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Emerich v. Saul

United States District Court, W.D. Wisconsin

August 2, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff Beryl Vandre Emerich seeks judicial review of a final decision denying her application for Social Security Disability Insurance Benefits under 42 U.S.C. § 405(g). On appeal, plaintiff raises two challenges: (1) the Administrative Law Judge (“ALJ”) failed to evaluate the evidence of Emerich's shoulder, cervical and lumbar spine conditions properly, including discounting Emerich's treating physician's opinions regarding these conditions; and (2) the ALJ propounded a hypothetical question which failed to address his finding of moderate limitations in concentration, persistence and pace. Having reviewed the record, the court agrees and will remand for further proceedings consistent with the opinion below.


         A. Overview of Claimant

         Emerich was born on December 28, 1956. She applied for benefits on January 24, 2014, claiming an alleged onset disability date of November 14, 2012. This made Emerich 55 years-old on the alleged onset date of her disability in 2012; 58 years-old when she applied for disability in 2014; and 59-years-old at the time of her hearing in 2016. Accordingly, at the alleged onset date, Emerich was “of advanced age, ” and at the time of the hearing, on the cusp of her 60th birthday, she was “closely approaching retirement age.” 20 C.F.R. §§ 404.1563(e), 416.963(e).

         Emerich has at least a high school education, is able to communicate in English, and has past work experience as a secretary. Emerich last engaged in substantial gainful activity at her alleged onset disability date in November 2012, although she has worked on a limited, part-time basis with UPS after that date. In her application, Emerich claimed disability based on anxiety, depression, psoriasis and high cholesterol. By the time of her hearing, Emerich also complained of physical limitations caused by neck, shoulder and low back pain, along with numbness in her right arm and hand.

         B. Medical Records

         1. Pre-November 2012

         The medical record contains some records pre-dating her alleged onset disability date, which concern psoriasis, elevated cholesterol test results, right hand carpal tunnel syndrome, and an emotional breakdown at work in October of 2012 that apparently immediately preceded her termination. (AR 268-291.) Other than the note about her emotional breakdown at work and prescriptions for alprazolam and venlafaxine, these medical records do not appear relevant to her claim of disability.

         2. November 2012 - September 2015

         Following her termination from her secretarial job with Lincoln County, Wisconsin, in November 2012, for approximately three years, Emerich's medical record reveals ongoing treatment for anxiety, depression and psoriasis. In particular, a note from her December 17, 2012, annual examination with her treating physician Tarun Bassi, M.D., reflects a rash under her breast, likely psoriasis. (AR 273.) Dr. Bassi also notes that “[t]he patient's anxiety related symptoms remain stable on venlafaxine.” (AR 273.) However, Emerich denied any neck or musculoskeletal concerns, and no concerns were noted during physical examination. (AR 274-75.)

         A year later, on December 18, 2013, Emerich underwent another annual examination by Dr. Bassi. Bassi's notes reveal that Emerich continues to be bothered by psoriasis, and that: “Her mood remains stable on venlafaxine; winter is once again not the best time, however, she has been tolerating the medications well, sleeping well and voices no other concerns.” (AR 264.) During this appointment, Emerich again “[d]enies neck stiffness or lumps, ” and also “[d]enies joint pain, swelling or stiffness.” (AR 265.) Dr. Bassi noted no additional concerns as part of the physical examination. (AR 266.)

         Almost seven months later, apparently in connection with Emerich's benefits application, Joseph F. Roe, Psy.D., completed a psychological report dated July 26, 2014. In the report, Dr. Roe concluded, “Prognosis is poor. This person's anxiety has been a little less severe since not working, but is still crippling and has not abated despite psychiatric intervention. Furthermore, she has not really sought out psychotherapeutic intervention in years nor has she sought out a psychiatrist.” (AR 308.) Specific to concerns about CPP, Dr. Roe opined, “Her concentration and attention were fair, but again, she would not maintain a normal work pace. She cannot handle normal life stressors and could not handle normal stress in the work environment.” (Id.)

         On December 15, 2014, Emerich attended her annual examination with Dr. Bassi. In the records, Dr. Bassi noted Emerich's concerns about “trouble concentrating on one task.” (AR 317.) Consistent with her prior annual appointments, Emerich again “[d]enies neck pain, back pain, joint pain, joint swelling.” (AR 319.) The physical exam of her neck and back were normal. (AR 319.) In light of Emerich's concerns about concentration, however, Dr. Bassi referred her for neuropsychological testing. (AR 321.)

         On February 11, 2015, Emerich saw Sarah Kortenkamp, Ph.D., who completed a neurobehavioral status examination. Dr. Kortenkamp diagnosed Emerich with “unspecified depressive disorder with anxious distress or unspecified anxiety; attention concerns.” (AR 335.) Based on her interview, Dr. Kortenkamp marked certain limitations as “moderate, ” including the category for “concentration, persistence and pace.” More specifically, Dr. Kortenkamp noted moderate limitation under: “carry out detailed instructions”; “maintain attention and concentration for extended periods”; and “complete a workday without interruptions from psychological symptoms.” (AR 338.) Finally, Kortenkamp indicated that Emericah would miss work once per month. (AR 339.)[2]

         3. October 2015 to September 2016

         In October 2015, Emerich also began to see a number of doctors complaining of shoulder, neck, back, hip and leg pain. On October 28, 2015, Emerich had an appointment with Dr. Bassi to address right shoulder pain that she had been experiencing for four months. “It has kept her from doing some activities, and has affected her sleep, waking her at night. Right neck ache has also been present during this time.” (AR 371.) Bassi's physical examination further revealed: “Painful extension, abduction and elevation of right shoulder. Tenderness over superior anterior part of right shoulder. Tenderness over right side of C-spine.” (AR 372.) As a result, Dr. Bassi referred her to physical therapy. On December 30, 2015, Emerich had an PT initial evaluation, during which she rated her pain as 5-8 out of a possible ...

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