Wilking v. Berryhill

Filing 23

DECISION AND ORDER signed by Magistrate Judge David E Jones. IT IS HEREBY ORDERED that the Commissioner's decision is REVERSED and REMANDED to the Commissioner pursuant to sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order. (cc: all counsel)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KIM MARIE WILKING,
Plaintiff,
v.

Case No. 17-CV-425

NANCY A. BERRYHILL 1,
Acting Commissioner of Social Security,
Defendant.
DECISION AND ORDER
Kim Marie Wilking alleges disability based on a number of physical and
mental impairments. After the Social Security Administration denied her
applications for disability benefits, Ms. Wilking requested and received a hearing
before an Administrative Law Judge (ALJ). The ALJ determined that Ms. Wilking
remained capable of working notwithstanding her impairments. Ms. Wilking now
seeks judicial review of that decision.
Ms. Wilking argues that the ALJ erred in finding Ms. Wilking capable of
working at a light level with restrictions and that—given her age, education, and
past work—she is eligible for disability benefits. The Commissioner contends that
the ALJ’s decision is supported by substantial evidence and should be affirmed. For

Nancy A. Berryhill assumed the position of Acting Commissioner of Social
Security in January 2017 and, therefore, should be substituted as the named
defendant in this action. See Fed. R. Civ. P. 25(d).

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the reasons that follow, the Court finds that the ALJ committed reversible error
when he determined that Ms. Wilking is disabled and will remand the case to the
Commissioner for further proceedings consistent with this Decision and Order.
I.

Background
Kim Wilking was born on May 21, 1962. As of November 25, 2015, Ms.

Wilking was unmarried and living alone for approximately the last seventeen years.
Transcript 48. Ms. Wilking did not have any income but received occasional loans
from her father. Tr. 50. She previously worked in the fast-food industry, a bakery, a
factory, and a doctor’s office but stopped working in 2011 due to physical and
mental ailments. Tr. 53-61. Ms. Wilking current lives in a facility for disabled
persons. Tr. 49.
Ms. Wilking suffers from a number of impairments including arthritis,
degenerative disc disease, extreme allergies, asthma, hypertension, high
cholesterol, heart problems, and anxiety. Tr. 20; Pl.’s Br. 2, ECF No. 13. In June
2013 and August 2013 respectively, Ms. Wilking applied for social security
disability insurance and supplemental security income, alleging an onset date of
July 15, 2011. Pl.’s Br. 1. After the Social Security Administration denied her
applications initially and upon reconsideration, Ms. Wilking requested and received
a hearing before an administrative law judge. Tr. 167. Ms. Wilking was represented
by counsel at the November 25, 2015, hearing, and at that time she amended her
onset date to January 1, 2014. The ALJ heard testimony from Ms. Wilking and a
vocational expert. Tr. 40-97.

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The ALJ followed the five-step sequential evaluation process and on
February 5, 2016, he issued a decision unfavorable to Ms. Wilking. Tr. 18-33. The
ALJ determined that (1) Ms. Wilking has not engaged in substantial gainful activity
since January 1, 2014, the alleged onset date; (2) Ms. Wilkin suffers from the
following sever impairments: degenerative disc disease of the lumbar spine, asthma,
and anxiety; and (3) Ms. Wilkin does not suffer from an impairment or combination
of impairments that meets or medically equals the severity of a presumptively
disabling impairment. Consequently, according to the ALJ, Ms. Wilkin has the
residual functional capacity (RFC) to perform light work with the following
exceptions or limitations: (a) no climbing of ladders and scaffolds; (b) only occasional
stooping, crouching, and climbing of ramps and stairs; (c) no frequent kneeling and
crawling; (d) no exposure to unprotected heights or moving mechanical parts; and
(e) no concentrated exposure to dust, odors, fumes, and pulmonary irritants, or
extreme heat and cold. Ms. Wilking is further limited to performing simple, routine
tasks; is limited to making simple work-related decisions; and will be off task less
than five percent of the workday, in addition to normal breaks. The ALJ then found
that, given this RFC, (4) Ms. Wilking remained capable of performing past relevant
work as a fast-food worker and mail sorter; and that (5) Ms. Wilking remained
capable of performing the requirements of unskilled, light level occupations. See Tr.
20-32. Based on those findings, the ALJ concluded that Ms. Wilking was not
disabled.

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Thereafter, the Appeals Council denied Ms. Wilking’s request for review, Tr.
1-6, making the ALJ’s decision the final decision of the Commissioner of Social
Security. See Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016).
Ms. Wilking filed this action on March 22, 2017, seeking judicial review of the
Commissioner’s decision under 42 U.S.C. § 405(g). Complaint, ECF No. 1. The
matter was reassigned to this Court after both parties consented to magistrate
judge jurisdiction. See Consent to Proceed Before a Magistrate Judge, ECF Nos. 5 &
6 (citing 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b)). It is now fully briefed and
ready for disposition. See Pl.’s Br., ECF No. 13; Def.’s Mem. in Support of the
Commissioner’s Decision, ECF No. 21; and Pl.’ s Reply Br., ECF. No 22.
II.

Standard of Review
“Judicial review of Administration decisions under the Social Security Act is

governed by 42 U.S.C. § 405(g).” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)). Pursuant to sentence
four of § 405(g), federal courts have the power to affirm, reverse, or modify the
Commissioner’s decision, with or without remanding the matter for a rehearing.
Judicial review is limited to determining whether the Commissioner’s final
decision is supported by “substantial evidence.” See § 405(g); see also Moore v.
Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Moore, 743 F.3d at 1120–21 (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). The ALJ’s decision must be affirmed if it is supported by

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substantial evidence, “even if an alternative position is also supported by
substantial evidence.” Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).
In reviewing the record, this Court “may not re-weigh the evidence or
substitute its judgment for that of the ALJ.” Skarbek v. Barnhart, 390 F.3d 500, 503
(7th Cir. 2004). Rather, the Court must determine whether the ALJ built an
“accurate and logical bridge between the evidence and the result to afford the
claimant meaningful judicial review of the administrative findings.” Beardsley v.
Colvin, 758 F.3d 834, 837 (7th Cir. 2014); Moore, 743 F.3d at 1121. The ALJ’s
decision must be reversed “[i]f the evidence does not support the conclusion.”
Beardsley, 758 F.3d at 837. Likewise, the Court must remand “[a] decision that
lacks adequate discussion of the issues.” Moore, 743 F.3d at 1121.
Reversal also is warranted “if the ALJ committed an error of law or if the
ALJ based the decision on serious factual mistakes or omissions,” regardless of
whether the decision is otherwise supported by substantial evidence. Beardsley, 758
F.3d at 837 (citations omitted). An ALJ commits an error of law if his decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004). Reversal is not required, however, if the
error is harmless. See, e.g., Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012); see
also Keys v. Barnhart, 347 F.3d 990, 994–95 (7th Cir. 2003).
III.

Discussion

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Ms. Wilking maintains that she is disabled and therefore entitled to
disability benefits under the Social Security Act; alternatively she seeks a remand
to the Commissioner for further administrative proceedings. Br. 12, 20.
A. Legal Framework
Under the Social Security Act, a person is “disabled” only if he is unable “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or has
lasted or can be expected to last for a continuous period of not less than 12 months.”
See 42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). The disability must be sufficiently
severe that the claimant cannot return to his prior job and is not capable of
engaging in any other substantial gainful work that exists in the national economy.
§ 423(d)(2)(A).
In determining whether a person is disabled, the SSA must follow a five-step
sequential evaluation process, asking, in order: (1) whether the claimant has
engaged in substantial gainful activity since his alleged onset of disability; (2)
whether the claimant suffers from a medically determinable impairment or
combination of impairments that is severe; (3) whether the claimant’s impairment
or combination of impairments is of a severity to meet or medically equal the
criteria of any impairment listed in the SSA regulations as presumptively disabling;
(4) whether the claimant’s RFC leaves him unable to perform the requirements of
his past relevant work; and (5) whether the claimant is unable to perform any other
work. See 20 C.F.R. § 404.1520(a)(4).

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An affirmative answer at either step three or step five leads to a finding that
the claimant is disabled. Briscoe, 425 F.3d at 352. “The claimant bears the burden
of proof at steps one through four.” Id. Once the claimant shows an inability to
perform past work, the burden then shifts to the Commissioner to show the
claimant’s ability to engage in other work existing in significant numbers in the
national economy. Id.
B. Legal analysis
Ms. Wilking argues that the ALJ erroneously found her hand impairment to
be non-severe, improperly assessed her RFC, improperly evaluated her credibility,
and failed to account for certain limitations in the hypothetical posed to the
vocational expert. The Court will address each argument in turn.
1. Whether the ALJ erred in determining that Ms. Wilking’s hand
impairment to be non-severe
Ms. Wilking argues that the ALJ’s finding that her dominant right-hand pain
does not constitute a severe impairment is unsupported by the record. Step two of
the five-step sequential evaluation process requires an ALJ to determine whether
the claimant suffers from a medically determinable impairment that is severe. 20
C.F.R. § 404.1520(c). “An impairment or combination of impairments is considered
“severe” if it significantly limits an individual’s physical or mental abilities to do
basic work activities; an impairment(s) that is “not severe” must be a slight
abnormality that has no more than a minimal effect on the ability to do basic work
activities.” Social Security Ruling 96-3p. Thus, a determination as to whether an

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impairment is severe requires an assessment of the functionally limiting effects of
the impairment. Id.
The Court finds that the ALJ’s decision as to the severity of Ms. Wilking’s
hand is supported by objective and subjective record evidence. In October 2014, an
orthopedic specialist diagnosed Ms. Wilking with right wrist De Quervain’s
Tenosynovitis. Tr. 627. After being treated with a Cortisone shot, Ms. Wilking
consistently reported decreasing pain in her hand. Ex. 11F; Ex. 12F. Although she
communicated symptoms of soreness in her hand and fingers, Ms. Wilking
simultaneously reported that her hand pain is a one out of ten on the pain scale
table, and even zero out of ten at times. Tr. 848; Tr. 857; Tr. 932. Ms. Wilking also
reported only using her hand brace when very active, and only wearing a splint to
help with heavier tasks. Id. Further, X-rays of Ms. Wilking’s right hand and wrist
were unremarkable. Ex. 6F. Finally, as to her daily activities, Ms. Wilking
maintained that even though she has trouble picking up things with her right hand,
she is nevertheless able to play cards, cut food, and make meals without difficulty.
Ex. 12F. Accordingly, there is substantial evidence to sustain the ALJ’s finding that
Ms. Wilking’s hand impairment is non-severe.
2. Whether the ALJ improperly assessed Ms. Wilking’s RFC
Ms. Wilking argues that the ALJ’s RFC assessment of light work with
limitations is wrong and that her physical and mental impairments allow only
sedentary employment. The Commissioner counters that the ALJ’s RFC finding is

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supported by substantial evidence, including the clinical findings, the physician
opinions of record, and Ms. Wilking’s conservative treatment.
An ALJ determines a claimant’s RFC in between steps four and five of the
five-step sequential evaluation process, assessing the most an individual can still do
despite his or her limitations. SSR 96-8p. As part of the RFC assessment, an ALJ
must determine the individual’s exertional limits; i.e., the individual’s strength
demands for sitting, standing, walking, lifting, carrying, pushing, and pulling. 20
C.F.R. § 404.1569(a). The exertional limits are divided into categories: sedentary,
light, medium, heavy, and very heavy. Id. Here, the ALJ determined that Ms.
Wilking is limited to light work with various restrictions.
The ALJ’s light work finding is supported by substantial evidence. Ms.
Wilking’s treatment notes document years of low back pain, neck problems, knee
pain, and leg pains, including difficulty walking more than two blocks. Ex. 4A. But
her physical examinations consistently show that she has a normal gait, motor
strength, and full range of motion in the lower extremities. Exhs. 6F; 17F.
For example, in May 2014, Ms. Wilking’s medical records note that there is
no deformity of the lower extremities and that her gait is normal even for long
distances in the hallway. Tr. 586. Further, Ms. Wilking’s physical examination from
October 2015 showed full range of motion of the hips without focal tenderness, as
well as full range of motion of the knees and ankles. Ex. 17F. Moreover, the ALJ’s
RFC assessment is consistent with the RFC determinations made by the State
agency medical consultants, Dr. Khorshidi and Dr. Greco, and by the State agency

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psychological consultant, Dr. Musholt. Exhs. 3A; 4A; 5A. Accordingly, the ALJ
appropriately assessed Ms. Wilking’s RFC, and his determination will not be
disturbed.
3. Whether the ALJ improperly evaluated Ms. Wilking’s credibility
Ms. Wilking argues that the ALJ improperly discredited her testimony about
her pain and limitations. When considering a claimant’s subjective symptoms, the
ALJ must follow a two-step process. See Social Security Ruling 16-3p; See also 20
C.F.R. § 404.1529. First, the ALJ must determine whether the individual has “a
medically determinable impairment that could reasonably be expected to produce
the individual’s alleged symptoms.” Id. Second, the ALJ must “evaluate the
intensity, persistence, and limiting effects of the individual’s symptoms such as pain
and determine the extent to which an individual’s symptoms limits his or her ability
to perform work-related activities.” Id.
An ALJ’s appraisal of claimants’ assertions regarding their symptoms “is
entitled to deference” and will not be upset unless it is “‘patently wrong,’” Bates v.
Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) (quoting Pepper v. Colvin, 712 F.3d 351,
367 (7th Cir. 2013)), or is “divorced from the facts contained in the record,” Berger v.
Astrue, 516 F.3d 539, 546 (7th Cir. 2008). “Further, the ALJ must explain her
decision in such a way that allows us to determine whether she reached her decision
in a rational manner, logically based on her specific findings and the evidence in the
record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011) (citations omitted).

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The ALJ here found that Ms. Wilking’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms, but that the alleged
intensity of the symptoms and their impact on functioning were not consistent with
the totality of the evidence. Tr. 25. Ms. Wilking maintains that the ALJ improperly
discredited her subjective claims by placing unwarranted weight on instances of
noncompliance and by failing to appreciate the context in which her daily activities
occurred. These criticisms are valid and necessitate remand.
This case presents the common situation in which an ALJ must assess the
credibility of claimants’ assertions regarding their actual limitations because
medical records alone fail to justify the claimed limitations. In making this
credibility determination, an ALJ is permitted to start with the medical records, but
an ALJ may not rely on the records alone to reject claimants’ assertions.
Hildebrandt v. Astrue, 2012 U.S. Dist. LEXIS 61842, *27 (E. D. Wis. 2012).
Accordingly, an ALJ must provide some justification beyond medical records to
overcome claimants’ assertions regarding their limitations.
The ALJ was on solid ground in finding that the medical records did not
substantiate Ms. Wilking’s assertions regarding her limitations. The ALJ noted that
the medical records documented unremarkable physical examinations, Ex. 6F; a
normal gait, full range of motion, and mobility in all four extremities, Exhs. 4F; 6F,
15F; multiple reports of no pain, Ex. 4F; and routine and conservative treatment.
The medical records were therefore inconsistent with Ms. Wilking’s allegations of
pain. Tr. 25-27.

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This finding alone, of course, would not permit the ALJ to reject Ms.
Wilking’s claims. The ALJ therefore based his decision on two additional factors
that he believed undercut Ms. Wilking’s credibility: alleged noncompliance with
measures that any reasonable person would have followed to alleviate her
purported symptoms and daily activities that Ms. Wilking could not have conducted
if she truly suffered as she claimed. Each is addressed below.
Noncompliance. The ALJ found that Ms. Wilking failed to take prescribed
medicine and was unwilling to stop smoking despite her doctor’s recommendation.
Tr. 27. From this, the ALJ concluded that “the claimant’s failure to earlier pursue
recommended treatment measures demonstrates a possible unwillingness to do
what is necessary to improve her condition, and may also be an indication that her
symptoms are not as severe as she purports.” Tr. 27.
The ALJ’s conclusion is mistaken. As to failing to take prescription
medications, part of the record does confirm Ms. Wilking’s noncompliance. Tr. 27.
But another part of the record drains this noncompliance of relevance—Ms.
Wilking’s doctor explained that Ms. Wilking “ran out of money” and “cannot afford
all of her medications.” Tr. 408. The ALJ thus neglected to heed the Seventh
Circuit’s caution that even though “failure to follow a treatment plan can
undermine a claimant’s credibility, an ALJ must first explore the claimant’s reasons
for the lack of medical care before drawing a negative inference.” Shauger v. Astrue,
675 F.3d 690, 696 (7th Cir. 2012).

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As to the significance of Ms. Wilking’s smoking, here again the Seventh
Circuit has counseled that it is impermissible for an ALJ to rely on failure to quit
smoking as a basis for a credibility determination “given the addictive nature of
smoking.” Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000) (holding that,
because smoking is so addictive, failing to quit is likely attributable to other factors
and not to a lack of credibility regarding the severity of a claimant’s symptoms).
Daily activities. The ALJ found that Ms. Wilking reported being able to
engage in a number of normal day-to-day activities such as tending to her personal
care, preparing simple meals, independently using public transportation, doing
puzzles, managing her finances, and taking walks for approximately 20 minutes a
day. Tr. 28-29. The ALJ then found that “the claimant’s ability to participate in
such activities diminishes the credibility of the claimant’s allegations of disabling
functional limitations.” Tr. 29.
It is generally permissible for an ALJ to rely on a claimant’s daily activities
when making a credibility determination. SSR 16-3p. At the same time, it is
incumbent on an ALJ to report those daily activities accurately and fulsomely. That
did not occur. For example, the ALJ stated that Ms. Wilking was able to
independently use public transportation; yet, in the hearing before the ALJ, Ms.
Wilking testified that she had tried using public transportation but found it
impossible because, even when the driver lowers the bus, she could not lift her legs
high enough to get on board. Tr. 51. In a similar vein, the ALJ discussed Ms.
Wilking’s ability to do puzzles and play card games, but failed to mention Ms.

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Wilking’s testimony that it takes her months to complete a puzzle due to pain from
sitting for too long. Tr. 70. The ALJ also relied on Ms. Wilking’s ability to go for 20
minute walks everyday despite the pain in her legs, back, and spine, Tr. 29. Absent
from his decision is any mention that her walks (as well as the other activities she
engaged in) chiefly took place within her assisted living facility, which was designed
for persons with disabilities and equipped with level floors and railings to provide
support during ambulatory activity. Tr. 75-76.
Because the purported issues with noncompliance and with daily activities
fail, under closer examination, to support the ALJ’s refusal to credit Ms. Wilking’s
description of her limitations, the ALJ’s credibility determination is patently wrong.
Accordingly, the Court cannot conclude that the ALJ “reached his decision in a
rational manner, logically based on his specific findings and the evidence in the
record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011) (citations omitted).
The Court therefore finds that the ALJ committed reversible error when evaluating
Ms. Wilking’s credibility.
4. Whether the ALJ erred by not accounting for certain limitations
in the hypothetical posed to the vocational expert
Ms. Wilking argues that the ALJ failed to account for her mental limitations
in the hypothetical posed to the vocational expert. At steps four and five of the
sequential evaluation process, an ALJ is required to determine (a) whether a
claimant’s impairments prevent her from doing her past relevant work and (b)
whether the claimant’s impairments prevent her from performing other work that
exists in the national economy, considering her RFC. See SSR 00-4p. To make these
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findings, an ALJ may ask a vocational expert to “offer expert testimony in response
to a hypothetical question about whether a person with the physical and mental
limitations imposed by the claimant’s medical impairments(s) can meet the
demands of the claimant’s previous work.” 20 C.F.R. § 416.960(b)(2). An ALJ is
required to use the same RFC assessment when deciding if the claimant can adjust
to any other work. See § 416.960(c).
With regard to Ms. Wilking’s mental limitations, the ALJ posed a
hypothetical to the vocational expert asking her to assume that the individual in
question would be limited to performing simple, routine tasks; making simple workrelated decisions; and being off task less than five percent of the time in an eighthour workday. Tr. 90. Ms. Wilking maintains that the ALJ’s hypothetical question
was flawed because it failed to account for her moderate limitations in the areas of
concentration, persistence, or pace. The Court agrees with Ms. Wilking.
It is well settled in this circuit that “both the hypothetical posed to the VE
and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations
supported by the medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir.
2015). “Among the mental limitations that the vocational expert must consider are
deficiencies of concentration, persistence, or pace.” Id.
Ms. Wilking’s medical records document her anxiety, attention abnormalities,
and preoccupations. Tr. 1157-1164. In his RFC assessment, the ALJ found that Ms.
Wilking has moderate difficulty in concentration, persistence, or pace due to record
evidence reflecting “greater symptoms of anxiety, including difficulty with

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concentration and memory.” Tr. 30. The ALJ’s hypothetical, however, made no
mention of Ms. Wilking’s moderate limitations in concentration, persistence, or
pace. Instead, the ALJ asked the vocational expert to assume only that an
individual was limited to performing simple, routine tasks. Tr. 90. To be sure, an
ALJ is not required to use the exact terminology of “concentration, persistence, or
pace” in a hypothetical. Nevertheless, the court has “repeatedly rejected the notion
that a hypothetical like the one here confining the claimant to simple, routine tasks
. . . adequately captures . . . limitations in concentration, persistence, and pace.”
Varga, 794 F.3d at 814. The ALJ’s failure to capture these key limitations in the
hypothetical posed to the vocational expert mandates remand.
IV.

Conclusion
For all the foregoing reasons, the Court finds that the ALJ committed

reversible error in determining that Ms. Wilking was not disabled as of January 1,
2014. The Court therefore will reverse that part of the ALJ’s decision denying Ms.
Wilking’s claim for disability benefits and remand the case to the Commissioner for
further proceedings consistent with this Decision and Order.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
decision is REVERSED and REMANDED to the Commissioner pursuant to
sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for
further proceedings consistent with this Decision and Order.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.

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Dated at Milwaukee, Wisconsin, this 27th day of September, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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