Tapia v. Colvin
Filing
25
MEMORANDUM Opinion and Order Signed by the Honorable Thomas M. Durkin on 5/14/2018. Mailed notice.(ym, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARLOS TAPIA,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Defendant.
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No. 16-cv-8388
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Carlos Tapia brings this action pursuant to the Social Security Act, 42 U.S.C.
§ 405(g), for judicial review of the final decision of the Commissioner of Social
Security denying Tapia’s claim for social security disability benefits based on his
back pain. Tapia seeks an award of benefits, or in the alternative, remand to the
Commissioner for rehearing. Tapia has filed a motion for summary judgment. Dkt.
14. For the following reasons, that motion is granted and the Commissioner’s
decision is reversed and remanded for further proceedings consistent with this
opinion and order.
Background
Tapia is a 59 year old individual who suffers from back pain stemming from a
work injury in January 2010. R. 40. 1 Tapia also suffers from diabetes,
hyperlipidemia, and glaucoma. Tapia worked at his previous employer, a
warehouse, for 25 years loading trucks, filling orders, stock keeping, and recovering
1
References to the Administrative Record (Dkt. 9) will be cited as R. #.
bins. R. 45. Following the injury, Tapia was placed on light duty for a temporary
period, but was ultimately terminated with severance in March 2013 because his
employer could not accommodate light duty for long periods of time. R. 48.
Dr. Pelagia E. Kouloumberis, a neurologist, noted that Tapia has significant
back pain and gave him a permanent work restriction against standing for long
periods. R. 309. In July 2013, Dr. Kimberly Middleton, a specialist in family
medicine, diagnosed Tapia with lumbar spinal stenosis and noted his pain would
likely preclude him from performing work that requires constant or repetitive
standing, bending, twisting, pulling, and pushing. R. 318.
The administrative law judge (“ALJ”) determined that Tapia has the residual
functional capacity to perform light work with several restrictions against climbing
and a handful of postural restrictions. Because the ALJ found that Tapia was
capable of performing past relevant work as a warehouse checker, he found Tapia
was not disabled as defined in the Social Security Act, 20 C.F.R. 404.1520(f). R. 29.
On June 22, 2016, the Appeals Council denied Tapia’s request for review of the
ALJ’s decision. On August 26, 2016, Tapia filed this action for judicial review
requesting reversal of the ALJ’s decision, or alternatively, a remand for rehearing
pursuant to 42 U.S.C. § 405(g).
Legal Standard
Judicial review of a final decision of the Social Security Administration is
generally deferential. The Social Security Act requires the court to sustain the
administrative law judge’s findings if they are supported by substantial evidence.
See 42 U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a
2
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The court should review the entire administrative
record, but must “not reweigh the evidence, resolve conflicts, decide questions of
credibility, or substitute [its] own judgment for that of the [ALJ].” Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000). “However, this does not mean that [the court] will
simply rubber-stamp the [ALJ’s] decision without a critical review of the evidence.”
Id. A decision may be reversed if the ALJ’s findings “are not supported by
substantial evidence or if the ALJ applied an erroneous legal standard.” Id. In
addition, the court will reverse if the ALJ does not “explain his analysis of the
evidence with enough detail and clarity to permit meaningful appellate review.”
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
“Although a written evaluation of each piece of evidence or testimony is not
required, neither may the ALJ select and discuss only that evidence that favors his
ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); see
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This ‘sound-bite’ approach
to record evaluation is an impermissible methodology for evaluating the evidence.”).
Additionally, the ALJ “has a duty to fully develop the record before drawing any
conclusions,” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007), and deference in
review is “lessened . . . where the ALJ’s findings rest on an error of fact or logic.”
Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). In oft-quoted words, the
Seventh Circuit has said that the ALJ “must build an accurate and logical bridge
from the evidence to his conclusion.” Clifford, 227 F.3d at 872. When the ALJ has
3
satisfied these requirements, the responsibility for deciding whether the claimant is
disabled falls on the Social Security Administration, and, if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is disabled,” the ALJ’s
decision must be affirmed. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
Discussion
The Social Security Act, 42 U.S.C. §§ 423 and 1382c, provides that an
individual is under a disability if he or she is unable to engage in substantial
gainful activity due to any physical and/or mental impairment which has lasted or
can be expected to last for a continuous period of not less than twelve months or
which can be expected to result in death. To determine whether an individual is
disabled, an ALJ must follow the five-step analysis provided by 20 C.F.R. §
404.1520(a)(4). At step one, if the ALJ determines that the claimant is “doing
substantial gainful activity,” then the claimant is not disabled and no further
analysis is necessary. If the claimant is not engaged in gainful activity, at step two,
the ALJ must determine whether the claimant has a “severe” impairment or
combination of impairments. If the ALJ finds that the claimant has such a severe
impairment, and the impairment is one provided for in the Social Security
regulation listings, then at step three, the ALJ must find that the claimant is
disabled. If the ALJ finds that the impairment is not in the listings, then at step
four, the ALJ must assess the “residual functional capacity” (“RFC”) the claimant
continues to possess despite the claimant’s impairment. If the claimant’s RFC
enables the claimant to continue his or her “past relevant work,” then the ALJ must
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find that the claimant is not disabled. But if the claimant cannot perform past
relevant work, at step five, the ALJ must determine whether the claimant “can
make an adjustment to other work.” If the claimant cannot make such an
adjustment, then the claimant is disabled.
Here, the ALJ determined that Tapia had not engaged in substantial gainful
activity since March 6, 2013, and that he had severe lumbar spine impairments.
Although the ALJ found that Tapia has severe impairments, he noted that they did
not meet the criteria for a “disabled” finding at step three. The ALJ then moved on
to assess Tapia’s RFC. The ALJ determined that Tapia could perform light work, as
defined in 20 CFR 404.1567(b), which requires some lifting up to 20 pounds, but
could not climb ladders, ropes, or scaffolds, and could only occasionally climb ramps
and stairs. The ALJ also found that Tapia could occasionally balance, stoop, crouch,
kneel, and crawl. The ALJ did not include any additional weight lifting restrictions
(beyond the 20 pound limitation set by the regulation), and he did not include any
restriction against standing for extended periods without rest periods. R. 24.
Because of the RFC determination, the ALJ found that Tapia could perform his past
relevant work as a warehouse checker. As a result, Tapia was not disabled.
Tapia does not challenge the ALJ’s decision at steps one, two, or three.
Rather, Tapia argues that the ALJ erred in determining Tapia’s RFC by (1) failing
to defer to the opinions of his treating physician; (2) failing to properly weigh
Tapia’s credibility; (3) failing to consider all of Tapia’s impairments, in combination,
in determining RFC; and (4) improperly analyzing the vocational assessment. Tapia
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argues the ALJ should have limited him to sedentary work, rather than light work,
because he could not lift more than 15 pounds, and could stand only for an hour at a
time before needing to sit down.
A. Treating Physicians
1. Dr. Pelagia Kouloumberis
Tapia first argues that the ALJ erred when he rejected the opinion of Dr.
Pelagia Kouloumberis, Tapia’s treating physician, without explanation. “A treating
doctor’s opinion receives controlling weight if it is ‘well-supported’ and ‘not
inconsistent with the other substantial evidence’ in the record.” Scott v. Astrue, 647
F.3d 734, 739 (7th Cir. 2011) (quoting 20 CFR § 404.1527(d)(2)). If an ALJ declines
to give controlling weight to the claimant’s treating physician, he must offer “good
reasons” for doing so. See id.
Here, Dr. Kouloumberis concluded that Tapia was permanently limited to
work in a seated position, consistent with a sedentary RFC. The ALJ stated that he
gave the opinion little weight because Dr. Kouloumberis had not treated Tapia after
March 6, 2013 and the records after that time did not support her conclusion. R. 27.
Specifically, the ALJ noted that the injections prescribed by Dr. Kouloumberis
reduced Tapia’s symptoms and that Tapia’s pain improved by more than fifty
percent with the treatment he received through the Pain Center. The ALJ also
noted that Tapia’s exam with Dr. Pinto in November 2013 showed no abnormalities.
Id. Accordingly, the ALJ found that Tapia’s records from his treatment after his last
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visit with Dr. Kouloumberis in March 2013 do not support her conclusion that Tapia
is permanently limited to seated work. Id.
In his determination that Dr. Kouloumberis’s opinion was inconsistent with
the record, however, the ALJ failed to consider all relevant evidence. Instead, the
ALJ improperly relied only on the evidence that favored his conclusion. See Clifford,
227 F.3d at 871 (an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion” and must consider all relevant evidence to determine
whether a treating physician’s findings are entitled to controlling weight).
For example, the ALJ stated that the injections and medical branch blocks
Tapia received after Dr. Kouloumberis’s opinion reduced his symptoms. Tapia did
receive treatment from the Pain Center in June and September 2013, both of which
resulted in improvement. During the September 2013 visit, Tapia was told to return
in three months for a follow up visit. However, a month later in October 2013, he
returned with increased pain, numbness, and tingling in his hands and fingers with
tenderness bilaterally in his lower back. R. 330, 331. This is inconsistent with the
ALJ’s conclusion that Tapia’s exam was “unchanged” in October 2013. R. 27. The
ALJ made no mention of the increased pain in October 2013 in his analysis of Dr.
Kouloumberis’s opinion. Nor did the ALJ acknowledge the waxing and waning of
Tapia’s symptoms with time and activity. See R. 309, 310, 337, 419, 421 (noting
constant setbacks in pain since 2010 when Tapia was working). Since Tapia’s injury
in 2010, Tapia had received injections, but they were not effective in mitigating his
pain for long periods of time. See R. 408 (noting pain despite an injection two days
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prior in 2010). Several times throughout his treatment, Dr. Kouloumberis
recommended restrictions on standing and lifting at work to prevent increases in
Tapia’s pain, and noted that Tapia’s symptoms returned and increased when he
returned to work. See R. 309 (“He does complain of significant low back pain with
long standing or with walking for long periods of time that extends down into the
posterior aspect of both thighs.”); R. 418 (“However, since that time he has started
working again in his old job where he is required to stand and do heavy lifting and
again has developed similar symptoms. He states that after standing for a few
hours, he has severe back pain, which causes him to have to sit down.”). She even
recommended and scheduled surgery, but Tapia opted to postpone it, noting his
symptoms improved to a tolerable level when he was not working. R. 309. Moreover,
even if Tapia’s medical condition improved, he could still be incapable of performing
light work. Murphy v. Colvin, 759 F.3d 811, 819 (7th Cir. 2014) (“The key is not
whether one has improved (although that is important), but whether they have
improved enough to meet the legal criteria of not being classified as disabled.”). The
record indicates that Tapia’s pain improved precisely because he was not working.
The ALJ improperly relied on these improvements without taking into account the
demonstrated setbacks with work activity. See Herron v. Shalala, 19 F.3d 329, 333
(7th Cir. 1994) (“Our cases consistently recognize that meaningful appellate review
requires the ALJ to articulate reasons for accepting or rejecting entire lines of
evidence.”).
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The ALJ also noted that Tapia’s musculoskeletal exams in late 2013 by the
Pain Center and Dr. Pinto showed no abnormalities. But that too does not
contradict Dr. Kouloumberis’s opinion. Dr. Kouloumberis took an MRI of Tapia in
February of 2013, which found severe central canal stenosis as well as other
degenerative changes. R. 308. There is no indication that the exams conducted at
the Pain Center or in Dr. Pinto’s office were MRIs or involved any sort of imaging to
contradict Dr. Kouloumberis’s neurological opinion. They instead appear to be
purely physical exams. Further, the ALJ noted that Tapia’s musculoskeletal exam
with Dr. Pinto “showed no abnormalities” but ignores that Tapia did not even
present to Dr. Pinto for back pain—he presented for management of diabetes, lab
testing, cholesterol, and knee pain. R. 349-357. There is no indication Dr. Pinto
discussed back pain with Tapia. Id. Indeed, Tapia testified that he did not mention
his back pain to Dr. Pinto because he “had a doctor that was in charge of that kind
of situation.” R. 52-53.
At the very least, the evidence indicates Dr. Kouloumberis’s opinion was not
contradicted by the record, indicating her opinion was entitled to controlling weight.
Even if an ALJ does not give a treating physician’s opinion controlling weight, the
regulations require the ALJ to consider the length, nature, and extent of the
treatment relationship; frequency of examination; the physician’s specialty; the
types of tests performed; and the consistency and supportability of the physician’s
opinion in determining what weight to give the opinion. 20 C.F.R. § 404.1527(c)(2)(5); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009). Additional factors support
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giving more weight to Dr. Kouloumberis’s opinion—she had treated Tapia several
times a year since April 2010 for back pain; she is a neurologist who based her
finding on an MRI; and her opinion is consistent with the evidence in the record, as
described above. Although the ALJ analyzed some of these factors in his analysis,
he improperly focused only on the evidence that favored his conclusion. This was
error.
2. Dr. Kimberly Middleton
The ALJ committed similar errors in determining what weight to give Dr.
Middleton’s opinion, a non-treating physician, pursuant to 20 C.F.R. § 404.1527(c).
Dr. Middleton examined Tapia, reviewed his MRI, and opined that his stenosis
would likely preclude him from work that required repetitive or constant standing,
bending, twisting, pushing or pulling. The ALJ gave her opinion little weight,
stating that her opinion was inconsistent with her own exam because Tapia had a
normal gait and no difficulty getting off the exam table. The ALJ also noted that
Tapia had significant improvement and no abnormalities in the latter part of 2013,
and Tapia was not treated for back pain in 2014.
The ALJ’s opinion misconstrues the evidence. First, a normal gait “is not
informative as to whether [a claimant] could perform light work.” Murphy, 759 F.3d
at 819. The ALJ failed to explain why his observation of a “normal gait” is a basis to
disregard a physician’s opinion based on an examination. Further, as described
above, Tapia’s improvement in 2013 was short-lived—his pain returned in October
2013, consistent with the waxing and waning nature of his chronic pain. Finally,
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although the records do indicate that Tapia did not seek treatment in 2014, the ALJ
ignored Tapia’s testimony that the costly injections were no longer providing
relief—Tapia testified that he stopped receiving pain injections because they “were
not doing what they’re supposed to be doing anymore, because the pain would come
back within two weeks. So, they were not really helping that much,” and their high
cost of $600 per injection. R. 51. Thus, the record does not serve to contradict Dr.
Middleton’s opinion.
3. State agency medical consultants
While discounting both Dr. Kouloumberis and Dr. Middleton’s opinions, the
ALJ gave more weight to the two state agency medical consultants, Dr. B. Rock Oh
and Dr. Richard Bilinsky, allegedly because they reviewed additional records before
forming their opinions. R. 28. But Dr. Oh completed an assessment on July 18,
2013, two weeks after Dr. Middleton’s exam on July 5, 2013, and just a couple of
months after Dr. Kouloumberis’s opinion. The ALJ does not indicate what records
Dr. Oh reviewed in the two weeks between Dr. Middleton’s exam and his
assessment. Dr. Bilinsky then affirmed Dr. Oh’s assessment in January 2014. If he
reviewed additional records, the only records he could have reviewed are the Pain
Center records, which as described above, noted an increase in pain in October 2013;
and Dr. Pinto’s November 2013 visit, during which Tapia presented for other
ailments, not back pain. As Dr. Oh and Dr. Bilinsky’s opinions appear to be
contradicted by the record, it was error for the ALJ to give them determinative
weight, especially since they never examined Tapia. See 20 C.F.R. § 404.1527(c)(1),
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(an ALJ should “give more weight to the medical opinion of a source who has
examined [the claimant] than to the medical opinion of a medical source who has
not examined [the claimant].”). See also Scrogham, 765 F.3d at 696.
The ALJ failed to adequately address material evidence contrary to his
weight of the physicians’ opinions. Accordingly, the ALJ’s decision is remanded for
reconsideration of the doctors’ opinions in accordance with this opinion.
B. Credibility of the Claimant
Tapia next argues that the ALJ’s finding that Tapia’s testimony was “less
than fully credible” is not supported by the record. An ALJ is entitled to determine
whether a witness’s testimony is credible. See Shideler v. Astrue, 688 F.3d 306, 31011 (7th Cir. 2012). The ALJ is given a great amount of deference in his credibility
findings. Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008). However, when the
ALJ’s determination is “patently wrong . . . unreasonable or unsupported,” it may be
overturned. Id. A court should “uphold an ALJ’s credibility determination if the ALJ
gave specific reasons for the finding that are supported by substantial evidence.”
Moss, 555 F.3d at 561.
The ALJ concluded that Tapia’s testimony about the severity of his pain was
contradicted by evidence that injections and branch blocks improved Tapia’s pain
and physical exams that showed no abnormalities in the musculoskeletal system.
As detailed above, those findings ignore Tapia’s increased pain in October 2013 (a
month after the ALJ noted Tapia was “doing great”), the history of waxing and
waning pain throughout the record, and the lack of any imaging that contradicted
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the February 2013 MRI’s finding of severe stenosis. That Tapia had periods of
decreased pain does not lend itself to a finding that Tapia’s reports of pain are
dishonest—an individual with a chronic disease, who undergoes continuous
treatment, is likely to have better days and worse days. See Bauer v. Astrue, 532
F.3d 606, 609 (7th Cir. 2008) (noting that even if a claimant was well enough to
work half of the time, she could still not hold down a full-time job).
The ALJ also discounted Tapia’s testimony because he only received pain
management services for a few months, was never referred to physical therapy, and
stopped receiving treatment in the latter part of 2013 and 2014. Tapia had
presented to Dr. Kouloumberis for back pain since April 2010. R. 393-425. Dr.
Kouloumberis
prescribed
injections
and
medications,
and
at
one
point,
recommended surgery, all indicating Tapia’s back pain was severe. Tapia also
testified that he stopped receiving pain injections because they were no longer
helping and due to their high cost. R. 51. Ineffectiveness and affordability of
treatment are both reasonable explanations for stopping medical treatment in a
credibility analysis. See Murphy, 759 F.3d at 816. The ALJ’s findings are not
supported by substantial evidence.
Further, the Seventh Circuit has noted that a “claimant with a good work
record is entitled to substantial credibility when claiming an inability to work
because of a disability.” Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016). Tapia
worked essentially the same job with the same employer for 25 years. R. 41. The
ALJ only noted that Tapia “has a consistent work history” before launching into
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minor inconsistencies made by Tapia regarding a discrepancy as to his level of
education, the side effect of one medication, and testimony about whether he was
supposed to follow up with Dr. Kouloumberis. Although a consistent work history is
not dispositive, it is less likely that a person with a long and consistent work record
would malinger to avoid work (and a presumably higher wage) if in fact he could
work. The ALJ’s reasons for Tapia’s adverse credibility ruling find little support on
close examination, and for that reason, the credibility determination is also
reversed and remanded for an analysis consistent with the record evidence and the
credibility presumption.
C. Limiting Effects of Other Impairments
Tapia next argues the ALJ erred by failing to account for Tapia’s diabetes,
hyperlipidemia, and glaucoma in his RFC analysis. An ALJ must consider all
impairments, severe and non-severe, in determining a person’s RFC. 20 CFR
404.1545(a). While no single impairment might significantly limit an individual’s
ability to work, the combination of impairments could impose greater restrictions.
Thomas v. Colvin, 745 F.3d 802, 807 (7th Cir. 2014). The Court finds the ALJ did
not err as to this issue. The ALJ noted that these ailments did not cause more than
minimal functional limitations. R. 23-24. The record likewise indicates these
conditions were well managed with medication and Tapia did not report any
limitations related to those impairments to affect his RFC.
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D. Vocational Assessment
Finally, Tapia challenges the ALJ’s final RFC determination. It is
unnecessary to discuss this analysis in great detail because the ALJ must reassess
Tapia’s RFC in light of the doctors’ opinions and Tapia’s complaints of pain that the
ALJ previously discounted. However, the Court notes the following errors on the
ALJ’s RFC determination which should be corrected on remand.
The ALJ determined that Tapia has the RFC to perform light work as defined
in 20 CFR 404.1567(b), with some limitations as to climbing, balancing, stooping,
crouching, kneeling, and crawling as well as limitations as to heights. Light work is
defined as lifting no more than twenty pounds at a time with frequent lifting or
carrying of objects weighing up to ten pounds. A job may also be considered light
work if it requires “standing or walking, off and on, for a total of approximately six
hours of an eight-hour workday” with intermittent sitting or “involves sitting most
of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §
404.1567(b). “To be considered capable of performing a full or wide range of light
work, [a claimant] must have the ability to do substantially all of these activities.”
Id.
After examining the record, the ALJ’s RFC determination is not fully
supported. Tapia said he could stand for up to an hour before needing to rest for 10
to 15 minutes. R. 49. Tapia also testified that with longer periods of standing, he
would need to sit for greater amounts of time. R. 55. There is no medical evidence in
the record to contradict his claim. Indeed, Dr. Kouloumberis noted that Tapia’s pain
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stemmed primarily from standing or walking for long periods of time. R. 309, 310.
There is also some indication in the medical record that Tapia could not lift more
than 15 pounds without back pain. R. 311, 312, 316. This evidence suggests Tapia
does not have the ability to do substantially all of the activities of light work.
The Court is also concerned that the ALJ inaccurately described Tapia’s past
relevant work. The Seventh Circuit has held that an ALJ must consider the specific
jobs held by a claimant and the tasks required of that job in determining whether a
claimant could perform past work. Cohen v. Astrue, 258 F. App’x 20, 28 (7th Cir.
2007). The vocational expert here noted that an individual with a weight lifting
restriction of 20 pounds could perform work as a warehouse checker “as per [the
Dictionary of Occupational Titles], but not as performed” by Tapia because his
previous work actually required a medium level of exertion. R. 60. Indeed, Tapia
testified that as a bin checker, he lifted 50 pounds up to half of the day. R. 54. Even
if Tapia was able to lift the 20 pounds required of a light duty RFC (of which there
is doubt), the evidence in the record shows that a “warehouse checker” job in fact
requires exertion well beyond that of a light work job. R. 44 (“I looked for all
warehouse positions available out in the field, and I had a couple companies call me
back interested in my services, but once I let them know what my disability was,
they were not interested in my services.”). The vocational expert also testified that
if an individual had no lifting restrictions but needed to sit for 10 to 15 minutes
with every hour of standing—consistent with Tapia’s limitations—all past work
would be eliminated. R. 61.
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Accordingly, the ALJ’s RFC determination should also be reexamined in
accordance with this opinion.
CONCLUSION
For these reasons, Plaintiff Carlos Tapia’s Motion for Summary Judgment,
Dkt. 14, is granted and the case is remanded to the Social Security Administration
for further proceedings consistent with this opinion.
ENTERED:
Dated: May 14, 2018
--------------------------------------------Honorable Thomas M. Durkin
United States District Judge
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