Kwasniewski v. Berryhill

Filing 33

ORDER signed by Chief Judge Pamela Pepper on 7/14/2020 DENYING 24 the Commissioner's Motion for Remand. The court GRANTS the plaintiff's request for remand, REVERSING IN PART Administrative Law Judge's August 3 0, 2016 decision, only to the extent that it concluded that the plaintiff was not disabled between July 23, 2009 and August 1, 2012 and REMANDING for further proceedings under Sentence Four of 42 U.S.C. §405(g) and consistent with this order. (cc: all counsel) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
SHERI A. KWASNIEWSKI,
Plaintiff,

Case No. 17-cv-1445-pp

v.
ANDREW SAUL, 1

Defendant.
______________________________________________________________________________
ORDER DENYING DEFENDANT’S MOTION FOR REMAND (DKT. NO. 24),
GRANTING THE PLAINTIFF’S REQUEST FOR REMAND (DKT. NOS. 1, 25),
REVERSING ADMINISTRATIVE LAW JUDGE’S AUGUST 30, 2016 DECISION
DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
UNDER SENTENCE FOUR OF 42 U.S.C. §405(g) AND CONSISTENT WITH
THIS ORDER
______________________________________________________________________________
The plaintiff filed her appeal on October 23, 2017. Dkt. No. 1. Noting that
on August 30, 2016, ALJ Bedwell had determined that the plaintiff was
disabled from August 1, 2012 to the present, the plaintiff asserted that she
appealed only the ALJ’s determination that she was not disabled between July
23, 2009 and August 1, 2012. Id. at 2. In her brief, the plaintiff argued that the
ALJ had erred in three ways in concluding that she was not disabled between
July 23, 2009 and August 1, 2012:
•

The ALJ did not follow Magistrate Judge Duffin’s instruction in the
previous remand order to adopt a residual functional capacity

When the plaintiff filed her appeal, Nancy Berryhill was acting Commissioner
of the Social Security Administration. Because Andrew Saul was sworn in as
Commissioner on June 17, 2019, the court has substituted his name as
defendant.
1

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assessment that included restrictions for the plaintiff’s mental
limitations in persistence, pace and concentration;
•

The ALJ did not adopt an RFC that included restrictions on the
plaintiff’s limitations in her ability to interact with coworkers or
supervisors (as opposed to the public); and

•

The ALJ’s decision at Step 5 was not supported by substantial
evidence because his acceptance of the vocational expert’s testimony
and methodology was not supported by substantial evidence.

Dkt. No. 16.
Rather than filing a brief in response to these arguments (as required by
the court’s briefing letter of November 13, 2017, dkt. no. 7), the Commissioner
filed a motion to remand, dkt. no. 24, along with a proposed order instructing
the Appeals Council to remand to an ALJ with instructions to “reevaluate the
claimant’s mental limitations, reconsider the medical opinion evidence,
reassess the claimant’s residual functional capacity and, as warranted, obtain
evidence from a vocational expert,” dkt. no. 24-1.
At a hearing on July 1, 2020, the Commissioner agreed that the court
should remand on the first two issues the plaintiff had raised in her brief but
did not agree that the court should remand on the third issue. The plaintiff
responded that, among other things, in failing to file a response brief, the
Commissioner had waived any argument on the third issue.
The court agrees that it was improper for the Commissioner to file his
own remand motion after filing the administrative record and after the plaintiff
had filed her brief in support. See DeHart v. Colvin, Case No. 15-cv-322, Dkt.
No. 28 (E.D. Wis. Jan. 27, 2016); Lenz v. Berryhill, No. 17-C-221, 2018 WL

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1226111, at *8, n.2 (E.D. Wis. Mar. 9, 2018). The court also agrees that by
filing a motion for remand rather than filing a response brief, the
Commissioner waived argument on the question of whether ALJ Bedwell’s
adoption of the vocational expert’s methodology and testimony as to jobs
available in substantial number in the national economy was based on
substantial evidence.
The court DENIES the Commissioner’s motion for remand. Dkt. No. 24.
The court GRANTS the plaintiff’s requests for remand. Dkt. Nos. 16, 25.
The court ORDERS that ALJ Bedwell’s August 30, 2016 decision is
REVERSED IN PART, only to the extent that it concluded that the plaintiff was
not disabled between July 23, 2009 and August 1, 2012.
The court FINDS that ALJ Bedwell failed to comply with Judge Duffin’s
order to adopt a residual functional capacity assessment that reflected the
plaintiff’s limitations on concentration, persistence and pace.
The court FINDS that ALJ Bedwell failed to adopt a residual functional
capacity assessment that reflected the plaintiff’s limitations on interactions
with coworkers and supervisors.
The court FINDS that ALJ Bedwell’s finding that the positions described
in the Dictionary of Occupational Titles as “document preparer, microfilming”
and “addresser” existed in significant numbers in the national economy was
not supported by substantial evidence.
The court ORDERS that this case is REMANDED for further proceedings
under Sentence Four of 42 U.S.C. §405(g) and consistent with this order.
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Dated in Milwaukee, Wisconsin this 14th day of July, 2020.
BY THE COURT:

______________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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