Piotrowski v. Berryhill
Filing
43
MEMORANDUM Opinion and Order Signed by the Honorable Sunil R. Harjani on 1/15/2020. Mailed notice(lxs, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIAN P.,
Plaintiff,
Case No. 18 C 3498
v.
Magistrate Judge Sunil R. Harjani
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Brian P. 1 seeks judicial review of the final decision of the Commissioner of Social
Security denying his application for Supplemental Security Income (SSI). Brian seeks reversal
and remand of that decision. The Commissioner filed a motion for summary judgment, asking the
Court to affirm the ALJ’s denial of benefits. For the reasons that follow, the Court grants in part
Brian's request for a remand, denies the Commissioner’s motion [20], reverses the ALJ's decision
in part, and remands this case for further proceedings consistent with this Opinion.
BACKGROUND
Brian was born on July 7, 1970. He completed eleventh-grade and previously worked as a
factory laborer, fork lift operator, pizza maker, warehouse worker, and stock clerk. Brian last
worked in 2006. Brian applied for SSI on August 19, 2014, claiming he became disabled on May
1, 2009 due to the after-effects of a brain aneurysm, osteoarthritis, hypertension, and depression.
Brian’s application was denied at the initial and reconsideration levels.
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In accordance with Internal Operating Procedure 22, the Court refers to Plaintiff as “Brian P.” or
“Brian.”
Under the Administration’s five-step analysis used to evaluate disability, the ALJ found
that Brian had not engaged in substantial gainful activity since his application date (step one) and
that he had the severe impairment of post-brain aneurysm (step two). (R. 16-17). The ALJ noted
non-severe medically determinable impairments of a depressive disorder, dyslipidemia,
hypertension, and left knee arthritis. Id. at 17. At step three, the ALJ determined that Brian did
not have an impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments, including Listings 11.04 (central nervous system vascular
accident), 11.18 (cerebral trauma), and 12.02 (organic mental disorders) (step three). Id. Applying
the Paragraph B criteria, the ALJ found that Brian had moderate limitations in understanding,
remembering, or applying information, mild limitations in interacting with others, moderate
limitations in concentration, persistence, or maintaining pace, and mild limitations in adapting or
managing himself. Id. at 18.
The ALJ then concluded that Brian retained the residual functional capacity (“RFC”) to
perform sedentary work, as defined in 20 CFR 416.967(a). (R. 19-22). Specifically, the ALJ found
that Brian could lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; stand
and/or walk for two hours total in an 8-hour workday and sit for at least six hours; occasionally
balance, kneel, crouch, crawl, and climb ramps and stairs but can never climb ladders, ropes, and
scaffolds; he had to avoid exposure to hazards such as unprotected heights and moving machinery;
he could understand, remember, and carry out simple, routine tasks involving only simple, workrelated decisions with the ability to adapt to routine workplace changes; he could not perform any
fast-paced production rate work; and he could persist in such activities in two-hour intervals, with
adequate pace and perseverance. Id. at 19. Given this RFC, the ALJ determined that Brian was
unable to perform his past relevant work as a warehouse worker, an unskilled medium exertional
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position (step four). Id. at 22. However, the ALJ found that other jobs existed in significant
numbers in the national economy that Brian could perform, such as semi-conductor bonder, circuit
board screener, and sealer (step five). Id. at 22-23. Thus, the ALJ determined that Brian was not
disabled under the Social Security Act. Id. at 23. The Appeals Council denied Brian’s request for
review on March 20, 2018, leaving the ALJ’s March 27, 2017 decision as the final decision of the
Commissioner. Id. at 1-6; Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
DISCUSSION
Under the Social Security Act, a person is disabled if she is unable “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). To determine disability
within the meaning of the Social Security Act, the ALJ conducts a sequential five-step inquiry,
asking: (1) Is the claimant presently unemployed? (2) Does the claimant have a severe impairment?
(3) Does the claimant’s impairment meet or equal an impairment specifically listed in the
regulations? (4) Is the claimant unable to perform a former occupation? and (5) Is the claimant
unable to perform any other work in the national economy? Young v. Sec’y of Health & Human
Servs., 957 F.2d 386, 389 (7th Cir. 1992); Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir.
1985); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “An affirmative answer leads either to the
next step, or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any
point, other than step 3, ends the inquiry and leads to a determination that a claimant is not
disabled.” Zalewski, 760 F.2d at 162 n.2.
Judicial review of the ALJ’s decision is limited to determining whether it adequately
discusses the issues and is based upon substantial evidence and the proper legal criteria. See Villano
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v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009); Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir.
2004). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing an ALJ’s decision, the Court may
“not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own
judgment for that of the” ALJ. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Although the
Court reviews the ALJ’s decision deferentially, the ALJ must nevertheless “build an accurate and
logical bridge” between the evidence and her conclusions. See Steele v. Barnhart, 290 F.3d 936,
938, 941 (7th Cir. 2002) (internal citation and quotations omitted); see also Fisher v. Berryhill,
760 Fed. Appx. 471, 476 (7th Cir. 2019) (explaining that the “substantial evidence” standard
requires the building of “a logical and accurate bridge between the evidence and conclusion”).
Moreover, when the ALJ’s “decision lacks evidentiary support or is so poorly articulated as to
prevent meaningful review, the case must be remanded.” Steele, 290 F.3d at 940.
Brian challenges the ALJ’s decision on several grounds: (1) the ALJ improperly rejected
the opinion of the examining psychiatrist, Dr. Mark Amdur; (2) the ALJ improperly discounted
Brian’s subjective symptom allegations; (3) the ALJ impermissibly “played doctor” by rejecting
all mental health opinions of record and using her lay opinion to formulate Brian’s RFC; and (4)
the ALJ failed to properly account for his moderation limitations in concentration, persistence, or
pace when evaluating his RFC and in the hypothetical to the VE. 2 The Court agrees with Brian
that the ALJ failed to properly account for his moderate limitations in concentration, persistence,
2
Brian initially suggested but did not develop his argument that the ALJ failed to account for his
moderate limitations in concentration, persistence, or pace in the RFC. After reviewing the briefing and
the ALJ’s decision, the Court requested supplemental briefing on the applicability of a series of recent
Seventh Circuit decisions addressing concentration, persistence, and pace issues to this case. Doc. 32. In
response to the Court’s request for supplemental briefing, Brian raised his challenge to the ALJ’s RFC and
hypothetical question to the VE based on his limitations in concentration, persistence, or pace. Doc. 36.
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or pace. Because this error alone requires reversal and remand, the Court does not reach the
remainder of Brian’s arguments.
Brian argues that the ALJ failed to adequately account for her own finding of moderate
limitations in concentration, persistence, or pace in the mental RFC determination and
hypothetical to the VE. At step three, the ALJ found, in part, that Brian has moderate limitations
in understanding, remembering, or applying information and in concentrating, persisting, or
maintaining pace. (R. 18). The ALJ then concluded that Brian retained the mental RFC to
“understand, remember, and carry out simple, routine tasks involving only simple, work-related
decisions with the ability to adapt to routine workplace changes.” Id. at 19. The ALJ further found
that Brian “cannot perform any fast-paced production rate work” and he “can persist i[n] such
activities in two-hour intervals, with adequate pace and perseverance.” Id. The ALJ presented a
hypothetical to the VE which omitted any reference to limitations on concentration at work, instead
limiting the individual to simple, routine tasks involving only simple, work-related decisions with
no fast-paced production work and two-hour persistence at adequate pace. Id. at 66. The second
hypothetical the ALJ posed to the VE incorporated the functional limitation of a person able to
perform simple, routine work and also being off-task in excess of 15% of the workday. Id. at 67.
The VE testified that more than 15% off-task time would preclude all work, but the ALJ failed to
incorporate this limitation into the RFC. Id.
“Concentration, persistence, or pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate completion of task commonly
found in work settings.” 20 C.F.R. Pt. 404, Supt. P, App. 1 § 12.00C(3). Both “‘the hypothetical
posed to the VE and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations
supported by the medical record,’ including even moderate limitations in concentration,
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persistence, or pace.” Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019). “Though particular words
need not be incanted, we cannot look at the absence of the phrase ‘moderate difficulties with
concentration, persistence, and pace’ and feel confident this limitation was properly incorporated
in the RFC and in the hypothetical question.” Winsted v. Berryhill, 923 F.3d 472, 477 (7th Cir.
2019).
Generally, “employing terms like ‘simple, repetitive tasks’ on their own will not
necessarily exclude from the VE’s consideration those positions that present significant problems
of concentration, persistence, and pace, and thus, alone, are insufficient to present the claimant’s
in this area.” Id. This is because the terms “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 unrelated to whether a person with mental
impairments—i.e., difficulties maintaining concentration, persistence, or pace—can perform such
work.” Lanigan v. Berryhill, 865 F.3d 558, 565-66 (7th Cir. 2017); 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.”).
In this case, the ALJ erred in her RFC assessment and accompanying hypothetical that she
posed to the VE when she failed to account for her own findings of moderate limitations in
concentration, persistence, pace. The ALJ recognized that “the record reasonably supports that
the residual effects of [Brian’s] aneurysm included memory deficits” and that Brian is moderately
limited in concentration, persistence, or pace. (R. 18, 21). In justifying her RFC assessment, the
ALJ explained that the RFC’s limitation to “[1] simple, routine tasks involving only simple, workrelated decisions with [2] routine workplace changes reasonably accommodates symptoms
associated with [Brian’s] memory and calculation problems.” (R. 21).
However, the first
restriction does not adequately address Brian’s moderation limitations in concentration,
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persistence, and pace due to memory problems. DeCamp v. Berryhill, 916 F.3d 671, 676 (7th Cir.
2019) (“we have ‘repeatedly rejected the notion that a hypothetical . . . confining the claimant to
simple, routine tasks and limited interactions with others adequately captures temperamental
deficiencies and limitations in concentration, persistence, and pace.’”); Varga v. Colvin, 794 F.3d
809, 815 (7th Cir. 2015) (rejecting RFC and hypothetical limiting claimant to “simple, work related
decisions” because it “exclude[d] complex tasks that require higher-level thinking but d[id] not
acknowledge [claimant’s] moderate limitations with following a schedule and sticking to a given
task.”); Craft v. Astrue, 539 F.3d 668, 677 (7th Cir. 2008) (restricting a claimant to “simple,
unskilled” work does not sufficiently account for “difficulty with memory, concentration, or mood
swings.”). In addition, the ALJ cited no evidence supporting her finding that Brian’s memory
problems are limited to complex and detailed tasks.
The second restriction regarding workplace changes deals with workplace adaption, not
concentration, persistence, and pace. Mischler v. Berryhill, 766 Fed. Appx. 369, 376 (7th Cir.
2019) (“only occasional changes in the work setting” “primarily deals with workplace adaptation,
rather than concentration, persistence, and pace.”); Varga, (“‘few if any work place changes’ with
limited ‘interaction with coworkers and supervisors’ deals largely with workplace adaptation,
rather than concentration, pace, or persistence.”). The ALJ also found that Brian’s memory deficits
“reasonably limit him to unskilled work without strict production demands as defined in the
functional capacity assessment.” (R. 21). The ALJ’s added limitation precluding “fast-paced
production rate work” likewise fails to account for Brian’s moderate limitations in concentration,
persistence, or pace. DeCamp v. Berryhill, 916 F.3d 671, 676 (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
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Fed. Appx. 460, 465 (7th Cir. 2019); O’Connor-Spinner, 832 F.3d 690, 698 (7th Cir. 2016) (“Yet
the Commissioner has not cited, nor have we found, any authority supporting the ALJ’s
speculation that eliminating jobs with strict production quotas or a fast pace may serve as a proxy
for including, as part of the claimant’s mental residual functional capacity, a moderate limitation
on concentration, persistence, and pace.”).
The Commissioner argues that the ALJ’s RFC and hypothetical were adequate in this case
because they specifically addressed Brian’s persistence and pace. It is true that notwithstanding
Brian’s moderate limitations in concentration, persistence, and pace which are memory-related,
the ALJ found that he cannot perform any fast-paced production work and he retained the ability
to perform activities in two-hour intervals with adequate pace and perseverance. (R. 19). However,
the ALJ’s finding and the Commissioner’s argument present several problems. First, eliminating
fast-paced production rate work does not account for Brian’s moderate concentration-functioning
deficits. Minger v. Berryhill, 307 F.Supp.3d 865, 870 (N.D. Ill. 2018) (“There’s no authority to
show that ‘no fast-paced quotas’ eliminates jobs, in a VE’s mind, that cannot be performed by
someone with a moderate limitation on concentration.”). Thus, even if eliminating fast-paced
production rate work sufficiently accounted for Brian’s limitations in persistence and pace, the
RFC and accompanying hypothetical fail to account for Brian’s difficulties in concentration and
memory.
Second, the ALJ’s finding that Brian could concentrate and persist in activities for twohour segments with adequate pace and perseverance is not supported by substantial evidence. An
ALJ must explain how she reached her RFC conclusions and support those conclusions with
evidence from the record. SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (“RFC assessment
must include a narrative discussion describing how the evidence supports each conclusion, citing
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specific medical facts ... and nonmedical evidence”); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 352 (7th Cir. 2005) (“Contrary to SSR 96-8p, … the ALJ did not explain how he arrived at
[his RFC] conclusions; this omission in itself is sufficient to warrant reversal of the ALJ’s
decision.”). Here, the ALJ did not specify what evidence supported the two-hour concentration
with adequate pace and perseverance restriction. None of the doctors opined that Brian can
conduct simple and routine tasks while maintaining concentration and attention for two-hour
intervals with an adequate pace and perseverance. Warren v. Colvin, 2013 WL 1196603, at *4
(N.D. Ill. March 22, 2013) (“No physician opined that [the claimant] is capable of concentrating a
certain number of hours at a time, and the ALJ did not explain what medical records supported her
finding of a two-hour attention span.”). The ALJ did not explain how any evidence in the record
translates into a finding that Brian can concentrate and persist for any amount of time at a normal
pace, let alone for two-hour intervals. Although the ALJ cited three instances where his primary
care physician’s office noted that Brian’s attention span was normal and his short-term memory
was intact (R. 18, 21, 359, 371, 389), a finding that Brian could pay attention in the doctor’s office
in the context of a physical exam or a short follow-up is “an altogether different environment than
a full day at a competitive workplace with sustained demands.” Crump, 932 F.3d at 571. Thus,
there is no logical bridge between the evidence and the ALJ’s conclusion that Brian could persist
in simple, routine activities in two-hour intervals, with adequate pace and perseverance. Berger v.
Astrue, 516 F.3d 539, 544 (7th Cir. 2008). For this additional reason, a remand is appropriate.
The ALJ’s failure to adequately account for Brian’s demonstrated memory impairment is
not harmless. “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; Winsted, 923 F.3d at 477 (“Because the ALJ did not include Winsted’s
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difficulties with concentration, persistence, pace in the hypothetical he did consider, the decision
cannot stand.”).
Because the hypothetical did not address Brian’s moderate limitations in
concentration, persistence, and pace, substantial evidence does not support the ALJ’s finding that
Brian retains the RFC to perform the jobs identified by the VE. The VE testified that an individual
who was off task more than 15% of a workday could not perform the identified semiconductor
bonder, circuit board screener, and sealer jobs. (R. 67); see O’Connor-Spinner, 832 F.3d at 698
(suggesting that if “moderate impairments on maintaining concentration, persistence, and pace
equates to being off task at least 15% of the time,” then claimant was “essentially unemployable”
according to the VE, which “at least calls into question the ALJ’s assertion that eliminating jobs
which require strict production quotas or fast pace sufficiently accounts for moderation limitation
on concentration, persistence and pace.”). The ALJ failed to explain how, despite Brian’s
moderate limitations in concentration, persistence, and pace, he could remain on task for 85% of
an eight-hour workday. Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017) (remanding where
the ALJ failed to build an accurate and logical bridge between claimant’s moderate difficulties in
various functional areas and the ALJ’s finding that claimant would not be off task more than 10%
of the workday); Warren 2013 WL 1196603, at *5 (directing on remand, “the ALJ shall take
additional evidence to determine how moderate limitations in concentration, persistence, or pace
translate into an amount of off task time at work when performing ‘simple routine activities’ which
‘have few social demands’” in light of the VE’s testimony regarding jobs available for a person
who would be off task more than 10% or 15% of the workday.). The Seventh Circuit’s decisions
in Crump, Winsted, DeCamp, O’Connor-Spinner, Varga, and Craft require remand here.
The Commissioner’s reliance on Jozefyk v. Berryhill, 923 F.3d 492 (7th Cir. 2019), does
not compel a different result. In Jozefyk, the ALJ tailored claimant’s workplace setting to
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accommodate for his social anxiety issues by requiring unskilled work with “no more than
occasional contact with supervisors and coworkers; no contact with the public; and an assigned
work area at least ten to fifteen feet away from coworkers.” Jozefyk, 923 F.3d at 495. Jozefyk
argued that the ALJ erred in omitting accommodations for his “less severe symptoms,” including
difficulty with attention and concentration. Id. at 497. Jozefyk “insist[ed] that he ha[d] memory
and concentration difficulties, but doctors observed that Jozefyk appeared ‘alert and oriented’ and
performed well on memory tests.” Id. Moreover, “according to the medical evidence, [Jozefyk’s]
impairments surface[d] only when he [wa]s with other people or in a crowd.” Id. at 498. The ALJ
found that Jozefyk’s memory and concentration were slightly impaired. Id. The Jozefyk court
found that the ALJ “adequately account[ed] for the claimant’s demonstrated psychological
symptoms.” Id. The Seventh Circuit further held that even if the ALJ’s RFC assessment was
flawed any error was harmless. Id. “Because Jozefyk did not testify about restrictions in his
capabilities related to concentration, persistence, or pace deficits and the medical record does not
support any, there are no evidence-based restrictions that the ALJ could include in a revised RFC
finding on remand.” Id.
Unlike the situation in Jozefyk, the medical record here shows that Brain performed poorly
on memory tests and thus, that this moderate limitations in concentration, persistence, and pace
may prevent him from persisting in “simple, routine tasks involving only simple, work-related
decisions” in two-hour intervals at an adequate pace while being restrained to no “fast-paced
production rate work.” For example, Brian attained a score of 17 out of 30 on the Montreal
Cognitive Assessment, indicating “significant cognitive impairment.” Id. at 363. On the memory
portion of the test:
[Brian] lost all five possible points. . . . The MOCA’s memory test scores retrieval
of five words after approximately five minutes. . . . [Brian] was unable to recall any
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of the five words after five minutes. He was also unable to recall three of the words
immediately indicating that the memory impairment includes defective registration.
Id. Further, at a mental status examination, Brian was not able to recall any objects at both one
and five minute intervals, could only repeat a series of two numbers backwards, and only
calculated Serial 7’s through 79 Id. at 353. The ALJ recognized that the record “supports that the
residual effects of the claimant’s aneurysm included memory deficits.” (R. 18). In contrast to
Jozefyk, Brian and his brother testified consistently with the medical record about how his memory
problems impair his concentration, persistence, and pace. (R. 49- 50, 52, 53-57). Nothing in the
RFC and hypothetical questions accounted for Brian’s poor memory scores or the ALJ’s finding
of memory deficits. Finally, an RFC restriction related to off-task time for lapses in concentration
and attention may address Brian’s concentration, persistence, or pace limitation due to memory
problems.
On remand, the ALJ must properly account for Brian’s moderate limitations in
concentration, persistence, and pace in her mental RFC and hypothetical to the VE and cite specific
evidence that supports her conclusion. As the Seventh Circuit has explained, “the most effective
way to ensure that the VE is apprised fully of the claimant’s limitations is to include all of them
directly in the hypothetical.” O’Connor-Spinner, 627 F.3d at 619.
CONCLUSION
For the reasons set forth above, Brian’s request for remand is granted in part and the
Commissioner’s Motion for Summary Judgment [20] 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 Opinion.
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SO ORDERED.
Dated: January 15, 2020
______________________________
Sunil R. Harjani
United States Magistrate Judge
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