Wetzel v. Commissioner of Social Security

Filing 20

Report and Recommendation - Entered by Magistrate Judge Jonathan E. Hawley on 2/2/2015. The Court recommends that the Plaintiffs Motion for Summary Judgment 11 be granted and the Commissioners Motion for Summary Affirmance 16 be denied. The parti es are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk within fourteen (14) working days after service of this Report and Recommendation. FRCP 72(b)(2); 28 USC § 636(b)(1). Failure to object w ill constitute a waiver of objections on appeal. Johnson v Zema Systems Corp, 170 F3d 734, 739 (7th Cir 1999); Lorentzen v Anderson Pest Control, 64 F3d 327, 330 (7th Cir 1995). Objections to R&R due by 2/20/2015. (LN, ilcd) Modified on 2/3/2015 (LN, ilcd).

E-FILED

Tuesday, 03 February, 2015 03:40:18 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
DEAN W. WETZEL,
Plaintiff,
v.

Case No. 4:13-cv-04070-SLD-JEH

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Report and Recommendation
Now before the Court is the Plaintiff’s, Dean W. Wetzel, Motion to Reverse
the Decision of the Commissioner of Social Security (Doc. 11) and the
Commissioner of Social Security’s, Carolyn W. Colvin, Motion for Summary
Affirmance (Doc. 16). The Plaintiff appeals from the denial of his application for
Social Security Disability Insurance Benefits under Title II of the Social Security
Act.

42 USC § 405(g).

This matter has been referred for a Report and

Recommendation. Text Order entered March 11, 2014. The Motions are fully
briefed, and for the reasons stated herein, the Court recommends that the
Commissioner’s Motion for Summary Affirmance be denied and the Plaintiff’s
Motion for Summary Judgment be granted. 1
I
On March 12, 2010 2, Wetzel filed a Title II application for disability
insurance benefits.

(AR 189).

In his application, Wetzel alleged disability

References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 8) on the docket.
2 The Application Summary for Disability Insurance Benefits contained in the Administrative Record
provided to the Court indicates a date of May 10, 2010. However, the ALJ’s Opinion (AR 66), the
1

1

beginning on January 1, 2010. (AR 189). The claim was denied initially on
September 1, 2010, and was then denied upon reconsideration on September 30,
2010 (AR 66). On October 20, 2010, Wetzel filed a timely request for hearing
concerning his application for disability insurance benefits. (AR 66). An initial
hearing was held before the Honorable Robert H. Schwartz (ALJ) on March 26,
2012 via video, during which time Wetzel was represented by an attorney.
Following the hearing, the ALJ determined that Wetzel was not disabled prior to
December 17, 2011, but became disabled on that date, thus, the ALJ’s decision
was partially favorable to Wetzel. (AR 76). Wetzel’s request for review by the
Appeals Council was denied on June 14, 2013, making the ALJ’s decision the
final decision of the Commissioner. (AR 1). Wetzel filed the instant civil action
seeking review of the ALJ’s decision on August 13, 2013.
II
At the time he applied for benefits, Wetzel was a 48 year old married man
living with his wife and two children in Stronghurst, Illinois. (AR 91, 191). He
was a college graduate who had previously worked as a farmer, janitor, and golf
course mower. (AR 92-93). In 1993, while working as a farmer, Wetzel was in a
farming accident involving a tractor which caused him to suffer a traumatic brain
injury (a right-sided parietal subdural hematoma) and a severe metatarsal
fracture of the left foot. (AR 71, 666). The farming accident left him with rightsided symptoms, including right foot drop, though he was able to resume fulltime work activity following the accident. (AR 71, 95). Then, in 2001, Wetzel
developed grand mal tonic clonic seizures, and subsequently experienced
seizures in 2004, 2008, and 2010. (AR 71).

Commissioner’s Court Transcript Index (Doc. 8 at pg. 3), and the Plaintiff’s Motion for Summary
Judgment (Doc. 11) all indicate the date of March 12, 2010.

2

At the hearing before the ALJ, Wetzel testified that he drives as often as
needed, usually to take his kids somewhere or to get groceries. (AR 92). He also
testified that he plays golf twice a week, though he always uses a cart and falls at
least once per hole because of his right foot drop. He testified that he does some
dishes, laundry, uses a riding mower, plays games on the computer, and does
some of the family’s finances, though he makes several silly mistakes when
doing the finances. (AR 105-06). He testified that his anti-seizure medication
makes him drowsy so that he naps at least once a day, and that he has problems
with his right knee because of an injury to it when he fell in August 2011. (AR
96, 98). He also testified that he has problems with the stairs in his house, and
must use railings on both sides when using the stairs. (AR 104-05). As for his
previous employment, Wetzel testified that when he worked as a janitor, he
made a lot of incorrect decisions and he could not keep up with the other guys
on the job because he could not walk normally. (AR 93). When he worked as a
mower, he could not run a tractor the correct way because of his right foot and
then could not go back to that work after the seizures in 2010. (AR 94). At the
time of the hearing, Wetzel was an un-paid basketball coach. (AR 106-07). He
testified that he does not get paid to coach and misses several practices because
he does not feel good or just does not feel like going. (AR 107).
After listening to Wetzel’s testimony, the ALJ posed his first hypothetical
question to the vocational expert (VE) Ronald Malik (Malik): whether a person
of Wetzel’s age, education, and work experience would be able to perform his
past work if he was restricted to lift, carry, push, and/or pull no more than 20
pounds occasionally, and no more than 10 pounds frequently, never climb
ladders, ropes, or scaffolding, never crawl more than occasionally, avoid all
exposure to hazards, like unprotected heights and dangerous machinery, and
with moderately limited abilities to assume, understand, and carry out basic
3

instructions, sufficient attention and concentration to perform no more than
simple, routine, and repetitive tasks on a sustained basis with only routine
breaks, would be best in a socially restricted setting with moderate amount of
social expectations, and avoid more than occasional contact with the general
public and any tasks not involving sustained interaction with others. Malik
responded that such a person would not be able to perform Wetzel’s past work.
(AR 111-12).

Malik testified that, given the aforementioned limitations, the

following were representative jobs that could be performed by such a person:
fastener and publisher. (AR 112-13). The ALJ’s second hypothetical assumed the
same restrictions but included a limitation to never require walking over uneven
terrain unless rarely, and use of the right hand for handling and fingering no
more than frequently. (AR 113). Malik responded that fastener would remain
available and the additional job of power screwdriver operator. (AR 113). The
ALJ’s third hypothetical further limited such a person’s exertional requirements
to sedentary work, and to lift, carry, push, and/or pull no more than 10 pounds
occasionally, less than 10 pounds frequently, stand or walk no more than two
hours in an eight-hour workday, and to keep all non-exertional limitations the
same as in the first two hypotheticals. Malik responded that the jobs of sorter,
prep clerk, and circuit taper were representative jobs. (AR 113-14). Finally, the
ALJ asked Malik to assume that the individual can be expected to have marked
limitation in the ability to complete a normal workday or workweek without
interruptions from psychologically based symptoms, marked limitations in the
ability to maintain attention for extended periods, two hour segments. (AR 114).
Malik responded to the ALJ’s question of whether such limitations “change your

4

statement, or is there any work that that individual could perform?” with “No,
your honor.” (AR 114). 3
III
In his written Decision, the ALJ applied the standard five-step sequential
evaluation process and ultimately found that Wetzel was not disabled prior to
December 17, 2011, but became disabled on that date. The ALJ determined that
Wetzel satisfied Step One because he had not engaged in substantial gainful
activity during the period since his alleged onset date of January 1, 2010. (AR
68). At Step Two, the ALJ found that Wetzel suffered from the following severe
impairments: history of traumatic brain injury, cognitive disorder, right foot
drop, reduced right upper extremity strength, and seizure disorder. (AR 68). At
Step Three, the ALJ found that the medical evidence did not establish that
Wetzel’s impairments met or medically equaled the severity of one of the listed
impairments, either individually or in combination. (AR 68-69).
Specifically, the ALJ did not find that Wetzel met Listing 1.02 (Major
dysfunction of a joint(s)), 11.02 (Epilepsy), or 12.02, paragraph C (Organic Mental
Disorders).

The ALJ did find mild restriction in activities of daily living,

moderate difficulties in maintaining social functioning, moderate difficulties in
maintaining

concentration,

persistence,

or

pace,

and

no

episodes

of

decompensation, each of extended duration. In reaching his conclusions under
Step Three, the ALJ cited the evidence in the record that Wetzel was able to
perform household chores, drive, attend appointments, go golfing, mow, garden,
and coach basketball. (AR 69). While the ALJ noted that Wetzel’s social skills
were impaired, the ALJ explained that Wetzel did not demonstrate significant
limitation of memory or understanding during the hearing, and he was fully

3

It is unclear which part of the ALJ’s question Malik answered in the negative.

5

oriented and free of thought disorder during multiple examinations. (AR 69-70).
Also, the ALJ noted that while Wetzel would have problems consistently
remembering and performing detailed tasks or instructions, he performed a
relatively wide range of chores and leisure activities, and possessed sufficient
cognitive and attentional abilities to perform simple, routine activities within the
limits of his physical capabilities and requiring few social demands. (AR 70).
The ALJ found that Wetzel had the residual functional capacity (RFC) to
perform sedentary work subject to the following limitations: the ability to lift,
carry, push, and/or pull no more than 10 pounds occasionally and less than 10
pounds frequently, stand and/or walk for no more than a total of two hours
during an eight-hour workday, never climb ladders, ropes, or scaffolding, can
climb ramps and/or stairs, and crawl no more than occasionally, and avoid all
exposure to hazards like unprotected heights and dangerous machinery.
Additionally, his abilities to understand, remember, and carry out detailed
instructions were moderately limited, and he had sufficient attention and
concentration to perform no more than simple, routine, and repetitive tasks on a
sustained basis with only routine breaks. Further still, he would do best in a
socially restricted setting with a moderate limit of social expectations, and
considering such limitation, he should avoid more than occasional contact with
the general public and any tasks should not involve sustained close interaction
with others. (AR 70).
In making his RFC determination, the ALJ explained that Wetzel’s
statements concerning the intensity, persistence, and limiting effects of the
symptoms caused by his medically determinable impairments were not credible
to the extent they were inconsistent with the RFC assessment. In making this
determination, the ALJ relied upon Wetzel’s medical records and Wetzel’s own
testimony. The ALJ specifically traced the progression of Wetzel’s seizures since
6

2001, the use of Dilantin, Topamax, and Lamictal to control his seizures, Wetzel’s
work during the time of 2001 to the date of the ALJ’s Decision, and the activities
in which he engaged at home and outside of the home. He referenced a state
agency physical evaluation done by Dr. Joseph Mehr when discussing his RFC
finding, and he also referenced a state agency mental evaluation done by Dr.
Leslie Fyans. (AR 72). The ALJ discussed Emily Axvig’s 4 neuropsychology
consult note and her medical source statement, as well as another
neuropsychology note. (AR 73). The ALJ also discussed an assessment provided
by Dr. Phillip L. Kent. (AR 73).
The ALJ particularly noted that Wetzel had worked steadily at light and
medium jobs, and that the record did not support his representative’s contention
that his work had been accommodated. (AR 73). The ALJ discussed Wetzel’s
seizures and how those in 2004 and 2008 were probably related to missed
medicine doses, and how his seizures were under control with medication. (AR
73). The ALJ rejected Wetzel’s allegations about the limitations caused by his
right foot drop and right hand weakness, noting that Wetzel did not use an
assistive device for ambulation and had a grip strength of 5/5 in both hands and
normal ability to grasp and manipulate objects.

(AR 74).

Finally, the ALJ

summarized that there were inconsistencies in the record regarding Wetzel’s
symptoms, that the evidence was lacking to support his allegations as to
frequency, intensity, and persistence, and that there were inconsistencies
between his resultant limitations and his actual functioning, all of which
prompted the ALJ to find that Wetzel’s testimony was not fully supported by the
record.

4

Also identified as Emily Santi in the Administrative Record.

7

At Step Four, the ALJ determined that Wetzel was unable to perform any
past relevant work.
At Step Five, the ALJ determined that Wetzel could perform a significant
number of jobs that exist in the national economy prior to December 17, 2011.
(AR 74-75). The ALJ considered Wetzel’s age, education, work experience, and
RFC in conjunction with the Medical-Vocational Guidelines 20 CFR Part 404,
Subpart P, Appendix 2, and the opinion of VE Malik that a person with Wetzel’s
age, education, work experience, and RFC could perform the jobs of sorter, prep
clerk, and circuit taper. (AR 75). However, as of December 17, 2011, Wetzel’s
age category changed (he turned 50), and after considering his age change,
education, work experience, and RFC, the ALJ determined he was disabled. (AR
75).
IV
Wetzel argues four points: 1) that the ALJ improperly assessed his RFC; 2)
that the ALJ improperly weighed medical evidence; 3) that the ALJ erred when
considering the opinion of the state agency psychologist; and 4) that the ALJ
erred in mechanically applying the age categories in determining that Wetzel
was a younger individual prior to December 17, 2011. The Court will address
each argument in turn.
Pursuant to 42 USC § 405(g), the Commissioner’s findings must be
sustained by the Court if they are supported by “substantial evidence.” 42 USC §
405(g).

The entire administrative record must be reviewed for substantial

evidence which is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Skinner v Astrue, 478 F3d 836, 841 (7th Cir
2007), quoting Richardson v Perales, 402 US 389, 401 (1971). The Court may not
substitute its judgment for that of the ALJ. Schmidt v Apfel, 201 F3d 970, 972 (7th
Cir 2000). Furthermore, the Court will not review the credibility determinations
8

of the ALJ unless the determinations lack an explanation or support in the
record.

Elder v Astrue, 529 F3d 408, 413-14 (7th Cir 2008).

The ALJ must

“sufficiently articulate his assessment of the evidence to assure us that the ALJ
considered the important evidence . . . and to enable us to trace the path of the
ALJ’s reasoning.” Carlson v Shalala, 999 F2d 180, 181 (7th Cir 1993).
A
Wetzel first argues that the ALJ improperly assessed his RFC by failing to
include limitations relating to Wetzel’s fatigue and right foot drop, by
improperly conflating activities of daily living and activities performed in the
workplace, and by failing to discuss the interplay between Wetzel’s impairments
of a physical and mental nature. Wetzel argues that the Commissioner attempts
post-hoc rationalization in violation of the Chenery doctrine. 5 The Commissioner
counters that the ALJ explained his reliance on the medical and non-medical
evidence and that Wetzel fails to point to substantial medical findings that
support his alleged need to further accommodate his fatigue and right foot drop.
As the Commissioner points out, the “RFC assessment must include a
discussion of why reported symptom-related functional limitations and
restrictions can or cannot reasonably be accepted as consistent with the medical
evidence and other evidence.” 20 CFR § 404.1527. The ALJ addressed Wetzel’s
reported symptom-related functional limitations and restrictions in conjunction
with the medical and other evidence. The ALJ concluded his discussion of his
RFC finding by stating, “The undersigned also does not fully accept the
claimant’s allegations due to inconsistencies regarding the claimant’s resultant
limitations and his actual functioning . . . .”

(74).

The actual functioning

The Chenery doctrine forbids an agency’s lawyers from defending the agency’s decision on grounds that
the agency itself did not embrace. Parker v Astrue, 597 F3d 920, 922 (7th Cir 2010), citing SEC v Chenery
Corporation, 318 US 80, 87-88 (1943).

5

9

considered by the ALJ was that Wetzel played golf, did chores, could stay on
task until finished, and that he had worked steadily at light and medium jobs.
(AR 72, 73). The ALJ did not address Wetzel’s testimony that he frequently fell
when playing golf, and he did not address Wetzel’s testimony that he missed
several practices as a coach because he did not feel good or just did not feel like
going. The ALJ noted that Wetzel testified to taking at least one nap per day,
without further discussion on that point.
On the other hand, the ALJ did discuss Wetzel’s testimony, did extensively
cite to Wetzel’s medical records which continuously referenced his right foot
drop, did discuss his activities of daily living, and did discuss his mental
impairments. As for the ALJ’s alleged conflation of activities of daily living and
activities performed in the workplace, the ALJ considered Wetzel’s activities of
daily living separately from his workplace experience.

The ALJ noted that

Wetzel worked steadily at light and medium jobs and stated that, “the record did
not support the claimant’s representative’s contention that his work has been
accommodated.” (AR 73). Contrary to Wetzel’s assertion that the ALJ failed to
discuss the interplay between Wetzel’s impairments of a physical and mental
nature, the ALJ discussed the work Wetzel engaged in while noting the cognitive
deficits Wetzel experienced since 1993. (AR 73). Certainly, the ALJ did not need
to provide a complete written evaluation of every piece of testimony and
evidence, but he did need to build a logical bridge from the evidence to his
conclusion. See Murphy v Colvin, 759 F3d 811, 815 (7th Cir 2014), quoting Schmidt
v Barnhart, 395 F3d 737, 744 (7th Cir 2005) (explaining that the ALJ must “build a
logical bridge from the evidence to his conclusion, but he need not provide a
complete written evaluation of every piece of testimony and evidence). Here, the
ALJ did so.

While the Commissioner comes close to violating the Chenery

doctrine in attempting to defeat Wetzel’s challenge to the ALJ’s RFC assessment,
10

particularly in regard to Wetzel’s right foot drop and fatigue arguments,
ultimately, the ALJ sufficiently articulated his assessment of the evidence in
reaching his RFC determination. See Carlson, 999 F2d at 181. Wetzel is not
entitled to remand on the basis that the ALJ improperly assessed his RFC. While
the ALJ’s RFC assessment does not warrant remand, discrete parts of his
discussion in reaching his RFC determination do, as discussed infra.
B
Wetzel next argues that the ALJ improperly weighed the medical evidence.
In particular, Wetzel argues that the ALJ failed to properly evaluate the opinion
provided by his counselor, Emily Axvig. 20 CFR § 404.1527(c) provides:
How we weigh medical opinions. Regardless of its source, we will
evaluate every medical opinion we receive. Unless we give a
treating source's opinion controlling weight under paragraph (c)(2)
of this section, we consider all of the following factors in deciding
the weight we give to any medical opinion.
The listed factors include: 1) examining relationship; 2) treatment relationship,
which in turn includes length of the treatment relationship and the frequency of
examination, and the nature and extent of the treatment relationship; 3)
supportability; 4) consistency; 5) specialization; and 6) other factors brought to
the Social Security Administration’s attention. Id.
In rejecting Axvig’s opinion, the ALJ stated, “The undersigned gives
[Axvig’s medical source statement] little weight where it is not well supported
with citation to specific, objective evidence and it does not refer to specific
functional limitations.

Furthermore, this claimant’s counselor is not an

acceptable medical source for the purpose of this decision.” (AR 73). Wetzel
concedes that Axvig is not an acceptable medical source, but takes issue with the
the ALJ’s cursory explanation of why he gave Axvig’s medical source statement
little weight. Wetzel also argues that the ALJ partially misrepresented Axvig’s
11

opinion itself because she did address specific and discrete areas of functioning
and expressed her conclusion regarding the severity of Wetzel’s impairment in
each of the areas. The Commissioner argues that there is a distinction between
what the ALJ must consider and what the ALJ must explain in the disability
determination or decision.
The Commissioner specifically argues that the ALJ did not err in giving
Axvig’s statement little weight because the ALJ’s decision as a whole discussed
the medical evidence, state agency reviewing psychologist opinion evidence, and
non-medical evidence that contradicted Axvig’s opinion that Wetzel had marked
and moderate limitations in his ability to sustain certain work activities.
Notably, the Commissioner argues in her brief that the ALJ “implicitly”
explained that Axvig’s opinion was not entitled to more weight based on
substantial evidence in the record. Though no discussion beyond that cited
above is included in the ALJ’s Decision as to why he gave Axvig’s opinion little
weight, the Commissioner’s brief provides ample evidence from the record (and
discussed in the ALJ’s Decision) in support of the ALJ’s evaluation of Axvig’s
opinion.

However, what matters to this Court are the reasons that were

articulated by the ALJ in his Decision, and not reasons set forth by the
Commissioner in its Motion for Summary Affirmance. See Kastner v Astrue, 697
F3d 642, 648 (7th Cir 2012) (reiterating that under the Chenery doctrine, the
Commissioner’s lawyers cannot defend the agency’s decision on grounds that
the agency itself did not embrace); Jelinek v Astrue, 662 F3d 805, 812 (7th Cir
2011). The ALJ did not explain that he gave little weight to Axvig’s statement
due to the other evidence he identified in his Decision.
If the Court were to find that the ALJ’s decision to give Axvig’s statement
little weight was a correct one for the reasons stated by the Commissioner in her
brief, the Court would be permitting the Commissioner to violate the Chenery
12

doctrine.

It is beyond dispute that the Commissioner’s findings must be

sustained if they are supported by “substantial evidence.”

Moreover, it is

beyond dispute that the ALJ must build a logical bridge from the evidence to his
conclusion so that the Court can trace the path of the ALJ’s reasoning. Here, the
brevity of the ALJ’s discussion regarding the little weight given to Axvig’s
opinion does not present enough to trace the path of the ALJ’s reasoning in
discounting Axvig’s opinion. That is particularly so where during the hearing,
the ALJ specifically referenced Axvig’s medical source statement to question
whether there was any work such an individual could perform. Significantly, if
VE Malik’s response is understood to be in response to that question (see
Footnote 3 supra), his answer was no. (AR 114). Moreover, as Wetzel argues, the
ALJ’s Decision does not accurately state the extent of information provided by
Axvig in the record. Though the statement was made on what could be called
somewhat of a “form” statement, it discussed a number of areas and Wetzel’s
level of impairment as to each area.
Next, Axvig not only provided a medical source statement, but also her
treatment notes. (AR 751-54). Also, the ALJ had “a duty to solicit additional
information to flesh out an opinion for which the medical support [was] not
readily discernable.” Barnett v Barnhart, 381 F3d 664, 669 (7th Cir 2004). (AR
717). Finally, Axvig’s opinion was consistent in some respects with Dr. Daniel
Tranel’s (who opined that Wetzel’s return to gainful employment would be
difficult) (AR 712) as well as Dr. Phillip L. Kent’s (who opined that Wetzel was
impaired in certain areas to the same extent that Axvig opined). (AR 823).
Wetzel also argues that the ALJ failed to properly evaluate the opinion
provided by Dr. Kent for similar reasons as to why he argues Axvig’s opinion
was improperly evaluated.

The Commissioner counters Wetzel’s argument

about the weight given Dr. Kent’s opinion with the same reasons the
13

Commissioner provided regarding Axvig’s opinion; namely, that the ALJ’s
decision to discount Dr. Kent’s opinions is supported by the record, including
treatment records and Wetzel’s statements as discussed by the ALJ in his
Decision. Once again, the ALJ did not explain that he gave little weight to Dr.
Kent’s statement due to the other evidence he identified in his Decision. Instead,
the ALJ expressly stated that:
Dr. Kent endorsed several moderate limits and one “marked” limit
(ability to maintain attention for extended periods). The assessment
is not entitled to significant weight where it is not well supported
with citation to specific objective evidence and where it does not
refer to specific functional limitations. Furthermore, Dr. Kent is not
a treating source and his opinion is not entitled to controlling
weight.
(AR 73). As with Axvig’s opinion, the ALJ had a duty to solicit additional
information in order to flush out Dr. Kent’s opinion, particularly where he
rejected the opinion because “it was not well supported with citation to specific
objective evidence.” Dr. Kent’s treatment notes also appeared in the record, and
as discussed above, his opinion was consistent to some extent with that of
Axvig’s.
While the Commissioner argues that Wetzel’s challenge to the ALJ’s
decision about the weight to give Axvig’s and Dr. Kent’s opinions must fail
because of the other evidence cited in the Decision, the Court cannot say that the
ALJ properly engaged in weighing Axvig’s and Dr. Kent’s medical opinions as
required under 20 CFR § 404.1527(c). The Court agrees with the Commissioner
that there is a distinction between what the ALJ must consider and what the ALJ
must explain in the disability determination or decision, but here, the ALJ gave
such a brief discussion as to Axvig’s and Dr. Kent’s opinions that the Court is
unsure of whether the ALJ considered the important evidence (i.e. what he was
14

required to consider). An ALJ may not ignore entire lines of contrary evidence or
selectively consider medical reports. Myles v Astrue, 582 F3d 672, 678 (7th Cir
2009); Terry v Astrue, 580 F3d 471, 477 (7th Cir 2009).
C
Wetzel’s third argument is that the ALJ erred when considering the
opinion of the state agency psychologist, Dr. Fyans. Wetzel argues that Dr.
Fyans proposed that Wetzel be limited to unskilled work that involved one- to
two-step tasks, yet the ALJ did not explain if or why he rejected that limitation
from his assessment of Wetzel’s RFC. Wetzel contends that the omission was not
harmless error because two of the jobs identified by the VE Malik, document
prep clerk and circuit taker, required second level reasoning as opposed to first
level reasoning required for the completion of one- to two-step tasks.

The

Commissioner disputes that the ALJ had to include in his RFC a restriction for
Wetzel to one- to two-step tasks given the available medical evidence.

The

Commissioner says that the ALJ could properly rely on VE Malik’s testimony as
substantial evidence in finding that Wetzel was capable of performing a
significant number of jobs found in the national economy. The Commissioner
also argues that there is no evidence or precedential legal authority indicating
that a limit to one to two-step tasks would preclude Wetzel from performing the
jobs of prep clerk and circuit taper because they require second level reasoning
skills.
The parties are correct that the Seventh Circuit has not addressed the issue
of whether a limitation to one- to two-step tasks is consistent with the
Department of Labor’s Dictionary of Occupational Titles’ (DOT) definition of

15

Reasoning Development Level 1. 6

The parties do, however, rely on District

Court opinions. Two in particular are worth discussion here.
In Schlattman v Colvin, cited by Wetzel, an agency consultant doctor had
limited the claimant to one- to two-step tasks, and the doctor’s opinion was
affirmed by another state agency mental health consultant. 2014 WL 185009, *6
(ND Ill). In the ALJ’s RFC finding and questions posed to the VE, the ALJ did
not include a limitation to one- to two-step tasks. Id. The District Court noted
that there was a significant difference between one- to two-step tasks and simple,
routine, repetitive tasks.

Id at *7.

The Court further detailed how DOT

Reasoning Level 1 involved the ability to carry out simple one- or two-step
instructions whereas DOT Reasoning Level 2 required the ability to “apply
commonsense understanding to carry out detailed but uninvolved written or
oral instructions.”

Id (internal citations omitted).

All three occupations

identified by the VE required a Reasoning Level of 2, and thus the District Court
explained that if the doctor’s limitation had been credited and included as part of
the ALJ’s hypothetical question to the VE, it would have eliminated all
occupations cited by the VE and called into question the ALJ’s finding that the
claimant could perform a significant number of jobs in the national economy.”
Id at *7. The District Court found it significant that the ALJ never explained her
reason for disregarding the doctor’s proposed limitation. Id. The District Court
remanded the case for further proceedings after concluding that the ALJ’s failure
to include a limitation to one- to two-step tasks in her RFC finding and in her
questions posed to the VE did not present a logical bridge between the evidence
of record and her decision. Id at *8.

The DOT defines Reasoning Development Level 1as the ability to “apply commonsense understanding
to carry out simple one- or two-step instructions.” 1991 WL 688702.

6

16

In Thompkins v Astrue, cited by the Commissioner, the parties conceded
that the ALJ failed to elicit a reasonable explanation for the conflict between the
VE’s testimony and the DOT. 2010 WL 5071193, *10 (ND Ill). Specifically, the
claimant argued that the ALJ failed to ask the VE to explain the potential conflict
between his testimony on “simple” jobs available to the claimant and the DOT
Level 2 “detailed” standard those jobs actually required. Id. The Commissioner
argued that any error resulting from the ALJ’s silence was harmless. Id. The
District Court noted that under binding precedent, an ALJ’s failure to elicit a
reasonable explanation for the conflict between a VE’s testimony and the DOT is
harmless where the record shows that the claimant could, in fact, perform the job
duties the ALJ posed to the VE. Id, citing Terry, 580 F3d at 478. The District
Court found the reasoning of Masek v Astrue, 2010 WL 1050293, *22 (ND Ill),
persuasive. The Masek court explained that the Social Security regulations and
the DOT use “markedly different standards” and thus the Thompkins court
explained that “no one-to-one parallel can be found between “simple” as it is
used under the regulations and the DOT’s requirements.” Thompkins, 2010 WL
5071193, *11, citing Masek, 2010 WL 1050293, *22. The District Court rejected the
Plaintiff’s claim that the VE’s Level 2 jobs were fatally inconsistent with the ALJ’s
instructions. 2010 WL 5071193, *11.
Notably, in Thompkins, the parties were not disputing the ALJ’s failure to
include a limitation for the claimant to one to two-step tasks when questioning
the VE. Rather the Thompkins court dealt with “simple” versus “detailed” tasks.
Id at *10-11. Here, as in Schlattman, the ALJ specifically discussed that Dr. Fyans
assessed Wetzel with the capability to perform one- to two-step unskilled tasks.
The ALJ went on to state that such a restriction was inconsistent with Dr. Fyans’s
finding of “mild limitations in maintaining concentration, persistence or pace
and [finding] moderate restriction in this domain.” (AR 72-73). Thus, the ALJ
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cited Dr. Fyans’s assessment of Wetzel to one- to two-step unskilled tasks and
used that assessment in finding moderate rather than mild limitations in
Wetzel’s ability to maintain concentration, persistence or pace. Nevertheless, the
ALJ did not include the one- to two-step limitation in his RFC, nor did he include
that limitation in his questions to VE Malik.
The facts of Schlattman are more similar to those here than the facts of
Thompkins, and so the analysis in Schlattman is more persuasive. Moreover, the
reasoning in Schlattman is more persuasive as it is in line with the firmly
established precedent in Social Security cases which provides that an ALJ must
build a logical bridge from the evidence to his conclusion. Murphy, 759 F3d at
815; Schmidt, 395 F3d at 744. Just as in Schlattman, the ALJ here never explained
his reason for disregarding Dr. Fyans’s proposed limitation to one- to two-step
tasks; there is no indication of whether he inadvertently or purposefully omitted
the limitation. Therefore here, just as in Schlattman, because there is no language
to the effect of whether the omission was inadvertent or intentional, there is “no
logical bridge that allows this Court to determine whether the failure to include
the limitation was a conscious decision or a lapse in judgment.” Id at *8.
Significantly, the DOT Reasoning Level 1 provides, “Apply commonsense
understanding to carry out simple one- or two-step instructions. Deal with
standardized situations with occasional or no variables in or from these
situations encountered on the job.” 1991 WL 688702 (emphasis added). The
Court cannot say that the ALJ’s failure to include the one- to two-step limitation
was harmless error where two of the three jobs identified by VE Malik available
to Wetzel require second level reasoning. See 1991 WL 672348 (Cutter-andPaster, Press Clippings); 1991 WL 646421 (Taper, Printed Circuit Layout). The
flaw in the Commissioner’s argument that the ALJ could properly rely on VE
Malik’s testimony as substantial evidence in finding that Wetzel was capable of
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performing a significant number of jobs found in the national economy is that VE
Malik was only presented with the ALJ’s RFC which did not include an express
limitation to one- to two-step tasks.
D
Wetzel’s final argument is that the ALJ erred in mechanically applying the
age categories in determining that Wetzel was a younger individual prior to
December 17, 2011 (his 50th birthday).

Wetzel argues that the ALJ did not

consider that between January 2010 and December 2011, Wetzel’s age placed him
in a borderline situation. 20 CFR § 404.1563(b) states:
How we apply the age categories. When we make a finding about
your ability to do other work under § 404.1520(f)(1), we will use the
age categories in paragraphs (c) through (e) of this section. We will
use each of the age categories that applies to you during the period
for which we must determine if you are disabled. We will not apply
the age categories mechanically in a borderline situation. If you are
within a few days to a few months of reaching an older age category,
and using the older age category would result in a determination or
decision that you are disabled, we will consider whether to use the
older age category after evaluating the overall impact of all the
factors of your case.
Wetzel takes issue with the ALJ’s failure to proffer a discussion of why he did
not determine that Wetzel qualified for the higher age category six or eight or ten
months before his 50th birthday. Wetzel contends that had the ALJ determined
that because of Wetzel’s vocational adversities stemming from his multiple
impairments he qualified for the higher age category before his 50th birthday, the
regulations would have directed the ALJ to enter a finding that Wetzel was
disabled from the earlier date. The Commissioner counters that Wetzel’s alleged
onset date of January 1, 2010 was almost two years before he reached the older
age category and so was well beyond the “few days to a few months of reaching
the older category” recognized in the regulations as a “borderline” age situation.
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The Commissioner also argues that the Hearings, Appeals and Litigation Law
Manual (HALLEX), used by the agency to interpret the regulations and provide
procedural guidance, does not require an ALJ to explain why the older age
category was not used before December 17, 2011.
In his Decision, the ALJ found that, “Prior to the established disability
onset date, the claimant was a younger individual age 45-49. On December 17,
2011, the claimant’s age category changed to an individual closely approaching
advanced age . . . .” (AR 74). The ALJ also found that, “Prior to December 17,
2011, the date the claimant’s age category changed, considering the claimant’s
age, education, work experience, and residual functional capacity, there were
jobs that existed in significant numbers in the national economy that the claimant
could have performed . . . .” (AR 74). The ALJ then found that, “Beginning on
December 17, 2011, the date the claimant’s age category changed, considering the
claimant’s age, education, work experience, and residual functional capacity,
there are no jobs that exist in significant numbers in the national economy that
the claimant could perform . . . .” (AR 75).
Though 20 CFR § 404.1563(b) provides that, “We will not apply the age
categories mechanically in a borderline situation,” and though the ALJ in this
case identified that Wetzel’s age category changed from a younger individual to
an individual closely approaching advanced age during the time under review,
the ALJ included no discussion whatsoever as to his application of the age
categories. While the HALLEX may provide that an adjudicator does not need to
explain his or her use of the claimant’s chronological age, the ALJ’s decision can
only be sustained if supported by substantial evidence. 42 USC § 405(g). Here,
after considering all of the medical and non-medical evidence and all of the
testimony, the ALJ concluded that prior to Wetzel’s 50th birthday on December
17, 2011 he was not disabled.

On December 17, 2011, all of the evidence
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remained the same except for the fact that Wetzel turned 50 years old. At some
point during the period under review, Wetzel found himself in a borderline age
situation.

Yet the ALJ included no discussion as to whether he considered

Wetzel’s borderline age.

The ALJ’s Decision thus shows only a mechanical

application of the age categories, and one which was determinative on the
question of disability. That mechanical application precludes the Court from
finding substantial evidence supports the ALJ’s age determination.

The

mechanical application equates to no explanation which precludes the Court
from identifying what evidence the ALJ used to make his finding regarding
Wetzel’s age. Ultimately, the ALJ’s error in failing to discuss his use of Wetzel’s
chronological age was not harmless, as it was the ALJ’s use of Wetzel’s
chronological age which prompted a finding of no disability before December 17,
2011.
V
The Court is mindful that “administrative error may be harmless,”
McKinzey v Astrue, 641 F.3d 884, 892 (7th Cir 2011) and that the Court ought not
remand a case to the ALJ where it is convinced that the ALJ will reach the same
result. Id.

The Court has already concluded that the ALJ erred and is not

convinced that, upon a more detailed explanation of Axvig’s and Dr. Kent’s
opinions, an inclusion of the one- to two-step task limitation, and an explanation
of Wetzel’s borderline age situation (or an explanation for why he did not
consider this a borderline age case), the ALJ would not make a different
disability determination. The record evidence does not necessarily compel a
determination that Wetzel should be awarded benefits – only that the ALJ has
not adequately supported his conclusions in the particular areas identified supra.

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VI
For the reasons set forth above, the Court recommends that the Plaintiff’s
Motion for Summary Judgment (Doc. 11) be granted and the Commissioner’s
Motion for Summary Affirmance (Doc. 16) be denied.
The parties are advised that any objection to this Report and
Recommendation must be filed in writing with the Clerk within fourteen (14)
working days after service of this Report and Recommendation. FRCP 72(b)(2);
28 USC § 636(b)(1). Failure to object will constitute a waiver of objections on
appeal. Johnson v Zema Systems Corp, 170 F3d 734, 739 (7th Cir 1999); Lorentzen v
Anderson Pest Control, 64 F3d 327, 330 (7th Cir 1995).
Entered on February 2, 2015.

s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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