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Blanchard v. Saul

United States District Court, E.D. Wisconsin

July 15, 2019

MYRON G. BLANCHARD, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security Defendant.

          I. DECISION AND ORDER

          William E. Duffin U.S. Magistrate Judge.

         INTRODUCTION

         Plaintiff Myron Blanchard alleges that he has been disabled since September 27, 2010, due to a bulging lumbar disc, degenerative disc disease, depression, ulnar nerve relocation in left arm, and back fusion. (See Tr. 78, 95.) In October 2011 he applied for disability insurance benefits and supplemental security income. (Tr. 197-212.) After his applications were denied initially (Tr. 74-75) and upon reconsideration (Tr. 76-77, 112-13), a hearing was held before an administrative law judge (ALJ) on January 10, 2014 (Tr. 38-73). On March 7, 2014, the ALJ issued a written decision concluding Blanchard was not disabled. (Tr. 19-30.) The Appeals Council denied Blanchard's request for review on May 20, 2015. (Tr. 1-3.)

         On July 16, 2015, Blanchard filed an action in this court challenging the ALJ's March 2014 decision. (Tr. 646-49.) On September 19, 2016, this court remanded the matter for further proceedings and ordered the ALJ to consider Blanchard's testimony about the need to elevate his legs (Tr. 666-72) and “explain how a limitation of being off task for 5% of the workday coupled with ‘unskilled work' adequately accounts for Blanchard's moderate limitations in concentration, persistence, or pace” (Tr. 673-75). The Appeals Council then instructed an ALJ to offer Blanchard the opportunity for a second hearing, consolidate Blanchard's additional claims for benefits, take any further action needed to complete the administrative record, and issue a new decision. (Tr. 683-84.)

         A second hearing was held before the same ALJ on March 29, 2017. (Tr. 621-45.) On May 10, 2017 the ALJ issued a written decision, concluding that Blanchard “was not disabled prior to August 16, 2016, but became disabled on that date and has continued to be disabled through the date of [the ALJ's] decision (Tr. 589-608), which became the final decision of the Commissioner. (See Tr. 577-79; 20 C.F.R. § 404.984 (“[W]hen a case is remanded by a Federal court for further consideration, the decision of the administrative law judge will become the final decision of the Commissioner after remand on your case unless the Appeals Council assumes jurisdiction of the case.”).) This action followed.

         All parties have consented to the full jurisdiction of a magistrate judge. (ECF Nos. 6, 7.) The matter is now ready for resolution.

         ALJ'S DECISION

         In determining whether a person is disabled an ALJ applies a five-step sequential evaluation process. At step one the ALJ determines whether the claimant has engaged in substantial gainful activity. The ALJ found that Blanchard “has not engaged in substantial gainful activity since the alleged onset date[.]” (Tr. 591.)

         The analysis then proceeds to the second step, which is a consideration of whether the claimant has a medically determinable impairment or combination of impairments that is “severe.” 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1522(a). The ALJ concluded that Blanchard has the following severe impairments: “disorders of the spine with status post surgeries, left ulnar neuropathy, obesity, and depression[.]” (Tr. 592.)

         At step three the ALJ is to determine whether the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of the impairments listed in 20 C.F.R. Part 4, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.1526, 416.920(d), and 416.926) (called “The Listings”). If the impairment or impairments meets or medically equals the criteria of a listing and also meets the twelvemonth duration requirement, 20 C.F.R. § 416.909, the claimant is disabled. If the claimant's impairment or impairments is not of a severity to meet or medically equal the criteria set forth in a listing, the analysis proceeds to the next step. The ALJ found that Blanchard “has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]” (Tr. 593.)

         In between steps three and four the ALJ must determine the claimant's residual functional capacity (RFC), “which is [the claimant's] ‘ability to do physical and mental work activities on a regular basis despite limitations from [his] impairments.'” Ghiselli v. Colvin, 837 F.3d 771, 774 (7th Cir. 2016) (quoting Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014)). In making the RFC finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. 20 C.F.R. §§ 404.1529, 416.929; SSR 96-4p. In other words, the RFC determination is a “function by function” assessment of the claimant's maximum work capability. Elder v. Astrue, 529 F.3d 408, 412 (7th Cir. 2008). The ALJ concluded that Blanchard has the RFC

to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he is unable to climb ladders, ropes or scaffolds; he can occasionally stoop, crouch, kneel, crawl, and climb ramps and stairs; he must be allowed to change positions between sitting and standing every 60 minutes, for a few minutes, before returning to sitting or standing; he is unable to operate foot controls; he is limited to frequent handling and fingering with the non-dominant left upper extremity; he is limited to unskilled work; and he is limited to jobs having only occasional decision making and changes in work setting.

(Tr. 596.)

         After determining the claimant's RFC, the ALJ at step four must determine whether the claimant has the RFC to perform the requirements of his past relevant work. 20 C.F.R. §§ 404.1526, 416.965. Blanchard's past relevant work was as a maintenance repairer. (Tr. 606.) The ALJ concluded that Blanchard “has been unable to perform any past relevant work[.]” (Tr. 605.)

         The last step of the sequential evaluation process requires the ALJ to determine whether the claimant is able to do any other work, considering his RFC, age, education, and work experience. At this step the ALJ concluded that, “[p]rior to August 16, 2016, the date [Blanchard's] age category changed, considering [his] age, education, work experience, and [RFC], there were jobs that existed in significant numbers in the national economy that [he] could have performed[.]” (Tr. 606.) In reaching that conclusion, the ALJ relied on testimony from a vocational expert, who testified that a hypothetical individual of Blanchard's age, education, work experience, and RFC could perform the requirements of representative occupations such as an order clerk, sorter, and polisher. (Tr. 607.) After finding that Blanchard could perform work in the national economy, the ALJ concluded that he was not disabled prior to August 16, 2016. (Id.)

         STANDARD OF REVIEW

         The court's role in reviewing an ALJ's decision is limited. It must “uphold an ALJ's final decision if the correct legal standards were applied and supported with substantial evidence.” LD.R. by Wagner v. Berryhill, 920 F.3d 1146, 1152 (7th Cir. 2019) (citing 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 might accept as adequate to support a conclusion.'” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017) (quoting Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)). “The court is not to ‘reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment for that of the Commissioner.'” Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) (quoting Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)). “Where substantial evidence supports the ALJ's disability ...


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