DePalma, Richard v. Colvin, Carolyn

Filing 25

Transmission of Notice of Appeal, Docketing Statement, Order, Judgment, Transcript Request Form and Docket Sheet to Seventh Circuit Court of Appeals re: 21 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Transcript Request Form, # 5 Docket Sheet) (lak)

Case: 3:14-cv-00817-jdp Document #: 21-1 Filed: 01/24/16 Page 1 of 5

CASE NO. 16-______

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
RICHARD DEPALMA,
Plaintiff-Appellant,
v.

Case No.: 14-cv-817-jdp

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Hon. James D. Peterson
United State District Judge

Defendant-Appellee
Appeal from a Judgment from
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
DOCKETING STATEMENT

Dana W. Duncan
Attorney for the Plaintiff-Appellant
Duncan Disability Law, S.C.
State Bar I.D. No. 01008917
3930 8th Street South, Suite 201
Wisconsin Rapids, WI 54494
[phone]

Case: 3:14-cv-00817-jdp Document #: 21-1 Filed: 01/24/16 Page 2 of 5

Plaintiff-Appellant, Richard DePalma, by his attorney, Dana W.
Duncan, Duncan Disability Law, S.C., submits this docketing statement
alleging the following:
1.

The District Court’s jurisdiction is contained in an appeal of
an adverse decision of the Commissioner of Social Security
under §216(i) and 223 of the Social Security Act, 42 U.S.C.
§416(i) and 423(d).

2.

The judgment to be reviewed is an order and judgment by
the Honorable James D. Peterson, District Judge, dated
November 25, 2015 and entered on November 25, 2015,
affirming the decision of the Defendant-Appellant, Carolyn
W. Colvin, Acting Commissioner of Social Security, denying
the plaintiff-appellant’s application for a period of disability
and disability insurance benefits under 42 U.S.C. §§216(i)
and 223. Dkt. 19, 20.

3.

This docketing statement is submitted pursuant to Circuit
Rule 3(c) and Circuit Rule 28(a).

4.

A Notice of Appeal was filed on or about the 4th day of
January, 2016.

5.

The Notice of Appeal from the order of the Honorable James
D. Peterson is an appeal from a final judgment adjudicating
all of the claims with respect to all parties.

6.

As procedural history:
A.

Pursuant to 42 U.S.C. §405(g), Plaintiff, DePalma,
sought judicial review of the final administrative
decision of the Commissioner of Social Security (SSA
or Commissioner). The matter was filed and
submitted on briefs in May 12, 2015, July 8, 2015, and
August 7, 2015.

B.

The matter was based upon an applications filed on
December 6, 2011. R79.

C

The application was denied on February 1, 2012 and
the reconsideration denied on September 10, 2012.
R84-87, 89-92.

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Case: 3:14-cv-00817-jdp Document #: 21-1 Filed: 01/24/16 Page 3 of 5

D.

On August 27, 2013, ALJ Thomas J. Sanzi issued a
nine-page decision. R71-79.

E.

The ALJ found that DePalma had not engaged in
substantial gainful activity since December 6, 2011,
the application date, and had the following severe
impairments: bilateral knee impairment status post
November 2010 left knee replacement and November
2011, right knee meniscus repair; left shoulder
impairment; degenerative disc disease of the lumbar
spine. R73.

F.

She found that DePalma did not have an impairment
or combination of impairments that met or medically
equaled the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1. R74.

G.

In determining the residual functional capacity, the
ALJ found that DePalma could “perform a range of
light work . . . except he (was) limited to no more than
occasional crouching, kneeling, crawling, and
climbing of ladders, ropes or scaffolds and he (was)
limited to no more than frequent climbing of stairs
and ramps or reaching overhead with his left arm. He
(was) limited to jobs that can be performed while
using a hand held assistive device required at all
times when standing.” R74.

H.

Turning to steps four and five, the ALJ found that,
first, DePalma was unable to return to his past
relevant work as a carpenter or as a maintenance
worker both at the medium exertional level. The
vocational expert testified that the requirements of the
claimant's past relevant work exceeded his current
residual functional capacity. He also found that
DePalma was born on February 5, 1967, and was 44
years old, which was defined as a younger individual
age 18-49, on the date the application was filed.
DePalma had at least a high school education and was
able to communicate in English. R78

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Case: 3:14-cv-00817-jdp Document #: 21-1 Filed: 01/24/16 Page 4 of 5

I.

Transferability of job skills was not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supported
a finding that the claimant was "not disabled,"
whether or not the claimant had transferable job
skills. R78.

J.

Considering DePalma’s age, education, work
experience, and residual functional capacity, there
were jobs that exist in significant numbers in the
national economy that he could perform. Noting that
the non-exertional limitations would erode the fullrange of light work, the ALJ asked the VE a
hypothetical question which encompassed the RFC.
The ALJ noted, “The vocational expert testified that
given all of these factors the individual would be able
to perform the requirements of representative
occupations at the light exertional level such as info
clerk, with 1,727 jobs in the state economy; shipping
clerk, with 1,799 jobs in the state economy; and
survey worker, with 1,601 jobs in the state economy.”

K.

A finding of “not disabled” was therefore
appropriate. The ALJ also noted, “I did propose a
sedentary residual functional capacity to the
vocational expert. He testified that jobs existed in
numbers that I find to be significant.”

L.

Accordingly, DePalma had not been under a
disability, as defined in the Social Security Act, from
December 6, 2011, through the date of the decision.
R18. Based on the application for supplemental
security income filed on December 6, 2011, the
DePalma was not disabled under section
1614(a)(3)(A) of the Social Security Act. R18.

M.

DePalma filed in Federal District Court, Western
District of Wisconsin on November 26, 2014. Dkt. No.
1.

N.

The ALJ erred in failing to given the opinion of the
treating physician proper weight and failing to lay a
foundation for the vocational testimony.

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Case: 3:14-cv-00817-jdp Document #: 21-1 Filed: 01/24/16 Page 5 of 5

O.

Following the submission of
James D. Peterson, United
issued an Opinion and Order
upholding the decision the
decision.

briefs, the Honorable
States District Judge,
on November 25, 2015
Commissioner’s final

Dated this 24th day of January, 2016.

Respectfully submitted,
Duncan Disability Law, S.C.
Attorneys for the Plaintiff-Appellant
/s/ Dana W. Duncan
Dana W. Duncan
State Bar I.D. No. 01008917
3930 8th Street South, Suite 201
Wisconsin Rapids, WI 54494
[phone]

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