Wagner, Karl v. Berryhill, Nancy

Filing 13

ORDER to Show Cause. The Commissioner shall advise why remand is not required on or before October 13, 2017. Signed by District Judge William M. Conley on 9/22/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KARL WAGNER,
Plaintiff,

ORDER

v.
17-cv-159-wmc
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of a final decision of
defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, which denied
his application for Social Security Disability Insurance Benefits and Supplemental Security
Income. Wagner contends that the Administrative Law Judge (“ALJ”) erred in finding him
“not disabled” under the statute. More specifically, Wagner contends that the ALJ failed
to explain the basis for adopting a 10% off-task limitation in formulating claimant’s
residual functional capacity in hypothetical questions to the vocational expert.

(Pl.’s

Opening Br. (dkt. #10) 18.) This court recently reversed denials of benefits in two cases
involving similar challenges based on an ALJ’s failure to explain the reasons for the
seemingly arbitrary adoption of a 10% off-task limitation in the respective RFCs. See
Bolssen v. Berryhill, No. 15-cv-824 (W.D. Wis. Sept. 21, 2017) (dkt. #15); Smith-White v.
Berryhill, No. 15-cv-612 (W.D. Wis. Sept. 21, 2017) (dkt. #14).1
In so ruling, the court principally relied on the Seventh Circuit’s guidance as set
forth recently in Lanigan v. Berryhill, 865 F.3d 558 (7th Cir. 2017). In Lanigan, the court

See also Rapp v. Colvin, No. 12-cv-353-wmc, 2015 WL 1268327 (W.D. Wis. Mar. 19, 2015);
Olivarez v. Colvin, No. 12-cv-884-wmc, 2015 WL 1506084 (W.D. Wis. Apr. 1, 2015).
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vacated the denial of disability benefits and remanded for further proceedings on the basis
that the ALJ had failed to “build an accurate and logical bridge” between the 10% off taskfinding and the record as a whole. Id. at 563.
Given the similarity of the factual and legal issues raised here, the court directs the
Commissioner to advise why remand in this case is not warranted in light of these recent
opinions. If upon review of these cases, the Commissioner concludes that remand is
warranted, the parties are instructed to stipulate to a remand pursuant to sentence four of
Section 205 of the Social Security Act, 42 U.S.C. § 405(g), including an award of
reasonable fees and costs to plaintiff. To assist the ALJ on remand, any stipulation should
make reference to the deficiencies recognized in this order, along with any other arguably
meritorious deficiencies that are raised in briefing.

ORDER
IT IS ORDERED that the Commissioner shall advise why remand is not required
on or before October 13, 2017.
Entered this 22nd day of September, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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