United States District Court, E.D. Wisconsin
DECISION AND ORDER AFFIRMING THE COMMISSIONER’S
William C. Griesbach, Chief Judge.
Allen Lee Surprise filed this action for judicial review of a
decision by the Commissioner of Social Security denying his
applications for disability insurance benefits (DIB) under
Title II and supplemental security income (SSI) under Title
XVI. Surprise argues that the decision of the administrative
law judge (ALJ) was flawed and requires remand for two
reasons: 1) the ALJ did not adequately account for a portion
of the medical expert’s opinion in the hypothetical
question posed to the vocational expert (VE) and in the
assessment of Surprise’s residual functional capacity
(RFC); and 2) the ALJ violated the law of the case doctrine.
For the reasons that follow, the decision of the Commissioner
will be affirmed.
September 3, 2009, Surprise filed applications for DIB and
SSI with an alleged onset date of June 1, 2007. R. 196.
Surprise noted that a blood vessel with a calcium deposit
near his breast bone limited his ability to work. R. 232.
Following the denial of his applications initially and on
reconsideration, Surprise requested a hearing before an ALJ.
ALJ Patrick J. Toal conducted a hearing on May 15, 2012, at
which Surprise amended the alleged onset date to March 10,
2008. R. 47–104. In a written decision dated June 8,
2012, the ALJ concluded Surprise was not disabled. R.
21–35. After the Appeals Council denied
Plaintiff’s request for review of the ALJ’s
decision, Surprise sought judicial review of the ALJ’s
decision in the United States District Court for the Eastern
District of Wisconsin. The case was remanded because a
portion of the recording of the hearing, the testimony of the
VE, was inaudible, thereby precluding review. The court did
address several issues at that time, however, and the
decision entered then provides some of the background of the
case. R. 1019–29.
Toal held a second administrative hearing on July 7, 2015, at
which Plaintiff, two medical experts, and a VE testified, and
the ALJ issued a second decision on May 20, 2016, again
finding Surprise was not disabled. R. 845–58. The
Appeals Council denied review of that decision, and Surprise
filed a second lawsuit in this court. On March 22, 2017, the
case was again remanded for further proceedings based upon a
stipulation of the parties. R. 1519; see Surprise v.
Berryhill, Case No. 1:16-cv-01028-WCG (E.D. Wis.). As
the case had previously been remanded to the same ALJ, the
Appeals Council directed that the case be assigned to another
ALJ. R. 1525. On March 22, 2018, ALJ Margaret J.
O’Grady conducted a video hearing where Surprise, who
was represented by counsel, medical expert Dr. James Wargel,
and a VE testified. R. 1457–1500.
time of the hearing, Surprise was 49 years old,
5'4", and weighed around 140 pounds. R. 1459.
Surprise stated that he currently lived with his girlfriend
and 16-year-old daughter. Id. Surprise testified
that he owns his home, is reliant upon his girlfriend for
income, and that he has not worked since he submitted his
applications. R. 1461. Surprise stated that the highest level
of education he had completed was the eighth grade, and that
he is somewhat able to read and write but is unable to read
and fill out a job application without assistance. He can
also do basic addition and subtraction, but cannot do
multiplication or division. R. 1460, 1470, 1472.
stated that he takes Tylenol and Advil on a daily basis for
pain but does not take any prescription medications at this
time. R. 1462. He reported that he takes the medication to
treat the constant pain in his neck, back, left shoulder,
knees, hands, and fingers that he experiences daily. R.
1463–65. Regarding daily activities, Surprise stated he
sits around the house, watches television, feeds his dogs,
and walks outside briefly when able. R. 1466. Surprise
further testified that he generally receives assistance from
his girlfriend with personal needs such as bathing, as well
as cooking, housecleaning, and shopping. R. 1467.
Wargel, a clinical psychologist, also testified, and stated
that Surprise’s primary documented issues are
depressive disorder and anxiety disorder, but that his
symptoms did not meet or equal any listings. R. 1413,
1478–80. Dr. Wargel further testified regarding
Surprise’s limitations as a result of these specific
impairments. R. 1481–86.
sixteen-page decision dated July 2, 2018, the ALJ determined
that Surprise is not disabled. R. 1429–44. The
ALJ’s decision followed the five-step sequential
process for determining disability prescribed by the Social
Security Administration (SSA). R. 1430–31. At step one,
the ALJ concluded that Surprise has not engaged in
substantial gainful activity since his March 10, 2008 alleged
onset date. R. 1432. At step two, the ALJ concluded that
Surprise has the following severe impairments: an anxiety
disorder, a depressive disorder, post-concussion disorder,
arthritis, scoliosis, and degenerative disc disease.
Id. At step three, the ALJ concluded Surprise 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. 1433–34.
next assessed Surprise’s RFC and found that he can
perform light work as defined in 20 C.F.R. § 404.1567(b)
and 416.967(b) subject to the following limitations:
no climbing of ladders, ropes or scaffolds; only occasional
climbing of ramps and stairs; no more than frequent overhead
reaching; and no concentrated exposure to fumes, dust or
other environmental irritants. Mentally, he can perform
routine, repetitive tasks and follow simple, non-complex
instructions. He is capable of occasional interaction with
coworkers and supervisors with only brief, superficial public
contact. He can tolerate less than frequent change in the
work routine. He is capable of performing regular work tasks
that do not involve joint, tandem or team work and are not
performed in large groups or crowds. Work tasks will not
involve fast-paced production work or work tasks that are
dependent on others, defined as production-type work where
one person’s task directly follows from and is
dependent on another’s task.
R. 1435. At step four, the ALJ concluded, based on the
testimony by the VE, that Surprise would not be able to
perform any past relevant work, but would be able to perform
the following occupations: press operator and injection
molder. R. 1442–43. Accordingly, the ALJ found that
Surprise is not disabled. R. 1444. The Appeals Council denied
Surprise’s request for review, making the ALJ’s
decision the final decision of the Commissioner.
question before the court is not whether the judge reviewing
the case thinks the plaintiff is disabled. Judicial review of
the decisions of administrative agencies is intended to be
deferential. Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010). The Social Security Act specifies that the
“findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The Supreme Court
recently reaffirmed that “[u]nder the
substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains
‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Beistek v.
Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). “The phrase ‘substantial evidence,
’” the Court explained, “is a ‘term
of art’ used throughout administrative law to describe
how courts are to review agency factfinding.”
Id. “And whatever the meaning of
‘substantial’ in other contexts, ” the
Court noted, “the threshold for such ...