Garbisch, Leah v. Saul, Andrew

Filing 22

Transmission of Notice of Appeal, Docketing Statement, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 19 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LEAH CHRISTINE GARBISCH,
Plaintiff,
v.

OPINION and ORDER

ANDREW M. SAUL,
Commissioner of the Social Security Administration,

20-cv-572-jdp

Defendant.1
Plaintiff Leah Christine Garbisch seeks judicial review of a final decision of defendant
Andrew Saul, Commissioner of the Social Security Administration, finding Garbisch not
disabled within the meaning of the Social Security Act. Garbisch contends that administrative
law judge Ahavaha Pyrtel (ALJ) erred by failing to adequately weigh the opinion evidence.
Garbisch also says that the Appeals Council erred by refusing to consider new evidence that
Garbisch submitted after the ALJ issued her decision. The court is not persuaded that either
the ALJ or the Appeals Council erred. So the court will affirm the ALJ’s decision and cancel the
hearing scheduled for April 8, 2021.

ANALYSIS
Garbisch sought benefits based on both physical and mental impairments, alleging
disability beginning in 2017, when she was 30 years old. R. 59, 71.2 In a June 2019 decision,

1

The captions of Garbisch’s briefs identify her first name as “Lean,” but the complaint and
other documents in the record use the spelling above.
2

Record cites are to the administrative transcript, located at Dkt. 7.

the ALJ found that Garbisch suffered from several severe impairments: peripheral neuropathy,
obesity, depression, and anxiety. R. 61. The ALJ ascribed to Garbisch the residual functional
capacity (RFC) to perform light work, with additional mental health restrictions. R. 63. Based
on the testimony of a vocational expert, the ALJ found that Garbisch was not disabled because
she could work in jobs available in the national economy, including as a housekeeper or cleaner.
On appeal, the court’s role is to determine whether the ALJ’s decision is supported by
substantial evidence, meaning that the court looks to the administrative record and asks
“whether it contains sufficient evidence to support the agency’s factual determinations.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The standard is not high and requires only “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
But the ALJ’s decision must identify the relevant evidence and build a “logical bridge” between
that evidence and the final determination. Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014).

ANALYSIS
A. Reviewing consultant’s opinion
Garbisch contends that the ALJ erred by crediting the mental limitations found by
psychological consultant Mary Ellen Menken but then failing to account for all those
limitations in the RFC. This contention relates to a worksheet that Menken filled out as part
of an assessment of Garbisch’s mental residual functional capacity. As noted in Varga v. Colvin,
794 F.3d 809, 811 (7th Cir. 2015), the worksheet the consultant used has different sections.
In one section, the consultant is asked to rate the claimant’s functioning in several,
predetermined categories, with ratings such as “not significantly limited,” “moderately limited,”
and “markedly limited.” R. 118–20. After each group of functional categories, the consultant

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is directed to “explain in narrative form” the limitations she chose. Id. The directions for the
worksheet explain that the ratings “help determine the individual’s ability to perform sustained
work activities.” R. 118. But “the actual mental residual functional capacity assessment is
recorded in the narrative discussion(s).” Id. In other words, the narrative is meant to translate
the ratings into specific functional limitations.
In this case, Menken found that Garbisch was “moderately limited” in several categories
related to concentration, persistence, pace and social interaction, including:
•

working in coordination with or proximity to others without being distracted by
them;

•

completing a normal workday and workweek without interruptions from
psychologically based symptoms and performing at a consistent pace without an
unreasonable number and length of rest periods;

•

accepting instructions and responding appropriately to criticism from
supervisors;

•

getting along with coworkers without distracting them or exhibiting behavioral
extremes;

•

responding appropriately to changes in the work setting.

R. 118–19.
In the narrative portion of the worksheet, Menken wrote that Garbisch would be able
to: “sustain attention, persistence, & pace adequately to perform simple tasks for 2-hour
periods,” “manage basic work-related social interactions with supervisors, coworkers, & the
public adequately,” “respond appropriately to basic supervisory instruction & criticism,” and
“respond appropriately to simple, routine changes in the work setting.” Id. In the RFC, the ALJ
stated that Garbisch “can perform simple and routine tasks (at a reasoning level of three (3))

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with occasional contact with co-workers and the public and occasional changes in the work
setting.” R. 63.
Garbisch says that the ALJ failed to either incorporate or discuss the moderate
limitations that Menken found related to: (1) working with others; (2) pace; (3) contact with
supervisors; and (4) adapting to changes. But the ALJ did include restrictions in the RFC related
(1) and (4), limiting Garbisch to “occasional contact with co-workers” and “occasional changes
in the work setting.” R. 63. Garbisch doesn’t explain why those restrictions are inadequate, and
she doesn’t address them at all in her reply brief, so she hasn’t shown that the ALJ was wrong
about those two restrictions.
As for the limitations related to pace and contact with supervisors, those didn’t need to
be incorporated into the RFC because Menken explained in her narrative that Garbisch can
adequately manage “basic work-related social interactions” with supervisors and work on
simple tasks at an adequate pace for two hours at a time. Garbisch doesn’t contend that the
RFC is inconsistent with the narrative or that the jobs identified by the vocational expert
require an employee to have greater abilities than those described in the narrative.
Garbisch argues instead that the ALJ was required to account for Menken’s more general
ratings of “moderate limitations,” either by adopting them or explaining why she declined to
do so. She relies on DeCamp v. Berryhill, in which the court stated that “an ALJ may rely on a
narrative explanation, [but] the ALJ still must adequately account for limitations identified
elsewhere in the record, including specific questions raised in check-box sections of
standardized forms such as the PRT and MRFC forms.” 916 F.3d 671, 676 (7th Cir. 2019).
The “check-box sections” for the worksheet mentioned in DeCamp are similar to the ratings
discussed in this opinion for general categories of limitations. But DeCamp isn’t on point. The

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problem in DeCamp was that the narrative section simply didn’t account for some of the more
general ratings. That’s not what happened in this case. The ALJ and Menken didn’t ignore the
ratings for the general categories; rather, Menken translated the ratings into more specific
findings in the narrative, which the ALJ then adopted. That approach is consistent with Varga,
which states that “an ALJ may rely on a doctor’s narrative RFC, rather than the checkboxes,
where that narrative adequately encapsulates and translates those worksheet observations.”
794 F.3d at 816 (7th Cir. 2015).
In her reply brief, Garbisch raises a new argument, contending that Menken’s opinion
was “internally inconsistent.” Dkt. 15, at 14. The court understands her to be saying that it
was inconsistent for Menken to find both that: (1) Garbisch has moderate limitations in
sustaining pace and interacting with supervisors; and (2) Garbisch can adequately manage
“basic work-related social interactions” with supervisors and work on simple tasks at an
adequate pace for two hours at a time. This argument is forfeited because Garbisch didn’t raise
it in her opening brief. See Brown v. Colvin, 661 F. App’x 894, 895 (7th Cir. 2016). In any event,
Garbisch doesn’t support the argument. It seems to be based on an assumption that a moderate
limitation must always translate into a restriction in the RFC. But Garbisch cites no authority
for that view, and this court has already rejected it. See Bolin v. Saul, No. 20-cv-348-jdp, 2021
WL 567899, at *7–8 (W.D. Wis. Feb. 16, 2021).
The meaning of “moderate” is not precisely defined in the regulations. A recent
definition states only that a “moderation limitation” means that “functioning in this area
independently, appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. § Pt. 404,
Subpt. P, App. 1, § 12.00(F)(2)(C). So how one consultant views a “moderate” limitation may
be different from another. And the court of appeals has acknowledged that having a moderate

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limitation “does not mean that [a claimant] could not function satisfactorily.” Capman v. Colvin,
617 F. Appx 575, 579 (7th Cir. 2015).
As already noted, the worksheet used by Menkin in this case explains that a consultant’s
ratings “help determine the individual’s ability to perform sustained work activities,” but “the
actual mental residual functional capacity assessment is recorded in the narrative
discussion(s).” R. 118. So under the terms of the worksheet itself, Menken communicated her
view in her narrative that whatever limitations Garbisch had related to pace and working with
supervisors, they could be accommodated if Garbisch was limited to routine and simple tasks.
This is like other cases in which the court of appeals found that moderate limitations didn’t
automatically require specific restrictions in the RFC. See Apke v. Saul, 817 F. App’x 252, 258
(7th Cir. 2020) (moderate limitations in ability to perform activities within a schedule,
maintain regular attendance, and be reasonably punctual consistent with narrative that
claimant “could tolerate normal work expectations”); Capman, 617 F. Appx at 579 (moderate
limitation in completing a workday without interruption consistent with narrative that the
plaintiff could adequately manage the stress of unskilled tasks).
The court does not see an inherent conflict between the different parts of Menken’s
worksheet. And Garbisch points to no evidence in the record from which Menken could have
found additional limitations, so the ALJ didn’t err by relying on Menken’s narrative.
B. Examining consultant’s opinion
Examining consultant Sandra Frodin found that Garbisch had moderate to marked
limitations in several areas of mental functioning, and the parties assume that Garbisch would
meet the requirements for disability if Frodin’s findings were adopted. But the ALJ concluded
that Frodin’s opinion was “only partially persuasive” for several reasons: (1) some of her

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findings related to issues outside her expertise; (2) she relied “quite heavily” on Garbisch’s
subjective complaints, despite good reasons for questioning Garbisch’s credibility; (3) her
findings were inconsistent with Garbisch’s treatment history; (4) her findings were inconsistent
with Garbisch’s statements to treatment providers; (5) her findings were inconsistent with
recent treatment notes indicating a decrease in depression symptoms; and (6) her findings were
inconsistent with Garbisch’s hearing testimony. R. 70.
Garbisch says that the ALJ’s reasons are “suspect,” Dkt. 10, at 14, but she doesn’t even
discuss reasons (1), (2), and (6) in either of her briefs, even after the commissioner included a
lengthy discussion about those other reasons in his response brief. An ALJ’s decision need not
be flawless. It is enough that the ALJ “provide some evidence supporting her determination.”
Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) (emphasis added). Collectively, the three
reasons that Garbisch doesn’t challenge are more than enough to support the ALJ’s decision,
so the court need not decide whether the other reasons are persuasive. See Hall v. Berryhill, 906
F.3d 640, 644 (7th Cir. 2018) (upholding ALJ’s determination even though some reasons
weren’t supported by the record).
C. New evidence
The ALJ issued her decision on June 21, 2019. Several months later, Garbisch submitted
additional medical records to the Appeals Council. R. 9–36. Garbisch describes these records
as “[n]ew evidence regarding seizures or psychogenic episodes,” Dkt. 10, at 19, an issue that
Garbisch says wasn’t previously discussed in the medical records. The Appeals Council declined
to consider the evidence because it “does not relate to the period at issue,” which is November
4, 2017, to June 21, 2019. R. 2. The council informed Garbisch that she would have to file a
new application if she believed that she became disabled after June 21. Id.

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The consideration of additional evidence submitted to the Appeals Council is governed
by 20 C.F.R. § 404.970, which requires the claimant to show that she has good cause for not
submitting the evidence before the ALJ’s decision, that the evidence is “new, material, and
relates to the period on or before the date of the hearing decision,” and that there is “a
reasonable probability that the additional evidence would change the outcome of the decision.”
The Appeals Council didn’t expressly consider whether Garbisch had good cause for submitting
her records after the ALJ’s decision. But both sides assume that a plaintiff must make that
showing to the district court as well, so the court will make the same assumption.
Garbisch says that she had good cause because the additional records qualify as
“rebuttal evidence.” Dkt. 10, at 21. She cites a comments about the good-cause requirement
in the Federal Register, which states, “if an ALJ introduces new evidence at or after a hearing,
the claimant could . . . submit rebuttal evidence.” 81 Fed. Reg. 90987-01, 90991 (Dec. 16,
2016). But this example of good cause doesn’t apply because Garbisch doesn’t identify any
“new evidence” that the ALJ introduced “at or after a hearing.”
In her reply brief, Garbisch says that “rebuttal evidence” includes any evidence that
could “be used to rebut a finding made by the ALJ in the decision.” Dkt. 15, at 22. But if that
were correct, it would mean that virtually any favorable evidence would satisfy the good-cause
requirement. The reason for allowing a claimant to submit late “rebuttal evidence” is that the
claimant didn’t have a previous opportunity to address new evidence discussed in the ALJ’s
decision, not to simply bolster the claimant’s case.
Also in her reply brief, Garbisch cites a statement from her letter to the Appeals Council
in which she said that she could not have gathered the records sooner because she was “waiting
to get into the specialty clinic.” R. 8. Garbisch forfeited this argument by failing to raise it in

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her opening brief. Regardless, the letter says that Garbisch had been suffering from seizures
since 2017, more than two years earlier. Garbisch provides no evidence that she had been
waiting for an appointment that entire time, and she doesn’t explain why she didn’t discuss
the seizures at the administrative hearing or with any of her treatment providers during the
relevant time. So the court concludes the Garbisch didn’t have good cause for failing to submit
the evidence before the ALJ issued her decision.
In any event, Garbisch hasn’t demonstrated a reasonable probability that the additional
records would have changed the outcome of the ALJ’s decision. Garbisch points to nothing in
those records suggesting that the frequency or severity of Garbisch’s episodes during the
relevant period would support a finding of disability or even additional restrictions.

ORDER
IT IS ORDERED that that the decision of the commissioner is AFFIRMED and the
April 8, 2021 oral argument is CANCELED. The clerk of court is directed to enter judgment
in favor of the commissioner and close this case.
Entered April 5, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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