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Wagner v. Saul

United States District Court, W.D. Wisconsin

August 23, 2019

KARL WAGNER, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Plaintiff Karl Wagner seeks judicial review of a final decision of defendant Andrew M. Saul, the Commissioner of Social Security, [1] under 42 U.S.C. § 405(g), which denied his application for benefits under Title II and Title XVI. On August 21, 2018, the court held oral argument regarding the supportability of the ALJ's November 4, 2016, decision. The parties agree that ALJ Joseph Jacobson was limited to considering a two-month period from October 26, 2010, through December 31, 2010 when evaluating plaintiff's Title II application and a four-year period from October 26, 2010, until November 30, 2014 when evaluating plaintiff's Title XVI application. For reasons explained below, the Commissioner's decision will be affirmed.

         FACTS

         A. Background

         On June 1, 2015, this court approved a joint stipulation to remand claimant Karl Wagner's social security appeal to the Commissioner. (AR 618.) The Appeals Council then instructed the ALJ to: (1) “further evaluat[e] the residual functional capacity” because the decision failed to “expressly explain how the mental residual functional capacity restrictions accommodated the claimant's moderate limitations in concentration, persistence or pace”; (2) “further consider[]the opinion of [state agency psychological consultant] Dr. Balunas” because the decision gave “great weight” to his opinion but did “not accommodate or reject all of his limitations”; (3) consider the February 22, 2014, consultative examination by Brenda Reed, Psy.D.; (4) “[f]urther evaluate all opinions of record . . . and give reasons for the weight given”; and (5) “[o]btain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base.” (AR 630-31.) The claimant now appeals from the second of the ALJ decisions.[2]

         Claimant is a former design engineer (see AR 60-61), who suffers from severe mental illness. He has been working for Walmart since 2014 and has been assigned 40 hours a week beginning about a year after starting, but “[m]any times” is absent. (AR 582.) He testified that “Walmart accommodates me in a lot of different ways” (see AR 583-84), but his supervisor declined to document any accommodations made for him. (AR 857.)

         B. Medical Records

         Claimant was diagnosed with several severe mental illnesses. (See e.g., AR 278 (“Diagnoses: schizoaffective disorder, adjustment disorder with mixed disturbance of emotions, dissociative fugue (rule out), antisocial personality disorder, and pure hypercholesterolemia.”); AR 347 (“Diagnoses: schizoaffective disorder, chronic paranoid type schizophrenia (rule out), dissociative fugue (rule out), malingering (rule out), unspecified personality disorder, antisocial personality disorder (rule out), pure hypercholesterolem.”); AR 529 (“This consumer meets DSM criteria for either Schizoaffective Disorder or Paranoid Schizophrenia. There are signs of a separate anxiety disorder as well.”).) Among other manifestations of his mental illness, he reported suffering from “[m]ood swings, auditory and visual hallucinations and paranoid delusions, even when euthymic, in addition to loss of time.” (AR 521.) He also described periods where he seems to drift off and daydream and finds himself awakening in a totally different place and in a totally different time and under totally different circumstances.” (AR 463.) At various points, his providers further noted that Wagner was “[n]ot showering/bathing/showing 2nd level of poverty.” (AR 450; see also AR 292 (reporting “an extremely strong smell of body odor, ” “untidy and disheveled” clothing, and “very poor” hygiene and grooming); AR 437 (“Client presented with dirty clothes, unwashed hair, and redness / skin irritation / skin peeling on his face and neck. He had a strong, foul body odor.”).)

         Unsurprisingly, Wagner reported having “trouble with maintaining employment due to concentration problems, hallucinations and ‘losing time.'” (AR 431.) Additionally, Wagner's medical records contain numerous references to his desire to receive disability benefits. For instance, in July 2010, he was described as “feeling depressed due to the uncertainty of whether or not he will be awarded disability.” (AR 508.) In October 2010, he was “very focused on his recent denial of disability benefits.” (AR 466.) In March 2011, “[h]e mentioned trying to get disability quite a bit, which is a strong goal of his” and was “angry that he hasn't received disability yet and feels entitled to it.” (AR 377.) In May 2011, Wagner “was hyperfocus[ed] on obtaining SSDI” and “seemed unwilling to engage in problem-solving for alternatives other than disability and, once again, thinks it's owed to him b/c he hasn't maintained steady work.” (AR 364.) In August 2011, he was described as seeing disability “as the only solution to his life.”[3] (AR 348.)

         In April 2012, a therapist even noted that “[i]t is also not clear if he's intentionally presenting in this manner or actually has something wrong.” (AR 439.) Wagner's medical records are replete with similar concerns about malingering. (See e.g., AR 360 (“[H]is manner seems exaggerated to display how mentally ill he is in order to prove his case for disability.”); AR 377 (“It was my impression that he was over exaggerating symptoms during the apt and wanted to convince me he's very ill. He mentioned trying to get disability quite a bit, which is a strong goal of his.”); AR 466 (“On 1 occasion, the patient indicated he felt he had experienced one of his ‘hallucinations' during his hospital stay. . . .The patient was characterized as presenting with a ‘poor acting job' per nursing assessment.

         . . . [The] patient had apparently exaggerated reports of symptoms, and that his reports were not consistent with clinical presentation.”).) As one treatment provider explained,

It is difficult to assess Karl b/c he's working hard to get granted disability income and is not highly motivated to improve his condition while trying to prove that he's incapable of working. This complicates the ability to assess how mentally ill he really is b/c there's a secondary gain for him to stay ill. . . . It's possible that there is a degree of treatable mental illness but the other motives cloud the picture.

(AR 343.)

         C. ALJ's Decision

         As noted above, claimant's case has already been remanded both by this court and the Appeals Council. (AR 550-51.) This time, the ALJ once again concluded that “the claimant has not been under a disability within the meaning of the Social Security Act from November 1, 2010, through the date of this decision.” (AR 551.) Specifically, the ALJ found that claimant engaged in substantial gainful employment from October 31, 2014, until the date of the decision, as he worked at Walmart for 40 hours per week, except during a two-week period in August 2015, and his earnings were above the level of substantial gainful activity. (AR 553.) While claimant's counsel argued that his job ...


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