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Appel v. Saul

United States District Court, E.D. Wisconsin

September 18, 2019

ANDREW M. SAUL, Commissioner of Social Security, Defendant.


          William C. Griesbach, Chief Judge United States District Court.

         Plaintiff Billy Appel filed this action for judicial review of a decision by the Commissioner of Social Security denying her applications for a period of disability and disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Appel contends that the administrative law judge’s (ALJ) decision is flawed and requires remand for two reasons: (1) the ALJ failed to appropriately consider the findings of the state agency psychological consultant’s opinions regarding Appel’s mental impairments and (2) the ALJ improperly interpreted evidence in the medical record without the benefit of an expert opinion. For the reasons that follow, the Commissioner’s decision will be reversed and remanded.


         In April 2014, Appel filed her applications, alleging an onset date of December 20, 2013. R. 47. Appel listed depression, anxiety, mood disorder, tumor in back, idiopathic thrombocytopenic purpura, hypokalemia, hypocalcemia, and memory problems as the conditions that limited her ability to work. R. 412. After her applications were denied initially and on reconsideration, Appel requested a hearing before an ALJ. On December 6, 2017, ALJ Jeffry Gauthier conducted a video hearing where Appel, who was represented by counsel, and a vocational expert (VE) testified. R. 65–104.

         At the time of the hearing, Appel, who is 5'3", was 58 years old and weighed 120 pounds. R. 69–70. Appel testified that she completed high school and that she currently lives with her boyfriend. R. 70, 73. Aside from income from her boyfriend’s job, Appel stated that she did not have a source of income and that she receives foodshare and healthcare through Badgercare. R. 71–72.

         Regarding her physical impairments, Appel testified that she has back pain and desmoid tumors that are 1 to 2 inches in size located near her spine right about where her shoulder blades start. R. 77–80. Appel had surgery to remove a tumor, as well as part of the surrounding muscle, but stated that another tumor has since grown back in its place and that surgery for that tumor will be considered once it reaches an appropriate size. Id. Appel stated she takes hydrocodone for the pain and that it is effective at reducing the pain by about 50%. R. 77, 79. Appel also testified her degenerative vertebrae cause neck spasms that occur six times a day lasting around a minute for which she takes muscle relaxers. R. 81–82. Appel further stated that she takes medication for her osteoporosis-which causes her aches, prevents her from standing straight, and causes her lower back pain-to prevent it from getting worse. R. 82–83. Lastly, Appel testified that she has arthritis in her neck, back, and both hands, and that she has carpal tunnel which inhibits her ability to hold onto things and causes severe pain. R. 83–85. Appel stated she had surgery to treat her carpal tunnel but that it was unsuccessful. R. 84–85.

         As a result of her physical conditions, Appel testified she cannot stand or sit for more than 15 to 20 minutes at a time and that she has difficulties lifting anything heavier than a gallon of milk. R. 80. Appel stated that, in general, she experiences more pain as the day continues and that she has more bad days than good. R. 91.

         Regarding her mental impairments, Appel testified she has anxiety and depression but that it does not inhibit her ability to work so long as she stays on her medication. R. 86. She also testified that she has short term memory problems that result in her forgetting to fill out forms and where she places things, and that she has difficulties concentrating and focusing when reading. R. 94. Appel stated she experiences some side effects from the medications that she takes; the medications make her tired and light headed for a couple of minutes and she feels nauseous for a few hours. R. 91–93.

         Regarding her daily activities, Appel testified that she is able to brush her teeth and take a shower without issue, goes on fifteen-minute walks up and down the street or out with her dog, and watches television and goes on the internet throughout the day. R. 87–88. Appel also stated that she draws and reads three to four times a week. R. 90. Appel has a driver’s license but stated that she does not drive after she takes her medication. R. 92.

         In an eight-page decision dated February 21, 2018, the ALJ determined that Appel is not disabled. R. 47–54. The ALJ’s decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 48–49. At step one, the ALJ concluded that Appel has not engaged in substantial gainful activity since her December 20, 2013 alleged onset date and that she met the insured status requirements through December 31, 2018. R. 49. At step two, the ALJ concluded that Appel has the following severe impairments: recurrent desmoid tumor of the back, degenerative disc disease, osteoporosis, and bilateral carpal tunnel syndrome. Id. The ALJ held that Appel’s medically determinable mental impairments of anxiety and depression were not severe because they did not cause more than minimal limitation in her ability to perform basic mental work activities. R. 50. At step three, the ALJ concluded Appel did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 50–51.

         Next, the ALJ assessed Appel’s residual functional capacity (RFC) and found that she can perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) subject to the following limitations:

She can never climb ladders, ropes, or scaffolds. She can frequently stoop. The claimant can frequently reach overhead bilaterally and can frequently handle and finger bilaterally. She can never work at unprotected heights or around moving mechanical parts. The claimant cannot have exposure to concentrated amounts of dust, odors, fumes and/or pulmonary irritants.

R. 51. At step four, the ALJ concluded, based on the testimony of the VE, that Appel is capable of performing her past relevant work as a customer service clerk. R. 53. Accordingly, the ALJ found that Appel is not disabled. R. 54. The Appeals Council denied Appel’s request for review, making the ALJ’s decision the final decision of the Commissioner.

         LEGAL ...

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