Stevenson v. Commissioner of Social Security

Filing 27

MEMORANDUM AND ORDER, The Commissioner's final decision denying Ernest Stevenson's application for DIB and SSI 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. Signed by Judge J. Phil Gilbert on 6/29/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERNEST STEVENSON,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.1

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Case No. 16-cv-698-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Ernest Stevenson, represented by counsel,
seeks judicial review of the final agency decision denying his application for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Mr. Stevenson applied for benefits in October 2011 alleging disability beginning on
September 26, 2011. He later amended his alleged date of onset to April 23, 2014. After holding
an evidentiary hearing, ALJ Bradley L. Davis denied the application on February 11, 2015. (Tr.
28-38.) The Appeals Council denied review, and the decision of the ALJ became the final agency
decision subject to judicial review. (Tr. 10.)
Administrative remedies have been exhausted and a timely complaint was filed in this
Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

1

The ALJ failed to account for plaintiff’s limitations in ability to maintain
concentration, persistence or pace in assessing plaintiff’s mental residual functional

Nancy A. Berryhill is now the Acting Commissioner of Social Security. See https://www.ssa.gov/agency/
commissioner.html (visited Feb. 7, 2017). She is automatically substituted as defendant in this case. See Fed. R.
Civ. P. 25(d); 42 U.S.C. § 405(g).

capacity (RFC).
2.

The hypothetical question posed to the vocational expert (VE) did not include all
limitations found by the ALJ in his RFC assessment.
Applicable Legal Standards

To qualify for DIB or SSI benefits, a claimant must be disabled within the meaning of the
applicable statutes. In this context, “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).2
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 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
2

The statutes and regulations pertaining to 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.

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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.
Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008); accord Weatherbee v. Astrue, 649 F.3d 565,
568-69 (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, 512-13
(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 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
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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, 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 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 Davis followed the five-step analytical framework described above. He determined
that plaintiff had not worked since April 23, 2014. He was insured for DIB through December 31,
2017.3
Plaintiff had initially alleged disability as of September 26, 2011, but changed the date of
onset to April 23, 2014. On that date, “he began alcohol rehabilitation, and his mental limitations
were no longer drug and alcohol related.” (Tr. 28.)
The ALJ found that plaintiff had severe impairments of osteoarthritis, degenerative disc
disease of the lumbar spine, and depression, and that these impairments do not meet or equal a
3

The date last insured is relevant only to the claim for DIB.

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listed impairment. At this step, the ALJ determined that plaintiff had moderate difficulties in both
social functioning and ability to maintain concentration, persistence or pace.
The ALJ found that Mr. Stevenson had the RFC to perform work at the light exertional
level with some physical and mental limitations. The mental limitations were that plaintiff was
limited to simple, repetitive and routine tasks; only occasional interactions with co-workers and
the general public; and only occasional changes in a routine work setting.
Based upon the testimony of a VE, the ALJ found that plaintiff was not able to do his past
relevant work. However, he was not disabled because he was able to do other jobs that exist in
significant numbers in the regional and national economies.
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 and is confined to the relevant time period.
1.

Agency Forms

Plaintiff was born in 1965 and was 48 years old on the amended date of onset. (Tr. 282.)
He had worked in the past as a cook and an assistant manager in a fast food restaurant and as a
laborer for a temp agency. (Tr. 287.)
2.

Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing on January 14, 2015.
(Tr. 47.)
Plaintiff testified that he was unable to work because of depression. He was hospitalized
on April 23, 2014, the amended date of onset, because of suicidal thoughts. He had been treated
for depression by a therapist and a nurse practitioner at Chestnut Health Systems, and he qualified
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for housing through Chestnut because of his mental condition. A case manager from Chestnut
checked on him once a week to make sure he was taking his medicine, eating right and keeping
doctors’ appointments. She also took him to the store and arranged for any classes he might need
at Chestnut. (Tr. 52-55.) He was living in transitional housing. (Tr. 61.)
A VE also testified. The ALJ asked her a hypothetical question that corresponded to the
ultimate RFC findings. The VE testified that this person could not do plaintiff’s past work.
However, there were other jobs that he could do. (Tr. 66-67.)
If the person would also be off-task up to twenty percent of the workday, he would not be
able to work, according to the VE. (Tr. 67.)
3.

Medical Records

In view of the issues raised, a brief summary of the medical records following the amended
onset date will suffice.
Plaintiff was hospitalized at Touchette Regional Hospital from April 23, 2014, through
April 30, 2014. He was diagnosed with major depression, recurrent, severe; alcohol use disorder;
cocaine use disorder; and seizure disorder. He was homeless and had a history of two past suicide
attempts. He was put on the alcohol detox program. He was discharged to Chestnut Crisis. (Tr.
704, 707.)
On May 6, 2014, plaintiff was assessed by an Advanced Practice Nurse at Chestnut Health
Systems. He was an inpatient in a crisis residential unit. She diagnosed major depressive
disorder with psychotic features and alcohol dependency, in remission. She continued his current
medications of Celexa, Dilantin, Remeron, and Trazodone. (Tr. 694-99.)
The Advanced Practice Nurse continued to see him and to prescribe psychiatric
medications.

(Tr. 790-99.)

He also received counselling and supportive services through
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Chestnut. (841-1067.)
Carmen Boeser, Ph.D., performed a consultative psychological exam in June 2014.
Plaintiff reported a long history of problems with alcohol. He had last used alcohol in April 2014,
before he was hospitalized for suicidal ideation. He was currently attending a twelve step
program. He had been diagnosed with depression in 2000. He had been homeless on and off for
years and was currently living in a transitional homeless shelter.
concentrating and with task persistence.

He reported problems

She noted that he “loses focus easily” but his

concentration was “[a]dequate during the course of examination with redirection.”

She

diagnosed major depressive disorder, recurrent, and alcohol dependence in early remission. (Tr.
712-15.)
4.

Dr. Boeser’s Opinion

Dr. Boeser completed a form entitled “Medical Source Statement of Ability to do
Work-Related Activities (Mental).” This form asked her to assess plaintiff’s limitations in two
areas: ability to understand, remember and carry out instructions; and ability to interact with
other people and respond to changes in the work setting. Dr. Boeser indicated that he was
moderately limited in ability to understand and remember complex instructions and to make
judgments on complex work-related decisions. The form did not ask the doctor to assess
limitations in maintaining concentration, persistence and pace. (Tr. 716-18.)
Analysis
The ALJ’s RFC assessment and the hypothetical question posed to the VE must both
incorporate all of the limitations that are supported by the record. Yurt v. Colvin, 758 F.3d 850,
857 (7th Cir. 2014). This is a well-established rule. See Stewart v. Astrue, 561 F.3d 679, 684 (7th
Cir. 2009) (collecting cases). If the ALJ finds that a plaintiff has a moderate limitation in
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maintaining concentration, persistence or pace, that limitation must be accounted for in the
hypothetical question posed to the VE; in most cases, limiting the plaintiff to simple, repetitive
tasks or to unskilled work is not sufficient to account for moderate concentration difficulties.
O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010).
Here, the ALJ found that plaintiff had moderate difficulties in maintaining concentration,
persistence or pace. (Tr. 32.) He made this finding at step three of the sequential analysis when
determining whether plaintiff’s mental impairments meet or equal a listed impairment. He noted
that, while the step three determination is not a mental RFC assessment per se, the ultimate RFC
assessment “reflects the degree of limitation the undersigned has found in the ‘paragraph B’
mental function analysis.” (Tr. 32.) However, neither the hypothetical question posed to the VE
nor the RFC assessment mentioned a limitation in concentration, persistence or pace. Rather, the
ALJ limited plaintiff to “simple, repetitive and routine tasks,” occasional interactions with
co-workers and the public, and occasional changes in a routine work setting.
Immediately after stating that plaintiff had moderate difficulties with regard to
concentration, persistence or pace, ALJ Davis stated that plaintiff was limited to simple, repetitive
tasks and only occasional changes. This suggests that ALJ Davis believed that plaintiff’s
difficulties in maintaining concentration, persistence or pace were accommodated by those
limitations. The ALJ discussed Dr. Boeser’s exam and report at Tr. 35, but did not mention her
observation that plaintiff loses focus but concentration was adequate with redirection.
The Seventh Circuit has repeatedly held, with exceptions not applicable here, that a
limitation to simple, repetitive tasks or unskilled work does not adequately account for a moderate
limitation in maintaining concentration, persistence or pace. In Stewart, a case decided in 2009,
the Court observed, “The Commissioner continues to defend the ALJ’s attempt to account for
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mental impairments by restricting the hypothetical to ‘simple’ tasks, and we and our sister courts
continue to reject the Commissioner’s position.” Stewart, 561 F.3d at 685. The Court has
reaffirmed that position several times in recent years. O’Connor-Spinner, 627 F.3d at 620; Yurt v.
Colvin, 758 F.3d 850, 857 (7th Cir. 2014); Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015);
Taylor v. Colvin, 829 F.3d 799, 802 (7th Cir. 2016).
The Commissioner defends the ALJ’s decision by arguing that the category on the form
filled out by Dr. Boeser that is “most closely analogous to any limitation in concentration,
persistence, or pace is the ability to carry out tasks.” She argues that Dr. Boeser’s answers on the
form can be read to indicate that plaintiff has no problems with concentration, persistence or pace
as long as the task is simple. Doc. 26, pp. 4-5.
There are several problems with the Commissioner’s argument. First, the agency asked
Dr. Boeser to complete a Medical Source Statement and not the usual Mental Residual Functional
Capacity Assessment form (Form SSA-4734-SUP) that is commonly used where a claimant
alleges mental limitations. Unlike the Mental RFC Assessment form, the form furnished to Dr.
Boeser did not explicitly require Dr. Boeser to evaluate plaintiff’s ability to maintain
concentration, persistence or pace. The Commissioner’s argument assumes, without any support
in the language of the form or in Dr. Boeser’s remarks, that ability to carry out tasks is analogous to
ability to maintain concentration, persistence or pace. However, this assumption is contrary to
well-established Seventh Circuit precedent cited above.

In addition, the ALJ (and the

Commissioner) ignored Dr. Boeser’s observation that plaintiff loses focus and required
“redirection.”
The bottom line here is that the ALJ found that Mr. Stevenson had moderate difficulties in
maintaining concentration, persistence or pace. It is true, as the Commissioner points out, that he
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made this finding at step three. Regardless, he represented that the RFC assessment would reflect
the degree of limitation that he found at that step. Binding Seventh Circuit precedent establishes
that a limitation to simple, routine tasks or to unskilled work does not adequately account for a
moderate limitation in maintaining concentration, persistence or pace.
The ALJ’s assessment of plaintiff’s RFC was not supported by substantial evidence.
Therefore, this case must be remanded to the Commissioner for rehearing. The Court wishes to
stress that this Memorandum and Order should not be construed as an indication that the Court
believes that plaintiff was disabled during the relevant period 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
The Commissioner’s final decision denying Ernest Stevenson’s application for DIB and
SSI 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: June 29, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE

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