes she is allowed to stand for one to two minutes. She should be allowed to use a cane as needed to get to and from her workstation. She can understand, remember, and carry out no more than simple, routine tasks. She is limited to performing the same tasks day in and day out. She should not have contact with the public for work related purposes and no more than occasional contact with coworkers and supervisors. She should not have strict quotas but can do work that is measured by what is completed by the end of the workday.

R. 26. The ALJ found that Perez was unable to perform any past relevant work. R. 36. At step five, the ALJ concluded that there are jobs that exist in significant numbers in the national economy that she can perform, such as address clerk, account clerk, and bench sorter. R. 36-39. Based on these findings, the ALJ concluded Perez was not disabled within the meaning of the Social Security Act. R. 40. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Perez's request for review. Thereafter, Perez commenced this action for judicial review.


         The Commissioner's final decision will be upheld if the ALJ applied the correct legal standards and supported her 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 conclusion 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)).


         A. RFC Determination

         Perez contends that the ALJ erred by failing to properly assess her moderate limitations in concentration, persistence, and pace when formulating the RFC assessment and the hypothetical question posed to the VE. With respect to ...

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