Warren

Filing 26

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 7/27/2010. (aac, )

Warren v. Astrue

Doc. 26

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION A N Z E T T A WARREN, P la in tif f , v. M I C H A E L ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C a s e No. 09 CV 6498 M a g is tr a te Judge Young B. Kim

J u ly 27, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court is Anzetta Warren's motion for summary judgment challenging the d e n ia l of her application for supplemental security income ("SSI") under the Social Security A c t. See 42 U.S.C. §§ 405(g),1382c, 1383(c)(3). Warren claims that she is disabled by a s th m a , decreased vision, back pain, and several psychological impairments, including d e p re s s io n and post-traumatic stress disorder. For the following reasons, Warren's motion is granted and this case is remanded for further proceedings consistent with this opinion: Procedural History W a rre n applied for SSI in October 2005, claiming that her disability began on May 1 , 2003. (A.R. 32, 73.) The Social Security Administration denied her claim initially and o n reconsideration.1 (Id. at 32.) Warren then requested, and was granted, a hearing before a n administrative law judge ("ALJ"). (Id. at 33.) The ALJ determined that Warren is not

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The decision denying reconsideration is not in the administrative record, but the parties do n o t dispute the administrative law judge's statement that reconsideration was denied on M a rc h 6, 2006. (A.R. 21.)

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"disabled" as defined in the Social Security Act and concluded that she could return to her p a s t work. (Id. at 30-31.) The Appeals Council granted Warren's request for review. On A u g u s t 17, 2009, it issued a decision adopting the ALJ's findings in all respects except that it found her past relevant work "did not reach the level considered to be substantial gainful a c tiv ity." (A.R. 6-7.) The Appeals Council nonetheless found that Warren is not disabled a f te r applying Medical-Vocational Rule 202.10, (id. at 7), which counsels a finding of "not d i s a b le d " for a person of Warren's age who is capable of performing light work, see 20 C .F .R . § 404, Subpt. P, App. 2 ("grid rule 202.10"). Warren filed the current suit seeking ju d ic ia l review of the Appeals Council's decision--which represents the final decision of the C o m m i s s io n e r. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. § 416.1481. The parties h a v e consented to the jurisdiction of this court. See 28 U.S.C. § 636(c). Facts T h e administrative record in this case demonstrates that there are substantial barriers s ta n d in g between Warren and gainful employment. The challenge the ALJ and Appeals C o u n c il confronted, as Warren's attorney acknowledged during the administrative hearing (s e e A.R. 194-96, 245), was determining whether those barriers are caused by a disability, ra th e r than by Warren's particularly difficult personal circumstances. The record shows that W a rre n has been the victim of sexual assault more than once, beginning when she was only 1 0 or 11 years old. (Id. at 114.) She dropped out of school after eighth grade, began c o m m ittin g crimes in her teens, and has spent time in jail for home invasion and check

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forgery. (Id. at 197-98, 207-11.) In the past 15 years she has not held a job for more than 2 0 months at a time, and she has struggled with drug abuse and homelessness. (Id. at 78, 1 9 8 , 206, 211.) At the time of her hearing, she had escaped homelessness by agreeing to c le a n rooms at a motel on Chicago's southwest side in exchange for a room in the motel. (Id. a t 198-99.) Despite that arrangement, Warren maintains that she cannot perform substantial g a in f u l activity because she is disabled by asthma, vision problems, back pain, depression, p o s t-tra u m a tic stress disorder, and anti-social tendencies. At her March 31, 2008 hearing b e f o r e an ALJ, Warren offered both documentary and testimonial evidence to support her c la im s . A. W a r r e n 's Evidence

W a rre n testified that she cannot work because she has disabling pain in her right leg, b a c k , and arms. (A.R. 202.) She said that her back is the source of her worst pain. (Id. at 216.) On a scale of one to ten Warren rated her back pain as sometimes at a five or six, and o th e r times as high as a nine. (Id. at 217.) Warren described arm pain that feels "like little n e e d le s pinching in" and pain in her right leg from her toe to her hip, all of which she rated a t a nine. (Id. at 218-19.) She also said that she suffers from "bad headaches," which she a ttrib u te s to having her head "busted" in numerous fights when she was younger. (Id. at 2 1 9 .) Warren explained that she treats her pain with "pain pills," including ibuprofen, and T yle n o l 3 with codeine, which she gets from unidentified people she knows. (Id. at 214.) Warren said that the pills help relieve her pain only sometimes. (Id. at 217.)

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The ALJ asked Warren why she had not sought medical treatment for her pain. Warren explained that she had seen a doctor at the Englewood Health Center, but said that th e clinic staff told her she would have to pay for the treatments, which she cannot afford to d o . (A.R. 202-03.) She testified that she tried to obtain a state medical card, but she could n o t get one because she did not have a social security card or state identification. (Id.) When th e ALJ told Warren that there are clinics where she could obtain treatment without a medical c a rd , she responded that the clinic she had visited told her that without a medical card she w o u ld have to pay for treatment. (Id. at 214.) W a rre n also discussed her psychological struggles. She described feeling threatened, a s though people are "coming up on" her, and said that she sometimes hears footsteps outside h e r door when no one is there. (A.R. 222.) She has suicidal thoughts but said she tries "not t o think about things like that." (Id. at 223.) Warren described getting into verbal

a lte rc a tio n s with people at the motel as often as three times a week. (Id. at 224-25.) She d e s c rib e d feeling sad and only looking forward to being by herself in her room. (Id. at 231.) Warren explained that she had received counseling at the Chicago Department of Public H e a lth , but said that she stopped attending because she had to walk to get there, and her leg a n d back pain made that impossible. (Id. at 220.) She submitted records from the Chicago D e p a rtm e n t of Public Health describing her as having poor judgment and concentration, m e m o ry impairment, impulsivity, and suicidal ideation. (Id. at 153.)

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As for her struggles with substance abuse, Warren testified that she had been clean a n d sober for "about two and a half years," but before getting clean she abused alcohol and u s e d "a whole lot" of crack. (A.R. 211-12.) She described using crack "every day, all night lo n g ." (Id. at 212.) Warren told the ALJ that she had been able to get clean on her own. (Id.) The ALJ questioned Warren at length about her work cleaning the motel where she w a s staying and her other daily activities. (A.R. 204.) Warren said that she needs to clean f o r about four to five hours a day, four or five days a week. (Id.) She said that when her pain m a k e s it too difficult for her to clean, her daughter--who was also living in the m o te l-- w o u ld do the work for her. (Id. at 205.) Warren described her responsibilities as c h a n g in g the linens, wiping down surfaces, and sweeping. (Id.) She explained that she c a n n o t use the vacuum or clean under the beds and said that residents complain about her w o rk . (Id. at 205, 226.) She said that she forces herself to work through the pain because o t h e r w i s e she would have no place to live. (Id. at 219.) Warren said that when she is not c le a n in g she spends her day in her room watching television. (Id. at 212.) She said she only h a s one friend and that they usually talk on the phone rather than visit in person. (Id. at 213.) In support of her testimony Warren submitted medical records spanning the period f ro m January 2005 to May 2006. In January 2005 Dr. Kenneth Gong examined Warren at th e behest of the SSA. (A.R. 105.) Dr. Gong described Warren's main complaints as back p a in and asthma. (Id.) He noted that exposure to bleach, dust, and other smells trigger her

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asthma, but said that her use of an albuterol inhaler "is helpful." (Id.) Dr. Gong reported that W a rre n had "mild to moderate difficulty" getting on and off the examination table and noted th a t she had "diffuse tenderness to even the slightest palpation throughout her spine." (Id. a t 106-07.) An MRI of her spine showed mild degenerative changes with some narrowing in the areas of disc space and "what appear to be prominent atherosclerotic calcifications." (Id. at 118.) Dr. Gong noted that Warren walked with a slight limp and had "decreased a b ility to finger and manipulate." (Id. at 107.) He conducted visual testing which revealed v is u a l acuity of 20/50 in the right eye and 20/200 in the left. (Id. at 110.) Dr. Gong d ia g n o s e d Warren as having asthma, chronic low back pain, bilateral wrist pain that could b e carpal tunnel syndrome, and polysubstance abuse. (Id. at 108.) In January 2006 the SSA asked Dr. Robert Prescott to evaluate Warren's mental s ta tu s . (A.R. 111.) Warren told Dr. Prescott that she used cocaine and marijuana and drank a six pack of beer once or twice a month. (Id. at 112.) She described having only one friend a n d reported getting along with only one of her five living children (her sixth child had died). (Id. at 112-113.) She told Dr. Prescott that she feels depressed, worries a lot, has trouble s le e p in g , and experiences frequent severe headaches. (Id. at 113.) She reported attempting s u ic id e several times between 1980 and 2000. (Id. at 114.) She described being the victim o f more than one sexual assault, and told Dr. Prescott that she does not trust people. (Id.) Dr. Prescott diagnosed Warren as suffering from major depression, post-traumatic stress d is o rd e r, polysubstance abuse, and adult anti-social activities. (Id. at 115.)

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Warren also submitted residual functional capacity ("RFC") assessments completed b y two consulting physicians in January 2006. Dr. Frank Jimenez evaluated her physical lim ita tio n s . (A.R. 119-26.) He opined that Warren can stoop, crawl, or crouch only o c c a s io n a lly, and is limited in fingering and far visual acuity. (Id. at 121-22.) Dr. Jimenez a ls o said that she should avoid concentrated exposure to fumes, odors, dusts, etc, which could e x a c e rb a te her asthma. (Id. at 123.) Dr. Carl Hermsmeyer evaluated Warren's mental lim ita tio n s . (Id. at 127-44.) He opined that Warren is moderately limited in her ability to u n d e rs ta n d , remember, and carry out detailed instructions. (Id. at 127.) Dr. Hermsmeyer did n o t find her to be significantly limited in concentration, persistence, or social interactions and s a id that she could "perform simple one and two-step task [sic] at a consistent pace." (Id. at 1 2 8 -2 9 .) But in the accompanying psychiatric review technique form, Dr. Hermsmeyer f o u n d that Warren had moderate limitations in social functioning and maintaining c o n c e n tra tio n , persistence, or pace. (Id. at 141.) B. T h e Medical Expert's Testimony

T h e ALJ called clinical psychologist Ellen Rozenfeld to testify as a medical expert. Dr. Rozenfeld opined that Warren has moderate limitations in social functioning, noting that s h e has enough social skills to maintain her housekeeping work but that she sometimes starts v e rb a l fights. (A.R. 228.) She also testified that Warren has moderate limitations in c o n c e n tra tio n , persistence, or pace. (Id. at 229.) Dr. Rozenfeld testified that Warren was lim ite d in her ability to complete complex tasks, but said that she "possesses adequate mental

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capacity to understand, remember, and carry out simple, routine tasks." (Id. at 230.) She f u rth e r testified that although Warren should have only brief, superficial contact with the p u b l i c , she was not significantly limited in relating to co-workers or supervisors. (Id.) Dr. Rozenfeld explained that Warren has a reduced tolerance for stress and accordingly needs a "routine, repetitive work environment." (Id.) C. T h e Vocational Expert's Testimony

N e x t the ALJ called vocational expert James Radke, who described Warren's past w o rk as a security guard and a housekeeper/cleaner as light and unskilled. (A.R. 234.) He n o te d some confusion over whether she had worked as a cook or just a food server in the p a s t. (Id. at 236-37.) Radke testified that cook positions typically are characterized as skilled o r semi-skilled and light or medium in exertion. (Id. at 236.) He described the food server p o s itio n as unskilled. (Id. at 237.) The ALJ asked Radke to assume a person of Warren's a g e and education level and limitations of doing light work with occasional fingering, limited f a r acuity, and the need to avoid concentrated fumes. (Id. at 237-38.) The ALJ further s p e c if ie d that the work would be simple, involving routine stress and only brief interactions w ith the public. (Id.) Radke testified that a person with those limitations could perform W a rre n 's past work as a housekeeper or food server, but not as a security guard. (Id. at 238.) D. T h e ALJ's and the Appeals Council's Decisions

A f te r considering the proffered evidence, the ALJ concluded that Warren is not d is a b le d . In so finding, the ALJ applied the standard five-step sequence, see 20 C.F.R.

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§ 404.1520, which requires her to analyze: (1 ) whether the claimant is currently [un]employed; (2) whether the claimant h a s a severe impairment; (3) whether the claimant's impairment meets or e q u a ls one of the impairments listed by the [Commissioner], see 20 C.F.R. § 4 0 4 , Subpt. P, App. 1; (4) whether the claimant can perform her past work; and (5 ) whether the claimant is capable of performing work in the national e c o n o m y. C liffo r d v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (quoting Knight v. Chater, 55 F.3d 309, 3 1 3 (7th Cir. 1995)). If at step three of this framework the ALJ finds that the claimant has a severe impairment which does not meet the listings, she must "assess and make a finding a b o u t [the claimant's] residual functional capacity based on all the relevant medical and other e v id e n c e ." 20 C.F.R. § 404.1520(e). The ALJ then uses the residual functional capacity to d e t e rm in e at steps four and five whether the claimant can return to her past work or to d if f e re n t available work. Id. § 404.1520(f), (g). Here, the ALJ found at step one that it was unclear whether Warren's work in e x c h a n g e for rent at the motel where she was staying amounts to substantial gainful activity, s o the ALJ proceeded with the sequential evaluation process. (A.R. 23.) At step two the A L J determined that Warren has severe impairments consisting of asthma, decreased vision, c h ro n ic low-back pain, major depressive disorder with post-traumatic stress disorder and a n ti-s o c ia l tendencies, and polysubstance use "in claimed remission." (Id.) At step three the A L J determined that Moore had only mild restrictions in daily living and moderate lim ita tio n s in social functioning and concentration, persistence, or pace, and thus concluded th a t her impairments did not meet or medically equal any listed impairment. (Id. at 24-25.) 9

Proceeding to step four of the analysis, the ALJ determined that Moore has a residual f u n c tio n a l capacity ("RFC") to perform light work with several limitations. (A.R. 25-26.) Specifically, the ALJ concluded that Warren is limited in fine manipulation and should avoid c o n c e n tra te d exposure to pulmonary irritants. (Id. at 26.) The ALJ further found that Warren c o u ld engage in simple, routine work "requiring no more than occasional need for far acuity" a n d involving "only brief interaction with the public." (Id.) The ALJ noted that the record w a s sparse on objective medical records, and said that it would be "reasonable to expect s o m e o n e experiencing severe pain to pursue more aggressive pain management and other m e d ic a l treatment." (Id. at 27-28.) The ALJ considered the lack of medical records to reflect p o o rly on Warren's credibility with respect to her description of the severity and duration of h e r pain. (Id. at 228.) The ALJ stated that Warren's credibility was further diminished by h e r check-forgery conviction and her assertions that she quit abusing drugs and alcohol w ith o u t help. (Id.) Having determined Warren's RFC, the ALJ concluded that Warren could re tu rn to her past relevant work as a cleaner or food-tray assembler. (Id. at 30-31.) The ALJ th u s concluded that Warren is not disabled as defined by the Social Security Act, and denied h e r SSI application. (Id.) T h e Appeals Council granted Warren's request for review of the ALJ's decision, but a g re e d with the ALJ's findings under steps one through three. (A.R. 8.) At step four, the A p p e a ls Council adopted the ALJ's conclusions regarding Warren's credibility and RFC, but d is a g re e d with the ALJ's finding that Warren can return to her past work, because it found

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that her earnings from the housekeeper and food-tray assembler jobs did not reach the re q u isite level for substantial gainful activity. (Id. at 7.) Accordingly, it concluded that W a rre n has no past relevant work. (Id.) Instead of remanding the case to the ALJ to d e te rm in e what work, if any, Warren could perform, the Appeals Council applied grid rule 2 0 2 .1 0 , which directs a finding of not disabled for a claimant of Warren's age who retains a n RFC to perform a narrow range of light work. (Id.) It thus concluded that Warren is not e lig ib le for SSI. (Id. at 9.) A n a ly s is In the current motion for summary judgment, Warren challenges the ALJ's RFC d e te rm in a tio n and the Appeals Council's application of grid rule 202.10. Specifically, she a r g u e s that the ALJ's adverse credibility finding--which the Appeals Council adopted-- f a i l e d to account for the barriers to treatment posed by poverty and Warren's mental c o n d itio n . Next, she argues that the ALJ did not consider all of her impairments in crafting th e RFC--again, the Appeals Council adopted the ALJ's findings with respect to the RFC. In particular, she argues that the ALJ overlooked her limitations with respect to c o n c e n tra tio n , persistence, or pace. Finally, Warren argues that the Appeals Council im p ro p e rly applied grid rule 202.10, which does not account for her nonexertional lim ita tio n s . In response, the Commissioner defends the ALJ's step-four analysis and argues th a t any error committed by the Appeals Council was harmless.

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In reviewing the Commissioner's decision to deny Warren benefits, this court asks o n ly whether the ALJ and Appeals Council applied the correct legal standards and reached a decision that is supported by substantial evidence. 42 U.S.C. § 405(g); Likowitz v. Astrue, 5 5 9 F.3d 736, 739 (7th Cir. 2009); Buckner v. Astrue, 680 F.Supp.2d 932, 938 (N.D. Ill. 2 0 1 0 ). Substantial evidence means "such relevant evidence as a reasonable mind might a c c e p t as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1 9 7 1 ) (quotation omitted). It is a generous standard that precludes this court from

re w e ig h in g the evidence or substituting its judgment for that of the administrative decision m a k e r. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). But this court will remand th e case if the Commissioner's decision "lacks evidentiary support or is so poorly articulated a s to prevent meaningful review," Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002), or f a ils to "provide an accurate and logical bridge between the evidence and the conclusion that th e claimant is not disabled," Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (internal q u o ta tio n omitted). Warren persuasively argues that the ALJ's credibility determination--which, given th e paucity of medical records, is critical in this case--is legally erroneous and unsupported b y substantial evidence. This court must be cautious in wading into this territory, because a n ALJ is afforded significant deference in determining credibility--a determination that will b e reversed only if found to be "patently wrong." See Schmidt v. Astrue, 496 F.3d 833, 843

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(7th Cir. 2007). But the court has "greater freedom to review the ALJ's decision" where " s u c h determinations rest on objective factors or fundamental implausibilities rather than s u b je c tiv e considerations." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Here, the A L J 's first two explanations for the adverse credibility finding are objective--she points to th e lack of medical records and faults Warren for failing to pursue medical treatment. But a s voluminous precedent has made clear, an ALJ cannot disregard complaints of pain simply b e c a u s e "they are not substantiated by objective medical evidence." SSR 96-7p, 1996 WL 3 7 4 1 8 6 , at **1-2; see also Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (collecting c a s e s ). Nor may an ALJ make a negative inference from a claimant's failure to seek medical c a re without exploring the reasons for that failure. Craft, 539 F.3d at 679. Inability to afford tre a tm e n t is one valid explanation for failure to seek treatment, id.; mental illness is another, K a n g a il v. Barnhart, 454 F.3d 627, 630-31 (7th Cir. 2006). Here Warren explained to the A L J that she sought treatment at a clinic but was told she either must obtain a medical card o r pay. (A.R. 203.) She then described the efforts she undertook to obtain a medical card, a n d explained that her efforts were stymied by her inability to locate or obtain her official id e n tif ic a tio n . (Id.) Although the ALJ acknowledged that testimony in her recitation of the b a c k g ro u n d , she erroneously failed to account for it in the credibility analysis. (Id. at 27-28.) The Commissioner attempts to defend the ALJ's finding by arguing that Warren's testimony d e m o n s tra te s a lack of diligence on her part, (see R. 22, Resp. at 6-7), but even if that were a n apt description of what happened, the Seventh Circuit has made clear that "[l]ack of

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discipline, character, or fortitude is not a defense to a claim for disability benefits," D e F r a n c e s c o v. Bowen, 867 F.2d 1040, 1044 (7th Cir. 1989). Nor did the ALJ explore w h e th e r Warren's documented deficiencies in attention, persistence, or pace might have i m p a c t e d her treatment-seeking or her fruitless attempt to acquire insurance. Because the A L J did not analyze the potential barriers posed by her poverty and mental condition before f a u lt i n g Warren for failing to pursue treatment that would produce medical records, those e x p la n a tio n s for the adverse credibility finding cannot stand. See Craft, 559 F.3d at 679; M a r tin e z v. Astrue, 09 CV 3051, 2010 WL 1292491, at *10 (N.D. Ill. Mar. 29, 2010). T h e ALJ also found incredible Warren's testimony that two and a half years before th e hearing, she stopped using drugs and abusing alcohol. First, the ALJ noted that medical re c o rd s report that she was using marijuana in May 2006, which was 22 months before the h e a rin g . (A.R. 28.) The ALJ made too much of the timeline difference. Warren testified th a t she got clean "about two and a half years ago," and later testified that she would "say" it was "two years ago." (Id. at 211.) Because the ALJ did not try to pin Warren down to a s p e c if ic date or ask whether she got clean before May 2006, the two-month difference b e tw e e n the medical record and Warren's testimony is a fairly weak discrepancy. Nor did th e ALJ consider whether Warren's mental impairments, which are documented as including m e m o r y impairment, (id. at 153), might explain that discrepancy. More troubling is the A L J 's comment that Warren lacks credibility because, according to the ALJ, "it is not usual f o r heavy drug abusers to control their addiction without the help of a program, mentor

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organization, or life incident as a catalyst." (A.R. 28.) The ALJ cites no record evidence to s u p p o rt that assumption, nor did this court find any in its independent review of the record. Neither did the ALJ explore with Warren how she quit using or whether she experienced s o m e "life incident" that motivated her sobriety. Perhaps her financial inability to buy drugs f o rc e d her to quit. Although the ALJ's assumption regarding the difficulty of fighting drug a d d ic tio n may have intuitive appeal, the ALJ is not permitted to base her decision on intuition o r hunches. See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003). Accordingly, the negative inferences the ALJ drew from Warren's description of her sobriety d o not support the adverse credibility determination. That leaves two explanations underlying the ALJ's credibility determination, only one o f which is supported by the record. First, the ALJ states that Warren testified "that she d id n 't like medical treatment, yet she testified that she was willing to obtain pain pills from h e r friends." (A.R. 28.) This court has thoroughly reviewed the transcript and cannot find th e statement the ALJ is referencing. Warren explained clearly that she did not seek medical tre a tm e n t because she had no insurance and could not afford it, not because she "doesn't lik e " it. And even if Warren had so testified, it is unclear why her supposed distaste for m e d ic a l treatment, by which she could have meant visiting doctors or undergoing testing, is in c o n s is te n t with her willingness to take pills to relieve her pain. Because this reason is u n s u p p o rte d by the record, this court disregards it. See Blake ex rel. Wolfe, 331 F.3d at 570. That leaves only the ALJ's recognition that Warren had been convicted in the past for fraud:

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specifically, check forgery. Although Warren's conviction for what amounts to a crime of d is h o n e s ty is probative of her credibility, cf. Fed. R. Evid. 609(a)(2); United States v. Gulati, 2 3 0 F.3d 254, 261 (7th Cir. 2000), given this court's finding that four of the five other re a s o n s the ALJ gave are erroneous, her criminal history standing alone is too weak a p la t f o r m to support the ALJ's disregard for her descriptions of her pain and mental im p a irm e n ts. See Craft, 539 F.3d at 680 (holding that where objective evidence contradicted tw o of three reasons for finding claimant incredible, adverse credibility determination was p a te n tly wrong). N e x t, Warren argues that the ALJ erred in failing to account for all of her impairments i n crafting the RFC. Her strongest argument in this regard is that the ALJ improperly a c c o u n te d for Warren's limitations with concentration, persistence, or pace by limiting her to routine, simple work. The Seventh Circuit has held that limiting a claimant to simple, ro u t in e tasks does not sufficiently account for limitations in concentration, persistence, or p a c e , because "[e]mployers are entitled to demand that their employees stick with the job," a n d whether a person has the understanding to perform more than simple work is a different q u e s tio n than whether they can perform that work "consistently once trained." Karsarsky v. B a rn h a r t, 335 F.3d 539, 544 (7th Cir. 2003); see also Stewart v. Astrue, 561 F.3d 679, 6848 5 (7th Cir. 2009) (noting that limiting claimant to routine work does not account for im p a irm e n ts in concentration). But as with most general rules, this one has an exception: w h e re a doctor provides an opinion finding that a claimant can perform low-stress, repetitive

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work despite moderate limitations in concentration, persistence, or pace, the ALJ may rely o n that opinion in crafting the RFC. See Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th C ir. 2002). H e re , the ALJ stated that an RFC for routine, simple work accounts for what she id e n tif ie d as Warren's "moderate difficulties in maintaining concentration, persistence or p a c e ." (A.R. 30.) The ALJ stated that she based that finding on the testimony of the medical e x p e rt, Dr. Rozenfeld. (Id.) After Dr. Rozenfeld testified that Warren has moderate lim ita tio n s in concentration--an opinion backed up by the records from the Chicago Public H e a lth Department and Dr. Hermsmeyer, (see id. at 141, 153)--the ALJ asked her to explain h o w Warren's "medical impairments" would limit her ability to function in a work setting, (id . at 229). Dr. Rozenfeld testified that Warren has a reduced capacity to tolerate stress, but s a id that her impairment could be accommodated by "a routine, repetitive work e n v iro n m e n t." (Id. at 230.) She further clarified that such a work environment would c o u n te ra c t Warren's limited capacity to make judgments. (Id.) Thus Dr. Rozenfeld

s p e c if ic a lly tied the routine-work restriction to Warren's limitations with respect to stress and ju d g m e n t, but did not explain whether or how such a restriction would accommodate her lim ita tio n s in concentration, persistence, or pace. Because Dr. Rozenfeld's testimony does n o t support the ALJ's decision to link Warren's attention deficit to routine work, the RFC d o e s not properly account for all of her limitations. See Stewart, 561 F.3d at 684-85; T a rb u sh v. Astrue, 09 CV 3400, 2010 WL 438155, at *6 (N.D. Ill. Feb. 2, 2010) ("To say that

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Plaintiff can do a simple and routine job is not necessarily to say that she has the c o n c e n tra ti o n or persistence to do it for a sustained period at an acceptable pace."). W a rre n argues that two other aspects of the ALJ's RFC lack a logical foundation. First, Warren characterizes as illogical the ALJ's finding that she is limited to using far visual a c u ity only occasionally, pointing out that someone either has far visual acuity or not. This is a fair characterization, especially because the only explanation the ALJ provided is to say th a t "Snellen test results from January 5, 2005 support the limitation on far acuity included in the [RFC] assessment." (A.R. 28.) The Snellen test the ALJ referenced shows that W a rre n has visual acuity of 20/50 with pinhole correction, but provides no insight into why s h e could "occasionally" engage in far acuity.2 Second, Warren argues that the ALJ erred in relying on what she calls Dr. Rozenfeld's illogical testimony that Warren's depression and a n tis o c ia l tendencies would restrict her from interacting with the public, but not with c o w o rk e rs and supervisors. There is ample evidence in the record documenting Warren's te n d e n c y to get involved in verbal (and historically, physical) altercations, her impulsivity, a n d her mistrust of others. The ALJ made no attempt to elicit from Dr. Rozenfeld how W a rre n 's anti-social tendencies and other social impairments would impact her ability to deal w ith supervisors and co-workers differently than it would with respect to the general public. That information seems particularly pertinent given Dr. Prescott's observation that Warren

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This court notes that the Appeals Council omitted this limitation in its description of W a rre n 's RFC. (A.R. 8.) But because the Appeals Council said that it "adopts the A d m in is tra tiv e Law Judge's findings on the claimant's residual functional capacity," (id. at 7 ), the court assumes the omission was unintentional. 18

reported difficulty taking orders and arguing often with past co-workers. (Id. at 113.) Because the ALJ did "not sufficiently connect[] the dots" between Warren's substantiated s o c ia l impairments and the RFC finding, the RFC "falls short." See Young v. Barnhart, 362 F .3 d 995, 1002-03 (7th Cir. 2004) (remanding where ALJ did not explain how limited c o n t a c t with coworkers and public accommodates difficulty in accepting instruction, c ritic is m , etc.). F in a lly, Warren argues that the Appeals Council improperly applied grid rule 202.10 to find her not disabled. As Warren points out, the grid uses a mechanical formula to assist w ith disability determinations where a claimant meets straight-forward criteria, but it " a b o u n d s in gaps." DeFrancesco, 867 F.3d at 1045. It does not account for every

n o n e x e rtio n a l limitation a claimant might possess, which is why in many cases an ALJ c o n s u lts a vocational expert to explain "whether there are enough jobs that this claimant can a c tu a lly do," given her unique limitations. Id. (emphasis in original); see also Villano v. A str u e , 556 F.3d 558, 564 (7th Cir. 2009) (noting that grid "does not account for n o n e x e rtio n a l limitations"). As described above, the ALJ's RFC for Warren included a n u m b e r of nonexertional limitations, from the limitation on far acuity, to the need for routine w o rk , to the restricted contact with the public. The Appeals Council applied the grid to find W a r re n not disabled without acknowledging that the grid does not account for those re s tric tio n s . See Villano, 556 F.3d at 564.

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The Commissioner does not defend the application of the grid, but instead argues that th e Appeals Council's error was harmless because during the hearing Radke testified that th e re are a number of housekeeping and food preparation jobs that Warren could perform in th e regional economy. The Commissioner points out that the Appeals Council did not find W a rre n incapable of performing that work; rather, it found that the past work she performed d id not amount to substantial gainful activity. But especially given the errors this court has id e n tif ie d in the ALJ's RFC assessment, Warren has shown that the application of the grid h e re was harmful error. See Shinseki v. Sanders, 129 S.Ct. 1696, 1706 (2009) (holding that b u rd e n of showing harmful error falls on party seeking reversal). Because the ALJ must re a s s e ss the RFC, it would be pure speculation for this court to agree with the C o m m is s io n e r's position that the ALJ would find Warren disabled based on Radke's te s tim o n y. Accordingly, this court cannot find that the Appeals Court's error was harmless. See Parker, 597 F.3d at 924; White ex rel. Smith v. Apfel, 167 F.3d 369, 375 (7th Cir. 1999) (n o tin g that speculation is "no substitute for evidence").

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Conclusion F o r the foregoing reasons, Warren's motion for summary judgment is granted and the c a s e is remanded for further proceedings consistent with this opinion. On remand the C o m m is s io n e r should reevaluate Warren's credibility and reconcile the RFC with Warren's v a rio u s limitations. Given the Appeals Council's finding that Warren's past work was not s u b s ta n tia l gainful activity, the Commissioner also should evaluate whether Warren is c a p a b le of performing other jobs in the national economy. ENTER:

_________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge

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