Baker v. Commisioner of Social Security

Filing 23

MEMORANDUM AND ORDER, The Commissioner's final decision denying Cheryle L. Baker'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 9/7/2017. (jdh)

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

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Case No. 16-cv-1358-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Cheryle Baker, represented by counsel,
seeks judicial review of the final agency decision denying her application for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Ms. Baker applied for benefits in May 2013 alleging disability beginning on July 22, 2010.
She later amended the alleged date of onset to July 23, 2013. After holding an evidentiary
hearing, ALJ Lisa Leslie denied the application on January 7, 2016. (Tr. 16-28.) The Appeals
Council denied review, and the decision of the ALJ became the final agency decision subject to
judicial review. (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.
1

The ALJ failed to account for plaintiff’s limitations in ability to maintain

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).

concentration, persistence or pace in assessing plaintiff’s mental residual functional
capacity (RFC).
2.

The hypothetical question posed to the vocational expert (VE) was too vague.
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
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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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.
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
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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, 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 Leslie followed the five-step analytical framework described above. She determined
that plaintiff had not worked since July 23, 2013. She was insured for DIB through June 30,
2016.3
The ALJ found that plaintiff had severe impairments of coronary artery disease, peripheral
vascular disease, hypertension, and bipolar disorder, and that these impairments did not meet or

3

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

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equal a 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 Ms. Baker 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 performing simple, routine and repetitive tasks, not at a fast pace as in an assembly line, and no
more than frequent interactions with co-workers and the public.4
Based upon the testimony of a VE, the ALJ found that plaintiff was capable of performing
her past work as a cashier. In the alternative, she was capable of performing other jobs that exist
in significant numbers in the national economy.
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. As plaintiff addresses only her mental
limitations, a discussion of the medical evidence related to her physical condition is unnecessary.
1.

Agency Forms

The amended date of onset was plaintiff’s fiftieth birthday. (Tr. 213.) She attended
school through the ninth grade and later took a certified nurse training course. (Tr. 219.) She
alleged difficulty with concentration and completing tasks. (Tr. 230.) She had worked in the
past as a cashier in a gas station, a “CNA” in a nursing home, a sandwich maker in a Subway
sandwich shop, and a stocker/cashier in a Dollar Store. (Tr. 219.)

4

The agency defines frequent as “occurring from one-third to two-thirds of the time.” SSR 83-10, 1983 WL 31251,
at *5-6 (Jan. 1, 1983).

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2.

Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in December 2015. (Tr.
36.)
Plaintiff testified that she was unable to work because she could not stand or walk for very
long. She had constant pain in her legs. She could only sit for a few minutes. (Tr. 44-46.) She
had been diagnosed with bipolar disorder and depression. It made her think of “crazy things” like
suicide and hurting other people. She cried every day. She had a short temper and got angry
with people. Her memory and concentration were bad. She could only concentrate for 15 or 20
minutes. (Tr. 47-49.)
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 do plaintiff’s past job as a cashier.
She could also do other jobs such as routing clerk, mail clerk, and cafeteria attendant. (Tr. 52-54.)
Plaintiff’s counsel asked no questions of the VE. (Tr. 55.)
3.

Medical Records

Plaintiff was diagnosed with depression as far back as April 2010. (Tr. 331-332.)
In May 2013, a physician’s assistant (PA) noted that her anxiety symptoms were “on and
off.” She had stopped taking Celexa as she did not feel it benefitted her. The PA prescribed
Wellbutrin for smoking cessation, noting it might help with her anxiety as well. (Tr. 293.)
Dr. Christopher Loynd saw plaintiff for mental health problems from at least June 2014
through at least October 2015. (Tr. 767-786.) The records appear to be incomplete. In June
2014, he noted that she suffered from anxiety and depression. She was angry, irritable, and crying
all the time. He started her on Latuda, which did not work very well for her. (Tr. 783-84.) In
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July 2015, plaintiff reported symptoms of mania (irritability, decreased need for sleep,
impulsivity, rapid speech, and racing thoughts), anxiety, and depression. Among the symptoms
associated with depression were lack of motivation and poor concentration.

He diagnosed

bipolar disorder and prescribed Trazodone and Amitriptyline. (Tr. 778-79.) In October 2015,
she had no symptoms of mania or depression. Her medications were continued. She was to
return to Dr. Loynd in December 2015. There are no further office notes from this provider. (Tr.
767-71.)
4.

State Agency Consultant’s Mental RFC Assessment
In September 2013, M.W. DiFonso, Psy.D, assessed plaintiff’s mental RFC based on a

review of the file contents. She used an electronic version of an agency form that is commonly
used for this purpose in social security cases. (Tr. 63-65.) The form consists of a series of
questions and a list of mental activities. The consultant is asked to rate the applicant’s limitations
in these areas.
Dr. DiFonso answered “yes” to the question, “Does the individual have sustained
concentration and persistence limitations?” She rated her as “moderately limited” in ability to
carry out detailed instructions and in ability to maintain attention and concentration for extended
periods. She also rated plaintiff as moderately limited in ability to accept instructions and
respond appropriately to criticism from supervisors. In the section for narrative remarks, Dr.
DiFonso wrote, “Cognitive and attentional skills are intact and adequate for simple one-two step as
well as semi-skilled work tasks.”
In February 2014, a second state agency consultant completed a Mental RFC Assessment
form. His responses were exactly the same as Dr. DiFonso’s.(Tr. 90-92.)
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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
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. 20.) She made this finding at step three of the sequential analysis when
determining whether plaintiff’s mental impairments meet or equal a listed impairment. She noted
that, while the step three determination is not a mental RFC assessment per se, the ultimate RFC
assessment “reflects the degree of limitation I have found in the ‘paragraph B’ mental function
analysis.” (Tr. 20.) 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, routine tasks, and repetitive tasks not at a fast pace as in an assembly line,” and
no more than frequent interactions with co-workers and the public.
The Seventh Circuit Court of Appeals 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
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account for 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 of Appeals has reaffirmed that position several times in recent years. O’Connor-Spinner,
supra; 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 none of plaintiff’s doctors
assessed any limitations related to concentration, persistence or pace. That is true, but irrelevant;
the ALJ himself found that she had moderate limitations in that area and said that her RFC
assessment would reflect those limitations. The Commissioner’s attempt to distinguish Yurt on
this basis is unavailing.
Citing Capman v. Colvin, 617 F. App’x 575, 578-79 (7th Cir. 2015), the Commissioner
also argues that plaintiff’s limitations in concentration, persistence or pace were adequately
addressed by the exclusion of fast-paced work because her concentration, persistence or pace
problems stemmed from her anxiety symptoms. However, the ALJ did not say that she concluded
that her limitations in concentration, persistence or pace arose from her anxiety. It is “improper
for an agency’s lawyer to defend its decision on a ground that the agency had not relied on in its
decision....” McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010). Further, Capman is a
nonprecedential order.

The Commissioner also argues that the limitation to only frequent

interaction with co-workers and the public was also meant to accommodate her concentration
difficulties. However, it is clear from the ALJ’s decision that the limitation on interaction with
other people was designed to address plaintiff’s moderate limitation in social functioning. (Tr.
19-20, 26.)
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The bottom line here is that the ALJ found that Ms. Baker had moderate difficulties in
maintaining concentration, persistence or pace. It is true, as the Commissioner points out, that
she made this finding at step three. Regardless, she represented that the RFC assessment would
reflect the degree of limitation that she 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.
In view of the disposition of plaintiff’s first point, it is not necessary to analyze her second
point.
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 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 Cheryle L. Baker’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: September 7, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE
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