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Surprise v. Saul

United States District Court, E.D. Wisconsin

September 23, 2019

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


          William C. Griesbach, Chief Judge.

         Plaintiff 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.


         On 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.

         ALJ 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.

         At the 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.

         Surprise 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.

         Dr. 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.

         In a 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.

         The ALJ 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.


         The 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 ...

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