United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Jill Van Remmen filed this action for judicial review of the
final decision of the Commissioner of Social Security denying
her application for Disability Insurance Benefits (DIB) under
Title II of the Social Security Act. Van Remmen contends that
the decision of the administrative law judge (ALJ), which
became final after the Appeals Council denied review, R. 6-9,
was erroneous for three reasons: (1) the ALJ failed to
properly assess her pain and credibility in accord with
Social Security Ruling (SSR) 16-3p; (2) the ALJ failed to
adopt limitations as to handling and fingering; and (3) the
ALJ failed to adequately support the 10% off-task limitation.
Pl.'s Br., Dkt. No. 16 at 6. For the reasons provided
below, the Commissioner's decision will be affirmed.
Remmen filed an application for DIB on July 23, 2015,
alleging disability beginning March 8, 2008 due to the
following conditions: lesion on the brain, vertigo, chronic
migraines, chronic joint pain, and Sjogren's syndrome. R.
15, 161-64, 179. After her application was denied initially
on October 23, 2015 and upon reconsideration on April 28,
2016, Van Remmen requested a hearing before an ALJ. R. 44,
49, 53. ALJ Jeffry Gauthier held a hearing on October 12,
2016, at which Van Remmen, who was represented by counsel,
and a vocational expert (VE) testified. R. 561-62.
to her July 23, 2015 application for DIB, Van Remmen
previously filed for Title II disability benefits in March
2013, alleging an onset date of November 1, 2005. R. 15. Her
claim was denied on July 31, 2013 and not pursued further. In
the written decision on the claim presently before the court,
the ALJ noted that this past denial precludes review of the
issue of disability prior to August 1, 2013, as Van Remmen is
claiming an alleged onset date within the previously
adjudicated period, which was addressed in an unchallenged
final administrative decision. Id. The relevant
period for purposes of the ALJ's decision and for
judicial review in this court is therefore August 1, 2013
through December 31, 2014, the date last insured (DLI), when
Van Remmen was forty-eight years old.
October 12, 2016 administrative hearing, the ALJ and Van
Remmen's attorney discussed an application Van Remmen
filed for Supplemental Security Income (SSI) under Title XVI
of the Social Security Act. Although shortly before the
hearing Van Remmen reapplied for SSI after initially being
denied due to excess resources, the ALJ found that he could
not consider the SSI claim because it was not yet properly
before him. R. 567-71. The hearing therefore proceeded on Van
Remmen's application for DIB. At the time of the hearing,
Van Remmen was 50 years old and staying in a house with a
friend. R. 572-73.
Remmen testified about her prior work history. R. 575-79.
From 1999 until March 2008, Van Remmen worked as a manager at
a restaurant her family owned, which required her to make the
schedule, do the inventory, and order product. R. 575-76.
Physically, this role required her to be on her feet all day
and lift up to 25 or 30 pounds. R. 576. After her father
passed in 2006, Van Remmen became the restaurant's owner,
but she closed the business shortly thereafter because she
could not handle the lifting and being on her feet all day
and she could not find a trustworthy manager to run it. R.
576, 577, 596-98. In 2011, Van Remmen worked part-time as a
cashier at a gas station for four months, but she quit
because she could not stand for long periods of time. R.
asked what medical conditions most limited her ability to
work, Van Remmen testified that joint pain, which she
experiences in all joints and for which she takes medications
that reduce the pain by about 50%, is most prohibitive. R.
579-82. She testified that her doctors have yet to identify
the source of this pain. R. 580-81. She also testified that
her dizziness, migraines, and vertigo are prohibitive. R.
582. She explained that she experiences dizziness a couple
times per month, which sometimes lasts up to three days and
causes her to fall roughly six times per year. R. 583, 594.
She testified that she had MRIs that revealed she had brain
lesions but that her doctors do not know what caused them. R.
583, 586-87. She treats her migraines, which she testified
occur four or five times per month and can last up to 24
hours, by laying down in a dark room with a cold compress on
her forehead and taking ibuprofen. R. 587, 589-90.
daily living, Van Remmen testified that she lies down for
about 22 out of 24 hours each day, and when not lying down
she goes grocery shopping and to doctors appointments,
showers, cooks, performs light cleaning, and takes care of
her dog. R. 591-93. Her hobbies include reading, watching
television, and playing on her phone, and she estimated that
she was capable of lifting a maximum of ten pounds. R.
written decision dated February 13, 2017, the ALJ concluded
that Van Remmen was not disabled within the meaning of the
Social Security Act from her alleged onset date of March 8,
2008 through December 31, 2014, her DLI. R. 24. To reach this
conclusion, the ALJ followed the Social Security
Administration's (SSA's) five-step sequential
evaluation process. R. 16-17. At step one, the ALJ determined
that Van Remmen did not engage in substantial gainful
activity from March 8, 2008 through her DLI. R. 17. At step
two, the ALJ found that Van Remmen had the following severe
impairments: Sjogren's syndrome and possible
osteoarthritis. R. 18. At step three, the ALJ determined that
Van Remmen did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id.
reviewing the entire record, the ALJ concluded that, through
the DLI, Van Remmen had the RFC to
perform light work as defined in 20 C.F.R. 404.1567(b) except
she is further limited. She can occasionally climb ramps and
stairs. She cannot climb ladders, ropes, or scaffolds, or
work at unprotected heights or around moving mechanical
parts. The claimant is expected to be off task less than 10
percent of the time in an 8-hour workday, in addition to
regularly scheduled breaks.
R. 19. At step four, the ALJ determined that Van Remmen was
capable of performing past relevant work as a restaurant
manager/owner. R. 22. At step five, the ALJ made the
alternative finding that there existed jobs in significant
numbers in the national economy that Van Remmen could have
performed, such as housekeeper/cleaner and office helper. R.
23-24. Based on these findings, the ALJ concluded that Van
Remmen was not disabled from March 8, 2008 through her DLI.
R. 24. After the ALJ's decision became final, Van Remmen
commenced this action for judicial review.