Morrow v. Colvin
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 9/20/2017. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FELICIA ANN MORROW,
Plaintiff,
v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant.
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No. 16 C 8430
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Felicia Ann Morrow brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the Social Security Administration Commissioner’s decision denying her application for
benefits. For the reasons set forth below, the Court reverses the Commissioner’s decision and
remands this case for further proceedings.
Background
Plaintiff applied for benefits on July 5, 2012, alleging a disability onset date of June 1,
2012. (R. 103, 114.) Her application was initially denied on November 13, 2012, and again on
reconsideration on May 31, 2013. (R. 114, 131.) Plaintiff requested a hearing, which was held
by an Administrative Law Judge (“ALJ”) on October 17, 2014. (R. 34-102.) On February 27,
2015, the ALJ issued a decision finding plaintiff not disabled. (R. 13-28.) The Appeals Council
declined to review the decision (R. 1-4), leaving the ALJ’s decision as the final decision of the
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On January 23, 2017, Nancy A. Berryhill succeeded Carolyn W. Colvin as Acting Commissioner of Social
Security. See https://www.ssa.gov/agency/commissioner.html (last visited Sept. 8, 2017). Accordingly, the Court
substitutes Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).
Commissioner, reviewable by this Court pursuant to 42 U.S.C. § 405(g). See Villano v. Astrue,
556 F.3d 558, 561-62 (7th Cir. 2009).
Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. The Commissioner must consider whether: (1) the claimant has
performed any substantial gainful activity during the period for which she claims disability; (2)
the claimant has a severe impairment or combination of impairments; (3) the claimant’s
impairment meets or equals any listed impairment; (4) the claimant retains the residual
functional capacity to perform her past relevant work; and (5) the claimant is able to perform any
other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245
F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four.
20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the
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burden shifts to the Commissioner to establish that the claimant is capable of performing work
existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the application date. (R. 15.) At step two, the ALJ determined that plaintiff has the severe
impairments of “left knee degenerative joint disease status post arthroscopic surgery; right knee
degenerative joint disease; lumbar and thoracic degenerative joint disease; depression/posttraumatic stress disorder; pulmonary hypertension/hypertension; asthma, history of substance
abuse, and obesity.”
(Id.)
At step three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meet or medically equal the severity of one of
the listed impairments. (R. 16.) At step four, the ALJ found that plaintiff cannot perform her
past relevant work but has the residual functional capacity (“RFC”) to perform sedentary work,
“understand, remember, and carry out simple work instructions[,] exercise simple workplace
judgments[,] . . . [and] perform routine work involving no more than occasional decisions and . .
. occasional contact with co-workers, supervisors, and the general public.” (R. 18, 26.) At step
five, the ALJ determined that jobs exist in significant numbers in the national economy that
plaintiff can perform, and thus she is not disabled. (R. 26-28.)
Plaintiff contends that the ALJ’s RFC determination is erroneous because it does not
account for her “moderate difficulties” in maintaining concentration, persistence or pace. (R.
18.) Presumably, the ALJ meant to address this issue by limiting plaintiff to “routine work” with
occasional contact with others. (Id.) The Seventh Circuit has said, however, 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.’”
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Taylor v. Colvin, 829 F.3d 799, 802 (7th Cir. 2016) (quoting Yurt v. Colvin, 758 F.3d 850, 85859 (7th Cir. 2014)).
The Commissioner’s attempt to distinguish the circumstances presented here from
Seventh Circuit case law that dictates remand is unavailing. (Def.’s Mem. Supp. Mot. Summ. J.,
Dkt. 34 at 4.) The Commissioner acknowledges that cases such as O’Connor-Spinner v. Astrue,
627 F.3d 614 (7th Cir. 2010) suggest remand is appropriate, but attempts to differentiate this
case by arguing that any deficiencies here are not fatal. We disagree. First, we see no reason
why the general rule that all limitations regarding the plaintiff’s ability to concentrate should be
included in the hypothetical posed to the VE was not followed here. Second, the Commissioner
argues that plaintiff does not identify how any omissions in the VE’s assessment would have
impacted the final RFC. But this argument effectively rearranges the applicable burden of proof,
which would be error as well. Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir. 2004). Thus, the
case must be remanded for a new RFC determination.
Plaintiff also argues that the ALJ erred in accepting the vocational expert’s (“VE’s”)
testimony without an explanation of her methodology and production of the documents
underlying it. The VE testified that plaintiff could work as: (1) a sorter, and that the number of
such jobs in the local and national economies “reduced . . . to take into consideration the sit/stand
option [in plaintiff’s RFC]” is 700 and 49,000, respectively; (2) an assembler, and that the
number of such jobs, appropriately reduced, in the local and national economies is 1,600 and
53,000, respectively; and (3) a packer, and that the number of such jobs, appropriately reduced,
in the local and national economies is 2,100 and 61,000, respectively. (R. 77-78.) The VE said
the “numbers . . . come from United States Department of Labor and the U.S. Census Bureau” as
well as her “professional experience and training of placing individuals in employment.” (R.
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80.) The VE testified that her decision to reduce the government jobs numbers by fifty percent
to account for the sit/stand option was “based on . . . what I see when I do job placement for my
clients or when I do labor market surveys or applying for jobs for my clients.” (R. 80-81.)
During the hearing, plaintiff’s representative questioned the reliability of the VE’s
methodology and asked for production of the labor surveys on which her testimony was based
(R. 81, 101), a request the VE ultimately rejected (R. 27.) Though an ALJ can depend on
reliable VE testimony, and a VE is “free to give a bottom line, the data and reasoning underlying
that bottom line must be available on demand if the claimant challenges the foundation of the
vocational expert’s opinions.” McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2004) (per
curiam) (quotations omitted).
Such was the case here.
Thus, the ALJ erred by refusing
plaintiff’s request for production of the VE’s surveys.2
Plaintiff further contends that the ALJ erred by failing to obtain a medical opinion from a
doctor who had reviewed the entire record. This was necessary, plaintiff says, because she
submitted additional medical evidence, including two treating source opinions, after the agency
reviewers opined on her condition.
However, the ALJ was able to and did consider the
additional medical evidence in making his determination. (See R. 25-26 (ALJ stating that he
gave “limited weight” to the agency examiners’ determination that plaintiff had the RFC to do
medium level work with certain restrictions because “the subsequent evidence shows [plaintiff]
is more limited.”).) In fact, “[w]eighing conflicting evidence from medical experts . . . is exactly
what [an] ALJ is required to do.” Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Thus,
the ALJ was not required to have a doctor opine on the conflicting medical evidence, and he was
not “playing doctor” when he weighed it himself.
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We are not persuaded by the Commissioner’s reliance on Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008). (Def.’s
Mem. Supp. Mot. Summ. J., Dkt. 34 at 6.) In Britton, the VE offered to produce the records on which she relied, but
the claimant’s counsel refused the offer. In this case, no offer of production was ever made.
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Plaintiff’s final argument is that the Appeals Council (“AC”) erred in refusing to consider
evidence about available jobs that plaintiff submitted after the hearing. The regulation governing
this issue was amended effective January 17, 2017. See 20 C.F.R. 404.970. Under both the
former and current versions of the regulation, however, the AC is required to consider evidence
submitted to it only if the evidence is “new” and “material.” Compare id., with 20 C.F.R.
404.970(b) (eff. to Jan. 16, 2017). As the Seventh Circuit has explained, however, the Court’s
ability to review the AC’s decision “is dependent on the grounds on which the Council declined
to grant plenary review.” Stepp v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015). If the AC
determined that the evidence plaintiff submitted was not “new and material” within the meaning
of the regulation, the Court has “jurisdiction to review that conclusion for legal error.” Id. If the
AC found that the evidence was new and material but denied review of the ALJ’s decision
because the supplemented record did not show that the ALJ’s decision was contrary to the
weight of the evidence, “the Council’s decision not to engage in plenary review is discretionary
and unreviewable.” Id. (quotation omitted).
In relevant part, the AC stated: “[W]e considered the reasons you disagree with the
decision in the material listed in the enclosed Order . . . . We found that this information does
not provide a basis for changing the [ALJ’s] decision.” (R. 2.) The Seventh Circuit has
interpreted similar language to mean that the AC did not find the supplementary evidence to be
new and material, a conclusion this Court can review. Id.
Evidence is “new,” within the meaning of the regulation, if it was “not in existence or
available to the claimant at the time of the administrative proceeding,” and “material” “if it
creates a reasonable probability that the Commissioner would have reached a different
conclusion had the evidence been considered.” Stepp, 795 F.3d at 725-26 (quotations omitted).
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Though the jobs data plaintiff submitted existed at the time of the hearing, she contends that it
should nonetheless be considered “new” evidence because she did not know until the ALJ denied
her request for production of the VE’s surveys in his written decision that the evidence would be
needed.
The Court disagrees. First, the evidence does not fall within the plain meaning of the
word “new” as it is used in the regulation. See id. Second, the evidence plaintiff submitted calls
into question the VE’s testimony about the number of jobs available to plaintiff. Immediately
after the VE testified, plaintiff could have asked the ALJ for permission to submit additional jobs
data for his consideration before he issued his opinion. Her failure to do so does not make
existing evidence “new,” and therefore the AC’s failure to consider it was not error.
Conclusion
For the reasons set forth above, the Court denies the Commissioner’s motion for
summary judgment [33], reverses the decision of the Commissioner, and remands this case for
further proceedings consistent with this Memorandum Opinion and Order.
SO ORDERED.
ENTERED: September 20, 2017
_________________________________
M. David Weisman
United States Magistrate Judge
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