Kelly v. Commissioner of Social Security

Filing 24

MEMORANDUM AND OPINION. Plaintiff's motion for summary judgment has been granted. The final order of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 4/28/2015. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRADLEY KELLY,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 14-cv-624-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. §405(g), plaintiff Bradley Kelly is before the
Court, represented by counsel, seeking judicial review of the final agency
decision denying him Supplemental Security Income (SSI) benefits pursuant to
42 U.S.C. §423.
Procedural History
Plaintiff initially applied for benefits in May 2011, alleging disability
beginning on December 31, 2006. (Tr. 18). The claim proceeded to a hearing
before ALJ Stuart T. Janney, who issued an unfavorable decision on February
19, 2013. (Tr.18-27). The Appeals Council denied review, and the decision of
the ALJ became the final agency decision. (Tr. 1). Administrative remedies have
been exhausted and a timely complaint was filed in this court.

This case was referred to the undersigned for final disposition on consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 15.
1

1

Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in making his RFC determination by failing to consider
medical findings and opinions that supported plaintiff’s claim for
benefits.
2. The ALJ erred in his credibility determination.
Applicable Legal Standards
To qualify for SSI, a claimant must be disabled within the meaning of the
applicable statutes. 2 For these purposes, “disabled” means 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).
A “physical or mental impairment” is an impairment resulting from
anatomical,

physiological,

or

psychological

abnormalities

which

are

demonstrable by medically acceptable clinical and laboratory diagnostic
techniques. 42 U.S.C. §423(d)(3). “Substantial gainful activity” is work activity
that involves doing significant physical or mental activities, and that is done for
pay or profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this
case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing
medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB
regulations. Most citations herein are to the DIB regulations out of convenience.

2

2

Appeals has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or
equals one of the listed impairments, then the applicant is
considered disabled; if the impairment does not meet or equal a
listed impairment, then the evaluation continues. The fourth step
assesses an applicant's residual functional capacity (RFC) and
ability to engage in past relevant work. If an applicant can engage
in past relevant work, he is not disabled. The fifth step assesses
the applicant's RFC, as well as his age, education, and work
experience to determine whether the applicant can engage in other
work. If the applicant can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet
or equal one of the listed impairments acknowledged to be conclusively
disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy,
given his or her age, education and work experience. 20 C.F.R. §§ 404.1520;
Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will
automatically be found disabled if he or she suffers from a listed impairment,
determined at step three. If the claimant does not have a listed impairment at
step three, and cannot perform his or her past work (step four), the burden
3

shifts to the Commissioner at step five to show that the claimant can perform
some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984).
See also, Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the
five-step evaluation, an “affirmative answer leads either to the next step, or, on
Steps 3 and 5, to a finding that the claimant is disabled… If a claimant reaches
step 5, the burden shifts to the ALJ to establish that the claimant is capable of
performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the
decision is supported by substantial evidence and that no mistakes of law were
made. It is important to recognize that the scope of review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this
Court must determine not whether plaintiff was, in fact, disabled at the
relevant time, but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were made. See, Books v. Chater, 91
F.3d 972, 977-78 (7th Cir. 1996)(citing Diaz v. Chater, 55 F.3d 300, 306
(7th Cir. 1995)).
The Supreme Court has defined substantial evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In reviewing
for “substantial evidence,” the entire administrative record is taken into
consideration, but this Court does not reweigh evidence, resolve conflicts,
decide questions of credibility, or substitute its own judgment for that of the
4

ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). However, while
judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920,
921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Janney followed the five-step analytical framework described above.
He determined that plaintiff had not been engaged in substantial gainful
activity since his application date. The ALJ found that plaintiff had severe
impairments of spina bifida, cognitive disorder, anxiety disorder, and history of
depressive disorder, not otherwise specified. The ALJ further determined that
these impairments do not meet or equal a listed impairment
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the medium level, with physical and mental limitations. Based
on the testimony of a vocational expert (VE), the ALJ found that plaintiff was
unable to perform his past work, but he could perform other jobs which existed
in significant numbers in the national and local economy. (Tr. 18-27).
The Evidentiary Record
The court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by the plaintiff.
1. Agency Forms
Plaintiff was born in 1966 and was forty years old at his alleged onset
date. (Tr. 111). He was six feet tall and weighed one hundred and forty-five
5

pounds. (Tr. 115). He completed the eighth grade and was enrolled in special
education classes. He previously worked for waste management companies as a
truck driver and garbage collector. (Tr. 116).
Plaintiff submitted a function report in June 2011. He lived in a house
with his mother. (Tr. 131). He stated that his mother took care of him but he
could prepare his own simple meals and was able to take care of his dog. (Tr.
132-33). He had a driver’s license and could go places on his own. He went
outside daily for walks and shopped for necessary items two or three times a
week. (Tr. 134). He had no social activities and was unable to handle his own
finances. (Tr. 134-35). Plaintiff claimed to have difficulty completing tasks,
concentrating, understanding, and following instructions. He could walk three
miles before needing a rest and was not sure how well he could follow
instructions. (Tr. 136). He had difficulty getting along with others and was fired
from every job he had as a result. (Tr. 137).
Plaintiff’s mother also submitted a function report in June 2011. (Tr.
145-51). She stated that her son was a “loner” and had difficulty handling
stress appropriately. (Tr. 146, 151). His only hobbies were reading the Bible,
going to church, and going for walks. (Tr. 149). She felt plaintiff was unable to
handle his own finances and his illnesses were getting worse as he got older.
(Tr. 146).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing on January
7, 2013. (Tr. 33). At the time of the hearing, plaintiff was forty-six years old, six
6

feet tall, and weighed one hundred and fifty pounds. (Tr. 35-36). He completed
the eighth grade and stopped trying to get his GED because he “just couldn’t
do it.” (Tr. 36). He lived with his mother and he did not have health insurance
or a medical card. (Tr. 37).
Plaintiff testified that he previously worked for a waste management
company where he drove trucks and helped load garbage into the trucks. He
stated that the trash cans sometimes weighed over fifty pounds and may have
weighed over one hundred pounds when they were wet from rain or snow. (Tr.
37).
Plaintiff stated he was fired from his job because he could not learn the
route and had problems with his boss. (Tr. 39-40). He felt his comprehension
skills and ability to concentrate were his biggest problems. (Tr. 42, 44). He had
difficulty articulating why he could not work, but stated that he was frequently
distracted and “things get lost” in his mind. (Tr. 43-45).
A vocational expert (VE) also testified that plaintiff’s past work as a garbage
collector and driver was medium or heavy and semiskilled. (Tr. 48-49). The ALJ
asked him to assume a person of plaintiff’s age, education and work
experience, who could do work at the medium exertional level, and could
frequently climb ladders, ramps, stairs, ropes, scaffolding, scoot, and crouch.
Due to moderate difficulties maintaining sustained concentration, persistence
or pace, the person could remember and carry out rote or routine instructions
that would require limited judgment or decision making for two hour work
segments, but could not perform tasks that are complex or detailed in nature.
7

Additionally, the person should work at a task or object-oriented setting as
opposed to a service-oriented setting and could have no work related
interaction with the public. (Tr. 49).
The VE testified that this person could not do plaintiff’s past work as a
garbage truck driver and collector, but he could do other jobs that exist in
significant numbers in the national and regional economy. (Tr. 49-52). The VE
also testified that all available work would be precluded if a person were off
task ten to twelve percent of the workday. (Tr. 51).
3. Medical Record
In 2012, plaintiff received an individualized treatment plan and a
comprehensive

mental

health

assessment

from

Jefferson

County

Comprehensive Services. (Tr. 230-60). In plaintiff’s mental health assessment,
he stated he came to the agency because he had a decreased attention span,
confusion, depression, trouble falling asleep, and was previously diagnosed
with bipolar disorder. (Tr. 235). The record notes that in 1988 plaintiff was
hospitalized for a suicide attempt. (Tr. 238). He stated he was unemployed
because he was easily distracted and was unable to do what he was told. (Tr.
242). He did not take any medications. (Tr. 244). He was diagnosed with
psychosis NOS, borderline intellectual functioning, and assigned a GAF score
of 52. (Tr. 257).
Plaintiff only has one treatment note from Jefferson Country Comprehensive
Services. He was diagnosed with anxiety disorder NOS, cognitive disorder NOS,

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past depressive disorder, alcohol dependence in full remission for sixteen
years, and assigned a GAF score of 55. (Tr. 229).
4. Consultative Examinations
In August 2011, plaintiff had a psychological examination with state agency
psychologist Fred Klug. (Tr. 191-95). Plaintiff’s dress, hygiene, and grooming
were unkempt. He dramatically looked around the room before answering any
questions but he was oriented to time, place, and person. He performed serial
3s with one error through five calculations and was unable to spell “truck”
forward or backwards. His immediate memory and short-term memory were
impaired, he had problems encoding, his long-term memory was marginal, and
his fund of knowledge for remote facts was very restricted. (Tr. 192). Dr. Klug
stated plaintiff’s reasoning, abstract thinking, judgment, and insight were all
poor. (Tr. 139). Plaintiff’s attention span was adequate but concentration was
poor, and his intellectual functioning appeared borderline. (Tr. 194). His affect
was appropriate and his thought processes were goal-directed and relevant.
(Tr. 195).
Plaintiff had a physical consultative examination performed in July 2011 by
internist Raymond Leung, M.D. (Tr. 184-89). Dr. Leung’s diagnostic impression
was spina bifida. Plaintiff’s extension of the lumbar spine was limited to five
degrees and he walked with a minimal waddle. Otherwise, plaintiff’s
examination was normal. (Tr. 186).
5. RFC Assessments

9

State agency psychologist Howard Tin assessed plaintiff’s mental RFC in
August 2011. He reviewed plaintiff’s records but did not examine plaintiff. He
used an agency form that is commonly used for this purpose in social security
cases. (Tr. 212-14). This form is referred to as the Mental Residual Functional
Capacity Assessment, or MRFCA. Section I of the form consists of a list of
mental activities. The consultant is asked to set forth his “summary
conclusions” by checking a box to rate the severity of limitation as to each
activity. He checked the box for “moderately limited” for a number of activities
including the following:
-

Ability to understand and remember detailed instructions;

-

Ability to carry out detailed instructions;

-

Ability to maintain attention and concentration for extended periods

-

Ability to perform activities within a regular schedule, maintain regular
attendance, and be punctual within customary tolerances;

-

Ability to work in coordination with or proximity to others without being
distracted by them;

-

Ability to interact appropriately with the general public, get along with
coworkers or peers without distracting them or exhibiting behavioral
extremes;

-

Ability to set realistic goals or make plans independently of others. (Tr.
212-23).

In section III of the form, the consultant is asked to explain his summary
conclusions in narrative form. Dr. Tin noted plaintiff’s consultative examination
10

results and stated plaintiff had difficulty carrying out detailed instructions and
maintaining attention and concentration for extended periods. He opined that
plaintiff could perform simple tasks and respond to changes in work setting,
but he should not perform work that requires interaction with the general
public. (Tr. 214).
In August 2011, state agency physician C.A. Gotway completed an
assessment of plaintiff’s physical RFC capabilities. (Tr. 217-23). He also
reviewed plaintiff’s records but did not examine plaintiff. He felt plaintiff could
occasionally lift fifty pounds, frequently lift twenty-five pounds, and stand,
walk, and sit for about six hours in an eight hour workday. (Tr. 217).
Additionally, he felt plaintiff could frequently climb ramps, stairs, ladders,
ropes, and scaffolds, stoop, and crouch. (Tr. 218).
Analysis
Plaintiff first argues that the ALJ erred in forming his RFC assessment by
not including additional restrictions regarding plaintiff’s moderate limitations
in concentration, persistence or pace.
Plaintiff argues that the hypothetical posed to the VE is deficient because
it did not account for all of the moderate limitations found by Dr. Tin. Most
notably, he feels that the hypothetical question did not address plaintiff’s
moderate limitations in ability to maintain attention and concentration for
extended periods. Plaintiff also relies on Dr. Klug’s opinion that his ability to
concentrate was poor. (Tr. 194).

11

Plaintiff cites O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir.
2010), a case which is directly applicable. Having accepted the opinion of Dr.
Tin and seemingly accepting the opinion of Dr. Klug, the ALJ was required
under O’Connor-Spinner to include plaintiff’s limitations in ability to maintain
concentration in the hypothetical question posed to the VE. The ALJ asked a
series of hypothetical questions. The question that most closely corresponded
to ultimate RFC findings included mental limitations of “rote or routine
instructions that would require the exercise of limited judgment or decision
making for two-hour work segments.” (Tr. 49).
In O’Connor-Spinner, the Seventh Circuit held that, “In most cases…
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.” O’Connor-Spinner, 627
F.3d at 620. The reason for this holding is that there is a distinction between
“the ability to stick with a given task over a sustained period” and “the ability
to learn how to do tasks of a given complexity.” Ibid. ALJ Janney made an
effort to address both the complexity of task and the sustained period of time
by limiting it to rote or routine instructions requiring limited judgment or
decision making for two-hour time segments. (Tr. 49).
That being said, the RFC assessment is still fatally flawed because there
is a complete lack of evidence and analysis supporting the determination that
plaintiff could stay focused for two hours at a time. In fact, the ALJ included

12

the two-hour restriction in the summary of the RFC assessment (Tr. 23), but
never mentioned it again. (See Tr. 18-27).
In an attempt to save the RFC assessment, the Commissioner argues
that it is supported by the opinions of Dr. Klug and Dr. Tin. It is true that both
doctors opined that plaintiff’s attention span was adequate to complete simple
tasks. However, neither doctor indicated that he could stick with those tasks
for two hours at a time (Tr. 210, 214). See O’Connor-Spinner, 627 F.3d at
620, "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."); Walters v.
Astrue, 444 F. App'x 913, 918 (7th Cir. 2011) (noting that an individual with
an attention span that is "adequate to attend to a simple work routine" does
not necessarily have "the ability to concentrate on that routine for very long");
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(C)(3) (explaining that an
individual able to complete a variety of simple tasks may still have limitations
in concentration, persistence, or pace because they need extra supervision or
assistance, their work is below quality and accuracy standards, or they are
unable to work without unreasonable rest periods, undue interruptions, or
undue distractions).
The only thing in the ALJ's decision that could possibly be considered as
evidence supporting the two-hour restriction is the ALJ's finding that during
plaintiff’s consultative examination with Dr. Klug "[h]is attentional span was
adequate" (Tr. 24). However, the ALJ failed to describe how plaintiff’s ability to
pay attention to Dr. Klug’s questions for 45 minutes during a structured,
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interactive psychological examination translates into an ability to maintain
focus in a work setting for twice as long without any supervision or prompting
to bring him back to task. Simply put, there is no evidence or analysis the
Court can see supporting the two-hour restriction. This is error. See, SSR 96-8
at *7, Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009).
Furthermore, this Court agrees with plaintiff that the two-hour
restriction does not sufficiently address the amount of lost work time plaintiff
could

be

expected

to

experience

due

to

his

moderate

limitation

in

concentration, persistence, or pace. In other words, even if plaintiff could stay
focused for a two-hour interval, he might still lose 10-12% of the workday
taking rest breaks or becoming distracted between intervals. The VE testified
that if plaintiff was off-task for as little as 10-12% of the workday he would be
unemployable (Tr. 51). On remand, the ALJ should be sure to adequately
address how plaintiff’s limitation in concentration, persistence, or pace
translates into lost work time.
The ALJ is “required to build a logical bridge from the evidence to his
conclusions.” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009). The ALJ
needed to explain how two-hour work segments would account for plaintiff’s
moderate limitations in concentration, persistence or pace. ALJ Janney simply
failed to do so here. “If a decision ‘lacks evidentiary support or is so poorly
articulated as to prevent meaningful review,’ a remand is required.” Kastner v.
Astrue, 697 F.3d 642, 646 (7th Cir. 2012), citing Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002).
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It is not necessary to address plaintiff’s other points at this time. The
Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Mr. Kelly is disabled or
that he should be awarded benefits. On the contrary, the Court has not formed
any opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
Plaintiff’s Motion for Summary Judgment (Doc. 16) is GRANTED. The
Commissioner’s final decision denying Bradley Kelly’s application for social
security

disability

benefits

is

REVERSED

and

REMANDED

to

the

Commissioner for rehearing and reconsideration of the evidence, pursuant to
sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE: April 28, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

15