Schloesser v. Berryhill

• Decision Date: 07 September 2017
• Docket Number: No. 16-1862.,16-1862.
• Citation: 870 F.3d 712
• Parties: Mark SCHLOESSER, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

870 F.3d 712

Mark SCHLOESSER, Plaintiff-Appellant,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security,^* Defendant-Appellee.

No. 16-1862.

United States Court of Appeals, Seventh Circuit.

Argued January 19, 2017

Decided September 7, 2017

Dana Wayne Duncan, Attorney, DUNCAN DISABILITY LAW, SC, Nekoosa, WI, for Plaintiff-Appellant.

Lu Han, Attorney, SOCIAL SECURITY ADMINISTRATION, Office of the General Counsel, Region V, for Defendant-Appellee.

Before Flaum, Manion, and Williams, Circuit Judges.

Williams, Circuit Judge.

Mark Schloesser, who suffers from a combination of physical impairments, applied for disability insurance benefits in November 2012. The Social Security Administration ("SSA") initially denied his application. After reconsideration and a hearing, an Administrative Law Judge ("ALJ") found him disabled and granted benefits in August 2014. One month later, sua sponte , the SSA Appeals Council commenced review of the ALJ's favorable decision. The Appeals Council reversed the ALJ's favorable decision, concluding that the ALJ's findings were not supported by substantial evidence and that Schloesser was not disabled as of September 30, 2011, his last insured date.

Schloesser sought review of the Appeals Council's decision in the district court. It affirmed the Appeals Council's decision, finding that it was supported by substantial evidence. Schloesser now appeals, arguing that the Appeals Council erred because: (1) it failed to apply SSR 83-20 in its determination of his onset date; (2) its findings that he did not suffer from severe impairments of cervical radiculopathy

, major joint dysfunction, and history of left shoulder surgery were not supported by substantial evidence; and (3) its finding that his residual functional capacity ("RFC") did not include being off-task up to 10% of the workday or needing unscheduled breaks was not supported by substantial evidence. We affirm the denial of benefits because we find that SSR 83-20 was irrelevant to the Appeals Council's determination and that its findings regarding his impairments and RFC are supported by substantial evidence.

I. BACKGROUND

Mark Schloesser worked for 23 years as a dry curer in a meat-processing factory, a position that required him to regularly lift more than 70 pounds. But, after undergoing rotator cuff surgery on his left shoulder in 2001 and then a lactimectomy (disc removal in his lower back) in 2002, Schloesser left the meat-processing factory in 2003. For approximately six years, he was self-employed in construction, until his persistent shoulder and lower back problems prevented him from being able to regularly lift more than 50 pounds as required by his construction work. In November 2012, Schloesser applied for disability insurance benefits under 42 U.S.C. § 416(i). Schloesser, who had not worked since October 2009, complained that he suffered disabling pain in his back, neck, and shoulder, which, combined with his obesity

, made it impossible for him to work. He alleged a disability onset date of October 1, 2009 (later amended to January 1, 2011). The SSA initially denied his application, and so he requested a hearing before an ALJ.

A. ALJ's Favorable Decision

On August 13, 2014, based on the medical evidence submitted and Schloesser's testimony at the hearing, an ALJ found Schloesser to be disabled. In making this finding, the ALJ applied the five-step sequential evaluation process outlined in 20 C.F.R. § 404.1520(a)(4). The ALJ first determined that Schloesser had not engaged in substantial gainful activity since his alleged onset date of January 1, 2011, and, second, that Schloesser suffered from severe impairments of a history of cervical radiculopathy

, degenerative disc disease, major joint dysfunction, history of left shoulder surgery, and obesity. Third, the ALJ found that Schloesser did not have an impairment that met or medically equaled any impairment in Appendix 1 to 20 C.F.R. Part 404, Subpart P, and that Schloesser could perform only light work, stand and walk for four hours, sit for six hours, occasionally climb, stoop, kneel, crouch and crawl, frequently balance, not reach overhead with either extremity, no more than frequently reach in all other directions with his non-dominant left upper extremity, occasionally flex, extend and rotate his neck, he may need unscheduled breaks in addition to regular breaks, and he may be off-task more than 10% of the workday. Fourth, the ALJ found that Schloesser was not capable of performing his past relevant work as a dry curer or construction worker based on this RFC. Finally, relying on testimony from a vocational expert, the ALJ determined that given Schloesser's age, education, work experience, and RFC, there were no jobs that existed in significant numbers in the national economy that he could perform. Based on these findings, the ALJ found Schloesser disabled since January 1, 2011, which was prior to his September 30, 2011 date last insured, and so granted his application for disability benefits.

B. Appeals Council Reversed ALJ

On September 9, 2014, the SSA's Appeals Council sent notice to Schloesser that it intended to set aside the ALJ's favorable decision and issue a finding that Schloesser was not entitled to disability insurance benefits because he was not disabled before his date last insured. Schloesser filed a response on November 12, 2014. The Appeals Council determined that the new evidence he submitted was mostly dated after his insured status had expired and the evidence that did pertain to the period prior to his date last insured was duplicative or cumulative of the evidence already considered. Following the same five-step process as the ALJ, the Appeals Council: (1) agreed with the ALJ's findings at step one; (2) partially agreed with its findings at step two, but disagreed that Schloesser had severe impairments of cervical radiculopathy

, major joint dysfunction, and left shoulder surgery on or before his date last insured; (3) agreed with the ALJ's finding at step three; (4) agreed with the ALJ's finding that he could not work his prior job and partially agreed with the ALJ's determination of Schloesser's RFC, but disagreed that he could only occasionally flex, extend, and rotate his neck, may need to be off task for more than 10% and may need unscheduled breaks; and, importantly, (5) disagreed that there were no jobs that existed in significant numbers in the national economy that he could perform, based on its determination of his RFC. Therefore, it found that Schloesser was not disabled as of his date last insured.

In finding that Schloesser did not have the severe impairment of cervical radiculopathy

at step two, the Appeals Council explained that Schloesser was diagnosed with only mild, not severe, cervical degeneration with radicular symptomology in December 2011, which was over two months after his date last insured. It also noted that his symptoms improved with physical therapy, and his radiculopathy resolved in February 2012. He did not report neck pain again until February 2014. Based on this evidence, the Appeals Council did not agree with the ALJ's determination that Schloesser's RFC included only occasional flexing, extending, and rotating of his neck at step four.

The Appeals Council also found that Schloesser did not suffer from the severe impairments of major joint dysfunction and left shoulder surgery on or before his date last insured. It explained that, except for records of rotator cuff surgery in 2001, there was no evidence regarding significant shoulder pain until well after his date last insured. In fact, after he was diagnosed with left shoulder subacromial impingement syndrome

in February 2012 and referred to physical therapy, he did not seek subsequent treatment for significant shoulder symptoms. And even though it found that Schloesser did not suffer from any severe impairment due to his shoulder, the Appeals Council still credited and accounted for Schloesser's non-severe shoulder pain in its determination of his RFC. But, at step five, it still found that "even when considering limitations in [Schloesser's] ability to reach with the left upper extremity, the vocational expert testified that there would still be a number of jobs [he] could perform."

Next, at step four, the Appeals Council found that Schloesser's RFC did not include being off-task more than 10% of the workday or needing unscheduled breaks. The Appeals Council determined that "the limited evidence available before the date last insured does not substantially support [Schloesser's] allegations that he experienced disabling symptoms before the expiration of his insured status." It explained that Schloesser's testimony in August 2013 to the ALJ that, starting in 2010, he could not "sit much more than a half an hour before the pain [was] to a point where [he] need[ed] to lay back down" and that he spent more than 50% of his day laying down was not supported by the medical evidence from 2011. It noted that Schloesser was diagnosed with severe degenerative disc disease

in February 2011 and experienced a limited range of motion in his lumbar spine, a slightly flexed posture, slightly reduced manual muscle strength of 4+/5, and a mildly antalgic gait in March 2011, but he only rated his pain as a 2 on a 10-point scale and indicated that he stopped taking his prescribed painkiller Tramadol, in favor of Tylenol and Ibuprofen to manage his lower back pain. And even though Schloesser experienced some weakness and reduced range of motion in his lower left extremity, all other muscles tested were at 5/5 and his doctors observed no tenderness in his lower back. Then, as the Appeals Council observed, in August 2011, one month before his date last insured, Schloesser reported discontinuing ibuprofen

use. Finally, the Appeals Council stated that Schloesser did not report increased back pain again until May 2013, indicating that the pain had worsened "over the last year," meaning it had...