Laster v. Berryhill

Filing 15

MEMORANDUM Opinion and Order; Plaintiffs motion for summary judgment is granted, the governments motion is denied, and this case is remanded for further consideration. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 4/19/2018:(yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Steve Laster
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.

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No. 17 CV 50041
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
In this Social Security disability appeal, plaintiff raises two arguments. One is that the
administrative law judge (“ALJ”) failed to include alleged postural limitations, caused by
plaintiff’s back problems, into the residual functional capacity assessment. The other argument,
which is plaintiff’s first and primary argument, is that the ALJ failed to consider all the relevant
evidence about plaintiff’s work as a telemarketer a decade earlier. Although the latter argument
focuses on a smaller portion of the ALJ’s ruling, the Court finds that it warrants a remand.
Plaintiff, who is now 61 years old, applied for disability benefits in 2013. In the ALJ’s
2015 ruling, she found that plaintiff could only do sedentary work. Under Social Security rules,
given plaintiff’s age, he would qualify as disabled unless one of his past relevant jobs involved
sedentary work. Among plaintiff’s many jobs over the last decade, the telemarketing job was the
only one that was sedentary.
But there were several factual discrepancies about the nature of this job. On a Work
History Report (Ex. B4E), which plaintiff completed several years before the hearing, he wrote
that he worked from July 2003 to December 2004 (a period of 17 to 18 months), and that he
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Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).

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worked seven hours per day, five days a week, and made $8.00 per hour. R. 194, 197. The
answers on this form were handwritten, and it is not known whether plaintiff consulted any
documents or simply relied on his memory.
In a pre-hearing brief, submitted shortly before the 2015 hearing, plaintiff’s attorney
discussed this particular job in the following paragraph:
For a very short period of time, my client unsuccessfully was a tele marketer. He
could not do that job because of his radicular pain. He is only able to sit for thirty
minutes and then must stand for fifteen minutes. He can sit/stand for about two
hours before he has to lie down to relieve his pain. My client spends most of his
day lying down to relieve pain. He can walk approximately half a block before the
pain stops him. The pain is in both legs and he has a toe that hurts him all the time.
He previously had a left broken arm which he has not treated for, but it still gives
him a quite a bit of [a] problem.
Ex. B11E.
At the hearing, the ALJ began by asking about the telemarketing job referred to in the
above paragraph, saying that the job “confused [her] a little bit.” R. 26. She apparently initially
thought that this job was after the alleged onset date. Plaintiff then testified with his counsel
asking questions first. Counsel did not raise the telemarketing job. The ALJ then asked
questions, focusing mostly on details about plaintiff’s earlier jobs. At several points, plaintiff was
unsure about the details of these jobs. See R. 36 (“I think I must have my dates—my years—
maybe I have my years wrong.”); R. 37 (“Somehow I got my yearly dates mixed up.”). The ALJ
then asked specifically about the telemarketing job “back in 2003, 2004.” Id. (The telemarketing
job was for Hammer Marketing.) Plaintiff testified that he only worked as a telemarketer for two
months because he “couldn’t make the sales,” but that he was able to stay on with the company
for a longer period by working as a handyman rather than a telemarketer. Id. 2 The ALJ did not

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See R. 37 (“I couldn’t make the sales. So I came to work one morning and they had no lights, so I became the
maintenance man, and then they was bringing in furniture and so I was putting it together. So it was just about me
saving my job but not actually doing any telemarketing.”).

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ask plaintiff how long he worked in total at Hammer Marketing, nor did the ALJ ask plaintiff any
details about his pay and hours worked. The only other reference during the hearing to the
telemarketing job was at the end when the ALJ questioned the vocational expert. The ALJ then
observed that there was a “conflict in the evidence” about whether plaintiff did the telemarketing
work the whole time or instead switched to handyman work after two months. R. 40.
In the ALJ’s decision, she discussed this issue in the following three paragraphs at the
end of the decision:
The claimant originally reported that between July 2003 and December 2004, he
worked 5 days per week for 7 hours per day as a telemarketer, which involved
sitting, writing, and talking on the telephone, and was paid $8 per hour (Exhibit
B4E). The claimant also did more strenuous work before, after, and in overlapping
periods, and sat for 6 1/2 hours during the telemarketing job; which contradicts the
claimant’s representative’s assertion that the work as a telemarketer was
unsuccessful because the claimant could only sit for thirty minutes and stand for 15
minutes due to radicular pain (Exhibits B4E and B11E).
With leading questions by his representative, the claimant made an allegation that
his work as a telemarketer was also a maintenance job and then that his brother
performed the job for him. The undersigned does not accept these allegations as
they are contradicted by the claimant’s own statements earlier in his claim for
benefits. This attempt at deflection of the quality of past relevant work as well as
the claimant’s obvious minimizing of the handyman work he has done [at] odd jobs
for in kind remuneration detracted from the overall credibility of the claimant’s
allegations.
The vocational expert testified that it takes 30 to 45 days to learn an SVP 3 job and
the telemarketer position would also require only 30 to 45 days to learn. Therefore,
the undersigned finds that the totality of the evidence shows the claimant
performed the telemarketing job for 7 hours per day 5 days per week earning $8 per
hour for 17 months, and earning above substantial gainful activity levels which
meets the criteria for being considered past relevant work.
R. 17. The last paragraph refers to plaintiff’s earnings at Hammer Marketing being “above
substantial gainful activity levels.” Although the ALJ did not total up the amounts, this
information would mean that plaintiff earned about $7,000 in 2003 and $14,000 in 2004.

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Plaintiff believes that the telemarketing job did not qualify as substantial gainful activity
because plaintiff was unsuccessful at that job and stopped after only two months. However, even
accepting the ALJ’s rejection of this assertion, plaintiff argues that the ALJ’s analysis is flawed
because the ALJ failed to consider two other pieces of evidence.
The first piece of evidence, which plaintiff asserts is the “most clear cut evidence” in the
file, is the FICA earnings statement for plaintiff’s jobs. See Ex. B4D. This statement indicates
that plaintiff made the following amounts while working for Hammer Marketing: $641.25 in
2003; $5,400 in 2003; and $108 in 2004. This information contradicts the ALJ’s assumptions.
Under the version of the facts accepted by the ALJ, plaintiff did not work for Hammer Marketing
at all in 2002 and thus made no money, and he then worked there for approximately half a year
in 2003, making somewhere around $7,000, and then worked for a full year in 2004, making
somewhere around $14,000. In short, the dollar amounts relied on by the ALJ are larger than
those indicated in the earnings statement. The larger amounts are significant because, if accepted,
they would push plaintiff’s earnings above the threshold yearly amount for qualifying as
substantial gainful activity, which (according to plaintiff and undisputed by the Government)
was $9,600 on a yearly basis in 2003. Stated differently, if the ALJ had accepted the numbers
from the earnings statement as being accurate, then the telemarketing job would not have
qualified as past relevant work and plaintiff would qualify as disabled.
Plaintiff complains that the ALJ did not consider this important piece of information. It is
undisputed that the ALJ never referred to the earnings statement (Ex. B4D). The failure to do so
is surprising because, in this Court’s experience, ALJs routinely cite to the earnings statement
whenever there is any suggestion that it contradicts a claimant’s testimony. This is presumably
because ALJs believe that these statements provide objective and contemporaneous evidence

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from a third party. If the shoe were on the other foot and the plaintiff were relying on his
memory to dispute the accuracy of an earnings statement, the Court doubts that an ALJ would
simply ignore the earnings statement and accept the testimony at face value. In sum, the ALJ
should have acknowledged and discussed the earnings statement given that it was directly
relevant to the issue at hand and because it differed sharply from the version of facts the ALJ
took as true. See Thomas v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (an ALJ may not ignore
a line of evidence contrary to his conclusion).
The second piece of evidence relied on by plaintiff, though perhaps less powerful, is
plaintiff’s Adult Disability Report. Ex. B2E. On this report, which was also completed before
the hearing, plaintiff indicated that he worked at Hammer Marketing from 2002 to 2004, four
days a week, five hours a day, earning $5,000 a year. R. 176. This document presents yet another
version of the facts. According to plaintiff, this version of the facts is more consistent with the
earnings statement. The ALJ failed to discuss this document too.
In sum, although plaintiff does not say so explicitly, plaintiff’s theory is that he
mistakenly filled out the Work History Report by misremembering some of the details about his
work for Hammer Marketing. In support of this theory, plaintiff notes that he was remembering
details from ten years prior.
In its response brief, the Government acknowledges that the FICA earnings statement is
“inconsistent with” plaintiff’s Work History Report. Dkt. #13 at 7. The Government then falls
back on the general assertion that an ALJ is free to credit “one particular version of events” in
resolving an evidentiary dispute. However, other than relying on this blanket statement, the
Government does not otherwise engage with plaintiff’s specific arguments. The Government has
no explanation for why the ALJ was justified in simply ignoring the earnings statement and the

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Adult Disability Report. The Government does not suggest that the failure to consider these
documents was harmless error or that there is some obvious explanation to reconcile the
discrepancies. In sum, contrary to the ALJ’s claim that she considered the “totality” of the
evidence relating to the telemarketing job, she did not do so.
There is one final point on this topic. Plaintiff’s argument above did not directly
challenge the ALJ’s credibility finding that plaintiff did not do the telemarketing job for only two
months. The ALJ’s rationale was that plaintiff did “more strenuous work before, after, and in
overlapping periods,” a finding that the ALJ believed was at odds with counsel’s pre-hearing
brief stating that plaintiff had trouble sitting for extended periods. But a question arises about
whether the ALJ’s explanation was based on a fair summary of plaintiff’s position. At the
hearing, plaintiff never stated that he could not do the telemarketing job because of sitting
difficulties. Instead, he stated that he was unable to “make the sales.” Rather than relying on this
testimony, the ALJ relied on the argument in the pre-hearing brief. However, after reading this
brief, the Court is not clear whether counsel was even making the argument that plaintiff could
not sit for extended periods in 2003-04. It may be instead (and the Court concedes that the text is
ambiguous) that counsel was merely stating that plaintiff’s present condition would not allow
him to do any telemarketing jobs in the future. This argument would fit with plaintiff’s theory
that his back pain significantly worsened in 2011. This is another area that should be further
explored on remand. 3
Having concluded that a remand is required on this issue, the Court will not address
plaintiff’s other argument because it may be moot depending on how the ALJ rules on the above

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As for the ALJ’s observation that plaintiff’s jobs before and after the telemarketing job required more strenuous
labor, this fact arguably supports plaintiff’s position because, as plaintiff notes, his work history “predominantly”
consisted of “medium to heavy duty labor” jobs such as factory laborer and construction worker, thus making the
telemarketing job the outlier in the bunch. Dkt. #12 at 1.

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issue and because it would require a longer, more fact-intensive analysis of the plaintiff’s
medical issues.
On remand, the ALJ should consider all the evidence discussed above and resolve these
questions about plaintiff’s telemarketing work. As plaintiff suggests, if the record remains
unclear, the ALJ could further develop the record by, for example, obtaining plaintiff’s
employment records from Hammer Marketing.
For the foregoing reasons, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and this case is remanded for further consideration.

Date: April 19, 2018

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge