Nam v. Saul

Filing 20

MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 11/18/2020. Mailed notice(gcy, )

Case: 1:19-cv-07832 Document #: 20 Filed: 11/18/20 Page 1 of 11 PageID #:737

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AHRAN NAM,
Plaintiff,
v.
ANDREW SAUL, Commissioner of
Social Security Administration,
Defendant.

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19-cv-7832
Judge Marvin E. Aspen

MEMORANDUM OPINION & ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Ahran Nam seeks judicial review of the final decision 1 of Andrew Saul,
Commissioner of the Social Security Administration (“SSA”), denying Plaintiff’s application for
benefits under 42 U.S.C. § 405(g). (Compl. (Dkt. No. 1).) Defendant seeks affirmation of its
final decision. (Mot. Summ. J. (Dkt. No. 13).) For the foregoing reasons, we deny Defendant’s
motion and remand the SSA’s final decision for further proceedings consistent with this
Memorandum Opinion and Order.
BACKGROUND
In April 2016, when Plaintiff was fifty-nine years old, she was diagnosed with breast
cancer. (R. 363—70.) Two months later, Plaintiff underwent a lumpectomy, sentinel node
dissection, and then was prescribed 10 years’ worth of radiation therapy and Anastrozole. (R.
309–313, 331–42, 355, 370—75.) On June 27, 2016, Dr. Chon, Plaintiff’s primary care

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When the Appeals Council denies review, as it did here, the ALJ’s decision constitutes the
Commissioner’s final decision. Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Villano v.
Astrue, 556 F.3d 558, 561–62 (7th Cir. 2009).

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physician, noted that Plaintiff’s surgery and subsequent chemotherapy and radiation therapy left
her feeling weak. (R. 314.)
In January 2017, Plaintiff began to experience medication side effects of myalgias and
arthralgias. (R. 437, 474, 451, 460.) Four months later, Plaintiff was diagnosed with Sciatica of
the right side and hand edema. (R. 523.) At around that time, a lumbar spine MRI revealed
degenerative changes, including disc bulge, mild to moderate bilateral facet hypertrophy,
posterior osseous spurring, and mild to moderate stenosis and foraminal narrowing. (R. 433–34.)
Then in June 2017, Plaintiff was diagnosed with reactive depression. (R. 488, 496, 529.)
In February 2018, an orthopedist diagnosed Plaintiff with tendonitis and limited motion,
frozen shoulder in her left shoulder, and possible arthritis in her hands. (R. 567, 569.)
The primary medical opinion evidence in the record is a brief note from Plaintiff’s
treating physician, Dr. Chon, and that of the State agency medical consultants. While Plaintiff
was completing chemotherapy in June 2016, Dr. Chon opined that she was “disabled to work for
[the] next several months.” (R. 314.) Dr. Chon did not provide any additional details or ongoing
updates on Plaintiff’s ability to work. (Id.) In July 2016, a State agency medical consultant
opined that Plaintiff’s breast cancer was a non-severe impairment. (R. 62–67.) On
reconsideration, another consultant affirmed the findings. (R. 70–76). The consultants only
opined on Plaintiff’s breast cancer; they did not have evidence of the ongoing arthralgia and
frozen shoulder conditions. (Id.)
Plaintiff’s previous employment was a manager at a nail salon. (R. 26, 41, 43.) This job
required her to answer the phone, oversee employees, and stand for 5–6 hours at a time with
some bending or crouching. (Id.) She stopped working in May 2016, due to the pain in her

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shoulder, back, and leg. (R. 43.) Plaintiff attempted to work a receptionist job during September
2017, but quit after two days due to her dizziness and leg pain. (R. 23.)
A vocational expert (“VE”) opined on whether a hypothetical individual with Plaintiff’s
limitations could perform her past work as a nail salon manager (DOT 187.167-058) or as a nail
technician (DOT 331.674-010.) (R. 49–51.) The VE noted that an individual of Plaintiff’s age,
education, and work experience who can (1) perform light work; (2) cannot climb ladders, ropes,
or scaffolds; (3) can occasionally climb ramps or stairs; (4) can occasionally reach overhead
bilaterally; (5) who should avoid all exposure to use of dangerous moving machinery and
unprotected heights; (6) who can occasionally balance, stoop, crouch, kneel, and crawl; (7) who
cannot reach overhead with her non-dominant arm; and (8) could frequently handle and finger,
could perform her past work as a nail salon manager, but not as a nail technician. (Id.) The VE
noted that if Plaintiff was limited to sitting or standing for twenty-five minutes at a time, it would
eliminate the possibility of her performing her past work. (R. 59.) The VE also opined that
Plaintiff’s other alleged limitations like her napping schedule, regular breaks, and proposed
limitation of “occasional” handling and fingering also foreclosed her past work. (R. 60.)
The VE also testified to the possibilities of other jobs Plaintiff could perform in the
national economy with the limitations the ALJ proposed. The VE noted transferable skills from
the manager position would enable the plaintiff to take a receptionist role. (R. 51.) The VE
forecasted that while there are around 610,000 receptionist jobs in the national economy,
Plaintiff would only be qualified for 152,500 of them due to her lack of computer skills and
limited English-language proficiency. (R. 56.)
On September 26, 2019, the ALJ ruled that Plaintiff was not disabled. (R. 98.) At step
one of the five-step analysis, the ALJ determined Plaintiff had not engaged in substantial gainful

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activity since the alleged onset date. (R. 92.) At step two, the ALJ found the Plaintiff had severe
impairments of breast cancer status-post lumpectomy, radiation and chemotherapy with residual
arthralgia/myalgia, degenerative disc disease, osteoarthritis of the right hand, and frozen left
shoulder/arthralgia. (R. 92.) At step three, the ALJ determined Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 93.) Before step four,
the ALJ determined Plaintiff’s Residual Functioning Capacity (“RFC”) allowed Plaintiff to
perform light work with certain limitations:
she can never climb ladders, ropes or scaffolds; she can occasionally
climb ramps or stairs; she can occasionally balance, stoop, crouch,
kneel and crawl; she can occasionally reach overhead bilaterally;
she can frequently handle and finger bilaterally; and she should
avoid all work place hazards, such as moving machinery and
exposure to unprotected heights.
(R. 94.) At step four, the ALJ found Plaintiff capable of performing her past relevant work as a
nail salon manager, subject to the RFC’s limitations. (R. 97.) Since the ALJ reasoned that
Plaintiff could perform her past work, she held that Plaintiff was not disabled under the Social
Security Act and denied her benefits thereunder. (R. 98.) The ALJ did not proceed to step five.
On September 30, 2019, the Appeals Council denied review. (R. 1.)
STANDARD OF REVIEW
A. Judicial Review
When a social security case is brought for judicial review, courts do not substitute their
judgment for that of the ALJ or reweigh evidence to decide whether the individual is disabled.
Gibson v. Massanari, 18 F. App’x 420, 425 (7th Cir. 2001). Rather, 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 standard. See Campbell v. Astrue, 627 F.3d 299, 306

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(7th Cir. 2010); Villano, 556 F.3d at 562. “Substantial evidence” means “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59
S. Ct. 206, 217 (1938).) The ALJ must “build a logical bridge” from evidence to conclusion.
Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002); Villano, 556 F.3d at 562. 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; see also Villano, 556 F.3d at 562.
B.

Disability Standard

An individual is “disabled” if they are 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 whether an individual is
disabled, an ALJ engages in a five-step analysis: (1) is the plaintiff presently unemployed; (2)
does the plaintiff have a severe impairment; (3) does the plaintiff’s impairment meet or equal an
impairment specifically listed in the regulations; (4) is the plaintiff unable to perform a former
occupation; (5) is the plaintiff unable to perform any other work existing in significant numbers
in the national economy. 20 C.F.R. § 404.1520(a)(4); see also Creasy v. Barnhart, 30 F. App’x
620, 622–23 (7th Cir. 2002) (citing Young v. Sec’y of Health & Hum. Servs., 957 F.2d 386, 389
(7th Cir. 1992)). A negative answer at any step, other than step three, leads to a determination
that a plaintiff is not disabled, and the ALJ need not proceed any further. Zurawski v. Halter,
245 F.3d 881, 886 (7th Cir. 2001). An affirmative answer leads to the next step, other than at
step three or five, where the ALJ can find the plaintiff is disabled. Id.
ANALYSIS

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Plaintiff raises two issues for our review. First, whether the ALJ sufficiently articulated
her reasoning in assessing both Plaintiff’s physical and mental RFC. Second, whether the ALJ
erroneously relied on the VE’s testimony when she used the incorrect DOT classification number
in her opinion. (Compl. (Dkt. No. 1.)) 2
I.

RFC Analysis
Plaintiff first raises the issues of whether the ALJ properly assessed Plaintiff’s physical

and mental limitations in her RFC analysis and articulated her reasoning. A plaintiff’s RFC is
the most a plaintiff can do despite her limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ must
assess a plaintiff’s medically determinable impairments, whether severe or not severe, based on
all relevant medical and other evidence. 20 C.F.R. § 404.1545(a.) The ALJ must consider all
relevant evidence in the record, “even [limitations] that are not severe, and may not dismiss a
line of evidence contrary to the ruling.” Id. (quoting Villano, 556 F.3d at 563).
A.

Physical Limitations

Plaintiff argues that the ALJ “offered little to no insight into how she determined that
Plaintiff would be capable of walking, standing, and sitting sufficiently to sustain light work,”
“ignored any impact [Plaintiff’s impairments] might have on Plaintiff’s functioning at work” and
failed to properly explain her reasoning. (Plaintiff’s Response Memorandum (“Pl. Mem.”) (Dkt.
No. 8) at 8–9.)

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Plaintiff requests in her complaint any statutory attorney fees, costs, and expenses to which she
and/or her attorney may be entitled. (Compl. ¶ 22.) However, Plaintiff fails to ask for any fees
within her Memorandum in Support of Reversing or Remanding. (Pl. Mem.) Since there is an
absence of facts and arguments on the issue of attorney’s fees, we decline to rule on an award of
attorney’s fees at this juncture. We will entertain a motion for attorney’s fees and costs if
properly raised before the court.

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In assessing a plaintiff’s RFC, the ALJ should consider the “nature and extent of
[Plaintiff’s] physical limitations,” and limited abilities to perform physical demands or functions
that may impact plaintiff’s ability to do past work, such as sitting, standing, walking, lifting,
reaching, handling, or crouching. 20 C.F.R. § 404.1545. This evidence may arise in a variety of
forms, including medical sources, daily activities, efforts to work, and “any other factors
showing how [the] impairment(s) affects [plaintiff’s] ability to work.” 20 C.F.R. § 404.1512(a).
An ALJ must articulate her reasons for rejecting a plaintiff’s complaints of pain, beyond solely
saying there is no medical evidence to support them. Myles v. Astrue, 582 F.3d 672, 676–77
(finding the ALJ erred in rejecting plaintiff’s claims of fatigue and hand limitations when he
stated only that there was no objective medical evidence to support them).
Here, the ALJ stated generally that “the intensity, persistence and limiting effects of
[Plaintiff’s] symptoms are not entirely consistent with the medical and other evidence of record.”
(R. 94–95.) But the ALJ did not explain this inconsistency. For example, the ALJ
acknowledged Plaintiff’s complaints of fatigue and inability to walk, sit, or stand for extended
periods, but her analysis did not articulate her reasoning for discounting these claims as required
by Myles. (R. 94–95.) All the ALJ cited was Plaintiff’s treating physicians’ normal physical
examinations; yet, nothing in these examinations suggested Plaintiff’s doctors tested her ability
to walk, sit, or stand for extended periods of time. (R. 371–2, 394, 412–13, 420, 427.) Nor does
the evidence necessarily support the ALJ’s finding. For example, Plaintiff’s daily activities, that
the ALJ acknowledged like taking walks in her backyard, watching T.V., going to the doctors,
and going to church, also fail to serve as a proper basis for this conclusion as they do not indicate
any prolonged ability to walk, sit, or stand. (R. 95.) Further, the VE testified that if Plaintiff
were limited to 25 minutes of sitting or standing at a time or needed to nap three to four times a

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week, then she would be foreclosed from her past work. (R. 59.) Since there is insufficient
explanation of how the ALJ reached her conclusion that Plaintiff can do light work including
walking, sitting, or standing for a period sufficient for work in light of the preceding evidence,
we conclude the ALJ failed to build the requisite logical bridge from the evidence to her
conclusion. Villano, 556 F.3d at 562; Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002).
B.

Mental Limitations

Plaintiff claims the ALJ also failed to consider her mental limitations in the RFC
analysis. (Pl. Mem. at 10.) Plaintiff argues the ALJ did not consider how her depression,
fatigue, or headaches might affect her ability to concentrate and sustain work on a regular and
continuing basis. (Id. at 11.)
In determining mental abilities, the ALJ assesses the nature and extent of mental
limitations and determines whether there is a limited ability to carry out mental activities such as
limitations in understanding, remembering, and carrying out instructions, and in responding
appropriately to supervision and work pressures. 20 C.F.R. § 404.1545(c). Mental limitations
must be part of the RFC assessment, because “limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and carrying out instructions, and
in responding appropriately to supervision, coworkers, and work pressures in a work setting, may
reduce [a plaintiff's] ability to do past work and other work.” 20 C.F.R. § 404.1545(c).
At steps two and three of the disability analysis, the ALJ uses “paragraph B” criteria in
determining whether a plaintiff has a severe mental impairment. 20 C.F.R. § 404.1520a; see also
Pepper v. Colvin, 712 F.3d 351, 366 (7th Cir. 2013). Under paragraph B, the ALJ rates as none,
mild, moderate, marked, or extreme a plaintiff’s functional limitations in four areas:
understanding, remembering, or applying information; interacting with others; concentrating,

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persisting or maintaining pace; and adapting or managing oneself. Id. The ALJ must also
incorporate “a specific finding as to the degree of limitation in each of the functional areas.” 20
C.F.R. § 404.1520a(e)(4). The limitations in these functional areas are used to determine the
severity of the mental impairment at step-two, but are not an RFC assessment. 20 C.F.R.
§ 404.1520a(d).
The ALJ found Plaintiff’s affective disorder yielded mild limitations in each of the four
functional areas. (R. 92.) She classified Plaintiff’s depression as non-severe because it caused
only a minimal limitation on her ability to perform basic mental work activities. (Id.) In doing
so, the ALJ wrote that “[t]he limitations identified in the ‘paragraph B’ criteria are not a residual
functional capacity assessment” but that her RFC assessment “reflects the degree of limitation I
have found in the ‘paragraph B’ mental function analysis.” (R. 93.) However, the combined
impact of Plaintiff’s impairments must be “considered throughout the disability determination
process.” 20 C.F.R. § 404.1523(c); see also Pepper v. Colvin, 712 F.3d 351, 366 (7th Cir. 2013);
Alesia v. Astrue, 789 F. Supp. 2d 921, 933 (N.D. Ill. 2011). Considering a plaintiff’s mental
limitations in the RFC analysis, even if non-severe, is necessary to adequately determine whether
the plaintiff can carry out the mental activities required in her past work at step four. Id. at 934;
see also 20 C.F.R. § 404.1545(a); Murphy, 759 F.3d at 817.
Here, the ALJ’s analysis of Plaintiff’s mental limitations occurred only in her step-two
explanation of the Paragraph B criteria. (R. 92–93.) The ALJ provides no explanation of the
combined impact of Plaintiff’s depression with her other limitations. (R. 94–97.) In the RFC
assessment, the ALJ acknowledged Plaintiff’s claim of “sadness,” and listed her daily activities
like walks in her back yard, going to the doctors, watching T.V., and going to church. (R. 94.)
The ALJ recited medical opinions that noted normal mental status examinations. (R. 92–93)

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(collecting citations to the record.) The ALJ did not, however, either in the Paragraph B analysis
or the RFC assessment, discuss Plaintiff’s diagnosis of depression from her treating physician.
(R. 529.) 3 Although the ALJ determined Plaintiff’s depression was non-severe, she must still
consider it in combination with Plaintiff’s other limitations in her RFC assessment. 20 C.F.R.
§ 404.1545(a).
We conclude there is no “accurate and logical bridge” between the ALJ’s recitation of the
evidence and the RFC determination that there are no mental limitations. To cure this lapse, the
ALJ should consider and explain whether there are mental limitations flowing from Plaintiff’s
non-severe depression that would affect Plaintiff’s ability to do light work, in conjunction with
her physical limitations.
II.

Typological Error in DOT Classification Number
Plaintiff argues the classification of Plaintiff’s past work was DOT # 187.167-018, is

Business Representative, Labor Union, and that that bears no resemblance to her work as a nail
salon manager. (Pl. Mem. at 11.) The commissioner argues that this was simply a harmless
typographical error within the ALJ’s opinion. (Def. Mem. (Dkt. No. 14) at 10.) We will
consider a mistake a typographical error and resolve it in favor of the ALJ if the ALJ explains the
correct evidence in the opinion. See Brown v. Bowen, 847 F.2d 342, 345 (7th Cir. 1988). We are
convinced that this is merely a typographical error. First, this is a one key-stroke difference from

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Plaintiff also argues that the ALJ failed to consider that her fatigue and headaches would affect
her ability to concentrate in a work setting. Plaintiff reported headaches through October 2016,
but they do not appear on later medical reports. (R. 390–92, 394, 400, 402.) Plaintiff did testify
to her inability to walk, sit, or stand for long periods of time due to headache and fatigue. (R.
36–37.) This allegation could show an issue with concentration or distractibility in a work
setting. Although discrete, the ALJ should consider this evidence within her RFC assessment in
determining if Plaintiff’s mental limitations affect her ability to sustain work on a regular and
continuous basis.

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the number entered into the ALJ’s opinion. Second, the ALJ noted she relied on the hearing
testimony from the VE that cited the correct number, suggesting that the ALJ intended to
consider the correct classification number. (R. 98.) Third, the only place where the incorrect
classification is listed is in the ALJ’s opinion. (R. 97.) Fourth, within Step Four of the ALJ’s
opinion, she considers how the evidence relates to the position of nail salon manager, the proper
classification. (Id.) For these reasons, we resolve the typographical error in favor of the ALJ
because this is a harmless typographical error. Since we remand the case on other grounds, the
ALJ should ensure the proper classification is used in future opinions to avoid inconsistency.
CONCLUSION
We deny Defendant’s motion for summary judgment and remand to the Social Security
Administration for further proceedings consistent with this opinion.

____________________________________
Marvin E. Aspen
United States District Judge
Dated: November 18, 2020
Chicago, Illinois

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