Kovacs v. Berryhill
Filing
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MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 8/23/2018. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EDITH M. KOVACS,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations,
performing the duties and functions not
reserved to the Commissioner of Social
Security,
Defendant.
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No. 17 C 7770
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Edith M. Kovacs brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the Social Security Administration’s (“SSA’s”) decision denying her application for benefits. For
the reasons set forth below, the Court reverses the SSA’s decision.
Background
Plaintiff filed an application for disability benefits on October 10, 2013, alleging a
disability onset date of September 30, 2007. (R. 117-18.) Plaintiff’s application was denied
initially on July 9, 2014, and on reconsideration on April 21, 2015.
(R. 117, 137.)
An
Administrative Law Judge (“ALJ”) held a hearing on plaintiff’s application on August 30, 2016,
2016. (See R. 35-101.) On October 5, 2016, the ALJ denied plaintiff’s application. (See R. 2128.) The Appeals Council denied plaintiff’s request for review (R. 1-3), leaving the ALJ’s decision
as the final decision of the SSA, 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) (citation omitted).
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(a). The SSA 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.; see Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Zurawski, 245 F.3d at 886. If
that burden is met, at step five, the burden shifts to the SSA 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).
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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (R. 24.) At step two, the ALJ determined that plaintiff has the severe
impairments of “degenerative joint disease of the right knee and degenerative disc disease of the
lumbar spine.” (Id.) At step three, the ALJ found that plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments. (Id.) At step four, the ALJ found that plaintiff can perform her past relevant work
(“PRW”) as an administrative assistant and thus is not disabled. (R. 27-28.)
Plaintiff argues that the ALJ wrongly concluded that she could perform her PRW. That is
so, plaintiff says, because her testimony establishes that her PRW was not administrative assistant
but a composite job of administrative assistant, caterer helper, and buffet waitress. (See R. 64-65
(plaintiff testifying that her last job required her to set up a monthly breakfast meeting, which
entailed setting tables and putting chairs around them, cooking eggs, and setting up a buffet of
breakfast food).) Plaintiff did not, however, raise this argument at the hearing, so neither the
vocational expert (“VE”) nor the ALJ had an opportunity to consider it.
In any event, the evidence does not support plaintiff’s claim. 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,
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020 (last visited Aug. 21, 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. With respect to her job duties, plaintiff testified: “I
was an administrative assistant. I basically did paperwork. I did some filing. I set up for meetings.
We had networking meetings a couple of times a month. Most of them were just lunch meetings.
They weren’t that big but we had a breakfast meeting every month which required setting up the
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room for the guests.” (R. 63-64.) This job description does not suggest, and neither plaintiff nor
the VE testified that, this once-a-month meeting set up was a main duty of plaintiff’s job. Thus,
the ALJ’s failure to consider plaintiff’s PRW as a composite job was not error.
Alternatively, plaintiff argues that the ALJ’s conclusion that plaintiff can perform her PRW
is not supported by the necessary factual findings. See SSR 82-62, 1982 WL 31386, at *4 (Jan. 1,
1982) (“In finding that an individual has the capacity to perform a past relevant job, the
determination . . . must contain” findings of fact “as to the individual’s RFC,” “the physical and
mental demands of the past job/occupation,” and that “the individual’s RFC would permit a return
to his or her past job or occupation.”). The ALJ found that plaintiff has the RFC to do the sedentary
job of an administrative assistant, as that job is defined in the Dictionary of Occupational Titles
(“DOT”).
(R.
27-28);
see
DOT,
169.167-010,
available
at
https://occupationalinfo.org/16/169167010.html (last visited Aug. 21, 2018) (setting forth job
duties). The ALJ also said that he “compar[ed] the claimant’s [RFC] with the physical and mental
demands of this work . . . and [found] that the claimant is able to perform [the work] as generally
performed.” (R. 28.)
Taken together, those are sufficient fact findings to support the ALJ’s
conclusion that plaintiff can perform her PRW.
Plaintiff also argues that the ALJ erred in refusing to let the medical expert (“ME”) testify
about whether plaintiff met or medically equaled a listing after her date last insured (“DLI”). If
the ME found that plaintiff met or equaled a listing post-DLI, plaintiff says, he may have inferred
that the disability began pre-DLI. See SSR 83-20, 1983 WL 31249, at *3 (Jan. 1, 1983) (instructing
ALJs to seek the input of MEs in cases in which the date of disability onset must be inferred from
the medical evidence). The Seventh Circuit has held that post-DLI evidence is relevant to
determining whether a disability existed pre-DLI. See Parker v. Astrue, 597 F.3d 920, 925 (7th
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Cir. 2010) (stating that the ALJ “should have determined directly whether the plaintiff was totally
disabled by [the DLI]—but in making that determination he must . . . consider all relevant
evidence, including the evidence regarding the plaintiff’s condition at present”) (emphasis in
original); Anderson v. Sullivan, 925 F.2d 220, 222 (7th Cir. 1991) (acknowledging the relevance
of “evidence of the claimant’s condition during the post-insured period”). But the record shows
that the ME considered post-DLI evidence in this case and still concluded that plaintiff did not
meet or equal a listing during the pre-DLI period. (See R. 76-80.) Thus, even if the ALJ’s
failure to let the ME answer questions about whether plaintiff met or equaled a listing after the
DLI was an error, it was a harmless one. See Parker, 597 F.3d at 924 (stating that “harmless error
. . . is applicable to judicial review of administrative decisions”).
Plaintiff’s last challenge, to the ALJ’s symptom evaluation, is on firmer ground. Plaintiff
testified that she can only stand for thirty minutes, walk for one and one-half blocks, and sit for
fifteen to thirty minutes at a time. (R. 57-58.) The ALJ, who adopted a sedentary-work RFC for
plaintiff, rather than a light-work RFC as suggested by the ME (see R. 80), must have credited
plaintiff’s statements about her limited ability to stand and walk but not her statements about her
limited ability to sit. See Dictionary of Occupational Titles (“DOT”), App’x C, § IV, available at
https://occupationalinfo.org/appendxc_1.html (last visited Aug. 21, 2018) (stating that
“[s]edentary work involves sitting most of the time, but may involve walking or standing for brief
periods of time,” and light work involves “walking or standing to a significant degree”). The ALJ
explained the symptom evaluation as follows:
. . . [T]he undersigned finds that the objective medical evidence shows that
the claimant is not as limited as she suggests. She reported that she has difficulties
with lifting, standing, walking, and sitting. However, she acknowledged that she
was able to do laundry, prepare simple meals, go shopping in stores for groceries,
drive, and go for short walks. She also acknowledged that she lives in a house with
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stairs and she has to climb stairs to get to her bedroom. Moreover, the claimant’s
examination findings shows [sic] that she is not limited to a disabling degree.
(R. 26) (citations omitted). While the ALJ may rely on plaintiff’s daily activities in assessing the
RFC, Castile v. Astrue, 617 F.3d 923, 927-28 (7th Cir. 2010), the ALJ has failed to explain why
plaintiff’s reported daily activities are inconsistent with her alleged inability to sit for more than
thirty-minute intervals. Absent an explanation for his rejection of this allegation, the ALJ’s
symptom evaluation cannot stand. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.
2003) (“[T]he cases make clear that the ALJ must specify the reasons for his [credibility] finding
so that the applicant and subsequent reviewers will have a fair sense of the weight given to the
applicant’s testimony.”) (emphasis in original). 1
The ALJ’s rejection of plaintiff’s assertion that she uses a walker is also problematic.
With respect to this issue, the ALJ said “there is no evidence that [plaintiff] was prescribed, needed,
or used an assistive device [to walk].” (R. 24.) In fact, the ME testified that plaintiff’s conditions
might necessitate the use of a walker, and plaintiff testified that she uses one frequently. (See R.
59-61, 82.) Because the record does not support the ALJ’s statement, and the VE said plaintiff’s
ability to work hinges on whether she uses a walker (R. 100), this issue must also be revisited on
remand.
1
In March 2016, the Commissioner issued new guidance for evaluating symptoms in disability claims, which
“eliminate[ed] the use of the term ‘credibility’” to “clarify that subjective symptom evaluation is not an examination
of an individual’s character.” See SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017).
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Conclusion
For the reasons set forth above, the Court denies the SSA’s motion for summary judgment
[23], reverses the SSA’s decision, and remands this case for further proceedings consistent with
this Memorandum Opinion and Order.
SO ORDERED.
ENTERED: August 23, 2018
M. David Weisman
United States Magistrate Judge
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