Kaplan v. Berryhill
MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 3/8/2018. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
No. 17 C 3385
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Steven Kaplan brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
Social Security Administration Commissioner’s decision denying his application for benefits.
For the reasons set forth below, the Court reverses the Commissioner’s decision.
Plaintiff applied for disability benefits on January 15, 2013, alleging a disability onset
date of June 1, 2010. (R. 69-70.) His application was initially denied on July 3, 2013, and again
on reconsideration on February 24, 2014. (R. 68, 77.) Plaintiff requested a hearing, which was
held by an Administrative Law Judge (“ALJ”) on October 1, 2015. (R. 23-67.) On December
23, 2015, the ALJ issued a decision finding plaintiff not disabled. (R. 104-12.) The Appeals
Council denied review (R. 1-3), leaving the ALJ’s decision as the final decision of the
Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
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. Under the regulations, the Commissioner must consider: (1) whether
the claimant has performed any substantial gainful activity during the period for which she
claims disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) if not, whether he is unable 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, and if that burden
is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is
capable of performing work existing in significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
from the alleged onset date to September 30, 2015, his date last insured (“DLI”). (R. 106.) At
step two, the ALJ found that, through his DLI, plaintiff had the severe impairments of
“degenerative disc disease of lumbar spine, asthma, and obesity.” (Id.) At step three, the ALJ
found that, through his DLI, plaintiff did not have an impairment or combination of impairments
that meets or medically equals the severity of a listed impairment. (R. 109.) At step four, the
ALJ found that, through his DLI, plaintiff was capable of performing his past relevant work
(“PRW”) as an estimator and project manager “as actually and generally performed” and thus
was not disabled:
. . . [Plaintiff’s] work as an estimator was sedentary and skilled with an
SVP [specific vocational preparation]1 of seven both as classified in the DOT
[Dictionary of Occupational Titles] and as he performed it. His job as a project
manager was also both sedentary and skilled with an SVP of eight both in the
DOT and as performed. His job as a superintendent required the performance of
light work and was also skilled with an SVP of seven both in the DOT and as
The vocational expert . . . testified that with the [RFC determined by the
ALJ] the claimant could perform his past relevant work as an estimator and
project manager. The undersigned adopts this testimony and finds the claimant
can perform these jobs.
Plaintiff says the evidence showed that his PRW was not that of an estimator, a project
manager, or a superintendent, but a job that was a composite of the three. A composite job is one
that has “significant elements of two or more occupations and as such, ha[s] no counterpart in the
DOT.” Social Security Administration, Program Operations Manual System, DI 25005.020B,
“Specific Vocational Preparation [“SVP”] is defined as the amount of lapsed time required by a typical worker to
learn the techniques, acquire the information, and develop the facility needed for average performance in a specific
job-worker situation.” Dictionary of Occupational Titles, App’x C, § II, available at
https://occupationalinfo.org/appendxc_1.html#II (last visited Feb. 23, 2018). An SVP of seven is “[o]ver 2 years up
to and including 4 years.” Id. An SVP of eight is “[o]ver 4 years up to and including 10 years.” Id.
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020 (last visited Feb. 23, 2018).
“PRW may be a composite job if it takes multiple DOT occupations to locate the main duties of
the PRW as described by the claimant.” Id.
Plaintiff and the vocational expert (“VE”) both testified that the jobs of estimator, project
manager, and superintendent could be separate.
(R. 39-42, 60.)
But the VE said small
companies may combine the three, and plaintiff, whose testimony controls, see SSR 82-62, 1982
WL 31386, at *3 (Jan. 1, 1982) (“The claimant is the primary source for vocational
documentation, and statements by the claimant regarding past work are generally sufficient for
determining the skill level, exertional demands and nonexertional demands of such work.”), said
that is what his employers did. (R. 39-42, 60.)
Despite this uncontradicted evidence, however, the ALJ did not assess whether plaintiff
had the RFC to perform his PRW as plaintiff had actually performed it.
(See R. 34, 39
(plaintiff’s testimony that his PRW required him to go to job sites, “climb scaffolding, stairs
[and] fire escapes,” “take measurements, and then figure out labor costs, production rates, and
come up with a price”).) Instead, the ALJ analyzed whether plaintiff could work as an estimator,
project manager, and superintendent, as those jobs are defined by the DOT. (See R. 111.)
Because the record establishes that plaintiff’s PRW was not one of these jobs as defined by the
DOT, the ALJ’s conclusion that, as of plaintiff’s DLI, he had the RFC to perform his PRW was
Plaintiff also takes issue with the ALJ’s credibility determination/symptom evaluation,3
which is, indeed, confusing on its face: “[T]he undersigned finds that the claimant testified in a
This is not, as the Commissioner contends, an untimely challenge to the VE’s testimony. The VE testified, in
essence, that plaintiff’s PRW was a composite job; the ALJ did not, however, analyze it that way.
The Commissioner has issued new guidance for evaluating symptoms in disability claims, which supersedes SSR
96-7p and “eliminat[es] the use of the term ‘credibility’” to “clarify that subjective symptom evaluation is not an
generally credible manner but he cannot be found credible in contending that he is and has been
disabled.” (R. 110.) The ALJ does not explain this self-contradictory statement or, though he is
required to do so, “discuss . . . why reported symptom-related functional limitations and
restrictions can or cannot reasonably be accepted as consistent with the medical and other
evidence.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Plaintiff testified that he has
difficulty standing, bending, lifting, climbing stairs, and walking for any distance (R. 34-35, 45,
47-49), yet the ALJ did not say which, if any, of these alleged limitations is supported or
contradicted by the medical evidence.
Moreover, the reasons the ALJ offered for discrediting plaintiff’s testimony are unsound.
For instance, the ALJ deemed plaintiff incredible because he left his last job for nonmedical
reasons, received unemployment benefits, and continued to look for work thereafter. However,
the Seventh Circuit has repeatedly stated that the fact that a person works, attempts to work, or
certifies that he is able to work does not necessarily mean that he is not disabled. See, e.g.,
Richards v. Astrue, 370 F. App’x 727, 732 (7th Cir. 2010) (“Although we have noted that a
claimant’s representations in seeking unemployment benefits may be relevant in assessing the
credibility of her representations to the SSA . . . .[,] [a] desperate person might force herself to
work—or in this case, certify that she is able to work—but that does not necessarily mean she is
not disabled.”); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“A person can be totally
disabled for purposes of entitlement to social security benefits even if, because of an indulgent
employer or circumstances of desperation, he is in fact working.”); Henderson v. Barnhart, 349
F.3d 434, 435 (7th Cir. 2003) (“[T]he fact that a person holds down a job doesn’t prove that he
isn’t disabled, because he may have a careless or indulgent employer or be working beyond his
examination of an individual’s character.” See SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). However, the
factors to be considered in evaluating symptoms under either SSR 96-7p or SSR 16-3p are the same. Compare SSR
96-7p, 1996 WL 374186 (July 2, 1996), at *3, with SSR 16-3p, 2017 WL 5180304, at *7-8 (Oct. 25, 2017).
capacity out of desperation.”).
Further, the ALJ deemed plaintiff incredible because “the
impetus behind his disability application” was to increase the amount of benefits he receives. (R.
110.) But every claimant seeks benefits for monetary gain. If that fact is sufficient to nullify a
claimant’s testimony, none would ever receive benefits. See Gossett v. Chater, 947 F. Supp.
1272, 1280 (S.D. Ind. 1996) (“[A claimant’s monetary interest] is simply not an adequate . . .
reason for a finding of lack of credibility, as it would be equally applicable to ALL social
security claimants.”) (emphasis in original). Finally, the ALJ said that plaintiff’s “activities of
daily life do not support the limitations alleged” without any citations to the record, which in any
event, shows that plaintiff is unable to do laundry, can only carry a gallon of milk and walk for
five minutes, and can dress himself but “not [in] the normal way.” (R. 45, 47-50.) In short, the
ALJ’s credibility determination/symptom evaluation is flawed and must be revisited.
For the reasons set forth above, the Court denies the Commissioner’s motion for
summary judgment , reverses the Commissioner’s decision, and remands this case for further
proceedings consistent with this Memorandum Opinion and Order.
ENTERED: March 8, 2018
M. David Weisman
United States Magistrate Judge
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