Kvapil, Lonnie v. Astrue, Michael

Filing 21

ORDER Entering Judgment for plaintiff. Signed by District Judge William M. Conley on 3/27/15. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LONNIE KVAPIL,
Plaintiff,

ORDER

v.

12-CV-00956-wmc

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Pursuant to 42 U.S.C. § 405(g), plaintiff Lonnie Kvapil, seeks judicial review of an
administrative law judge’s finding that he was not disabled within the meaning of the
Social Security Act. Kvapil principally contends that remand is warranted because the
ALJ’s decision regarding his residual functional capacity (“RFC”) fails to properly address
physical and mental impairments. Kvapil contends that exclusion of these limitations
ultimately tainted evidence supplied by the vocational expert. Kvapil further contends
that the ALJ failed to properly credit his subjective complaints of pain. For the reasons
set forth below, the case will be remanded for rehearing.
BACKGROUND
I. Procedural History
On November 24, 2009, Kvapil filed his application for disability benefits. (AR
153-157.) On March 18, 2010, Kvapil’s application was initially denied and again on
July 29 after reconsideration. (AR 97-100.) On September 3, 2010, Kvapil filed a timely
request for a hearing. (AR 113-115.) On July 12, 2011, he testified at an administrative
hearing before ALJ Theresa Hoskins Hart in Eau Claire, Wisconsin.

(AR 22.)

On

November 9, 2011, the ALJ issued an unfavorable decision denying benefits. (AR 1937.) Kvapil filed a request for review of the hearing decision with the Appeals Council,
which was denied on October 24, 2012, thus rendering the final determination of the
Commissioner. (AR 1-4.) See also 20 C.F.R. § 404.927. Kvapil then filed a timely
complaint for judicial review in this court pursuant to 42 U.S.C. §405(g).
II. Medical Evidence
A. Physical Limitations
Kvapil struggles with arthritis in his hands that cause numbness, pain and stiffness
in his fingers and palm. (AR 292.) Relatedly, Kvapil reports trouble gripping objects and
using his hands for any extended period of time. (AR 75.)
Kvapil has also been diagnosed with a shoulder impairment.

A 2010 MRI of

Kvapil’s shoulder revealed: “mild degenerative acromioclavicular changes, as well as small
degenerative subchondral cysts in the humeral head,” which are nonspecific but can be
related to impingement syndrome.” (AR 307.) Kvapil’s medical records also document
severe right shoulder pain for which he underwent extensive rehabilitation, but was
considered not to be a surgical candidate. (AR 302.)

As a result, Kvapil reported

difficulty sleeping and finding a comfortable position that minimizes his shoulder pain.
(Id.)
Kvapil’s medical records further document his lower back pain that has
progressively worsened over time. (AR 302.) Kvapil complains that the pain in his back
radiates into both hips, making it difficult for him to walk or perform any physical
activity. (Id.)

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Finally, Kvapil’s records document his on-going, uncontrolled diabetes. He is
prescribed regular medication, and checks his blood sugar levels regularly. Kvapil reports
that his diabetic symptoms include sweating and increased fatigue. (AR 286.) As a result
of his on-going diabetes, Kvapil has bilateral glaucoma and cataracts and is no longer
permitted to drive because of poor vision. (AR 302.)
B. Mental Limitations
In March 2010, consultative examining psychologist Marcus P. Desmonde,
Psy.D., found that Kvapil was capable of understanding simple to moderately complex
instructions and would be able to carry out tasks (within any physical limitations he
might have).

(AR 311.)

Dr. Desmonde also felt that Kvapil would work best in

environments where he had limited contact with others. (Id.) Provided that Kvapil was
compliant with his medications and abstained from alcohol, Desmonde opined that
Kvapil would be able to tolerate the stress and pressure of competitive employment.
That same month, state agency psychologist Eric Edelman, Ph.D., opined that
Kvapil was moderately limited in (1) social functioning and (2) concentration,
persistence, and pace.

(AR 331.)

Four months later, in August 2010, state agency

psychologist Kayla King, Psy.D., also opined that Kvapil was moderately limited in social
functioning and concentration, persistence, or pace. (AR 365.) Dr. King further opined
that Kvapil would be able to perform unskilled work, with limited exposure to the public.
(AR 353.)

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III. Administrative Decision
In her decision, the ALJ found Kvapil to have severe impairments of diabetes,
history of asthma, right shoulder tendinopathy with tear, adjustment disorder with
history of episodic alcohol use, left hand arthritis, and obesity.

(AR 25.)

The ALJ

nevertheless determined that Kvapil was capable of performing “light” level work with:
further limitation to “frequent reaching, handling, and fingering; the inability to perform
more than frequent reaching, handling and fingering; the inability to perform more than
unskilled work that has no more than occasional and superficial interaction with the
public; and the inability to more than occasionally reach overhead with the right upper
extremity.” (AR 28.) The ALJ also found that Kvapil “must avoid environments with
moderate exposure to fumes, dusts, gases, or lung irritants.” (Id.)
Given these limitations, the ALJ then determined that Kvapil could not return to
his past work.

(AR 32.)

Based on the testimony of the vocational expert (“VE”),

however, the ALJ concluded that Kvapil would be able to perform other work in the
national economy, including employment as a security guard/system monitor (sedentary,
3,000 jobs) and mail clerk (light, 3,000 jobs).

(Id.) The ALJ found, therefore, that

Kvapil was not disabled under the statute.

OPINION
When a federal court reviews a final decision by the Commissioner of Social
Security, the findings of fact are “conclusive,” so long as they are supported by
“substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
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Richardson v. Perales, 402 U.S. 389, 401 (1971). When reviewing the commissioner’s
findings under § 405(g), the court cannot reconsider facts, re-weigh the evidence, decide
questions of credibility or otherwise substitute its own judgment for that of the
administrative law judge. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Even so, a district court may not simply “rubber-stamp” the Commissioner’s
decision without a critical review of the evidence. See Ehrhart v. Secretary of Health and
Human Servs., 969 F.2d 534, 538 (7th Cir. 1992). A decision cannot stand if it lacks
evidentiary support. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). It is for this
reason that the ALJ’s decision here must be remanded.
I. The ALJ Failed to Address Kvapil’s Mental Limitations
Kvapil has been diagnosed with anxiety, depression and personality disorder. (AR
362.) He principally challenges the ALJ’s decision for failing to properly account for
these limitations in concentration persistence and pace (“CPP”) in formulating his RFC.1
Kvapil further argues that this deficiency had a ripple effect at step five of the evaluation
process by making hypothetical questions proposed to the vocational expert (“VE”)
defective and thus tainting the VE’s opinion. The court agrees. See Steele v. Barnhart,
290 F.3d 936, 942 (7th Cir. 2002) (stating “hypothetical questions posed to [VE's]
ordinarily must include all limitations supported by medical evidence in the record.”)
Here, at least two state agency doctors agreed that Kvapil has moderate
limitations in his ability to “complete a normal work-day and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace
The RFC assessment is made by the ALJ “based on all the relevant evidence in [the claimant's]
case record.” 20 C.F.R. § 404.1545(a)(1). The RFC is an assessment of the most a claimant can
do despite his or her limitations. Id.
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without an unreasonable number . . . of rest periods.” (AR 336, 352.) Moreover, both
of these doctors’ opinions were credited. Dr. Edelman’s assessment also noted several
other moderate limitations in CPP. (AR 335.) A good number of those same limitations
were adopted by Dr. King. (AR 351.) Based on this medical evidence, the ALJ found
that “with regard to concentration, persistence and pace, the claimant has moderate
difficulties.” (AR. 27). At step four, however, the ALJ purported to accommodate for all
of these moderate difficulties in the RFC determination by stating that Kvapil could not
perform “[1] unskilled work that has [2] no more than occasional and superficial
interaction with the public.” (AR 28.)
The problem with the ALJ’s finding is that the Seventh Circuit has overturned a
vague limitation to “unskilled work” fails to properly accommodate for moderate
deficiencies in CPP. O'Connor–Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010). Even if
the Seventh Circuit permitted the ALJ to rely on the reference to unskilled work in the
state doctor’s reports, the reports themselves need to better explain why this is so given
Kvapil’s moderate limitations in CPP. See SSR 96–8p (“RFC assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts”); see also Huber v. Astrue, 395 Fed. Appx. 299, 302 (7th Cir. 2010).2
Specifically, when such limitations are omitted from the RFC determination, the
ALJ’s hypothetical questions to the vocational expert are compromised.

Based on

Even though the state agency doctors said that Kvapil was capable of unskilled work, the ALJ is
still required to translate any findings of moderate CPP limitations into cognizable work
performance limitations in the RFC. Indeed the RFC assessment, as defined in the regulations, is
“based on all the relevant evidence in [the claimant's] case record,” not just a single sentence
buried in the back-end of a report as the Commissioner would have the court believe here. 20
C.F.R. § 404.1545(a)(1) (the RFC is an assessment of the most a claimant can do despite his or
her limitations.).
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existing case-law, the court finds that these defects taint the substantiality of the
vocational expert’s evidence, thus warranting remand. See Steele v. Barnhart, 290 F.3d
936, 942 (7th Cir. 2002) (when posing his hypothetical to the VE, the ALJ was required
to include all of a claimant’s limitations “to ensure that the vocational expert [did] not
refer to jobs that the claimant cannot work”); Craft v. Astrue, 539 F.3d 668, 677-78 (7th
Cir. 2008).3 For the reasons set forth here, as well as those is the court’s earlier decision,
remand is clearly required.4
II. The ALJ Properly addressed Kvapil Physical Limitations
Kvapil also challenges the ALJ’s formulation of his RFC based on physical
limitations. Kvapil argues in particular that his RFC is inconsistent with the medical
evidence.

Unlike the first error in formulating Kvapil’s mental limitations discussed

above, the purported error here is given some level of deference as it challenges the
substantiality of the evidence. Notwithstanding this, an ALJ must still make specific RFC
findings based on all of the relevant evidence in the case record. The applicable Social
Security Rule states that:
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing
specific medical facts . . . and nonmedical evidence . . . the
adjudicator must discuss the individual's ability to perform
sustained work activities in an ordinary work setting on a
See also Nancy Traver-Musselman, Nancy v. Carolyn Colvin, 12-CV-423 2014, WL 1007302 at *8
(W.D. Wis. March 14, 2014); Amy Marchel v. Astrue, 12-CV-47 (W.D.Wis., Nov. 16, 2012); Gray
v. Astrue, 2009 WL 1228632 (N.D. Ind. May 1, 2009); McGee v. Astrue, 770 F.Supp.2d 945,
(E.D.Wis. 2011) (remand for use of “simple, routine, repetitive” in RFC as substitute for finding
of moderate CPP); Kell v. Astrue, 2011WL 2970891 (S.D. Ind., July 21, 2011).
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The court is not unsympathetic to the lack of guidance that has been afforded to the
Commissioner on the CPP issue. See generally O'Connor–Spinner v. Astrue, 627 F.3d 614, 619 (7th
Cir. 2010).
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regular and continuing basis . . . The adjudicator must also
explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.
SSR 96–8p (emphasis added).
Kvapil’s attack on the ALJ’s decision relies heavily on the italicized phrase above
in challenging her finding that Kvapil could perform light work, arguing that this finding
is inconsistent with the medical evidence.5 The court disagrees.
As a general rule, a district court should not disturb the factual findings of ALJ
decision because of the deference afforded them. See Elder v. Astrue, 529 F.3d 408, 413
(7th Cir. 2008). Here, however, Kvapil’s legal argument lacks merit for two reasons.
First, Kvapil fails to put forward any meaningful medical evidence that would undercut
the ALJ’s light work finding. Instead, he simply states that “plaintiff’s impairments, as
documented in the medical records, provide evidence that he would be unable to perform
the requirements of light work.” (Dkt. # 15 at 6.) Although there is reference to a 2010
MRI scan noting shoulder impingement, there is no analysis in the briefing of how this is
inconsistent with the limitations that the ALJ found in addition to light work, including
Kvapil’s inability to do no more than: (1) frequent reaching, handling, and fingering; and
(2) occasional overhead reaching with the upper right extremity.

(AR 28.)

Merely

claiming an inconsistency is not enough; there must be some effort to demonstrate how
the medical evidence runs contrary to the RFC determination. Kvapil’s briefing falls
short in this regard.

While Kvapil lists many of his impairments as providing basis for a disability finding, only some
are denoted as “severe” at step two of the evaluation process. But as counsel is aware, step three
is de minimis in nature: a severe impairment at step two does not mean that it will translate into a
disabling impairment at step 3-5.
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Second, after inspecting the ALJ’s decision, the court can discern no error in the
substantiality of the evidence that the ALJ relied on to formulate the RFC, at least where
Kvapil’s physical limitations are concerned. In particular, the court finds Dr. Chan’s
evidence consistent with the RFC limitations that Kvapil could perform. For example,
Dr. Chan opined that Kvapil could lift/carry 20 pounds occasionally and 10 pounds
frequently, as well as stand/walk for about six hours and sit for about six hours in an
eight-hour day. (AR 344.)

Similarly, Dr. Chan’s opinion supports the ALJ’s finding,

which restricted Kvapil to only frequent (not constant) gross and fine manipulation. (AR
28, 346, 350.) This evidence, coupled with Dr. Walcott’s opinion, is more than enough
to substantiate the ALJ’s RFC determination. (AR 320.) See Flener v. Barnhart, 361 F.3d
442, 448 (7th Cir. 2004) (“It is appropriate for an ALJ to rely on the opinions of
physicians and psychologists who are also experts in social security disability
evaluation.”). As such, the court finds no error with respect to the ALJ’s formulation of
Kvapil’s physical limitations.
III. The ALJ’s Evaluation of Kvapil’s Credibility
Credibility is typically the province of the ALJ. Shramek v. Apfel, 226 F.3d 809,
811 (7th Cir. 2000). An ALJ’s credibility determination is “afforded special deference”
because the ALJ is in the best position to see and hear the witness and determine
credibility. Id. The court will only overturn an ALJ’s credibility determination if it is
“patently wrong.” Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003). Given that the
RFC determination will need to be reformulated on remand to accommodate for Kvapil’s
moderate limitations in CPP, the ALJ may find that Kvapil’s credibility is actually
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bolstered.

Because of this, the court will decline to rule on the ALJ’s credibility

determination at this time.6

ORDER
IT IS ORDERED that the decision of defendant Carolyn W. Colvin,
Commissioner of Social Security, denying Lonnie Kvapil’s application for disability
insurance benefits is REVERSED AND REMANDED under sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this opinion. The clerk of court is directed
to enter judgment for plaintiff and close this case.
Entered this 27th day of March, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

See Mollett v. Astrue, No. 3:11–CV–238 2012 WL 3916548, at *9-10 (N.D. Ind. Sept. 7, 2012)
(“[b]ecause the ALJ's error regarding the hypothetical questions requires remand, the court need
not consider the claimant's arguments regarding the remaining issues”).
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