Glover v. Colvin
Filing
28
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 6/9/2017.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CALVIN GLOVER
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the U.S. Social
Security Administration,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
No. 16 C 5607
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Claimant Calvin Glover seeks judicial review under 42 U.S.C. § 405(g) of a final
decision of Defendant Commissioner of the Social Security Administration (“SSA”)
terminating his Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act (the “Act”). The parties have consented to the jurisdiction of the United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow,
Claimant’s motion to reverse the final decision of the Commissioner or remand [17] is
granted and the Commissioner’s motion for summary judgment [24] is denied.
I. BACKGROUND
A. Procedural History
Claimant was born October 25, 1993, and received SSI as a child due to a
disability. (R. 23.) As required under the Act, Claimant’s eligibility for SSI was reevaluated under the rules for determining adult disability when he attained the age of
eighteen. See 42 U.S.C. § 1382c(a)(3)(H)(iii). On April 25, 2012, the SSA determined
that Claimant was no longer disabled as of April 1, 2012. (R. 23.) This decision was
upheld upon reconsideration on March 4, 2013. (R. 90–92; 99–109.) Following both
denials, Claimant filed a hearing request on March 11, 2013, pursuant to 20 C.F.R. §
404.929 et seq. (R. 114–16.) A hearing was held on June 3, 2014 before an
Administrative Law Judge (“ALJ”). (R. 139.) After he was informed of his right to
representation, Claimant appeared at the hearing without the assistance of an attorney
or other representative. (R. 36–89.) A Vocational Expert (“VE”) was also present and
offered testimony. (R. 82–88.) On December 4, 2014, the ALJ issued a written
decision denying Claimant’s SSI claim. (R. 23–31.) Claimant then requested review by
the Appeals Council. (R. 13–14; 17–19.) On April 8, 2016, the Appeals Council denied
his request for review, at which time the ALJ’s decision became the final decision of the
Commissioner. (R. 1–7); Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001).
Claimant subsequently filed this action in the District Court.
B. Medical Evidence
The medical records reflect that between 2007 and 2012 Claimant sought
treatment at Christian Community Health Center for asthma, back pain, and other
general health issues. (R. 336–61; 397–407.) He was treated with Albuterol for his
asthma, and on at least one occasion, ibuprofen for his back pain. (R. 399–400.) In
April 2011, Claimant was examined by his school nurse who reported that he had a
heart murmur, which did not affect his physical activity level, and asthma, which was
controlled with an inhaler and did not impact his ability to attend school or participate in
regular physical education. (R. 185–87.)
About one month later, Claimant was identified as a student with a learning
disability and underwent a psychological evaluation performed by Carolyn Hall-Pilate, a
2
psychologist. (R. 188–91.) The examination revealed that Claimant had a full scale
intellectual quotient (“IQ”) of 77, placing him within the borderline range of intellectual
functioning. (R. 188.)
On March 3, 2012, Dr. Albert Osei, M.D., performed a consultative examination
of Claimant at the behest of the Bureau of Disability Determination Services. (R. 362–
65.) Claimant stated that he had suffered from asthma since childhood and used an
inhaler when he engaged in physical activities such as mixed martial arts, running, and
basketball. (R. 362.) Upon examination, Claimant’s lungs were clear, he had full range
of motion in all of his joints, and his mental status examination revealed that his
behavior and ability to relate during the exam were normal. (R. 363–64.)
One month later, Claimant underwent another consultative examination with Dr.
Piyush Buch, M.D. (R. 368–69.) In his report dated April 5, 2012, Dr. Buch noted
Claimant’s history of disruptive behavior, including fighting, arguing, and “talking back.”
(R. 368.) He diagnosed him with impulse control disorder. (R. 369.) After asking
Claimant several cognitive and behavioral questions, Dr. Buch opined that Claimant
was able to understand and remember instructions, but had difficultly carrying them out.
(Id.)
Shortly afterward, on April 17, 2012, Dr. Donald Cochran, Ph.D., reviewed
Claimant’s records and performed a psychiatric review. (R. 371–88.) Dr. Cochran
concluded that Claimant would be “markedly limited” in his ability to interact
appropriately with the general public and understand, remember, or carry out detailed
instructions. (R. 385–86.) He opined that Claimant would “do best” in settings that did
3
not require extensive social interaction, but that he would also have “some difficulty”
working independently with usual supervision. (R. 387.)
Two days later, Dr. Bharati Jhaveri, M.D., performed a physical residual
functional capacity (“RFC”) assessment of Claimant based on his records. (R. 389–96.)
Dr. Jhaveri found that Claimant had no postural, manipulative, vision, or communicative
limitations, but limited him to work at a medium exertional level. (R. 390–93). He also
noted that Claimant should avoid concentrated exposure to fumes, odors, dust, gases,
and poor ventilation due to his asthma. (Id.)
On November 7, 2012, at the direction of Dr. Shari Davis, M.D., Claimant
underwent an x-ray of his lumbar and cervical spines. (R. 409.) The results of both
exams were unremarkable. (Id.) Claimant was also scheduled to undergo a CT scan of
his thoracic spine, but it was cancelled. (Id.)
On December 8, 2012, state agency medical consultant, Dr. Donna Hudspeth,
Psy.D., completed an Advisory Psychiatric Review Technique form, in which she opined
that Claimant’s mental impairments did not meet a listing. (R. 411–28.) Dr. Hudspeth
then completed a mental RFC assessment and found that Claimant’s impairments
imposed moderate limitations on his ability to maintain attention and concentration for
extended periods of time, carry out, understand, and remember detailed instructions,
work in coordination with or proximity to others without being distracted by them,
complete a normal work day and work week without interruption, interact appropriately
with the general public, get along with coworkers or peers without distracting them or
exhibiting behavioral extremes, and set realistic goals or make plans independently of
others. (R. 411–12.) Similarly, she determined that Claimant would have moderate
4
difficulties in maintaining concentration, persistence, pace, and social function. (R.
425.) Ultimately, Dr. Hudspeth opined that Claimant retained the ability to understand,
remember, and carry out at least simple, one- to two-step repetitive tasks, and that he
could adequately adapt to work settings and routine changes, but that his work setting
should limit his social demands. (R. 413.)
Four days later, on December 12, 2012, Dr. George Andrews, M.D., a state
agency medical consultant, completed a physical RFC assessment where he reported
that Claimant had no exertional, manipulative, postural, or communicative limitations,
but that he should “avoid even moderate exposure” to pulmonary irritants such as
fumes, odors, and gases due to his history of asthma. (R. 429–36.)
C. Claimant’s Testimony
Claimant appeared at his administrative hearing on June 3, 2014. (R. 39–88.)
After the ALJ advised Claimant of his right to representation, Claimant decided to
proceed without the assistance of an attorney or other representative. (R. 39–45.)
Claimant testified that he was born on October 25, 1993 and was twenty years
old at the time of the hearing. (R. 48.) In terms of his education, Claimant stated that
he had dropped out of high school during the first quarter of his senior year because “it
started getting confusing” and there was too much pressure on him. (R. 48–49.)
Claimant explained that since he dropped out he had not attempted to obtain a high
school equivalent education or enroll in any other courses. (R. 49.)
Next, Claimant testified regarding his work history. (Id.). Claimant stated that he
was hired in April 2013 as a porter at Burger King, where his job duties included
sweeping, mopping, and lifting heavy boxes. (R. 49–50.) Claimant testified that he
5
could not perform the lifting requirement of his job due to his back pain, so he was later
limited to just sweeping and mopping. (Id.) Claimant reported that he worked three
hours per week for four months, but quit because he could not afford transportation to
get to work. (R. 50–51; 56.) Beyond a two-month period of employment at McDonalds
in 2012, Claimant stated he was unable to obtain other work because he did not have
transportation or missed the orientation days. (R. 51–59.)
Claimant reported that he is primarily unable to work due to his back pain. (R.
60.) He stated that he has experienced back pain his entire life, but he never had the
cause of the pain successfully investigated by a doctor. (R. 62.) He explained that he
had scheduled a CAT scan on his back, but it was not completed due to a
misunderstanding at the doctor’s office where he left before the scan could be
performed. (Id.)
Claimant testified that he still has asthma, which causes him sharp pains in his
heart when he walks up stairs. (R. 66.) He stated that he treats his asthma with an
inhaler. (Id.)
D. Ms. Marie Glover’s Testimony
Claimant’s mother was present and she also testified at his administrative
hearing. (R. 72–82.) After testifying generally to Claimant’s history of asthma and back
pain, Ms. Glover stated that in the previous two years, Claimant had visited Roseland
Community Medical Center (“Roseland”) on several occasions for his ongoing
impairments, but she had been unable to obtain his records prior to the hearing. (R.
73–74.) The ALJ and Ms. Glover agreed that Ms. Glover would attempt to collect
6
Claimant’s medical records from Roseland and submit them to the ALJ within 28 days of
the close of the hearing. (R. 79–80.)
E. VE Testimony
Vocational expert (“VE”) George B. Paprocki was present and testified at
Claimant’s administrative hearing. (R. 82–88.) First, the ALJ asked the VE whether
jobs existed in the regional or national economy for a younger individual (as defined by
the regulations), who had limited education, no past relevant work, was limited to
simple, routine, and repetitive tasks free of fast-paced production rate requirements,
and could occasionally interact with others including the general public, coworkers, and
supervisors. (R. 84.) The VE answered that jobs were available in the national
economy for such an individual, including, but not limited to, room cleaner,
groundskeeper, and industrial cleaner. (R. 84–85.) Then, the ALJ asked the VE if the
availability of the jobs he had listed would be eroded if the hypothetical individual was
additionally limited to avoiding even moderate exposure to environmental irritants, such
as fumes, odors, dust, gas, poorly ventilated areas, and chemicals. (R. 85.) The VE
opined that the additional limitation would not impact the availability of the jobs he had
listed because they only required “some” exposure to irritants which would not rise to a
“moderate” level. (Id.) The VE explained that “occasional” encounters with irritants
would constitute a “moderate” level. (R. 85–86.) Next, the ALJ asked if the jobs would
remain available if the hypothetical individual was additionally limited to work at a
medium exertional level, to which the VE responded affirmatively. (R. 86.) Finally, the
VE testified that the individual would be precluded from the jobs he had listed, as well
as all full-time employment, if the individual was additionally limited to no sustained
7
activity on a regular and continuing basis for eight hours a day, five days a week for a
forty hour work week or an equivalent schedule. (Id.) In conclusion, the ALJ asked the
VE if his testimony had been consistent with the Dictionary of Occupational Titles
(“DOT”). (Id.) The VE replied that it had. (Id.)
After the ALJ had completed his questions, Claimant did not elect to crossexamine the VE. (R. 87.)
F. ALJ Determination
On December 4, 2014, the ALJ issued a written decision denying Claimant’s SSI
application after a finding that he is no longer disabled under the Act. As an initial
matter, the ALJ found that Claimant had attained age eighteen on October 24, 2011 and
that he was no longer considered disabled as of April 1, 2012 based on a
redetermination of disability under the rules for adults who file new applications. (R.
25.) At step two, the ALJ found that Claimant is suffering from the severe impairments
of asthma, impulse control disorder, and a history of learning disorder. (Id.) At step
three, the ALJ determined that the Claimant did not have an impairment or a
combination of impairments that meet or medically equals the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, App’x 1. (R. 25–27.)
Next, the ALJ assessed Claimant’s RFC and determined that he could perform a
full range of work at all exertional levels except that he was limited to simple, routine,
and repetitive tasks free of fast-paced production requirements; occasional interaction
with others including the general public, coworkers, and supervisors; and avoidance of
even moderate exposure to environmental irritants such as fumes, odors, dusts, and
gases, as well as exposure to poorly ventilated areas and chemicals. (R. 27–29.) In
8
making his RFC determination, the ALJ gave “great” weight to the opinion of State
Agency consultant Dr. Andrews, who opined that Claimant had no exertional limitations,
but should avoid even moderate exposure to pulmonary irritants, because he found that
Dr. Andrews’ assessment adequately accounted for limitations related to Claimant’s
asthma. (R. 28.) In contrast, he only gave “some” weight to the opinion of Dr. Jhaveri,
who opined that Claimant could perform work at a medium exertional level and should
avoid concentrated exposure to pulmonary irritants. (R. 28.) The ALJ found that the
record did not support the level of exertional limitations suggested by Dr. Jhaveri
because Claimant is able to participate in sports such as mixed martial arts, basketball,
and running. (Id.)
In assessing Claimant’s mental limitations, the ALJ gave great weight to the
opinion of Dr. Buch. (R. 29.) Based on Dr. Buch’s report, the ALJ limited Claimant to
simple, routine, and repetitive tasks without fast-paced production requirements. (Id.)
Likewise, he credited the opinions of Drs. Cochran and Hudspeth, who opined that
Claimant could “understand and remember simple instructions” and “carry out at least
simple, 1-2 step repetitive tasks.” (Id.) He found that the opinions of the three doctors
could be read together consistently. (Id.)
At step four, the ALJ determined that Claimant had no relevant past work. (R.
30.) However, at the final step, the ALJ determined that Claimant can perform jobs
existing in significant numbers in the national economy, such as room cleaner,
groundskeeper, and industrial cleaner. (Id.) Based upon his determinations, the ALJ
opined that Claimant’s disability ended on April 1, 2012 and that Claimant had not
become disabled again since that date. (R. 31.)
9
II. LEGAL ANALYSIS
A. Standard of Review
Because the Appeals Council denied review, the ALJ’s findings constitute the
final decision of the agency. Herron v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994). The
findings of the ALJ as to any fact, if supported by substantial evidence, shall be
conclusive. 42 U.S.C. § 405(g); see also Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002); 42 U.S.C. § 1383 (“The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as
provided in section 405(g) of this title to the same extent as the Commissioner’s final
determinations under section 405 of this title.”). Although the court affords great
deference to the ALJ, it must do more than merely rubber stamp the ALJ’s decision.
Griffith v. Sullivan, 916 F.2d 715 (7th Cir. 1990) (citing Delgado v. Bowen, 782 F.2d 79,
82 (7th Cir. 1986)). In order to affirm the ALJ’s decision, the court must find the
decision to be supported by substantial evidence on the record as a whole, and must
take into account whatever in the record fairly detracts from its weight. Universal
Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951). Substantial evidence is more
than a mere scintilla; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Kepple v. Massanari, 268 F.3d 513 (7th Cir. 2001)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The court may not displace the ALJ’s judgment by reconsidering facts or
evidence or making credibility determinations. Skinner v. Astrue, 478 F.3d 836, 841
(7th Cir. 2007). Where conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that determination falls upon the
10
ALJ, not the courts. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). An ALJ must
articulate his analysis by building an accurate and logical bridge from the evidence to
his conclusions, so that the court may afford the claimant meaningful review of the
ALJ’s ultimate findings. Pepper v. Colvin, 712 F.3d 351 (7th Cir. 2013). It is not enough
that the record contains evidence to support the ALJ’s decision, and the court must
remand if the ALJ does not rationally and sufficiently articulate the grounds for that
decision, so as to prevent meaningful review. (Id.)
B. Analysis under the Social Security Act
When an applicant who is eligible for disability benefits as a child reaches age
eighteen, the Commissioner must redetermine his eligibility by applying the criteria for
determining initial eligibility for individuals who file new applications as adults. See 42
U.S.C. § 1382c(a)(3)(H)(iii); 20 C.F.R. § 416.987. Under the standard for adults, a
claimant is considered disabled “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy…” 42 U.S.C. §
1382c(a)(3)(B). In determining whether a claimant is disabled, the ALJ must consider
the following five-step inquiry: (1) whether the claimant is currently employed, (2)
whether the claimant has a severe impairment, (3) whether the claimant’s impairment is
one that the Commissioner considers conclusively disabling, (4) if the claimant does not
have a conclusively disabling impairment, whether she can perform past relevant work,
and (5) whether the claimant is capable of performing any work in the national
economy. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The claimant has
11
the burden of establishing a disability at steps one through four. Zurawski v. Halter, 245
F.3d 881, 885-86 (7th Cir. 2001). If the claimant reaches step five, the burden then
shifts to the Commissioner to show that “the claimant is capable of performing work in
the national economy.” Id. at 886.
III. DISCUSSION
Claimant now alleges that the ALJ made two errors at step five of the sequential
evaluation process. First, Claimant argues that the ALJ’s step five determination was
not supported by substantial evidence because it was based on incomplete hypothetical
questions posed to the VE. (Cl.’s Br. at 5–8.) Second, Claimant contends that the ALJ
erred at step five because he failed to resolve apparent conflicts between the VE’s
testimony regarding pulmonary irritants and the information provided in the DOT. (Cl.’s
Br. at 8–11.) Claimant also alleges that the Appeals Council erred when it determined
that evidence submitted to it was not “new and material.” (Cl.’s Br. at 11–14.) We
examine each of the arguments in turn below.
A. The ALJ Failed to Include Claimant’s Limitations in Maintaining Concentration,
Persistence, and Pace in the Hypothetical Questions He Posed to the VE.
First, Claimant argues that the ALJ’s determination at step five of the sequential
evaluation process was not supported by substantial evidence because the hypothetical
questions posed to the VE did not account for all of his alleged impairments. (Cl.’s Br.
at 6–8.) Specifically, Claimant alleges that the ALJ’s questions to the VE were
incomplete because they did not account for his mental limitations, including his
limitations in concentration, persistence, and pace, and his limitation to one- to two- step
tasks. (Id.)
12
1. Concentration, Persistence, or Pace
At step five of the sequential evaluation process, the Commissioner must
demonstrate the existence of “significant numbers of jobs in the nation economy.” 20
C.F.R. § 404.1545(a)(5)(ii). In doing so, an ALJ may rely on the testimony of a VE to
whom he poses hypothetical questions that account for the claimant’s age, education,
work history and RFC. 20 C.F.R. § 404.1520(a)(1)(v), (g). In general, an ALJ is
required to “orient the VE to the totality of a claimant’s limitations,” O’Connor-Spinner v.
Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (citations omitted), both physical and mental,
that are supported by the medical evidence of record. Steele v. Barnhart, 290 F.3d 936,
942 (7th Cir. 2002) (citations omitted). For the reasons that follow, we conclude that the
ALJ’s hypothetical questions to the VE did not properly include Claimant’s limitations in
concentration, persistence, and pace.
Claimant contends that the ALJ did not account for his limitations in maintaining
concentration and persistence in the hypothetical questions he posed to the VE when
he limited the hypothetical individual to “simple” tasks. (Cl.’s Br. at 7.) In response, the
Commissioner argues that Claimant’s limitations in concentration and persistence were
not severe enough to warrant inclusion in the ALJ’s hypothetical questions, therefore
the ALJ committed no error. The Commissioner attempts to support her assertion by
pointing to language in Dr. Hudspeth’s assessment where she stated that Claimant had
a diminished, but ultimately adequate, ability to adapt to workplace settings and routine
changes. (Def.’s Mem. at 3-4.)
Despite the Commissioner’s allegations, we cannot accept her argument under
the Chenery doctrine, which forbids an agency’s lawyers from defending the agency’s
13
decision on grounds the agency itself did not embrace. SEC v. Chenery Corp., 318
U.S. 80, 87–88 (1943); Parker v Astrue, 597 F.3d 920, 922 (7th Cir. 2010). While the
ALJ in this case did point to other parts of Dr. Hudspeth’s opinion in his decision, he did
not explicitly mention the portions cited by the Commissioner in her brief. In fact, the
ALJ did not address Dr. Hudspeth’s assessment of Claimant’s limitations in connection
with his concentration, persistence, and pace discussion at all. We must confine our
review to the reasons articulated by the ALJ and cannot consider the Commissioner’s
post-hoc attempt to supplement the ALJ’s assessment of the evidence. Spiva v. Astrue,
628 F.3d 346, 353 (7th Cir. 2012); see also Phillips v. Astrue, 413 F. App’x. 878, 883
(7th Cir. 2010).
Furthermore, even if we were to accept the Commissioner’s argument, the ALJ
was still required to consider Claimant’s limitations in concentration and persistence
because they were supported by the medical record. Not only did Dr. Hudspeth opine
that Claimant would have a diminished ability to adapt to workplace settings and routine
changes, but the ALJ himself determined that Claimant suffered moderate limitation in
maintaining concentration and persistence. (R. 26.) It follows that he was required to
include these limitations in the hypothetical questions he posed to the VE, even if he
found that they did not rise above a moderate level. O’Connor-Spinner, 627 F.3d at
619; Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994) (“The hypothetical question
posed by the ALJ to the VE must fully set forth the claimant’s impairments to the extent
that they are supported by the medical evidence in the record.”) (citations omitted).
Next, we must consider whether the ALJ adequately accounted for Claimant’s
limitations in maintaining concentration, persistence, and pace in his hypothetical
14
questions to the VE when he limited the individual to simple, routine, and repetitive
tasks free of fast-paced production rate requirements, and occasional interaction with
others. The Seventh Circuit has repeatedly held that an ALJ’s inquiry restricting a
hypothetical individual to simple, routine tasks with limited interactions with coworkers
and the general public does not adequately account for an impairment in concentration.
Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014) (stating that, “confining the
claimant to simple, routine tasks and limited interactions with others” does not
“adequately capture[] temperamental deficiencies and limitations in concentration,
persistence, and pace”) (citations omitted); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th
Cir. 2009) (holding that the ALJ did not adequately account for the claimant’s
concentration, persistence, or pace limitations in his hypothetical which limited an
individual to “simple, routine tasks that d[id] not require constant interactions with
coworkers or the general public”); see also Craft v. Astrue, 539 F.3d 668, 677–78 (7th
Cir. 2008) (hypothetical questions limiting an individual to “unskilled” work did not
account for mental impairments including difficulty with memory, concentration, and
mood swings). In her brief, the Commissioner fails to acknowledge this precedent, cite
any contrary authority, or explain how the hypothetical here sufficiently accounted for
Claimant’s limitations. Stewart, 561 F.3d at 685. This Court sees no reason why we
should not reject the ALJ’s line of questioning in light of judicial precedent. As a result
of the ALJ’s faulty questioning, the VE did not take into account Claimant’s limitations in
concentration and persistence when he suggested occupations that Claimant could
perform in the national economy. Therefore, we cannot say that the ALJ supported his
step five conclusion with substantial evidence when he relied on the flawed testimony of
15
the VE. We remand the issue to the ALJ so that he can pose questions to the VE that
adequately account for all of Claimant’s limitations that are supported by medical
evidence.
Although Claimant limited his foregoing argument to concentration and
persistence, on remand the Court notes that the Seventh Circuit has rejected
hypotheticals where an ALJ fails to define “fast paced production.” Varga v. Colvin, 794
F.3d 809, 815 (7th Cir. 2015). In such situations, without a definition, it is impossible for
a VE to assess whether a claimant can maintain the proposed pace. Id. at 815. On
remand, the ALJ should also pose hypothetical questions to the VE that adequately
account for Claimant’s limitations in pace.
2.
One- or Two- Step Tasks
Similarly, Claimant also alleges that the Commissioner failed to demonstrate that
he can perform jobs available in the national economy because the ALJ failed to include
his limitation to simple, one to two-step tasks in the hypothetical questions he posed to
the VE. (Cl.’s Br. at 6–8.) In making his argument, Claimant relies solely on the mental
RFC assessment completed by Dr. Donna Hudsepth, Psy.D., where she opines that he
retained “the ability to understand, remember, and carry out at least simple one/two step
repetitive tasks.” (R. 413.) According to Claimant, Dr. Hudspeth’s evaluation supports
the proposition that he is incapable of performing tasks with more than two steps.
However, a plain reading of Dr. Hudspeth opinion reveals that she opined that Claimant
could perform at least one- to two-step tasks, not that he was incapable of tasks with
more steps. Without more support from his medical record regarding his allegations,
Claimant has failed to persuade us that he is limited to one- to two- step tasks; therefore
16
we find it is not a mental limitation that the ALJ was required to supply to the VE in his
hypothetical questions at the administrative hearing. Accordingly, we find that the ALJ
did not commit a reversible error in this regard.
Claimant also alleges that the ALJ failed to resolve inconsistencies between Dr.
Hudspeth’s opinion, which limited him to one to two-step tasks, and Dr. Cochran’s
opinion, which “merely limited [him] to simple tasks.” (Cl.’s Br. at 6–7.) As we have
previously established, Dr. Hudspeth opined that Claimant was capable of at least
simple, one to two-step tasks, not that he was incapable of performing tasks with more
steps. This finding does not contradict Dr. Cochran’s conclusion that Claimant was
limited to simple tasks. In fact, both doctors limited Claimant to simple tasks. Thus, we
find that no conflict exists between the two opinions and, despite Claimant’s contentions
otherwise, the ALJ could ascribe “great” weight to the findings of both doctors.
B. The ALJ did not violate SSR 00-4p
Next, Claimant argues that the ALJ violated SSR 00-4p when he failed to provide
a reasonable explanation for the apparent conflict between the VE’s testimony
regarding “moderate levels of environmental irritants” and the description of the jobs the
VE opined that he could perform in the DOT. (Cl.’s Br. at 9.)
SSR 00-4p sets out two requirements that adjudicators must meet before they
may rely on a VE’s testimony in support of a disability determination. SSR 00-4p, 2000
WL 1898704 (“SSR 00-4p”), at *1. First, an ALJ has an “affirmative responsibility to ask
about any possible conflicts between” a vocational expert’s testimony and “the
information provided in the DOT.” SSR 00-4p, 2000 WL 1898704 (“SSR 00-4p”), at *4.
An ALJ satisfies this duty if, like here, he asks the VE if his or her testimony has been
17
consistent with the DOT. Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008);
Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006). Second, if a VE’s testimony
“appears to conflict with the DOT,” an ALJ must “obtain a reasonable explanation for the
apparent conflict.” SSR 00-4p at *4. It is at this step that Claimant alleges the ALJ
erred. For the reasons that follow, we find that no apparent conflict existed between the
VE’s pulmonary irritant-related testimony and the DOT.
When a claimant raises an SSR 00-4p argument after the close of an evidentiary
hearing, he must prove that the conflicts between the VE’s testimony and the DOT were
so apparent that the ALJ should have recognized them without assistance. Overman,
546 F.3d at 463. Despite Claimant’s contentions otherwise, it is unclear that any conflict
exists in the present case, let alone an apparent one. Essentially, Claimant argues that
a conflict occurred between the ALJ’s hypothetical question, which limited the individual
to “moderate” environmental irritants, and the VE’s testimony that the individual could
perform work as a room cleaner, groundskeeper, and industrial cleaner because the
positions only involved “occasional” exposure to environmental irritants. (Cl.’s Br. at 9.)
Claimant argues that it should have been apparent to the ALJ that the VE
misunderstood the difference between the qualitative term “moderate” and the
quantitative term “occasional”, and he should have sought explanation for the apparent
conflict. This argument is unpersuasive. We find, and Claimant points to, no authority
in the DOT or otherwise that supports Claimant’s contentions. In fact, Claimant simply
highlights a difference in terminology between the scale used to measure a claimant’s
environmental limitations (unlimited, avoid concentrated exposure, avoid even moderate
exposure, avoid all exposure) and his or her exertional limitations (constantly,
18
frequently, occasionally, and none). The VE explicitly stated that the jobs he listed
would include “some exposure to dust, fumes, gases, etc, but not even to a moderate
level. That would be occasionally.” Because no apparent conflict existed between the
testimony of the VE and the DOT, the ALJ committed no error at this step when he
relied on the VE’s testimony.
C. The ALJ Failed to Fully and Fairly Develop the Record
Claimant also alleges that the ALJ failed to fully and fairly develop the record in
light of his pro se status and his diminished mental capacity. (Cl.’s Br. at 10–11.) The
Commissioner argues that the ALJ was under no such duty because he obtained a valid
waiver of counsel from Claimant. (Def.’s Mem. at 9–12.) The Commissioner’s
argument misses the mark. An ALJ has a duty to “scrupulously and conscientiously
probe into, inquire of and explore for all the relevant facts” even when he has obtained a
valid waiver of counsel. Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994) citing Smith
v. Sec’y of Health, Education, & Welfare, 587 F.2d 857, 860 (7th Cir. 1978) (citations
omitted). Furthermore, “[w]hen a claimant is both unrepresented and suffers from a
mental impairment . . . the ALJ’s duty to carefully develop the record is even greater.”
Ransom v. Bowen, 844 F.2d 1326, 1330 n. 4 (7th Cir. 1998), cert. denied, 488 U.S. 969,
109 S.Ct. 499 (Mem), 102 L.Ed.2d 535 (1988).
The Seventh Circuit has held that an ALJ meets this burden when, as here, he
obtains all of the medical records from a claimant’s treating physicians, elicits detailed
testimony from the claimant and a friend of the claimant at the hearing, and leaves the
medical record open to obtain evidence that was not in the record at the time of the
hearing. Binion, 13 F.3d at 245. However, an ALJ must still make an inquiry into a
19
claimant’s alleged mental impairments. Thompson v. Sullivan, 933 F.3d 581, 586 (7th
Cir. 1991). Here, the ALJ elicited no testimony from Claimant or his mother regarding
his impulse control disorder or his history of learning disorder. In light of Claimant’s pro
se status and his mental limitations, we find that the ALJ failed to meet his heightened
duty to inquire into Claimant’s mental limitations to fully and fairly develop the record.
Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (“the ALJ in a Social Security
hearing has a duty to develop a full and fair record” and “[t]his duty is enhanced when a
claimant appears without counsel; then the ALJ must ‘scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.’”).
D. The Appeals Council Properly Found that the Job Browser Pro Data Submitted
to it by Claimant was Not “New and Material” Evidence
Upon receipt of the ALJ’s denial of benefits, Claimant secured representation and
requested review of the ALJ’s decision by the Appeals Council. Along with the other
requisite materials, Claimant submitted three “Detailed Job Specialty Reports”
corresponding to the occupations the VE had testified he could perform, based on data
he collected from the software program Job Browser Pro. (R. 303–334.) According to
Claimant, the data available in Job Brower Pro was “new and material,” and moreover,
that it contradicted the testimony of the VE, particularly because it revealed that the
groundskeeper and industrial cleaner positions require the ability to carry out “detailed”
instructions and stated that all three of the occupations listed by the VE would require
exposure to chemicals and pulmonary irritants. (Cl.’s Br. at 12.) Claimant alleges that
the Appeal’s Council’s denial of this evidence was in error because it failed to properly
apply the “new and material” evidence standards. (Cl.’s Br. at 11–12.)
20
As a preliminary matter, we must first determine whether the Appeals Council
found that the evidence proffered by Claimant was not “new and material,” a reviewable
decision, or whether the Appeals Council accepted the evidence, but ultimately
concluded that it was “insufficient to require to a different result,” a determination which
is not subject to judicial review. Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012).
The Seventh Circuit has determined that boilerplate language from the Appeals Council
which, like here, simply states that it has considered the additional evidence and found
that it did not provide a basis for changing the ALJ’s decision, implies the former
conclusion. As a result, we proceed “to review the ‘limited question’ of whether the
Council . . . erroneously concluded that the newly submitted evidence was not new and
material.” 1 Stepp v. Colvin, 795 F.3d 711, 723 (7th Cir. 2015) (citation omitted).
When considering new evidence, the Appeals Council must conduct three
separate inquires: (1) whether the proffered evidence is new and material; (2) if the
evidence is new and material, the Appeals Council must evaluate the entire record
including the new evidence; and (3) if, upon review, the Appeals Council finds that the
ALJ’s disability determination is contrary to the weight of the evidence in the record, it
will conduct a full review of the case. Perkins v. Chater, 107 F.3d 1290, 1293–94 (7th
Cir. 1997). Evidence is considered “new” if it was “not in existence or available to the
claimant at the time of the administrative proceeding,” and it is considered “material” if
there is a “reasonable probability that the Commissioner would have reached a different
conclusion had the evidence been considered” in the first instance. Perkins, 107 F.3d
at 1296 (citation and internal quotation marks omitted).
1
In its decision, the Appeals Council stated “[w]e have concluded that the additional evidence
does not provide a basis for changing the [ALJ]’s decision. (R. 2.)
21
Claimant argues that despite the fact that DOT (not Job Browser Pro) was in
existence at the time of his hearing, it was not available to him due to his pro se status
and established learning disabilities. Yet, Claimant offers no authority in support of his
contention, and in light of the definition of “new” evidence, we are not persuaded by his
argument alone. Therefore, we cannot grant remand for consideration of the “Detailed
Specialty Job Reports.” 28 U.S.C. § 405(g), see also Buchholz v. Astrue, No. 08-cv4042, 2009 WL 4931393, at *12 (C.D. Ill. Dec. 15, 2009) (holding that a pro se
claimant’s evidence which pre-dated her evidentiary hearing was not “new,” and
therefore, remand under 28 U.S.C. § 405(g) was unavailable).
Moreover, the evidence submitted must be material, meaning that there was a
“reasonable possibility” that the ALJ would have reached a different conclusion based
on the proffered evidence. Claimant argues that this evidence is material because it
directly contradicted the testimony of the VE, which formed the basis of the ALJ’s step
five determination. (Cl.’s Br. at 12.) We must reject his argument. In his brief, Claimant
refers the DOT, but the evidence he submitted was collected from Job Browser Pro, a
software product which is not included in the list of publications that are authoritative
under the Social Security Regulations. 20 C.F.R. § 416.966(d). Furthermore, neither
the Seventh Circuit, nor this Court, has held that the information available in Job
Browser Pro outweighs the information in the DOT (an authoritative publication under
the Social Security regulations) or the expertise of a VE. Therefore, we cannot say that
there was a “reasonable possibility” that the ALJ would have reached a different
conclusion in this case.
22
For the foregoing reasons, we find that the Appeals Council properly applied the
“new and material” evidence standard to the case at hand. Therefore, we find no error
in this regard.
IV. CONCLUSION
For the foregoing reasons, Claimant’s motion to reverse the final decision of the
Commissioner or remand is granted and the Commissioner’s motion for summary
judgment is denied.
Dated: June 9, 2017
________________________________
The Honorable Michael T. Mason
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?