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Melby v. Saul

United States District Court, W.D. Wisconsin

July 9, 2019

SCOTT A. MELBY, Plaintiff,
ANDREW M. SAUL, [1] Commissioner of Social Security, Defendant.


          WILLIAM M. CONLEY District Judge.

         Under 42 U.S.C. § 405(g), claimant Scott Melby seeks judicial review of a final decision by the Commissioner of Social Security, which denied his applications for disability insurance benefits and supplemental security income. Again on appeal, Melby contends that his moderate limitations in concentration, persistence or pace were inadequately addressed by the ALJ, arguing that remand with instructions to award benefits from his alleged onset date of August 1, 2010 through February 21, 2012, is appropriate. For the reasons addressed below, the defendant's final decision is affirmed.


         A. Procedural Posture

         Melby originally filed applications for disability insurance benefits and supplemental security income on September 10, 2010. (AR 187, 191.) These applications were denied by his first administrative law judge on February 21, 2012, following an initial denial on November 16, 2010 and on reconsideration on May 6, 2011. (See AR 37, 47.) Following exhaustion of the administrative process, Melby appealed to this court arguing that the ALJ failed to incorporate his moderate limitations in concentration, persistence or pace into the hypothetical question posed to the vocational expert. On November 18, 2014, the parties stipulated to remand. (AR 628-30.)

         On May 1, 2015, the Appeals Council affirmed the state agency's conclusion that Melby had become disabled by February 22, 2012, and remanding for a second ALJ to reconsider the period before that date, in light of the conclusion that Melby had moderate difficulties maintaining concentration, persistence and pace, but failed to include functional restrictions as to pace. (AR 635-36.) Following this remand, a new ALJ denied Melby's applications. (AR 528.) Again, the ALJ failed to completely address Melby's moderate limitations in concentration, persistence or pace, prompting Melby to appeal to this court a second time and the parties again agreed to a remand, which the court approved on May 2, 2017. (AR 1188-90.) This time, the Appeals Council remanded after finding the second ALJ “again did not fully address pace limitations, ” by either expressly including them in the RFC or explaining why they were not included. (AR 1194-95.)

         After a hearing was held before a third ALJ, Melby's applications were again denied, this time in January of 2018.[2] (AR 1088.) Unsurprisingly, Melby also again appealed, arguing that the ALJ's hypothetical question to the vocational expert inadequately accounted for his mental impairments.

         B. Hearing Testimony

         Administrative law judges have now held hearings on Melby's applications in 2012, 2015, 2016, and 2017. During the 2015 hearing, the second ALJ asked the vocational expert about a similarly situated hypothetical individual who was precluded from “any fast-paced” or “high-production jobs” when “there's a fast pace set by someone else and he has to keep up with a constant quota demand.” (AR 570-71.) The vocational expert identified a cashier position as one that would meet those limitations. (AR 571.) With an additional limitation of “routine, repetitive three- to four-step tasks and instructions and corresponding stressors, ” the vocational expert found that cashiering jobs would remain, and mail clerk and survey work would also be available. (AR 572.) Responding to claimant's counsel's questioning, the expert further opined that an individual who “loses attention and concentration for up to 15, 20 minutes at a time three or four times a day such that he gets confused or he forgets his procedure” would fall “outside of competitive employment.” (AR 576-77.)

         In 2016, an independent medical expert, Dr. Lace, opined that the restriction to “routine, repetitive tasks” addressed concerns about concentration, persistence and pace because “more complicated tasks generally require[, ] from a psychological standpoint, more ability to focus and concentrate.” (AR 584-85.) At that hearing, the ALJ's hypothetical included limitations to: “routine, repetitive tasks; brief, superficial contacts with others.” (AR 590.) The hypothetical made no reference to “nonproduction pace” or the limitation of “simple” tasks. (See AR 1078.) The vocational expert opined that such a hypothetical individual could work as a bench assembler or an inspector/hand packager. (AR 590-91.)

         In contrast, at the most recent hearing, the vocational expert was asked about “a hypothetical individual of the Claimant's age, ” with specific limitations, including only performing “simple, routine tasks at a nonproduction pace.” (AR 1140-41.) With these limitations, the expert identified available work as a bench assembler, electronics worker, or molding machine tender. (AR 1141.)

         C. ALJ's Decision

         In the final January 2018 decision, Administrative Law Judge Micah Pharris began by noting that Melby's applications were before him following remand from this court and direction from the Appeals Council to analyze the pace limitation, further explaining that “the Appeals Council found the residual functional capacity either did not sufficiently address the moderate pace limitation or that the linkage between the limitation and the part b finding was not sufficiently articulated.” (AR 1072.) The ALJ found that Melby had a moderate limitation in concentration, persistence or pace, noting: Melby's testimony that he had trouble concentrating; his activities suggesting “good concentration, persistence, and pace”; and support from “the medical expert's opinion and additional records.” (AR 1077.)

         Addressing the issue of concentration, persistence or pace, the ALJ noted that “claimant reported no difficulty concentrating, understanding, following instructions, remembering, or completing tasks.” (AR 1080.) Likewise, the ALJ found Melby had “at least fair concentration persistence and pace, ” explaining that “the moderate finding is made to give the claimant every benefit of the doubt” because his depression was documented in the record and “depression can affect motivation and increase ...

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