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Remmen v. Saul

United States District Court, E.D. Wisconsin

August 31, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.


          William C. Griesbach, Chief Judge United States District Court

         Plaintiff 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.


         Van 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.

         Prior 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.

         At the 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.

         Van 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. 577-78.

         When 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.

         As for 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. 591-92.

         In a 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.

         After 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.

         LEGAL ...

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