Sales v. Commissioner of Social Security

Filing 21

MEMORANDUM AND ORDER, The Commissioner's final decision denying plaintiff'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. Signed by Judge J. Phil Gilbert on 8/28/2017. (jdh)

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

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Case No. 16-cv-1304-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Michael D. Sales, represented by
counsel, seeks judicial review of the final agency decision denying his application for Disability
Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff filed for DIB on March 10, 2011, alleging a disability onset date of February 11,
2011. An Administrative Law Judge (ALJ) conducted an evidentiary hearing on February 4,
2013, and issued an unfavorable decision on March 7, 2013. The Appeals Council remanded the
decision in an order dated July 31, 2014. The ALJ held a second hearing on January 14, 2015,
and the case was then transferred to ALJ Diana Erickson, who held a supplemental hearing on
June 26, 2015. ALJ Erickson issued an unfavorable decision on September 13, 2015. (Tr. 2136.) The Appeals Council denied plaintiff’s request for review, and the ALJ’s decision became
the final agency decision. (Tr. 1-4.) Plaintiff exhausted his administrative remedies and filed a
timely complaint with this Court.

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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).

Issues Raised by Plaintiff
Plaintiff asserts that the ALJ erroneously failed to accommodate for plaintiff’s limitations
in concentration, persistence, and pace in the residual functional capacity (RFC) determination.
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 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
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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, 51213 (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 supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Thus,

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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); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). 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 Erickson followed the five-step analytical framework set forth above.

She

determined that plaintiff met the insured status requirements through March 31, 2016, and had
not engaged in substantial gainful activity since February 11, 2011. (Tr. 25.)
The ALJ also found plaintiff had severe impairments of major depressive disorder;
dysthymia; personality disorder not otherwise specified (NOS); and degenerative disc disease
(DDD) of the lumbar spine.

Plaintiff had “no more than moderate limitations in social

functioning and in concentration, persistence, or pace. . . .” (Tr. 25-26.)
ALJ Erickson opined that plaintiff had the RFC to perform light work with several
restrictions, including that plaintiff’s job should be focused on objects and not people. The ALJ
explained that specifically, plaintiff could perform simple, repetitive tasks that involved no

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interaction with the general public. ALJ Erickson also limited plaintiff to frequent, generally
superficial, interaction with co-workers and supervisors. (Tr. 27.)
After finding plaintiff could perform past relevant work as a vending machine assembler,
the ALJ concluded that plaintiff was not disabled. (Tr. 34-35.)
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
Plaintiff was born on April 5, 1957, and was fifty-three years old on the alleged onset date.
(Tr. 466.) He indicated that hypothyroidism, depression, and anxiety limited his ability to work.
(Tr. 469.) Plaintiff completed the twelfth grade and previously worked as a laborer at a recycling
plant and as a stocker at Walmart. He also performed “warehouse work.” (Tr. 470.)
Plaintiff stated he lacked the motivation to change his clothes on a daily basis and was able to
focus for about five minutes before losing concentration. He became anxious around other
people and experienced pain and fatigue. (Tr. 479.)
2. Evidentiary Hearing
An initial evidentiary hearing was conducted on February 4, 2013, at which plaintiff was
represented by counsel. (Tr. 128-66.) Dr. Kathleen O’Brien, a licensed clinical psychologist,
testified that she had not personally examined plaintiff but was familiar with the medical data
pertaining to him. She reported that plaintiff’s medical history indicated a primary diagnosis of
major depressive disorder, which was recurrent, as well as diagnoses of alcohol dependency in
full long-term remission, cannabinoid dependency, dysthymia, malingering, and personality

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disorder. (Tr. 135-36.)
Dr. O’Brien opined that plaintiff had mild difficulties with activities of daily living (ADLs);
moderate difficulties with social functioning; and moderate difficulties with concentration,
persistence, and/or pace. (Tr. 137.)
Another evidentiary hearing took place on January 14, 2015, at which plaintiff was
represented by counsel. (Tr. 89-127.) Dr. Kang,2 a medical expert, testified that she had never
personally examined plaintiff but was familiar with the medical data pertaining to him.
According to Dr. Kang, plaintiff had mental impairments of depressive disorder NOS and
polysubstance dependence, which was in remission. Dr. Kang opined that plaintiff’s mental
impairments would not impose any restrictions on ADLs but would result in difficulties
maintaining concentration, persistence, and pace and four or more episodes of decompensation.
(Tr. 100-01.)
The ALJ then posed several hypothetical questions to a vocational expert (VE). The VE
considered an individual who was fifty-seven years old with a high school education and the
same past relevant work experience as plaintiff; who was also limited to medium work and
simple, repetitive tasks and instructions, meaning simple, repetitive, one/two-step tasks only;
who could occasionally make decisions dealing with objects, not people; and who could
occasionally interact with supervisors, coworkers, and the public. (Tr. 122-23.) The VE opined
that this person could perform plaintiff’s past work as a laborer and in his positions at stores and
the salvage yard. Other jobs in the economy also existed that such an individual could perform.
(Tr. 124.)
A supplemental evidentiary hearing took place on June 26, 2015, at which plaintiff was
2

The ALJ, in his opinion, refers to a “Michelle Ryng, Ph.D., who testified at the hearing in January 2015.” (Tr. 32).
The Court believes the ALJ meant to refer to Michelle “Kang,” who was the medical expert identified in the hearing
transcript from that date.

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represented by counsel. (Tr. 55-88.) A VE testified regarding several hypothetical individuals.
The VE first considered a person with plaintiff’s age, educational background, and past work.
This person was limited to medium work and simple, repetitive tasks. He could not interact with
the general public but could have frequent interaction with coworkers and supervisors, which
was generally superficial, and could work with objects, not people. (Tr. 83.)
The VE opined that this person could perform plaintiff’s past work as a recycler and
vending machine assembler, both generally and as actually performed.

Additionally, jobs

existed in the economy, other than plaintiff’s past work, that the hypothetical individual could
perform. (Tr. 83-84.) If this person were also off-task twenty percent of the day, there would be
no work available. (Tr. 84-85.)
The VE next considered an individual who was limited to light work; could sit for six
hours in an eight-hour workday; could occasionally climb, balance, stoop, kneel, crouch, crawl;
should avoid concentrated exposure to vibrations and hazards; and was limited to simple,
repetitive tasks, implying no interaction with the general public; and frequent interaction with
coworkers and supervisors, which was generally superficial. Additionally, the work should be
focused on objects, not people. (Tr. 85.)
The VE testified that this person could perform plaintiff’s past work as a vending
machine assembler and other jobs in the economy. (Tr. 86.) If this person were also off-task
twenty percent of the time, he would not be able to maintain employment. (Tr. 87.)
The VE opined that if an individual also had difficulties following even simple
instructions, there would be no work available. If a person were involved in oral altercations
with coworkers or supervisors on an ongoing, continual basis, he would not be able to maintain
competitive employment. (Tr. 87.)

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3. Medical Records
Dr. Donald Henson performed a Psychiatric Review Technique on July 7, 2011. (Tr.
657-70.) He opined that plaintiff had a marked restriction of ADLs; marked difficulties in
maintaining concentration, persistence, and pace; moderate difficulties in maintaining social
functioning; and one or two episodes of decompensation, each of extended duration. (Tr. 667.)
Dr. Henson noted that plaintiff had a relatively short, documented history of psychiatric
treatment for symptoms of depression and substance abuse, which was relatively severe at the
time of the review. Dr. Henson opined, however, that compliance with treatment should return
plaintiff’s condition to premorbid levels. (Tr. 669.)
On October 5, 2011, Dr. Howard Tin completed a Psychiatric Review Technique (Tr.
764-77), and Mental RFC Assessment (MRFCA) of plaintiff, which is structured as a threesection standard form (Tr. 778-81).
Section I of the MRFCA “contains twenty mental functions grouped under four main
categories: (1) understanding and memory, (2) sustained concentration and persistence, (3) social
interaction, and (4) adaptation. To the right of each of the items is a series of decision check
blocks under the headings ‘not significantly limited,’ ‘moderately limited,’ ‘markedly limited,’
‘no evidence of limitation,’ and ‘not ratable on available evidence.’” Varga v. Colvin, 794 F.3d
809, 811 n.1 (7th Cir. 2015).
Relevant here, Dr. Tin indicated under the “sustained concentration and persistence”
category that plaintiff was not significantly limited in his ability to carry out very short and
simple instructions; sustain an ordinary routine without special supervision; or complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest periods.

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Plaintiff was moderately limited in his ability to carry out detailed instructions; maintain
attention and concentration for extended periods; perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerance; and work in coordination with
or proximity to others without being distracted by them. There was no evidence of limitation in
plaintiff’s ability to make simple work-related decisions. (Tr. 778-79.)
Section III of the MRFCA, entitled “Functional Capacity Assessment,” provides an
opportunity for the consultant to explain the summary conclusions from Section I in narrative
form. Dr. Tin explained that plaintiff was fully oriented and free of serious memory problems.
Plaintiff could remember locations and work-like procedures and could understand and
remember short, simple and detailed instructions. Plaintiff had difficulty carrying out detailed
instruction. He could carry out short and simple instructions. Dr. Tin noted plaintiff’s claims
that he had a short attention span and could not complete tasks. Plaintiff also alleged he had
problems following spoken and written instructions. (Tr. 780.)
Plaintiff had difficulty interacting appropriately with the general public and tended to
withdraw and self-isolate when he was irritable. Therefore, Dr. Tin opined that plaintiff should
be limited to work tasks that did not require interaction with the public. Dr. Tin further opined
that plaintiff had the ability to respond appropriately to changes in work settings, to be aware of
normal hazards, and to travel in unfamiliar settings. (Tr. 780.)
Analysis
Plaintiff argues that the ALJ failed to account for his moderate limitations in
concentration, persistence, or pace (CPP) in the RFC finding and in the hypotheticals posed to
the VE.
A plaintiff’s RFC is “the most [the claimant] can still do despite [his or her] limitations.”

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20 C.F.R. § 404.1545. “As a general rule, both the hypothetical posed to the VE and the ALJ’s
RFC assessment must incorporate all of the claimant’s limitations supported by the medical
record.” Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014). “This includes any deficiencies the
claimant may have in concentration, persistence, or pace.” Id.
The ALJ determined that plaintiff was moderately limited in CPP but did not explicitly
provide for restrictions in “concentration, persistence, or pace” in the RFC determination or in
the hypotheticals to the VE. (Tr. 26.) Instead, the ALJ’s RFC assessment limited plaintiff to
jobs involving “simple, repetitive tasks that involve no interaction with the general public.” (Tr.
27.)
The Seventh Circuit Court of Appeals has repeatedly held that although there is no per se
requirement that the ALJ use the phrase “concentration, persistence and pace,” the restriction to
simple, repetitive tasks is not ordinarily an adequate substitute. O’Connor-Spinner v. Astrue,
627 F.3d 614, 620 (7th Cir. 2010). Where, however, the narrative assessment in Section III
“adequately encapsulates and translates” the CPP limitations, the ALJ may rely on the narrative
instead of specifically referencing “concentration, persistence, or pace.” Varga v. Colvin, 794
F.3d 809, 816 (7th Cir. 2015).
The Commissioner asserts that the ALJ’s RFC assessment properly relied on Dr. Tin’s
Section III narrative. She cites to Milliken v. Astrue, 397 F. App’x 218 (7th Cir. 2010), and
Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002), where the Seventh Circuit Court of Appeals
excused the ALJs’ failures to address certain mental limitations because the consultant
effectively translated those findings into a specific RFC assessment.
The most glaring flaw in the Commissioner’s argument is that Dr. Tin did not even opine
that plaintiff should be limited to “simple, repetitive tasks.” Dr. Tin wrote in the narrative

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portion of the MRFCA:
Claimant can also understand and remember short simple and detailed
instructions. Claimant has difficulty carrying out detailed instructions. Claimant
can carry out short and simple instructions. . . . Claimant has difficulty in
interacting appropriately with the general public and tend [sic] to withdraw and
self isolate [sic] when irritable, so limit work tasks that do not require interaction
with the general public.
(Tr. 780). Moreover, the ALJ stated that he only afforded Dr. Tin’s MRFCA “some weight,”
specifically giving credence to Dr. Tin’s findings of “some moderate limitations” and his
conclusion that plaintiff should not interact with the public. (Tr. 32). There is no indication that
the ALJ actually adopted Dr. Tin’s narrative assessment.
This case is distinguishable from Johansen and Milliken on other grounds as well. In
Johansen, the ALJ’s hypothetical included a restriction to “repetitive, low-stress work,” which
addressed the claimant’s panic disorder that was the foundation of the claimant’s limitations in
CPP. O’Connor-Spinner, 627 F.3d at 619 (citing Johansen, 314 F.3d at 285, 288-89). Unlike
the case here, Johansen did not actually hinge on the adequacy of limiting a claimant to simple,
repetitive tasks. “Rather, the court noted that when the limitations were stress-related or panicrelated and the hypothetical restricted a claimant to low-stress work, the hypothetical question
served its purpose of informing the vocational expert of all of the claimant’s limitations.” Miller
v. Colvin, No. 1:11-cv-01186-SEB-MJD, 2013 WL 796722, at *4 (S.D. Ind. Mar. 1, 2013.) As
stated in O’Connor-Spinner, hypotheticals limiting someone to “simple, repetitive tasks” do not
necessarily accommodate a claimant’s limitations in CPP when the underlying conditions are not
mentioned as well. O’Connor-Spinner, 627 F.3d at 620. Plaintiff’s underlying impairments of
personality disorder NOS and polysubstance abuse were not noted in the hypotheticals, so the
hypotheticals in this case did not serve their purpose.
In Milliken, a medical expert identified the claimant’s limitations in CPP, yet opined that
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the claimant could still sustain unskilled work tasks. The Seventh Circuit Court of Appeals held
that the ALJ did not err in omitting CPP restrictions in the RFC or hypotheticals because the
expert accounted for them in concluding the claimant could perform unskilled work. Here,
however, neither Dr. Tin nor any of the psychological experts who testified at the hearings
determined that plaintiff could perform certain work despite his limitations with CPP.
The Commissioner’s argument is an ad hoc attempt to justify the faulty RFC assessment
that the Seventh Circuit Court of Appeals has rejected time and time again. “The Commissioner
continues to defend the ALJ’s attempt to account for mental impairments by restricting the
hypothetical to ‘simple’ tasks, and we and our sister courts continue to reject the Commissioner’s
positions.” Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009). Because the ALJ omitted
plaintiff’s limitations in CPP from the hypotheticals and the RFC, he failed to build a logical
bridge between the evidence and the RFC assessment. Additionally, it is not determinable
whether the VE’s testimony constitutes substantial evidence of the jobs plaintiff can do.
Therefore, remand is required.
Conclusion
The Commissioner’s final decision denying plaintiff’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: August 28, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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