Phillips v. Saul

Filing 31

MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 3/31/2021. Mailed notice (ao, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NATASHA W. P.,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

No. 20 C 866
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Natasha W. P. brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s decision denying her application for benefits. For the reasons set forth below, the
Court reverses the Commissioner’s decision.

Background
Plaintiff applied for benefits on December 16, 2015, alleging a disability onset date of
November 8, 2015. (R. 151.) Her application was denied initially and on reconsideration. (R.
165, 211.) After a hearing, an administrative law judge (“ALJ”) issued a decision denying
plaintiff’s claim on December 5, 2018. (R. 90-112.) The Appeals Council declined review (R. 14), making the ALJ’s decision the final decision of the Commissioner, reviewable by this Court
pursuant to 42 U.S.C. § 405(g). See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous,
it is not entirely uncritical,” and the case must be remanded if the “decision lacks evidentiary
support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations
prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R.
§ 404.1520. Under the regulations, the Commissioner must consider: (1) whether the claimant
has performed any substantial gainful activity during the period for which she claims disability;
(2) whether the claimant has a severe impairment or combination of impairments; (3) whether the
claimant’s impairment meets or equals any listed impairment; (4) whether the claimant retains the
residual functional capacity (“RFC”) to perform her past relevant work; and (5) whether she is
unable to perform any other work existing in significant numbers in the national economy. Id.;
Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at
steps one through four, and if that burden is met, the burden shifts at step five to the Commissioner
to provide evidence that the claimant can perform work existing in significant numbers in the
national economy. See 20 C.F.R. § 404.1560(c)(2).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity
since her alleged onset date. (R. 93.) At step two, the ALJ found that plaintiff has the severe
impairments of “multiple sclerosis, left torn meniscus, degenerative disc disease of the cervical
spine, mild obesity, depression, and anxiety.” (Id.) At step three, the ALJ found that plaintiff does

2

not have an impairment or combination of impairments that meets or medically equals the severity
of a listed impairment. (R. 94.) At step four, the ALJ found that plaintiff is unable to perform any
past relevant work but has the RFC to perform sedentary work with certain exceptions. (R. 98-99,
109.) At step five, the ALJ found that jobs exist in significant numbers in the national economy
that plaintiff can perform, and thus she is not disabled. (R. 110-11.)
Plaintiff contends that the ALJ erred by failing to incorporate in the RFC the social
interaction and adaptive limitations to which the agency psychologist opined. The psychologist
said plaintiff is moderately limited in her ability to: “interact appropriately with the general
public;” “accept instructions and respond appropriately to criticism from supervisors;” “get along
with coworkers or peers without distracting them or exhibiting behavioral extremes;” and “respond
appropriately to changes in the work setting.” (R. 206.) Plaintiff argues that these so-called
checkbox limitations indicate that plaintiff “would be prone, at least some of the time, to
inappropriate workplace behaviors as a result of her psychological impairments,” a fact not
addressed by the RFC. (ECF 19 at 5.)
The Court disagrees. First, the psychologist said plaintiff might behave inappropriately at
times not that she necessarily would do so. Second, the ALJ is tasked with fashioning an RFC
from all of the record evidence, not just the opinion of one doctor. See 20 C.F.R. § 404.1545(a)(3)
(“We will assess your residual functional capacity based on all of the relevant medical and other
evidence.”) In this case, the evidence shows that plaintiff: (1) gets along well with authority
figures; (2) has never been fired from a job because she had difficulty get along with others; (3)
understands and conforms to social norms; (4) shops in stores; and (5) maintains relationships with
friends, a boyfriend, and her children. (R. 97 (citing R. 470, 473, 504, 633, 645, 659, 1658, 1659).)
The RFC fashioned by the ALJ accommodates plaintiff’s limitations. (See R. 99 (stating that

3

plaintiff can “understand, remember, and apply simple information,” “adjust to routine changes in
. . . rote work,” and “should avoid public contact, frequent communication, or more than occasional
interaction with coworkers or supervisors”).
Plaintiff also contends that the RFC does not account for the moderate concentration
limitations to which the agency psychologist opined. (See R. at 205-07 (Dr. Biscardi stating that
plaintiff is moderately limited in her ability to: maintain attention and concentration for extended
periods of time; perform activities within a work schedule, maintain regular attendance, and be
punctual; complete a normal workday and workweek without interruptions from psychologically
based symptoms; and perform at a consistent pace without an unreasonable number and length of
rest periods but “retains the capacity to understand, remember, carry out and sustain performance
of 1-3 step tasks . . . , complete a normal workday, . . . and adapt to changes/stressors associated
with simple routine competitive work activities”).) This time, the Court agrees.
In relevant part, the RFC states that plaintiff can “understand, remember, and apply simple
information,” “requires rote work of limited variability and end-of-day performance expectations
rather than hourly performance expectations,” and “is able to work five days a week, eight hours
per day, at a consistent pace with only normal breaks.” (R. 99.) However, the Seventh Circuit has
“repeatedly rejected the notion” that confining “‘the claimant to simple, routine tasks,” as the ALJ
did here, “adequately captures temperamental deficiencies and limitations in concentration,
persistence, and pace.’” Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015) (quoting Yurt v.
Colvin, 758 F.3d 850, 857 (7th Cir. 2014)); see DeCamp v. Berryhill, 916 F.3d 671, 676 (7th Cir.
2019) (per curiam) (“[T]here 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.”); Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009) (per curiam)

4

(collecting cases stating the same). Because the RFC does not accommodate the concentration
deficiencies about which the psychologist opined and the ALJ adopted, this case must be
remanded.

Conclusion
For the reasons set forth above, the Court reverses the Commissioner’s decision, denies the
Commissioner’s motion for summary judgment [25], and remands this case, pursuant to the fourth
sentence of 42 U.S.C. § 405(g), for further proceedings consistent with Memorandum Opinion and
Order.
SO ORDERED.

ENTERED: March 31, 2021

M. David Weisman
United States Magistrate Judge

5