Hill v. Berryhill

Filing 23

ORDER: Plaintiff's Motion for Summary Judgment requesting reversal or remand (Doc. 11) is granted, and the Commissioner's Motion for Summary Judgment asking that the decision be affirmed (Doc. 16) is denied. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ's decision is reversed, and this case isremanded to the Social Security Administration for further proceedings consistent with this Order. Enter Judgment for Plaintiff. Signed by the Honorable Sheila M. Finnegan on 9/20/2019.Mailed notice(sxw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Ciara H.,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of
Social Security,1
Defendant.

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No. 18 C 2741
Magistrate Judge Finnegan

ORDER
Plaintiff Ciara H. filed this action seeking review of the final decision of
the Defendant Commissioner of Social Security (the “Commissioner”) denying her
claim for supplemental security income (“SSI”) under Title XVI of the Social Security
Act. (Doc. 1). The parties consented to the jurisdiction of a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c), and the case was reassigned to this Court.
(Docs. 7, 9). Plaintiff has now filed a Motion for Summary Judgment requesting that
the Commissioner’s decision be reversed and the case be remanded for further
proceedings (Doc. 11), and the Commissioner has responded with a Motion for Summary
judgment requesting that the decision be affirmed. (Doc. 16). After reviewing the record
and the parties’ respective arguments, the Court concludes that the case must be
remanded for further proceedings consistent with this Order. The Court therefore grants
Plaintiff’s Motion for Summary Judgment and denies the Commissioner’s Motion for
Summary Judgment.

1

Commissioner Saul is substituted for his predecessor, Nancy A. Berryhill, pursuant to Fed.
R. Civ. P. 25(d).

BACKGROUND
I.

Procedural History
Plaintiff protectively filed her SSI application on April 30, 2013, alleging disability

beginning at the time of her birth in early 1994, due to brain stem stroke, speech
impediments, and motor difficulties. (R. 68, 186, 189).2 Although she claimed disability
dating back to her birth, SSI benefits are not payable until the month after the application
filing date (20 C.F.R. 416.335), and so Plaintiff’s application sought benefits beginning
after April 30, 2013 (the application filing date) when she was 19 years old. (R. 15, 69).
The application was denied initially on May 5, 2014 (R. 68-76), and on
reconsideration on April 30, 2015. (R. 77-88). Plaintiff then requested a hearing (R. 10102), which was later held before Administrative Law Judge (“ALJ”) Edward P. Studzinski
on February 22, 2017, where Plaintiff was represented by counsel. (R. 33). Both Plaintiff
and Vocational Expert (“VE”) Brian L. Harmon testified at the hearing. (R. 34). The ALJ
denied Plaintiff’s claims in a decision dated June 9, 2017 (R. 15-24), finding Plaintiff has
an RFC to perform light work with multiple limitations as described to the VE (R. 18-19,
62-64) and thus could perform the jobs of cleaner/housekeeping and sorter, which existed
in significant numbers in the national economy. (R. 23-24).
Plaintiff sought review with the Appeals Council (R. 161), but that request was
denied on February 13, 2018 (R. 1-6), rendering the ALJ’s June 2017 decision final and
reviewable by this Court. Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). Plaintiff
now makes four arguments for reversal: (1) the ALJ’s assessment of Plaintiff’s allegations
of disabling symptoms was based on improper inferences, including an inference “that

2

Citations to the Certified Copy of the Administrative Record filed by the Commissioner
(Doc. 9) are indicated herein as “R.”
2

Plaintiff’s part time work and single on line class translate into an ability to sustain full time
work”; (2) the ALJ improperly assessed Plaintiff’s medical opinions regarding her motor,
linguistic, and cognitive impairments; (3) the ALJ’s RFC determination failed to
accommodate all of Plaintiff’s limitations, particularly those in concentration, persistence,
or pace; and (4) the ALJ erroneously accepted the VE’s testimony regarding available
jobs Plaintiff could perform, particularly in view of her difficulties with motor speed and
using her hands. (Doc. 12, at 7-15). For the reasons explained below, the Court agrees
with the first two arguments, agrees in part with the third, and rejects the fourth.
II.

Plaintiff’s Medical, Educational, and Work Background
A.

Plaintiff’s Birth and Early Development

Plaintiff was born in early 1994, six weeks premature and weighing four pounds,
four ounces. (R. 259, 516, 522).3 At the time of her birth, she had a normal APGAR
score of 9 (indication of a baby’s functioning after birth on a scale of 1 to 10, with a higher
score indicating better functioning), but two hours later she was noted to be unable to
suck and swallow while feeding, and was believed to have developed a brainstem infarct.
(Id.). Plaintiff then spent about eight weeks in the Neonatal Intensive Care Unit (“NICU”)
at Lutheran General Hospital and required a nasogastric (“NG”) feeding tube for the first
fourteen months of her life.

(R. 522).

While in the NICU, Plaintiff was noted to

demonstrate poor tone and impaired suck reflex and gastro-esophageal reflux. (R. 516).
During her early development, Plaintiff reportedly experienced delays in motor
functioning and speech, and thus did not walk until twenty-two months old and did not
speak until thirty-six months old. (Id). She had ongoing difficulties with balance and

3

Although the disability period for Plaintiff’s application commences upon its filing date, the
ALJ considered her full medical history (R. 15), and this Court does the same.
3

coordination, drooling and swallowing, impaired speech, fine motor weakness, and
slowed learning secondary to reduced motor speed. (R. 516). She was diagnosed with
developmental delay, hypotonia (decreased muscle tone), micrognathia (undersized
lower jaw), maxillary hyperplasia (protruding upper jaw), and oral-motor apraxia (difficulty
coordinating jaw, lips, and tongue to speak). (Id.). She also suffered recurrent ear
infections as a baby, possibly causing some hearing loss in her right ear. (R. 387, 516).
Plaintiff also began having seizures at age two. (R. 516-17). EEGs taken in 1997,
1998, and 1999 (when Plaintiff was roughly three, four, and five years old) were
“significantly abnormal” (R. 272), “very abnormal” (R. 266), and “so markedly abnormal
that small changes in epileptogenic activity may no[t] be easily appreciated.” (R. 267).
Each of these tests indicated some type of seizure activity, possibly epileptogenic,
primarily in the left temporal region, but also affecting other regions of the brain. (R. 26667, 272). After two additional EEGs demonstrated no epileptic activity during these
seizure periods, Plaintiff was diagnosed with non-epileptic seizure disorder in 2002 (when
she was about eight years old). (R. 517). Plaintiff took several anti-seizure medications
over the years, but stopped all such medications in 2002, and reportedly experienced no
further seizures after the age of eleven. (R. 387, 517).
B.

Plaintiff’s Education

Plaintiff was educated through elementary school and high school, partly in local
school district classes with support from individualized education programs (“IEPs”) and
partly through home schooling. (R. 190).4 She also attended special education classes

4

The record contains conflicting information regarding the years Plaintiff was educated
inside and outside the home, with some records indicating that she was home-schooled through
elementary school and others indicating that she was home-schooled for all or some of highschool. See, e.g., R. 249 (“Home schooled through elementary school”), 357 (“home schooled
4

from 1996 to 2012 (ages two to eighteen), and received physical, occupational, and
speech therapy for many years, both inside and outside the home, sometimes up to three
times a week. (R. 190, 386, 517, 522). Plaintiff completed her high school education in
May 2013, when she was nineteen years old. (R. 190).
Following high school, Plaintiff began attending courses at a community college in
2013. (R. 384, 517). She started with four classes and was allowed several
accommodations, including a note taker and alternative text formats for instruction, and
a scribe (due to her slow writing speed) and extended time for test taking. (R. 54, 384,
517). With this level of support, Plaintiff was able to obtain a grade of “A” in most of her
classes. (R. 517). But she later suffered a bout of depression and became stressed by
a difficulty with one of her professors, and then stopped attending classes at some point
during the Fall 2014 semester. (R. 56, 506, 508, 517). Plaintiff returned in 2015 and
again earned an A in one of her classes (R. 533), but then switched to online courses
which she can complete on her own schedule to avoid the stress of attending campus.
(R. 57, 523, 528, 533). By January 2017, Plaintiff reduced her course load to just one
online financial accounting course with the same accommodations. (R. 54, 57, 525).
C.

Plaintiff’s Work Background and Living Situation

Plaintiff began a part-time job working for an office supply company in May 2014
at age 20, and still held that position as of the February 2017 administrative hearing.
(R. 38-39, 518). Plaintiff’s counsel explained in the proceedings below that she obtained
the position through a family friend from church, and without applying, providing a resume,

until 6th grade”), 386, (“The last high school years were home schooled.”), 388 (“home schooled
for high school”), 517 (“homeschooled from sixth grade through high school”), 522 (“home
schooled from sixth grade through high school by her mother” and “had the support of an IEP
throughout her elementary and high school years (modifications and individualized assistance”).
5

or interviewing. (Id.). According to her testimony, Plaintiff works three days a week from
1:00 to 5:00 p.m., and she works much slower than her peers, has no productivity
requirements, and is allowed to miss work when she has a health issue or is suffering
depressive symptoms.

(R. 45-49, 61).

Her job consists of crosschecking orders

completed by others online to confirm the quantities and availability of the items ordered
on the vendor’s website. (Id.). Although this was determined to fall short of substantial
gainful activity (“SGA”), Plaintiff earned $5,310 from May through December 2014, and
$10,608 throughout 2015 (she continued working in 2016 and 2017 (R. 38-39), but totals
for these years are not included in the record). (R. 17, 44, 181).
Plaintiff lives with her parents and younger brother, and has an older brother who
no longer lives in the family home. (R. 517). As Plaintiff does not drive, she takes a prearranged bus to work with her mother’s help in making the arrangements, and a family
member picks her up from work, since the bus does not operate after 4:00 p.m. (R. 53,
386, 517). Plaintiff reportedly has good relationships with her parents and two brothers,
rides a three-wheeled bike (she is unable to ride a two-wheeler), swings on a swing set
for extended periods (twenty to forty minutes) after work, uses a computer, and plays
cards and games, such as monopoly. (R. 55, 60, 386-88, 517, 520, 522). She can also
perform some weekly household chores (vacuuming, dusting, emptying the dishwasher),
but only limited cooking tasks (such as microwaving) and pet care with assistance, due
to her fine motor impairments. (R. 57-59, 202, 228, 366).
D.

Medical Opinions Following Plaintiff’s Application
1.

Medical Consultative Examination with Dr. Kalyani Perumal

About a year after her application was filed, Plaintiff underwent a medical
consultative examination with Dr. Kalyani Perumal on April 12, 2014, accompanied by her
6

mother. (R. 357-63). After recounting Plaintiff’s premature birth, reported motor skill
impairment, and physical, occupational, and speech therapy, Dr. Perumal noted that
Plaintiff could walk greater than 50 feet without support and had normal range of motion
and strength in all extremities. (R. 359-63). He also noted that Plaintiff’s grip strength
was normal in both hands, and she was able to extend her hands fully, make fists, and
oppose fingers to thumb. (R. 359).
During a mental status examination, Dr. Perumal observed that Plaintiff was alert
and oriented to person, time, and place; her behavior and ability to relate during the
examination were normal; and she was appropriate, polite, pleasant, and cooperative.
(R. 363). He opined that Plaintiff’s affect was normal, she had no signs of depression,
agitation, irritability, or anxiety; and her overall effort and cooperation were satisfactory.
(Id.). And while her speech was impaired and she had difficulty getting words out, Dr.
Perumal concluded that her comprehension was “entirely normal” and she was able to
understand the questions asked and answer appropriately. (Id.). Dr. Perumal diagnosed
Plaintiff with a brain stem stroke with speech and motor impairments since birth. (Id.).
2.

Psychological Consultative Examination with Dr. Glen Wurglitz

Plaintiff next underwent a psychological consultative examination with Dr. Glen
Wurglitz on April 25, 2014, again accompanied by her mother. (R. 365-68). Dr. Wurglitz
similarly noted that Plaintiff had no problems with ambulation, balance, or posture, and
did not use an assistive device, and that her mood was pleasant and stable, her affect
was appropriate and consistent with the content of the conversation, and she was
oriented to person, time, place, and purpose of the visit. (R. 366-67). Dr. Wurglitz also
observed that Plaintiff’s speech quality was slow and sometimes difficult to understand,
her pronunciation was over-articulated, and she showed difficulties finding words. (Id.).
7

Dr. Wurglitz further opined that Plaintiff’s short-term memory was good, and her
fund of general information and awareness of current events were both fair, but her
immediate memory was below average and she was repeatedly unable to remember his
name. (R. 367). Her vocabulary indicated an understanding of simple and more complex
words, and her abstract reasoning was found to be good, but she held her pencil with a
whole hand grasp and had difficulty drawing more complex and abstract shapes (such as
a stop sign) and was unable to draw the face of a clock with the correct time. (R. 368).
Dr. Wurglitz diagnosed Plaintiff with a Depressive Disorder, Expressive Language
Disorder, cerebral infarction, conductive hearing loss, and occupational and economic
problems. (Id). He further opined that Plaintiff “may benefit from referral to Vocational
Rehabilitation for additional career assessment, assistance in developing vocational
skills, and support with job placement.” (Id.).
3.

Pediatric Neurology Evaluation by Dr. Peter Heydemann

Again accompanied by her mother, Plaintiff next visited her own pediatric
neurologist, Dr. Peter Heydemann of Rush Children’s Hospital “for neurologic reevaluation after many years to find out if she is disabled.” (R. 386, 388, 516). In a report
dated August 19, 2014, Dr. Heydemann opined that Plaintiff “has multiple handicaps as
well as strengths,” and listed the following: lack of coordination, both fine and gross motor
(evidenced by holding a pen with her fist and being able to hop only once on each foot
and unable to ride a two-wheel bicycle); speech and language disorder, with prosody and
pronunciation difficulties (evidenced by slow prosody and abnormal breath pattern
between words and speech that is hard to understand); possible hearing loss due to
repeated ear infections early in life; a learning disorder, but some abilities in math
(particularly trigonometry); developmental delay; and inadequate social skills with peers.
8

(R. 387-88). Regarding her learning abilities, Dr. Heydemann added that Plaintiff “learns
slowly, but is capable when the work load is light.” (R. 388). He also noted that Plaintiff
has good arm strength proximally and distally, and a normal gait with heel strike, but her
balance is marginal in that she gets off balance easily when standing in Romberg position.
(R. 387).

Finally, Dr. Heydemann also noted that Plaintiff exhibits some repetitive

movements, such as swinging on a swing for long periods of time, which “could make her
fall within the autistic spectrum, but this is not an obvious diagnosis.” ().
Based on the foregoing, Dr. Heydemann concluded that Plaintiff “would have
difficulty functioning as an independent adult but she need[ed] to be properly assessed.”
(R. 387). He therefore recommended that Plaintiff see a neuropsychologist for additional
testing, including an occupational therapy evaluation to assess visuomotor and fine motor
skills, and neuropsychological testing to assess her IQ, learning skills, adaptive
functioning, and possible autistic spectrum. (R. 388).
4.

Neuropsychological Evaluation by Dr. Susan Walsh

On Dr. Heydemann’s referral, Plaintiff and her mother next visited Dr. Susan
Walsh, a psychologist at Loyola University Hospital, for a neuropsychological evaluation
“to determine appropriateness for social security disability.” (R. 516). After recounting
Plaintiff’s medical and developmental history, Dr. Walsh summarized the academic
testing that Plaintiff had undergone since childhood. Plaintiff’s intellectual development
at ages 7 and 9 fell within the low average range, although her academic skills were within
the average range. (R. 517-18). Her most recent Cognitive Abilities Test administered
in April 2013 when Plaintiff was 19 years old indicated that Plaintiff has average
quantitative skills, slightly below average verbal skills, and borderline nonverbal skills,
with an overall low average composite score. (R. 418). Dr. Walsh also noted the results
9

of an Adaptive Behavior Rating Scales test and a Childhood Autism Spectrum Test
administered by Plaintiff’s Mother. The former indicated low scores in communication
and daily living and moderately low scores in socialization and motor skills, and the latter
indicated probable Autism Spectrum Disorder. (R. 522).
Dr. Walsh also reported her own observations of Plaintiff’s behavior. She noted
that Plaintiff’s gait and mobility appeared normal, and her hearing appeared normal and
was functional for testing purposes. (R. 518-19). Plaintiff displayed an intermittent tremor
in her jaw, and her speech was severely dysarthric but generally intelligible. (Id). Her
comprehension was intact; she understood instructions well and did not need clarification;
her thought processes were logical and relevant; and her cognitive tempo was steady.
(Id.). Plaintiff was quiet but friendly; her mood was euthymic and her affect broad in range;
she displayed good eye contact throughout the evaluation; and her health questionnaire
responses indicated no depressive symptomology. (R. 518, 521).
Based on testing she conducted during the evaluation, Dr. Walsh further reported
that Plaintiff’s grip strength was “extremely low” in both hands, and she displayed
“significant motor slowness” and an awkward pencil grip by holding the pencil in her left
fist. (R. 519). She also noted that Plaintiff learned to write left-handed at her school’s
insistence, but may be right-hand dominant based on other activities. (Id.). Testing of
Plaintiff’s intellectual abilities revealed that her Full Scale IQ fell within the borderline
range, with the four indexes factoring into that assessment in the low average (verbal
comprehension and working memory), borderline (perceptual reasoning), and severely
impaired (processing speed) ranges. (R. 519, 522). Other testing revealed that some of
Plaintiff's cognitive abilities (visuospatial problem solving and immediate and delayed
memory) were in the low average to average ranges, but her language functioning was
10

impaired, her verbal attention abilities were low average, her visual attention abilities were
extremely low, and her overall attention score was also impaired.

(R. 519-20).

A

predominant issue in Plaintiff’s performance in these tests was how slowly she worked
on the assigned tasks due to her “fine motor delay” and “significant lack of motor control,”
as evidenced by holding her pencil in a “fist-like manner,” “resulting in very slow printing
speed” and inconsistent legibility. (R. 518-19: “The patient worked slowly on these timed
tasks in part due to fine motor delay”; R. 522: “The predominant issue that limited
[Plaintiff’s] test performance involved significant lack of motor control.”). But there was
also evidence of limitations even when motor components were eliminated. (R. 522).
Based on the foregoing, Dr. Walsh diagnosed Plaintiff with a Borderline Intellectual
Disability, an Autistic Disorder, School Difficulties, and a Seizure Disorder. (R. 522). She
further opined that Plaintiff “would be significantly limited in obtaining full-time, competitive
employment for several reasons that include physical, cognitive and social limitations.”
(R. 523). Dr. Walsh explained as follows:
She presents with significant dysarthric speech . . . that limits
her ability to communicate effectively. As a result, [Plaintiff]
would be unsuited for jobs that involve customer service.
Though her academic development falls within the low
average to average range her severely impaired fine and gross
motor speed significantly limit her ability to write and/or type
and particularly even more so when under time constraints.
Given [her] motor limitations, she would not be able to do
certain jobs, such as assembly-line work. Finally, her
intellectual attainment falls with the Borderline range (IQ range
71-84) and she demonstrates a constellation of symptoms
reflective of autism spectrum disorder. Such individuals
require close supervision and/or an extended training period,
have impaired judgment (socially naïve) and reasoning ability.
They may have a limited ability to make judgments on complex
work-related decisions and their interpersonal style limits their
ability to work effectively with others.
(R. 523).
11

5.

Treating Physician Opinion by Dr. Melissa Kwak

Finally, Plaintiff submitted a letter from her primary care physician, Dr. Melissa
Kwak, dated October 19, 2016. (R. 524). Dr. Kwak offered her opinions in support of
Plaintiff’s request for SSI benefits and based them on her observations treating Plaintiff
since November of 2013, a family report, a review of Plaintiff’s records, and Dr. Walsh’s
July 2015 Neuropsychological Evaluation. (Id.).
Like Dr. Walsh, Dr. Kwak opined that Plaintiff has an expressive, dysarthric speech
disorder that impairs her ability to communicate; impaired fine and gross motor skills that
limit her ability to write, type, and perform similar activities; and cognitive limitations,
including a borderline range IQ and symptoms of autism spectrum disorder with impaired
judgment and reasoning. (Id.). Also like Dr. Walsh, Dr. Kwak concluded that these factors
“limit [Plaintiff’s] ability to perform independently in the work force, make complex
decisions, or work effectively with others,” and that certain jobs, such as assembly line
work and “jobs with similarly required motor skills,” “would not be feasible” for her. (Id.).
III.

Proceedings Before the ALJ
A.

The Administrative Hearing

Plaintiff appeared with counsel at a hearing before ALJ Studzinski on February 22,
2017. (R. 33). She explained that she does some household chores when her mother
asks her to, but she cannot use a stove or oven for fear of dropping a hot pot, and has
trouble doing laundry because it is difficult to hang clothes on hangers, both due to her
fine motor impairments.

(R. 56-57).

Plaintiff also testified about her part-time job,

explaining that she works four hours a day three days a week checking the hard copies
of orders that are given to her against information on a vendor’s website. (R. 48-49). She
does this by typing in the correct order number on the vendor’s website, confirming that
12

the correct items are listed on the order copy and are available on the vendor’s website,
and then indicating those things with a checkmark. (Id.). Plaintiff also explained that she
feels no pressure to go faster but believes she is much slower than others who do the
same work, based on an experience sharing a desk with a coworker who got through
many more orders than she did in the same amount of time. (Id.). Plaintiff stated that
she works the same schedule each week so she can take the same prearranged bus to
work by calling a week in advance to schedule the time, and she can only work three days
a week because that is all she can handle with her one online class at the community
college. (R. 53, 56). Because the course is online, she can work on it on her own
schedule and pace; and while she hopes to earn a degree from the school one day, “it’s
going to take awhile because [she] can only handle one class at a time.” (R. 56-57).
After hearing from Plaintiff about her part-time job, the ALJ questioned VE Harmon
about the classification of that work. The VE explained that the work Plaintiff described
most closely resembled a general clerk, performed at a semi-skilled, sedentary level, but
the job differed somewhat from the typical position in which the same clerk both processes
the orders and checks them for quality. (R. 51-52). In Plaintiff’s case by contrast, the VE
explained, she is only quality checking orders that someone else places, which “may be
an accommodated job.” (R. 52). The ALJ then questioned the VE about a hypothetical
individual who could perform light work (lift up to 20 pounds occasionally and 10 pounds
frequently) with the following limitations, in relevant part: (1) gross manipulation
frequently, but no forceful grasping or torqueing; (2) fine manipulation occasionally up to
a third of the workday; (3) no complex or frequent written or verbal communication and
no telephone communication; (4) simple, routine tasks that involve only simple decision
making, no more than simple judgment, no significant self-direction, and no multitasking;
13

(5) only occasional and minor changes in the work setting; and (6) an average production
rate, and no significantly above average or highly variable production pace work. (R. 6364). The VE identified two jobs that such a person could perform, provided she was on
task at least 85% of the workday and absent no more than one day per month, and both
jobs require only occasional fingering: (1) cleaner/housekeeper and (2) sorter. (R. 64).
B.

The ALJ’s Decision

The ALJ denied Plaintiff’s claims in his June 9, 2017 decision.

(R. 15-24).

Although he found that Plaintiff suffers from the severe impairments of autism spectrum
disorder, depression, anxiety, and speech/motor difficulties, the ALJ also found that
Plaintiff has no impairment or combination of impairments that meets or medically equals
the severity of a listed impairment. (R. 17-18). He also found that Plaintiff has an RFC
to perform light work as described to the VE with one change; while the VE was asked
about jobs requiring only occasional fine manipulation (R. 62-63), the RFC in the ALJ’s
decision requires both fine and gross manipulation frequently. (R. 18-19). Based on this
RFC and the VE’s testimony that such a person could perform the jobs of
cleaner/housekeeping and sorter even with only occasional fingering (R. 63-64), the ALJ
found that Plaintiff could make a successful adjustment to other work that exists in
significant numbers in the national economy, and therefore is not disabled. (R. 24).
DISCUSSION
I.

Governing Standards
A.

Five-Step Inquiry

To recover SSI benefits, a claimant must establish that she is disabled within the
meaning of the Social Security Act. Karafesieva v. Colvin, No. 15 C 1186, 2016 WL
4137203, at *6 (N.D. Ill. Aug. 4, 2016). A person is disabled if she is unable to perform
14

“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 following five-step inquiry is required to determine whether a claimant
is disabled: (1) Is the claimant presently unemployed? (2) Is the claimant’s impairment
severe? (3) Does the impairment meet or equal one of the impairments enumerated in
the regulations? (4) Is the claimant unable to perform his former occupation? and (5) Is
the claimant unable to perform any other work? 20 C.F.R. § 416.920.
B.

Standard of Review

Judicial review of the Commissioner’s final decision is authorized by 42 U.S.C.
§ 405(g). But in so doing, the Court may not engage in its own analysis of whether the
claimant is severely impaired. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004).
Nor may the Court “displace the ALJ’s judgment by reconsidering facts or evidence or
making credibility determinations.” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)
(quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). A court “will reverse an
ALJ’s determination only when it is not supported by substantial evidence, meaning ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Pepper v. Colvin, 712 F.3d 351, 361-62 (7th Cir. 2013) (quoting McKinzey
v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011)).
In making this determination, the Court must “look to whether the ALJ built an
‘accurate and logical bridge’ from the evidence to [his] conclusion that the claimant is not
disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue, 539
F.3d 668, 673 (7th Cir. 2008)). The ALJ need not, however, “provide a complete written
evaluation of every piece of testimony and evidence.” Pepper, 712 F.3d at 362 (quoting
15

Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)). Still, where the Commissioner’s
decision “‘lacks evidentiary support or is so poorly articulated as to prevent meaningful
review,’ a remand is required.” Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th
Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)).
II.

Analysis
A.

The ALJ’s Subjective Symptom Assessment

Plaintiff first challenges the ALJ’s reliance on her part-time job and online
community college class as evidence of her capacity for full-time employment. (Doc. 12,
at 8). She argues that the ALJ improperly disregarded the limited hours she works (twelve
a week), how she got the job (through a family friend from church, and without providing
a resume or attending an interview), and the accommodations she receives there (no
productivity requirements, a pace slower than her co-workers, and absences without
consequence).

(Id. at 9-10).

Plaintiff further complains that the ALJ also wrongly

discounted the academic accommodations allowed by her community college (a notetaker, alternative text formats, and a scribe and extended time for testing). (Id.; R. 54,
384, 517). Although the ALJ noted Plaintiff’s testimony that her employer allowed her
reduced productivity pressures, he dismissed that accommodation in the absence of any
“indication in the record that the claimant is not performing services sufficient to merit her
pay” and “no report from the claimant’s employer that her work is unsatisfactory, or that
she missed excessive work.” (R. 22). And while the ALJ again acknowledged that
Plaintiff received individualized services accommodations and academic adjustments, he
nevertheless found “the fact [she] is performing well in college and performing semiskilled
work, supports an ability to perform less demanding work at SGA levels.” (R. 22). The
Court agrees with Plaintiff that the ALJ’s reliance on these factors was flawed.
16

1.

Plaintiff’s Part-Time Job

Although a claimant’s part-time work may be considered when assessing her
limitations, both the Court of Appeals and district courts within this Circuit have
repeatedly cautioned that part-time work falls short of demonstrating an ability to work
full-time when “the claimant works extremely limited hours and is given significant
accommodations in the work place.”

Wichelman v. Berryhill, No. 18-cv-557, 2019

WL 2353462, at *2 (W.D. Wisc. June 4, 2019) (citing Vanprooyen v. Berryhill, 864 F.3d
565, 571 (7th Cir. 2017)); Lanigan v. Berryhill, 865 F.3d 558, 565-66 (7th Cir. 2017) (“We
have cautioned ALJs not to draw conclusions about a claimant’s ability to work full
time based on part-time employment,” especially when “the claimant’s employer is
accommodating him”).5 Accordingly, “[w]hen evaluating a claimant’s work experience
as evidence of [her] RFC, an ALJ must consider whether the work was done under
special circumstances or accommodations, including permission to ‘take frequent rest
periods’ or ‘work at a lower standard of productivity than other employees.’” Warren, 2015
WL 5081586, at *12 (quoting 20 C.F.R. § 416.973(c)). The ALJ failed to apply these
principles here.

5

See also Vanprooyen, 864 F.3d at 571 (part-time work was “not good evidence of ability
to engage in full-time employment” where claimant “was able to continue working part-time only
because some managers gave her easier shifts and other preferential treatment" and she
“received help from coworkers, took unscheduled breaks, and wrote everything down without
abbreviation”); Voigt v. Colvin, 781 F.3d 871, 876-77 (7th Cir. 2015) (“We've noted cases in which
although the claimant is not only working but also ‘earning a decent wage, he really is permanently
disabled from engaging in gainful activity. . . . Maybe a seriously disabled worker is able to work
only by dint of his extraordinary determination and the extraordinary assistance extended to him
by kindly fellow workers.’” (quoting Jones v. Shalala, 21 F.3d 191, 192 (7th Cir. 1994)); Larson v.
Astrue, 615 F.3d 744, 752 (7th Cir. 2010) (“the ALJ’s assertion that Larson has succeeded in
holding down a series of part-time jobs stretches the evidence beyond the breaking point. There
is a significant difference between being able to work a few hours a week and having the capacity
to work full time.”); Warren v. Colvin, 14 C 1622, 2015 WL 5081586, at *12 (N.D. Ill. Aug. 27,
2015) (“The Seventh Circuit has repeatedly stated that a person who is working may actually be
disabled if the work is accommodated by a charitable or indulgent employer.”) (citing cases).
17

The Commissioner defends the ALJ’s consideration of Plaintiff's part-time work,
citing SSR 96-8p, which provides for a non-disability finding when a claimant is able to
perform past relevant work that was part-time but met the definition of substantial gainful
activity.

(Doc. 17, at 4, citing SSR 96-8p, 1996 WL 374184, n.2).

Although the

Commissioner concedes this Ruling is not applicable here because Plaintiff’s part-time
work did not meet the SGA requirement, he argues that it nevertheless demonstrates that
“part-time work is not irrelevant to an ALJ’s consideration.” (Id.). True, but this argument
fails to address the issue that Plaintiff has raised: the ALJ acknowledged Plaintiff’s
testimony that her employer allowed her reduced productivity pressures, but incorrectly
discounted that accommodation because her employer had not complained that her work
was unsatisfactory. (R. 22). As the Seventh Circuit explained in Voigt, a claimant’s ability
to secure employment and even earn a decent wage does not by itself demonstrate an
ability to work full-time, since a charitable employer may be “retaining him on the payroll
even though he is incapable of working,” and that “act of charity ought not be punished
by denying the employee benefits and thus placing pressure on the employer to retain an
unproductive employee indefinitely.” 781 F.3d at 876-77.
The ALJ also failed to address additional facts that make this possibility even more
likely here, including Plaintiff’s claim that she was given the job by a family friend from
church and without providing a resume or interview, works only four hours a day three
days a week, and is allowed to miss work without consequence. (R. 38-39, 45, 53, 386,
517-18). See also Vanprooyen, 864 F.3d at 571 (discussing “accommodations that the
administrative law judge mentioned only in passing and sometimes failed to mention at
all”); Larson, 615 F.3d at 752 (“Larson was able to work for Calliss part-time only because
he was a friend who tolerated frequent breaks and absences that an ordinary employer
18

would have found unacceptable.”).6

The VE also indicated that the work Plaintiff

described “may be an accommodated job.” (R. 52). See also Stoy v. Comm’r of Soc.
Sec., No. 17-cv-106, 2018 WL 3373505, at *4 (N.D. Ind. July 7, 2018) (VE testimony
confirmed that claimant’s part-time job “would be an accommodated employment rather
than competitive employment,” since “she was allowed to take breaks at will”). The ALJ’s
assertions that Plaintiff “is able to take public transportation” and “takes public
transportation to her job” (R. 18-19) similarly overlooked the facts that she rides a
prearranged bus to work by placing a reservation the week before with the help of her
mother, and uses no public transportation to get home, thus requiring a family member to
pick her up from work each day. (R. 53-54, 386, 517).
2.

Plaintiff’s Online Class

The ALJ’s reliance on Plaintiff’s online community college class to support a finding
that she is capable of full-time work is similarly flawed. Although he noted the academic
accommodations and adjustments that Plaintiff receives from the school, the ALJ found
them insufficient to establish “that she is incapable of unskilled work involving limited
manipulation” in view of the facts that she “was reportedly good at math, could perform
trigonometry, and that her spelling was good.” (R. 20). But the ALJ’s basis for these
academic strengths was the August 2014 opinion of Plaintiff’s pediatric neurologist, Dr.
Heydemann, which also included the caveat (unmentioned by the ALJ) that Plaintiff
“learns slowly but is capable when the workload is light.” (R. 20, 388).

6

The Commissioner’s suggestion that Plaintiff’s work accommodations were evidenced
only by her testimony (Doc. 17, at 4-5 and n.2) is immaterial, since uncontroverted testimony
alone would warrant considering the issue. See, e.g., Lanigan, 865 F.3d at 565 (relying on
claimant’s testimony that his supervisor “was aware of his mental illness and ‘tolerant of it’”).
Moreover, the ALJ did not question Plaintiff’s account of these accommodations, only whether
her employer nevertheless regarded her work as worth her salary. (R. 22, 47-48).
19

Equally problematic, having thus discounted Plaintiff’s academic accommodations
without fully considering her need for them, the ALJ went on to conclude not merely that
they were insufficient to rule out capability of full-time work, but that the combination of
Plaintiff’s online class and part-time job affirmatively “supports an ability to perform less
demanding work at SGA levels.” (R. 22). And in so doing, the ALJ repeatedly referred
to her “college classes” (plural), overlooking that she reduced her course load to just one
class (after dropping out of school altogether due to depression) and then further reduced
it to just one online class that she can attend if and when she is able. (R. 54, 56-57, 506,
508, 517, 525-26, 528, 533; see also R. 18 (referring to “college classes”), 20 (referring
to “college courses including financial accounting classes”), 20 (referring to “college-level
classes”), R. 22 (“performing well in college”)). The ALJ also failed to explain how a single
online community college course lightened with various academic accommodations, even
when combined with working three half days a week (with no productivity requirements),
“supports an ability to perform less demanding work at SGA levels” (R. 22), or how work
at SGA levels could be less demanding. See Meyer v. Comm’r of Soc. Sec., No.
15-cv-13, 2015 WL 7761633, at *8 (N.D. Ind. Dec. 2, 2015) (ALJ erred in relying on
claimant’s part-time jobs “on his own schedule” and “flexed around his bad days” where
“there was no suggestion that such work was generally performed in the national
economy with any type of flexible schedule” or “that the alternative representative jobs
cited at step five could be performed on a flexible schedule”).
To be clear, none of this is to say that the ALJ was prohibited from considering
Plaintiff’s part-time job or online class (even with the various accommodations she
receives) when evaluating the severity of her alleged symptoms. For instance, it would
be proper to identify any tasks performed during such activities that discredit related
20

claimed limitations.7 The errors here, by contrast, were the ALJ’s reliance on these
activities without considering how limited they are (working twelve hours a week and
taking one online class), particularly in view of the accommodations Plaintiff receives for
them (relief from productivity requirements, academic assistance, and a flexible class
schedule) to conclude that Plaintiff is capable of full-time work. (R. 22). See also supra
note 5. Accordingly, the case is remanded for further consideration of Plaintiff’s part-time
job and class work to determine their impact on her claimed limitations and RFC in light
of the above evidence. While the ALJ might again conclude on remand that Plaintiff is
not disabled even after considering the foregoing, it is necessary for him to build an
accurate and logical bridge from that evidence to his conclusion.
B.

The ALJ’s Assessment of Plaintiff’s Medical Opinions

The ALJ’s assessment of Plaintiff’s medical opinions (by Drs. Walsh and Kwak)
was similarly flawed. As the Commissioner acknowledges, the treating physician rule in
effect at the time of Plaintiff's application (those filed before March 27, 2017) affords an
opinion from a treating source controlling effect if well supported by medically acceptable
findings and not inconsistent with other substantial evidence in the record. (Doc. 17, at

7

See, e.g., Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016) (proper to consider
“critical” tasks that claimant performed independently for his mother’s flower shop to discredit
testimony “suggesting he was not capable of doing anything in a workplace”); Lott v. Colvin, 541
Fed. App’x 702, 705-07 (7th Cir. 2013) (proper to consider claimant’s use of her hands while
working part-time as a companion, by painting her client’s nails and organizing her things, to
discredit testimony that claimant had severe difficulty using her hands); Streater v. Berryhill, No.
16 CV 10943, 2017 WL 6625965, at *4 (N.D. Ill. Dec. 28, 2017) (“Although evidence of part-time
work may not be ‘good evidence of ability to engage in full-time employment,’ Vanprooyen, 864
F.3d at 571, it was nonetheless reasonable for the ALJ to consider Streater’s work history in
evaluating the severity of his alleged symptoms” (citing Lott)); Reed ex rel. Davis v. Berryhill, No.
16 CV 11133, 2017 WL 3453384, at *7 (N.D. Ill. Aug. 11, 2017) (same); Maxwell v. Berryhill, No.
16 C 6101, 2017 WL 4180340, at *7 (N.D. Ill. Sept. 21, 2017) (proper to consider “that the
standing, walking, and social requirements of Claimant’s job ‘were inconsistent with her allegedly
disabling physical and mental limitations.”).
21

10-11 and n.5). See also Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018). Such
an opinion thus “trumps the conclusions of agency consultants—in particular those who
never examined the claimant—unless the limitations articulated by the treating physician
are not supported by the record.” Vanprooyen, 864 F.3d at 572. The Commissioner
argues that the ALJ followed this rule here by crediting the opinions of Drs. Walsh and
Kwak and including corresponding limitations in Plaintiff's RFC to the extent supported by
the record, but properly rejecting their opinions that Plaintiff “would be significantly limited
in obtaining full-time, competitive employment” as inconsistent with other evidence, based
on limited treatment relationships, and ultimately “reserved to the Commissioner.” (Doc.
17, at 11-13). Each argument is unavailing.
1.

Issues Reserved to the Commissioner

While the ultimate question of disability is reserved to the Commissioner, and a
treating physician's opinion regarding a claimant's ability to work therefore receives no
deference, such an opinion must nevertheless be considered and assessed under the
factors in 20 C.F.R. § 416.927(c). Knapp v. Berryhill, 741 Fed. App’x 324, 327 (7th Cir.
2018) (citing SSR 96-5P, 1996 WL 374183, at *1, 3: “opinions from any medical source
on issues reserved to the Commissioner must never be ignored”). This requires an ALJ
to consider the length and extent of the treatment relationship, the opinion’s consistency
with other evidence, and any specialty of the physician. Knapp, 741 Fed. App’x at 32728 (citing 20 C.F.R. § 416.927(c)). Here, the ALJ disregarded the opinions of Drs. Walsh
and Kwak that Plaintiff “would be significantly limited in obtaining full-time, competitive
employment” as inconsistent with “the record as a whole” (R. 22-23), though neither the
ALJ nor the Commissioner identifies any contrary evidence. Presumably, they refer again
to Plaintiff’s part-time job and community college class. But as explained above, the
22

accommodations that she requires and receives in both contexts (including the fact that
she obtained the job through a family friend, rather than a competitive hiring process)
confirm, more than contradict, her difficulty obtaining competitive, full-time employment.
The ALJ’s remaining reasons for rejecting these opinions are unpersuasive as well.
For instance, he mistakenly asserted that Dr. Kwak (who the ALJ wrongly believed to be
a man) had only treated Plaintiff in August and December 2014 (R. 22-23), when in fact,
she was Plaintiff’s primary care physician for several years. (R. 320-23, 327, 331-32,
400-14, 425-29, 524). And while the ALJ correctly observed that Dr. Walsh evaluated
Plaintiff on only one occasion (pursuant to a referral by her pediatric neurologist, Dr.
Heydemann), so did both consultative examiners, one of whom spent a total of twentyeight minutes to review Plaintiff’s records and examine her (R. 357-68); yet the ALJ saw
no reason to discount their opinions. See Steele v. Colvin, No. 14 C 3833, 2015 WL
7180092, at *3 (N.D. Ill. Nov. 16, 2015) (ALJ improperly “singled out Dr. Motycka’s report
for being a one-time examination, while failing to consider the one-off nature of the other
reports in the record, and relying on the state agency consulting physicians’ opinions,
even though those opinions could be discounted for the very same reasons that the ALJ
cited to give little to no weight to Dr. Motycka; namely, that they were based on an even
more limited interaction with the Plaintiff.”). As importantly, the ALJ failed to address the
extensive battery of tests conducted by Dr. Walsh that formed the basis for both her and
Dr. Kwak’s opinions on a variety of issues that were not reserved to the Commissioner
(R. 519-24) and therefore also required analysis under § 416.927(c).
2.

Opinions of Drs. Walsh and Kwak Based on Dr. Walsh’s Testing

As explained above, Dr. Walsh conducted testing to determine Plaintiff’s motor
functioning (a grip strength test), intellectual ability (the Wechsler Adult Intelligence Scale23

IV or “WAIS-IV”), and language functioning, attention, and other cognitive abilities (the
Repeatable Battery for Assessment of Neuropsychological Status or “RBANS”). (R. 51822). These tests revealed that Plaintiff’s grip strength was “extremely low” in both hands
and she displayed “significant motor slowness”; her overall scores on the RBANS
language and attention indexes were impaired; and her Full Scale IQ of 71 on the WAIS
IV fell within the borderline range, with at least one of the four indexes (processing speed)
in the severely impaired range at 51. (R. 519, 522).8 According to Dr. Walsh, a primary
reason for Plaintiff’s poor performance in these areas was how slowly she worked on the
assigned tasks due to her “significant lack of motor control,” although there was also
evidence of limitations even when motor components were eliminated. (R. 519-22).
Based on these results, Dr. Walsh diagnosed Plaintiff with a borderline intellectual
disability and other impairments, and opined that her language difficulties precluded a job
in customer service, her “severely impaired fine and gross motor speed significantly limit
her ability to write and/or type and particularly more so when under time constraints,” and
her motor limitations would preclude “certain jobs, such as assembly-line work.” (R. 523).
Dr. Kwak added that Plaintiff would be likewise unsuited to other jobs “with similarly
required motor skills.”

(R. 524).

Both physicians also concluded that Plaintiff’s

intellectual, cognitive, and social limitations and impaired judgement and reasoning
limited her ability to work independently, and Dr. Walsh added that Plaintiff would require
close supervision and/or an extended training period. (R. 523-24).
Without acknowledging the testing on which these conclusions were based, the
ALJ accorded Dr. Walsh’s opinions only “some weight” by accepting the portion of her
8

According to the WAIS-IV, a Full-Scale IQ under 70 reflects “intellectual disability.”
Williams v. Saul, No. 18-3559, 2019 WL 4233633, at *1 n.1 (7th Cir. Sept. 6, 2019).
24

report that Plaintiff “is not capable of customer service, writing, or assembly work,” and
he accorded Dr. Kwak’s opinions “little weight” on the mistaken view that she had treated
Plaintiff during only two months over two years earlier, and because her role as a primary
care physician was insufficient to support her views. (R. 22-23). This analysis was
insufficient. While it is appropriate to give more weight to a specialist’s opinion in her area
of specialty, it was also necessary to consider the specialized testing by Dr. Walsh on
which both she and Dr. Kwak expressly relied. 20 C.F.R. § 416.927(c)(2)(ii), (5) (“We will
look at the treatment the source has provided and at the kinds and extent of examinations
and testing the source has performed or ordered from specialists”). Indeed, Plaintiff was
referred for that evaluation because her pediatric neurologist believed she “would have
difficulty functioning as an independent adult but she need[ed] to be properly assessed”
to determine the extent of her impairments. (R. 387). Moreover, under the treating
physician rule, the ALJ was obliged to assess whether Dr. Kwak’s opinions based on that
testing (not merely her ultimate conclusion that Plaintiff “would be significantly limited in
obtaining full-time, competitive, gainful employment”) were supported by medically
acceptable findings and consistent with other evidence, and to determine whether those
findings were thus entitled to controlling weight. 20 C.F.R. § 416.927(c)(2).
3.

Opinions Included in RFC

The Commissioner attempts to defend the ALJ’s failure to analyze Dr. Walsh’s and
Kwak’s opinions under § 416.927 by arguing that he “largely credited the opinions and
included corresponding restrictions in the residual functional capacity finding.” (Doc. 17,
at 10, 12-13). But the assertion is inaccurate. As discussed further in Part C below, the
ALJ’s RFC limitations of frequent fine and gross manipulation, an average production
pace, and all but “considerable self direction” (R. 18-19) differ substantially from Dr.
25

Walsh’s and Dr. Kwak’s findings of fine and gross motor impairments causing Plaintiff to
work slowly on manual tasks, particularly under time constraints; the limitations stemming
from her autism spectrum disorder and impaired judgment and reasoning on performing
independently; and a corresponding need for close supervision and/or an extended
training period. (R. 523-24).
Regardless, “ALJs must rely on expert opinions instead of determining the
significance of particular medical findings themselves.” Lambert v. Berryhill, 896 F.3d
768, 774 (7th Cir. 2018). The ALJ was therefore required to analyze the opinions of Drs.
Walsh and Kwak under Section 416.927(c)(2) to determine whether they were entitled to
greater or controlling weight, and to “build an accurate and logical bridge between the
evidence and the result,” not merely declare a “mismatch” between the opinions and “the
record as a whole.” (R. 22-23). See also Lambert, 896 F.3d at 774 (unsupported finding
of a “mismatch” between evidence and treating physician’s opinion was insufficient). And
in so doing, the ALJ was required to address the entirety of the opinions and the test
results supporting them, not merely those portions he deemed worthy of inclusion in an
RFC that allowed a finding of non-disability. Gerstner, 879 F.3d at 262 (“An ALJ may not
selectively discuss portions of a physician’s report that support a finding of non-disability
while ignoring other portions that suggest a disability.” (quoting Campbell v. Astrue, 627
F.3d 299-301 (7th Cir. 2010)).

Accordingly, the case is remanded for further

consideration of the opinions of Drs. Walsh and Kwak and the test results on which they
were based and their impact, if any, on Plaintiff’s RFC.
C.

The ALJ’s RFC Determination

Plaintiff challenges the ALJ’s RFC determination in multiple respects. She argues
that the ALJ “repeatedly stopped short of accommodating the deficits endorsed by Plaintiff
26

and her physicians,” and further failed to accommodate her limitations in concentration,
persistence, or pace; communication; interacting with others; and immediate memory. As
explained below, the Court agrees that the ALJ’s RFC assessment failed to address the
limitations discussed by Plaintiff’s physician’s, particularly regarding her cognitive and
motor impairments and their effect on her concentration, persistence, and pace. But due
largely to Plaintiff’s failure to identify any limitations concerning communication,
interacting with others, and immediate memory that the ALJ failed to include in
Plaintiff’s RFC, the Court finds no fault with the ALJ’s RFC determination in those
respects. See Davis v. Berryhill, 723 Fed. App’x 351, 356-57 (7th Cir. 2018) (claimant
waived challenge that ALJ erred by not including limitations regarding one of her
impairments in her RFC “by not developing it in her brief” and failing to explain "what
limitations should have been included").
1.

Limitations Concerning Communication,
Others, and Immediate Memory

Interacting

with

The ALJ properly acknowledged and considered multiple records documenting
Plaintiff’s speech impairment and its negative impact upon her interactions with others,
particularly over the phone. (R. 18-22).9 But the ALJ and several other sources (including
one of Plaintiff’s medical providers and her consulting examiner, Dr. Walsh) also observed
that her speech, while difficult to understand, is “generally intelligible.” (R. 22 (ALJ:
“spoke with somewhat of a speech impairment but was understandable); R. 325

9

See also R. 363: “speech was impaired and she had difficulty to get the words out,” but
“comprehension was entirely normal”; R. 366 “At times, the claimant’s speech can be difficult to
understand”; R. 367: “Speech quality was slow. Speech pronunciation was over-articulated.
Concerning organization of language, the claimant showed difficulties in finding words”; R. 387:
“Speech is hard to understand due to slow prosody and abnormal breath pattern between words,
pronunciation is difficult”; R. 518: “Her speech was severely dysarthric”; R. 525: “Ct shared her
frustration at having difficulty expressing herself over the phone due to her speech disability.”
27

(treatment note: “Normal for patient per mom, speech is slow, but pt. is able to
communicate effectively”); R. 519 (Dr. Walsh: “Conversational speech was dysarthric but
generally intelligible”)). Thus, the ALJ endeavored to address Plaintiff’s limited abilities in
this area by excluding work “which requires complex or frequent written or verbal
communication” and all “telephone communication.” (R. 19). Plaintiff has failed to explain
why this limitation is insufficient or a more restrictive limitation is required.
The same is true for the RFC limitation regarding Plaintiff’s interactions with others.
Again, while the record demonstrates Plaintiff’s limitations interacting with others due to
her communication difficulties, autism spectrum disorder, and intellectual limitations
(R. 18, 388, 520, 523-24), it also shows that Plaintiff is nevertheless able to interact with
others to at least a limited extent.10 Here again, the ALJ endeavored to restrict Plaintiff
to a level of interaction that the record demonstrates she can tolerate by precluding “work
involving direct public service, in person or over the phone, although the claimant can
tolerate brief and superficial interaction with the public which is incidental to her primary
job duties.” (Id.). And again, Plaintiff has failed to explain why this limitation is insufficient
or a more restrictive limitation was required (Doc. 12, at 11), and indeed, abandoned the
argument altogether in her Reply. (Doc. 18).
Plaintiff’s argument concerning her immediate memory deficit is equally unhelpful.
Her brief complains that “the ALJ noted problems with immediate memory, but seemed

10

See, e.g., R. 363: “Appearance, behavior and ability to relate during the examination were
normal. The claimant was appropriate, polite, pleasant, and cooperative.”; R. 366-67: “she was
polite and cooperative. . . . Mood was pleasant and stable. Affect was appropriate and consistent
with the content of the conversation.”; R. 518: “Interpersonally, the patient was friendly but quiet
in demeanor. She displayed good eye contact throughout the evaluation.”; R. 520: “The patient
does not demonstrate inappropriate or aggressive behavior, however. She demonstrates good
eye contact and grossly intact social skills with occasional withdrawn behavior.”
28

to believe those were irrelevant because she can understand and follow directions” with
“no indication of how one positive seems to outweigh one, quite different negative.” (Doc.
12, at 11). The Court agrees with the Commissioner that the ALJ did not deem Plaintiff’s
immediate memory limitations irrelevant, but rather considered them along with her
reported ability to understand and follow directions without needing repeating or
redirection (R. 518) and reasonably concluded that she had a moderate limitation in
understanding, remembering, or applying information. (R. 17-18). Plaintiff challenged
none of those findings here or below. (R. 255-57). Nor does she identify any limitation
relating to her immediate memory that should have been included in her RFC.
2.

Limitations Identified by Plaintiff’s Physicians, Including
Regarding Concentration, Persistence, and Pace

Plaintiff's challenge concerning her limitations in concentration, persistence, and
pace is more persuasive. She argues that the ALJ noted record evidence indicating
Plaintiff’s trouble maintaining focus and found that she has moderate limitations in
concentration, persistence, or maintaining pace (R. 18) but failed to accommodate those
limitations in her RFC. (Doc. 12, at 11-12). The Court agrees that the ALJ’s decision fails
to explain how these limitations were accommodated. As discussed above, the record
reflects Plaintiff’s difficulties maintaining a normal pace at work (R. 38-39, 48), in school
(R. 42, 54, 384), and in the evaluations and testing she underwent. (R. 388, 519, 522).
Her pediatric neurologist Dr. Heydemann explained that Plaintiff “learns slowly but is
capable when the work load is light” (R. 388); and her examining consultant Dr. Walsh
explained that a predominant reason for her poor performance in the IQ and other
cognitive testing Plaintiff underwent was her that significant lack of motor control caused
her to work slowly on timed activities, along with “visuo-perceptual limitations when the
29

motor component was eliminated.” (R. 519, 522). Yet, without citing any supporting
evidence, the ALJ found Plaintiff capable of “work at an average production pace,” though
“not at a significantly above average or highly variable pace.” (R. 19).
The Commissioner makes two arguments in defense of the ALJ’s determination
that Plaintiff’s moderate limitations in concentration, persistence, and pace did not
preclude an average-paced, full-time workload. The first argues (once again) that “the
ALJ “reasonably considered that plaintiff could sustain part-time work, and concentrate
sufficiently to complete college coursework.” (Doc. 17, at 9). But while the ALJ relied
upon Plaintiff's part-time job and online class to conclude that her limitations in
concentration, persistence, or pace were only moderate (as opposed to marked), and to
conclude that Plaintiff is able “to perform less demanding work at SGA levels” (R. 18, 22),
the decision offers no explanation for how Plaintiff would handle such work at an average
production pace, when the record repeatedly reflects that she required accommodations
at work and in school to compensate for her subpar pace. (R. 38-39, 42, 48, 54, 384,
388, 519, 522). In short, both the Commissioner and the ALJ have failed to explain how
Plaintiff’s inability to maintain an average pace at a part-time job 12 hours a week and
during a single online course indicate an ability to handle an average production pace
during a full-time work week.
The Commissioner next argues that the ALJ “included limitations in the residual
functional capacity finding addressing plaintiff’s cognitive limitations” and thus
“accommodated plaintiff’s moderate limitations with significant restrictions in the residual
functional capacity finding, based on medical opinions.” (Doc. 17, at 9-10, citing R. 19).
But neither the Commissioner nor the ALJ have explained what these “significant
restrictions” are.

Presumably, the Commissioner refers to the limitations restricting
30

Plaintiff to “simple, routine tasks, work involving no more than simple decision-making, no
more than occasional and minor changes in the work setting, and work requiring the
exercise of only simple judgment,” with no “multitasking or considerable self-direction.”
(R. 19). But the Commissioner and the ALJ fail to explain how Plaintiff could perform
such simple tasks full-time at an average production pace. As the Seventh Circuit
has repeatedly explained, “observing that a person can perform simple and repetitive
tasks says nothing about whether the individual can do so on a sustained basis,
including for example, over the course of a standard eight-hour work shift.” Crump v.
Saul, 932 F.3d 567, 570 (7th Cir. 2019) (citing O’Connor Spinner v. Astrue, 627 F.3d 614,
620 (7th Cir. 2010) (“The ability to stick with a given task over a sustained period is not
the same as the ability to learn how to do tasks of a given complexity.”)). And the added
limitations precluding “a significantly above average or highly variable pace” and “tandem
tasks” where one team member’s task is dependent upon another’s (R. 19, 64) similarly
fail to address the pace that Plaintiff herself is able to handle. DeCamp v. Berryhill, 916
F.3d 671, 675-76 (7th Cir. 2019) (“there is no basis to suggest that eliminating jobs
with strict production quotas or a fast pace may serve as a proxy for including a
moderate limitation on concentration, persistence, and pace”); Paul v. Berryhill, 760 Fed.
App’x 460, 465 (7th Cir. 2019) (excluding “production rate pace” and “tandem tasks”
still failed to address “moderate limitations with following a schedule and sticking to
a given task” or specify the pace at which claimant could work).
A related complication is the ALJ’s failure to address other limitations found by
Plaintiff’s treating and consulting physicians (Drs. Heydemann, Kwak, and Walsh)
concerning her lack of coordination, low grip strength, lack of motor control, motor
slowness, and impaired fine and gross motor speed (R. 388, 519, 522, 523-24), which
31

Dr. Walsh explained partially account for her difficulty completing manual tasks, especially
under time constraints. (R. 522). While the ALJ noted the treatment records indicating
these issues (R. 20-22) he apparently accepted the medical consultative examiner’s
report that her “physical examinations were without any abnormalities” and relaxed
Plaintiff’s RFC to allow “fine and gross manipulation frequently.” (R. 18-19, 21, citing
R. 357-63). At a minimum, the ALJ was obliged to resolve the conflict. See Walters v.
Astrue, 444 Fed. App’x 913, 918 (7th Cir. 2011) (“The ALJ should have addressed the
apparent conflict that exits among these different pieces of evidence.”).11
Wholly apart from Plaintiff’s motor difficulties, the ALJ further failed to address
other evidence in the record that called into question her ability to maintain an average
production pace without any learning or training accommodations, such as Dr. Walsh’s
opinion that a person having Plaintiff’s intellectual and autism impairments would require
close supervision and/or an extended training period (R. 524) and the opinion of Plaintiff’s
pediatric neurologist, Dr. Heydemann, that she “learns slowly.” (R. 388). While the ALJ
might have deemed these accommodations unnecessary for the simple, routine tasks
included in Plaintiff’s RFC, he was obliged to provide an explanation as to why. See
Lanigan, 865 F.3d at 565-66 (explaining that “simple, routine, and repetitive tasks” refer
to “unskilled work,” which the regulations “define as work that can be learned by
demonstration in less than 30 days,” but “the speed at which work can be learned is

11

As the Commissioner acknowledges, the ALJ’s hypothetical to the VE was more limited
than the RFC finding in the ALJ’s decision in that the hypothetical restricted Plaintiff to merely
occasional fine manipulation. (Doc. 17, at 14 n.7; R. 62-63). The Commissioner argues this
discrepancy is harmless, however, because the two jobs identified by the VE nevertheless called
for only occasional fingering. (R. 64). But even so, the record fails to reveal whether the VE’s
decision nevertheless would have been affected by reduced gross manipulation, low grip strength,
lack of motor control, motor slowness, and/or impaired gross motor speed.
32

unrelated to whether a person with mental impairments—i.e., difficulties maintaining
concentration, persistence, or pace—can perform such work”).
Accordingly, the case is remanded for reconsideration of Plaintiff’s RFC in light of
the foregoing evidence. The ALJ is also directed to apprise any VE whose testimony is
relied upon of any additional limitations in Plaintiff’s RFC that are determined on remand,
including any limitations in concentration, persistence, and pace. “When the ALJ supplies
a deficient basis for the VE to evaluate the claimant’s impairments, this error necessarily
calls into doubt the VE’s ensuing assessment of available jobs.” Crump, 932 F.3d at 570
(“the ALJ must ensure that the VE is ‘apprised fully of the claimant’s imitations’ so that
the VE can exclude those jobs that the claimant would be unable to perform.”) (quoting
Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018)). The ALJ provided the VE such a
deficient basis here by allowing simple, routine tasks, simple decision-making, and simple
judgment, and occasional, minor changes (R. 63) without identifying Plaintiff’s limitations
in concentration, persistence, or pace. Id.; Moreno, 882 F.3d at 730 (hypothetical to VE
limited to such tasks improperly failed to address concentration, persistence, or pace).
D.

The ALJ’s Step Five Determination

Plaintiff next argues that the ALJ erroneously accepted the VE’s testimony
regarding the number and types of jobs available in the national economy that she is
allegedly able to perform. Plaintiff makes three arguments in this regard, but none
demonstrates any error by the ALJ.
1.

Reliance on the DOT

Plaintiff first contends that the VE (and in turn, the ALJ) wrongly relied upon the
Dictionary of Occupational Titles (“DOT”) for the number of available jobs, when
(according to Plaintiff) it is both outdated and lacking information on which to base such
33

an estimate. (Doc. 12, at 14-15; Doc. 18, at 4-5). But while the Seventh Circuit has
repeatedly noted that the DOT is outdated and the Social Security Administration has
been working on a more current resource, the Court of Appeals has found no error in
relying on VE testimony that cited job descriptions from the DOT. To the contrary,
Plaintiff’s own authority (Chavez v. Berryhill) and multiple district court decisions have
repeatedly noted that the Social Security Administration’s regulations “authorize the
agency to ‘take administrative notice of reliable job information’ from the DOT, among
other publications.” Chavez v. Berryhill, 895 F.3d 962, 965 (7th Cir. 2018) (quoting 20
C.F.R. § 416.966(d)(1)).12
As a result of these regulations (and as the Seventh Circuit further observed in
Chavez), “the DOT is a source that VEs regularly canvass to identify job titles suitable
for a claimant.” Chavez, 895 F.3d at 965. And while the Seventh Circuit continues to
express concern over the DOT’s obsolescence (e.g., Spicher v. Berryhill, 898 F.3d 754,
759 (7th Cir. 2018)), the Court of Appeals has not prohibited its use. Chavez, 895 F.3d
at 965-67 (“we have not prohibited its use or deemed its application reversible error”). In
any event, any challenge to the VE’s testimony based on jobs numbers required objection
during the hearing. Brown v. Colvin, 845 F.3d 247, 254-55 (7th Cir. 2016) (claimant
“forfeited her argument regarding the vocational expert’s testimony about the number of
positions for each of the six jobs by failing to object during the hearing”).

As the

Commissioner correctly asserts, Plaintiff’s counsel voiced no such objection during the
hearing here. (Doc. 17, at 14; R. 50, 64-65).

12

See also Slone v. Berryhill, No. 17-cv-00452, 2018 WL 5729591, at *6 (N.D. Ind. Nov. 1,
2018) (same, citing 20 C.F.R. 404.1566); Horner v. Berryhill, No. 17 C 4823, 2018 WL 1394038,
at *2 n.1 (N.D. Ill. Mar. 20, 2018) (same); Fitzgerald v. Colvin, 15-cv-135, 2016 WL 447507, at
*11 (W.D. Wis. Feb. 4, 2016) (same, citing 20 C.F.R. §§ 404.1566 and 416.966).
34

2.

Failure to Provide Regional Jobs Numbers

Plaintiff’s second challenge to the VE’s testimony complains that the ALJ failed to
present regional jobs numbers, citing Browning v. Colvin, 766 F.3d 702, 709 (7th Cir.
2014). (Doc. 12, at 14-15). But Browning and other Seventh Circuit decisions have
repeatedly stated that national data, such as the VE provided here (R. 64) is sufficient.13
And to the extent any of these decisions contemplates reliance upon regional data, the
Seventh Circuit has further explained that the purpose of such localized figures is to
prevent a denial of benefits “on the basis of ‘isolated jobs that exist only in very limited
numbers in relatively few locations outside of the region where the applicant lives’”
(Barrett v. Barnhart, 368 F.3d 691, 692 (7th Cir. 2004) (per curiam) (brackets omitted)),
as opposed to jobs available “across the nation.” Chavez, 895 F.3d at 968. In addition
to her failure to object to the VE’s citation of national figures during the administrative
hearing, Plaintiff also makes no argument to this Court that the jobs the VE identified –
cleaner and sorter – “exist only in very limited numbers in relatively few locations outside
the region where the applicant lives.” This omission is similarly fatal to her challenge.14

13

See Chavez, 895 F.3d at 968 (“the agency is required to focus on what jobs a
particular individual can perform . . . and then to estimate the number of those jobs that exist
across the nation (or, at a minimum, in a region)”); Herrmann v. Colvin. 772 F.3d 1110, 1114 (7th
Cir. 2014) (“if there is a substantial number of such jobs in the nation, the applicant’s claim fails,
no matter how few there are in his locality or region”); Browning, 766 F.3d at 708 (“The reason
the vocational expert is required to estimate the number of jobs the claimant can do that exist in
the local, regional, and national economy is that, as the regulation indicates, if there is a large
number of such jobs in any of the three areas (‘region’ presumably encompassing both a local
area and the entire state), the claimant loses.”).
14

See, e.g., James A. B. v. Comm’r of Soc. Sec., No. 18-cv-0814, 2019 WL 176174, at *6
(S.D. Ill. Jan 11, 2019) (“Plaintiff does not argue the jobs identified by the VE exist only in isolation
or in concentrated regions.”); John D. C. v. Comm’r of Soc. Sec., No. 17-cv-1116, 2018 WL
6018859, at *5 (S.D. Ill. Nov. 16, 2018) (same: “Any such argument would be frivolous. The jobs
identified by the VE (cleaner, kitchen helper, and laundry worker) are not regional.”); Sugg v.
Berryhill, No. 17-cv-375, 2018 WL 1517766, at *7 (S.D. Ill. Mar. 28, 2018) (same: “The VE
identified jobs like a housekeeper and a routing clerk, which are not regional.”).
35

3.

Sorter and Cleaner Positions

Finally, Plaintiff disputes the feasibility of an individual with the motor speed
impairments, problems using her hands, and mental deficits that Plaintiff claims
sustaining work as a sorter or cleaner forty hours a week. (Doc. 12, at 15). The Court
has already noted the need on remand to reconsider the limitations in Plaintiff’s RFC
addressing her mental impairments, and to resolve the evidentiary conflict regarding her
grip and motor impairments and determine whether her RFC requires adjustment in those
respects as well. (See supra Part C). The Court otherwise expresses no view regarding
the appropriateness of any particular job for Plaintiff once those determinations are made.
That, with the benefit of properly informed vocational expert testimony, is for the ALJ to
decide on remand.
CONCLUSION
For the foregoing reasons, Plaintiff Ciara H’s Motion for Summary Judgment
requesting reversal or remand (Doc. 11) is granted, and the Commissioner’s Motion for
Summary Judgment asking that the decision be affirmed (Doc. 16) is denied. Pursuant
to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed, and this case is
remanded to the Social Security Administration for further proceedings consistent with
this Order.
ENTER:

Dated: September 20, 2019

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

36