Merod v. Commissioner of Social Security

Filing 20

MEMORANDUM AND OPINION. The Commissioner's final decision 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 7/20/2016. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JACK T. MEROD,

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

Civil No. 15-cv-559-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Jack Merod is before the
Court, represented by counsel, seeking review of the final decision of the
Commissioner of Social Security denying him Disability Insurance Benefits
(DIB).
Procedural History
Plaintiff applied for benefits on March 17, 2011, alleging disability
beginning on August 9, 2010. (Tr. 10-20). ALJ Robert S. Robison held an initial
evidentiary hearing on May 2, 2013 and thereafter found plaintiff to be disabled
in a decision dated July 8, 2013. (Tr. 67-115, 127-32). The Appeals Council
determined this finding was unsupported by substantial evidence and reversed
the ALJ’s decision. (Tr. 134-37). After holding a second evidentiary hearing,

1

This case was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 7.

1

ALJ Robison denied plaintiff’s application in a written decision dated June 9,
2014. (Tr. 10-20). 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.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in forming plaintiff’s RFC by failing to account for
plaintiff’s deficiencies in concentration, persistence, or pace.
2. The ALJ erred by relying upon vocational expert testimony that was in
response to hypothetical questions that failed to include the taskcomplexity element of the RFC finding.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of
the applicable statutes. 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
2

determine whether a claimant is disabled.

The Seventh Circuit Court of

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
3

step three, and cannot perform his or her past work (step four), the burden
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)). This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 91 S. Ct. 1420,
1427 (1971).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
4

conflicts, decide questions of credibility, or substitute its own judgment for that
of the 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 Robison followed the five-step analytical framework described above.
He determined that plaintiff had not been engaged in substantial gainful
activity since his alleged onset date. He found that plaintiff had severe
impairments of depression with psychosis, anxiety with panic attacks, and
untreated hypertension. The ALJ further determined these impairments do not
meet or equal a listed impairment. (Tr. 22).
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform a full range of work at all exertional levels, but with physical and
mental limitations. (Tr. 14). Based on the testimony of a vocational expert (VE),
the ALJ found that plaintiff was not able to perform his past work. (Tr. 19).
However, he was not disabled because he was able to do other jobs which exist
in significant numbers in the regional and national economies. (Tr. 19-20).
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 plaintiff.
1. Agency Forms
5

Plaintiff was born on June 9, 1952, and was fifty-eight years old on the
alleged onset date of August 9, 2010. He was insured for DIB through March
31, 2018. (Tr. 328). He completed three years of college and had specialized
training in heating and cooling systems. Prior to plaintiff’s alleged onset date,
he performed maintenance work at a grocery store for fifteen years. (Tr. 332).
Plaintiff claimed that his schizophrenia, depression, anxiety, panic disorder,
high blood pressure, and hemorrhoids limited his ability to work. (Tr. 331). He
took Citalopram and Fluoxetine for depression, Haloperidol for schizophrenia,
and Hydrochlorothiazide for high blood pressure. (Tr. 334, 367).
Plaintiff completed function reports in May and August of 2011. (Tr. 346-51,
371-76). He stated that he woke up around 7:30 a.m., ate, took his medication,
and then went for a half mile walk. (Tr. 346, 371). He did not cook and his wife
performed most of the household chores. (Tr. 347, 372). He was able to drive,
shop for groceries, and handle his finances. (Tr. 348, 373). Plaintiff read,
listened to the radio, and spent time with his wife, but he was no longer able to
go fishing or boating. (Tr. 348-49, 373-74). Plaintiff claimed to have difficulty
lifting, squatting, bending, sitting, kneeling, hearing, remembering, completing
tasks, concentrating, understanding, following instructions, and getting along
with others. (Tr. 349-50, 374-75). He stated that he needed to write down
spoken instructions as a result of his memory problems. He was fired from a
previous job for arguing with coworkers and could not concentrate when he
was stressed. (Tr. 350, 375).

6

In April 2011, plaintiff’s wife also completed a function report. (Tr. 338-45).
She stated that plaintiff had difficulty concentrating and he quickly lost
interest in any activity he performed. (Tr. 338). Plaintiff’s wife stated that on a
daily basis, plaintiff ate breakfast, completed a puzzle, read the sports page in
the newspaper, goes for a walk, ate lunch, used his computer, ate dinner, and
watched television. (Tr. 339). Plaintiff helped care for their dog and was able to
prepare simple meals. (Tr. 339-40). She stated that plaintiff went to sleep early
but he was not able to stay asleep. (Tr. 339). Plaintiff’s wife noted that plaintiff
could perform most household chores but he did not perform them because he
had no interest. (Tr. 340). Plaintiff could drive, was able to shop in stores, and
could handle the finances. (Tr. 341). She stated plaintiff had difficulty
remembering,

completing

tasks,

concentrating,

understanding,

following

instructions, and getting along with others. (Tr. 343).
2. Evidentiary Hearings
Plaintiff had two evidentiary hearings. He was not represented by an
attorney at his first hearing on May 2, 2013. (Tr. 67-115). Plaintiff stated he
understood his rights to representation and that he wanted to represent
himself at the hearing. (Tr. 72-5). He was sixty years old at the time of the
hearing, five feet seven inches tall, and weighed one hundred and sixty-seven
pounds. (Tr. 79). Plaintiff completed five years of college but did not obtain a
degree. (Tr. 82). He last worked on August 9, 2010 and had training in heating,
cooling, and refrigeration. (Tr. 71, 78). He felt that mental fatigue kept him

7

from obtaining a job similar to his previous work, and his memory problems
made him unable to perform a different type of job. (Tr. 103).
Plaintiff stated that the majority of his problems were related to mental
illness and not physical ailments. (Tr. 80-81). He did not have health insurance
and went to free clinics when he needed medical care. (Tr. 81). He testified that
he needed more mental health treatment but he did not need more care for his
physical impairments. (Tr. 81-82). He was taking Celexa and Flexeril at the
time of the hearing. (Tr. 68). He stated that he did not have difficulty dealing
with people on a short term basis but he had a history of anger issues at work.
(Tr. 88-89).
Plaintiff testified that he woke up every day around 6 a.m., ate breakfast,
and went for a mile and a half walk. (Tr. 87). He read the sports page of the
newspaper regularly and used the computer to play card games. (Tr. 84-85). He
prepared cereal and coffee for himself every morning. (Tr. 93). He was able to
perform household chores but his wife typically performed those tasks. (Tr. 9394). His dog died two years ago and he could not afford to get another. (Tr. 87).
A vocational expert (VE) also testified. (Tr. 104-09). The ALJ asked the VE a
series of hypothetical questions. (Tr. 105-09). At the end of the hearing the ALJ
stated

that

he

wanted

a

fully

developed

record

before

making

his

determination. The ALJ set up a mental consultative examination and an
internal medicine examination to address all of plaintiff’s potential ailments.
(Tr. 110-12).

8

Plaintiff had a second evidentiary hearing on June 2, 2014 after his initial
decision was vacated by the Appeals Council. (Tr. 26-64). Plaintiff was
represented by an attorney at his second hearing. (Tr. 28). Plaintiff testified
that his source of income at the time of this hearing was a social security
check. (Tr. 30). He was sixty-two years old at the time of the hearing. (Tr. 35).
Plaintiff testified that he was helping care for his father in Florida. He drove
down to see him several times in the previous year. (Tr. 32). However, he took
the MetroLink to the hearing because he did not like driving in cities. (Tr. 37).
He had difficulty with loud noises and installed Plexiglas over his windows to
reduce the volume of external noise. (Tr. 46).
Plaintiff’s records indicated he had a history of schizophrenia, anxiety,
depression, and high blood pressure. (Tr. 30-31). At the time of the hearing, he
was taking Latuda for depression and Cyclobenzaprine as a muscle relaxer. (Tr.
34). He had to take his medications in the afternoon because they made him
drowsy. (Tr. 44). He stated that he mowed the lawn but his wife performed
most of the household chores. (Tr. 35). He felt he was unable to concentrate
adequately enough to read books, newspapers, or magazines. (Tr. 38). He
talked to his sons about once a month each, and saw one of his friends once a
week. Plaintiff stated that he cried about once a week because of his
depression. (Tr. 43-44).
The ALJ noted that plaintiff’s medical record indicated that at the time of his
previous hearing he was not taking his medication as prescribed so that he

9

would be more depressed at the hearing. (Tr. 52-53). Plaintiff stated that he
occasionally tried to overcome his issues without medication. (Tr. 53).
A VE also testified at plaintiff’s second hearing. (Tr. 54). The ALJ asked the
VE a hypothetical question where a person of plaintiff’s age, educational level,
and work experience could perform work at all exertional levels. However, the
person could never climb ladders, ropes, or scaffolds; could only have
occasional interaction with the general public; could have no negotiation,
supervision of others, mediation, arbitration, or dealing with customer
complaints; and needed to have tacit instructions with an SVP:2 or less. (Tr.
58). The VE testified that this person could not perform plaintiff’s previous
work. However, he could perform jobs that existed in significant numbers in
the national economy. Examples of such jobs are stacker, garment sorter, and
inspector. (Tr. 58-59). The VE testified that if the person was restricted to no
interaction with the general public the jobs would remain. (Tr. 59).
3. Medical Evidence
Plaintiff’s records begin in July 2010 with Dr. Doug Despain. Plaintiff had
stopped taking his prescription for Celexa because he did not think it helped
him. He reported anxiety, light-headedness, and headaches. Dr. Despain
advised plaintiff to perform some range of motion exercises and follow-up in a
month. (Tr. 407). In August 2010, plaintiff was fired from his job and he
reported sadness, anxiety, and occasionally had suicidal ideation. When Dr.
Despain asked how plaintiff would commit suicide plaintiff stated he would
shoot himself. Dr. Despain advised plaintiff to call 911 if he ever truly
10

contemplated suicide, and prescribed plaintiff Wellbutrin. (Tr. 406). Plaintiff’s
records contain an eight point letter plaintiff wrote about his time working at
Schnuck’s Markets. The letter is not entirely understandable and alleges that
plaintiff’s coworkers created a conspiracy to have plaintiff fired. (Tr. 409-10).
Plaintiff saw Dr. Despain two more times on record. In September 2010,
plaintiff reported thinking the Wellbutrin had helped and his depression was
getting better. However, in February 2011, plaintiff presented to Dr. Despain
upset and tearful about his firing and blamed Dr. Despain. He was having
suicidal ideation again and Dr. Despain had plaintiff’s wife come to the
appointment and take plaintiff to the emergency room. (Tr. 404). Plaintiff was
admitted to the psychiatric unit at St. Elizabeth’s hospital for four days. (Tr.
413-30). Plaintiff reported having insomnia, poor concentration, anhedonia,
crying spells, and hopelessness. He was diagnosed with major depression with
psychotic features, potentially schizophrenia of a chronic undifferentiated type,
and chronic mental illness. He was assigned a GAF score of 30. 2 (Tr. 413, 416).
Plaintiff stated he did not want to see Dr. Despain again and the doctors at the
hospital started plaintiff on Prozac. They also provided plaintiff a referral for a
psychiatrist, Dr. Christopher Johnson, at Windsor Care. (Tr. 414).
Plaintiff began regularly seeing Dr. Johnson in March 2011. (Tr. 461). Dr.
Johnson diagnosed plaintiff with major depression, recurrent and severe and
2

The GAF is determined on a scale of 1 to 100 and reflects the clinician’s judgment of an individual’s
overall level of functioning, taking into consideration psychological, social, and occupational functioning.
Impairment in functioning due to physical or environmental limitations are not considered. American
Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision
32-33 (4th ed. 2000); Although the American Psychiatric Association recently discontinued use of the GAF
metric, it was still in use during the period plaintiff’s examinations occurred.

11

prescribed Celexa. He also referred plaintiff to therapy and discussed a safety
plan if plaintiff had suicidal thoughts again. (Tr. 462). Plaintiff had several
appointments with Dr. Johnson through November 2013. (Tr. 463-65, 493509). Plaintiff’s depressive symptoms repeatedly would improve, plaintiff would
stop taking his medications, and then he would become severely depressed
again. (Tr. 463-65, 493, 499, 501). Dr. Johnson regularly prescribed Celexa,
and diagnosed plaintiff with major depression recurrent and severe. (Tr. 493,
499, 502). Plaintiff occasionally had rambling thoughts, tangential speech,
paranoid thoughts, blunted affect, and decreased insight. (Tr. 493-99).
In October 2013, plaintiff was again admitted to St. Elizabeth’s hospital
psychiatric unit for psychosis and suicidal ideation. (Tr. 516-31). On discharge,
he was diagnosed with severe recurrent major depression with psychotic
features and the doctors indicated paranoid schizophrenia could not be ruled
out. He was prescribed several medications and was directed to follow up with
Dr. Johnson and to contact a mental health institution for counseling. (Tr.
529).
4. Consultative Examination
Plaintiff had his first psychological consultative examination in June 2011.
(Tr. 430-34). State agency psychologist Gregory Rudolph performed the
examination and opined that plaintiff was capable of managing his financial
resources but his prognosis and insight were limited. (Tr. 430). Plaintiff’s mood
and affect were appropriate and he was oriented to reality. His memory,
information, and judgement were adequate. (Tr. 432). Dr. Rudolph’s diagnoses
12

were major depressive disorder with suicidal ideation, anxiety disorder with
panic attacks, and a GAF score of 50. (Tr. 430).
Plaintiff underwent a second psychological consultative examination in
March 2013 with Dr. Harry J. Deppe. (Tr. 472-79). Dr. Deppe found that
plaintiff had mild restrictions in his ability to understand, remember, and carry
out simple instructions; to make judgments on simple work-related decisions;
and to interact appropriately with the public. Dr. Deppe opined that plaintiff
had moderate restrictions in his ability to understand, remember, and carry
out complex instructions; to make judgments on complex work-related
decisions; to interact appropriately with supervisors and coworkers; and to
respond appropriately to usual work situations and changes in a routine work
setting. (Tr. 477-78). Dr. Deppe’s diagnoses were psychosis, brief episode, in
remission and major depression, single episode. (Tr. 475).
Plaintiff had a physical consultative examination in May 2013 with Dr.
Vittal Chapa. (Tr. 481-92). He felt plaintiff could occasionally lift or carry up to
one hundred pounds and frequently carry anything under fifty pounds. (Tr.
481). Dr. Chapa stated that plaintiff could sit for eight hours out of an eight
hour work-day, stand for six hours in an eight hour work-day, and walk for
three hours in an eight hour work-day. (Tr. 482). Dr. Chapa opined that
plaintiff could perform all other postural activities frequently. (Tr. 483-86). His
diagnostic impressions were vague abdominal pain of an unknown etiology and
a decreased range of motion in the right shoulder. (Tr. 490).
5. RFC Assessments
13

State agency psychologist Howard Tin assessed plaintiff’s mental RFC in
June 2011. (Tr. 449-51). He reviewed plaintiff’s records but did not examine
plaintiff. He found that plaintiff was moderately limited in his ability to
understand and remember detailed instructions; maintain attention and
concentration for extended periods; perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances;
work in coordination with or proximity to others without being distracted by
them; and to interact appropriately with the general public. (Tr. 449-50).
State agency physician Julio Pardo, M.D. assessed plaintiff’s physical RFC
in June 2011. (Tr. 454-60). He also reviewed medical records but did not
examine plaintiff. He believed plaintiff could occasionally lift and carry fifty
pounds, and frequently lift or carry twenty-five pounds. He felt plaintiff could
sit, stand, or walk for a total of six hours out of an eight hour workday. (Tr.
454). He did not find any other limitations regarding plaintiff’s physical
capabilities. (Tr. 454-60).
Analysis
Plaintiff claims the ALJ erred in failing to account for plaintiff’s moderate
difficulties in concentration, persistence, or pace within the RFC assessment.
Plaintiff also argues that the ALJ erred by relying upon vocational expert
testimony that was in response to hypothetical questions that failed to include
the task-complexity element of the RFC finding.
A claimant’s RFC is “the most [the claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). In other words, RFC is the
14

claimant’s “maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis,” which means eight
hours a day for five days a week, or an equivalent work schedule. Social
Security Ruling 96-8P, 1996 WL 374184, at *2 (July 2, 1996) (“S.S.R. 968P”); Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013).
In assessing a claimant’s RFC, the ALJ must consider all of the relevant
evidence in the record, and provide a “narrative discussion” that cites to
specific evidence and describes how that evidence supports the assessment.
The ALJ’s analysis and discussion should be thorough and “[s]et forth a logical
explanation of the effects of the symptoms, including pain, on the individual’s
ability to work.” S.S.R. 96-8, at *5, 7. Additionally, the Seventh Circuit has
held that an ALJ’s assessment must evaluate “evidence of impairments that are
not severe” and “must analyze a claimant’s impairments in combination.”
Arnett v. Astrue, 676 F.3d 586, 591-92 (7th Cir. 2012), Terry v. Astrue,
580 F.3d 471, 477 (7th Cir. 2009), Craft v. Astrue, 539 F.3d 668, 676 (7th
Cir. 2008).
Plaintiff presents several arguments regarding the ALJ’s consideration of
plaintiff’s deficits in concentration, persistence, or pace. First, plaintiff
contends that that the ALJ failed to specify which of the three aspects of
functioning (concentration, persistence, or pace) were limited within his finding
of a moderate impairment. The Commissioner states that it was unnecessary
for the ALJ to parse out the specific areas of concentration, persistence, or pace
where

plaintiff

had

moderate

limitations.
15

She

notes

that

the

ALJ’s

determination as to whether plaintiff has limitations in concentration,
persistence, or pace is a threshold inquiry that relates to whether plaintiff has
a severe mental impairment. If a claimant has more than a mild limitation in a
general area, then they are considered to have a severe mental impairment. If
an impairment is severe, the ALJ then has to determine if it meets or is
equivalent in severity to a listed mental disorder. If the impairment does not
meet or equal a listing, then the ALJ is required to assess the claimant’s RFC.
20 C.F.R. 404.1520a(a)-(e). The Commissioner argues that the ALJ followed
these steps appropriately and committed no error.
The Court agrees with the Commissioner’s claim that the ALJ did not
need to specify which limitation under concentration, persistence, or pace
plaintiff suffered from in his analysis. His determination that plaintiff had a
moderate limitation merely meant that he must account for this within
plaintiff’s RFC assessment if the impairments did not equal a listing. However,
the Court disagrees with the Commissioner’s statement that the ALJ made no
error in his ultimate RFC assessment. Plaintiff’s argument that the ALJ did not
appropriately include a functional deficit within his RFC assessment that is
attributable

to

plaintiff’s

moderate

impairments

within

concentration,

persistence, or pace is well taken.
Plaintiff cites the Seventh Circuit’s recent opinions in O’Connor-Spinner
v. Astrue and Yurt v. Colvin to support his claim that the RFC’s restrictions
were not sufficient for plaintiff’s deficits in concentration, persistence, or pace.
627 F.3d 614 (7th Cir. 2010); 758 F.3d 850 (7th Cir. 2014); 794 F.3d 809
16

(7th Cir. 2015). In O’Connor-Spinner, the Court found that the ALJ needed to
orient the VE to all of a claimant’s limitations, including deficiencies in
concentration, persistence, or pace. The Court stated that there is no per se
requirement that the phrase "concentration, persistence and pace" be used in
the hypothetical, but it went on to hold that the restriction to simple, repetitive
tasks is not an adequate substitute because it "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 620-21.
In Yurt, the Court stated "[W]e have repeatedly rejected the notion that a
hypothetical like the one here confining the claimant to simple, routine tasks
and limited interactions with others adequately captures temperamental
deficiencies and limitations in concentration, persistence, and pace." Yurt, 758
F.3d at 859. Under Yurt and O'Connor-Spinner, if a claimant has moderate
limitations

in

maintaining

concentration,

persistence

and

pace,

those

limitations must be spelled out in the RFC assessment and in the hypothetical
question posed to the VE.
The Commissioner argues that the ALJ’s findings were in line with the
reviewing state agency physicians’ opinions and that the restrictions the ALJ
posed in his hypotheticals encapsulated all of plaintiff’s limitations. Dr. Tin
found

that

plaintiff

had

difficulty

carrying

out

detailed

instructions,

maintaining attention and concentration for extended periods, and should have
no interaction with the general public. He also stated that plaintiff could
perform simple tasks and could respond appropriately to changes in work
17

settings. (Tr. 451). Dr. Deppe found that plaintiff had moderate limitations in
his abilities to understand, remember, carry out, or make judgments regarding
complex instructions. Dr. Deppe stated plaintiff could manage simple
instructions but he had moderate limitations in interacting with coworkers and
supervisors. (Tr. 477).
The ALJ’s RFC limited plaintiff to simple and routine tasks with an SVP
of 2, and only occasional interaction with the general public and no
negotiation, supervision of others, arbitration, or dealing with customer
complaints. The ALJ incorporated most of the state agency doctors’ opinions
within

this

RFC.

However,

plaintiff’s

limitations

with

concentration,

persistence, or pace were not automatically taken care of because the state
agency physicians indicated plaintiff could perform simple tasks. As noted
above, the restriction of simple, routine tasks and limited interactions with
others does not inherently “capture temperamental deficiencies and limitations
in concentration, persistence, and pace.” Yurt, 758 F.3d at 859. When the
ALJ

determined

plaintiff

had

a

moderate

difficulty

in

concentration,

persistence, or pace, he was required to explain how they factored into his RFC
assessment. His failure to do so is error.
Further, in line with plaintiff’s final point, even if the ALJ had
appropriately incorporated all of plaintiff’s restrictions and adequately formed
his RFC, the question he presented to the VE was fundamentally different than
the RFC assessment the ALJ found in the end. The question the ALJ presented
to the VE had a restriction of tacit instructions with an SVP of 2 or less. The
18

ALJ’s final RFC assessment included a limitation of simple and routine tasks
with an SVP of 2 or less. While both contain the requirement for an SVP of 2 or
lower, tacit does not implicitly equal simple and routine, and limitations
involving instructions are not the same as limitations involving tasks. The plain
meanings of these restrictions are different and could lead to a change in how
the VE assessed plaintiff’s work prospects.
As an example of this, plaintiff notes that one of the jobs the VE
determined plaintiff was capable of performing, stacker, has an SVP 2 but also
requires the ability to carry out detailed but uninvolved written or oral
instructions. The Seventh Circuit has held that hypothetical questions must
orient the vocational expert to the totality of a claimant’s limitations. O’ConnorSpinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010). The Court agrees with
plaintiff that task complexity is a significant vocational factor and the ALJ’s
failure to orient the VE to limitations of simple and routine tasks in his
hypothetical is error.
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). ALJ
Robison 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).
The Court wishes to stress that this Memorandum and Order should not
be construed as an indication that the Court believes that plaintiff is disabled
19

or that she 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
The Commissioner’s final decision denying Jack Merod’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).
IT IS SO ORDRED.
DATE: July 20, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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