Boester v. Commissioner of Social Security

Filing 23

MEMORANDUM AND OPINION. The Commissioner's final decision denying plaintiff's application for social security disability benefits 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 11/21/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GENI A. B., 1

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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil No. 18-cv-088-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the
final agency decision denying her application for Disabled Child’s Insurance
Benefits and Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. §
423.
Procedural History
Plaintiff applied for benefits in July 2013, initially alleging she became
disabled as of October 11, 1980, her date of birth. She later amended the alleged
onset date of July 22, 2013, the date of the application.

After holding an

evidentiary hearing, ALJ P. H. Jung denied the application on February 8, 2017.
(Tr. 16-26).

The Appeals Council denied review, and the decision of the ALJ

In keeping with the court’s recently adopted practice, plaintiff’s full name will not be used in this
Memorandum and Order due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory
Committee Notes thereto.

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This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 17.

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became the final agency decision. (Tr. 1). Administrative remedies have been
exhausted and a timely complaint was filed in this Court.
Issue Raised by Plaintiff
Plaintiff raises the following issues:
1. The ALJ erred in evaluating plaintiff’s daily activities.
2. The ALJ erred in failing to identify and reconcile apparent conflicts
between the VE’s testimony and the Dictionary of Occupational
Titles (DOT).
Applicable Legal Standards
To qualify for Disabled Child’s Insurance Benefits or SSI, a claimant must be
disabled within the meaning of the applicable statutes. 3

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

The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. The standard for disability
under both sets of statutes are identical, and the same standard applies to Disabled Child’s
Insurance Benefits. 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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C.F.R. § 404.1572.
For Disabled Child’s Insurance Benefits, the claimant must be over the age of
18, and the disability must have predated her 22nd birthday.
404.350(a).

20 C.F.R. §

Here, the amended alleged onset date postdates plaintiff’s 22nd

birthday. See, Tr. 18.
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 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
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experience. 20 C.F.R. § 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
Cir. 2009).
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, 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. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003).

This Court uses the Supreme Court’s definition of substantial

evidence, i.e., “such relevant evidence as a reasonable mind might accept as
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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. Murphy v. Colvin, 759 F.3d 811, 815 (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 Jung followed the five-step analytical framework described above. He
determined that plaintiff had not been engaged in substantial gainful activity since
the alleged onset date and that she had severe impairments of history of seizure
disorder, hip disorder/developmental dysplasia, sleep apnea, asthma, and
borderline intellectual functioning, which did not meet or equal a listed
impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform a limited range of light work. Her limitations included mental limitations
such as only routine tasks, “no production rate or pace or quota types of jobs,” few
or infrequent changes in routine, and only occasional interaction with supervisors,
coworkers, and the public
The ALJ found that plaintiff could not do her past relevant work as a hotel
housekeeper. Based on the testimony of a vocational expert, the ALJ found that
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plaintiff was not disabled because she was able to do 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. In view of plaintiff’s argument, the
Court will omit a discussion of the medical evidence.
In a Function Report submitted in April 2014, plaintiff said she was born
with “mild retardation and cannot comprehend complex conversations or
problems.” She said she did laundry and picked up her bedroom. Cleaning her
room took 4 hours and laundry took a week.

Her cooking was limited to

sandwiches, noodles, cereal and heating leftovers in the microwave. Her family
usually did the cooking. She did not know how to drive. She went to the grocery
store with her sister. She was not able to count change or use a checkbook. Her
family reminded her to bathe. She could not follow written or spoken instructions
very well. She did puzzles a couple of times a month but needed help to complete
them. She watched TV shows and read books, but they had “different endings
each time.”

(Tr. 362-369). In an earlier Function Report, plaintiff said that she

went shopping with her sister, but she usually waited in the car. Her family told
her that she reads the same books and “get different results.” (Tr. 333).
Plaintiff was represented by an attorney at the evidentiary hearing in January
2017. (Tr. 35).
Plaintiff testified that she graduated from high school, but she was in special
education classes.

She could not concentrate and “kept failing at everything.”
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She could not understand a lot of what she read and was “really bad at math.” She
was not good at counting money. (Tr. 42). She had worked as a housekeeper at a
hotel but was fired because her work was “not good enough.” (Tr. 44-45).
Plaintiff lived with her sister and brother-in-law and their children. She
moved in with her sister after their mother died. Her brother-in-law helped her if
she did not understand papers that she received in the mail. She had been told not
to do certain things around the house because she broke some of her sister’s things.
She was not allowed to do laundry because she did something wrong to the
machine. She had never lived on her own and did not think she could because she
was not smart enough and she could “barely take care of myself.” (Tr. 48-52).
A vocational expert (VE) also testified. At the outset of her testimony, the
ALJ asked her to alert him to any conflicts between her testimony and information
contained in the DOT. (Tr. 53).
The ALJ asked a hypothetical question which corresponded to the RFC
assessment. The VE identified three jobs that could be done by a person with
plaintiff’s RFC: garment bagger (DOT 920.687-018), hand bander (DOT
920.687-026), and bench assembler (DOT 706.684-042). (Tr. 54-55).
Plaintiff’s counsel asked no questions of the VE regarding conflicts with the
DOT and did not object to her testimony. (Tr. 56).
Analysis
Plaintiff’s second argument is not well-taken.

She argues that the VE’s

testimony conflicted with information in the DOT because the hypothetical question
included mental limitations that are not addressed by the DOT.
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As was noted above, at step five of the sequential analysis, if the claimant is
not able to perform her past work, the Commissioner bears the burden of showing
that she can perform other jobs that exist in significant numbers in the economy.
In making the step five determination, the ALJ generally relies on the DOT for
information about the typical characteristics of jobs as they exist in the economy. 4
An ALJ is required to take administrative notice of job information contained in
various publications, including the DOT, published by the Department of Labor.
See, 20 C.F.R. § 404.1566(d)(1). The ALJ often also relies on testimony from a VE
to “supplement the information provided in the DOT by providing an impartial
assessment of the types of occupations in which claimants can work and the
availability of positions in such occupations.” Weatherbee v. Astrue, 649 F.3d
565, 569 (7th Cir. 2011).
For each job title, the DOT specifies whether certain physical and mental
activities are required, and, if so, the frequency with which they are required. The
DOT does not, of course, speak to every possible aspect of the job title.
When a VE testifies, the ALJ is required to ask the VE whether there are any
conflicts between her testimony and the information in the DOT; if so, the ALJ must
resolve those conflicts. Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008).
The ALJ did ask the VE about conflicts here, and no conflicts were identified by the
VE.

The agency is developing a replacement for the DOT, referred to as the “Occupational Information
System.” This system will be the “primary source of occupational information SSA staff use in our
disability adjudication process.”
This system is projected to be implemented in 2020.
https://www.ssa.gov/disabilityresearch/occupational_info_systems.html, visited on November 19,
2018.

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Plaintiff’s counsel did not point out any conflict between the VE’s testimony
and the DOT at the evidentiary hearing. 5 Therefore, in this Court, plaintiff “now
has to argue that the conflicts were obvious enough that the ALJ should have picked
up on them without any assistance, for SSR 00–4p requires only that the ALJ
investigate and resolve apparent conflicts between the VE's evidence and the DOT.”
Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008), citing Prochaska v.
Barnhart, 454 F.3d 731, 735 (7th Cir. 2006)[emphasis in original].
Defendant argues that there is no conflict here at all because the VE testified
about subjects not addressed in the DOT. She cites Zblewski v. Astrue, 302 F.
App’x 488, 494 (7th Cir. 2008). Doc. 22, p. 8. Further, since the filing of the
briefs in this case, the Seventh Circuit issued its decision in Collins v. Berryhill, ___
F. App'x ___, 2018 WL 3783601 (7th Cir. Aug. 9, 2018), reh'g denied (Sept. 24,
2018), also agreeing with defendant’s argument. The Seventh Circuit found that
there was a conflict where the VE testified about a topic addressed in the DOT
(exertional level), but there was not a conflict where the DOT was silent (sit/stand
option). “Because the DOT does not specify whether jobs allow changing from
sitting to standing, the VE’s testimony supplemented the DOT and did not conflict
with it.” Collins, 2018 WL 3783601, at *4. Although Collins and Zblewski are
nonprecedential, this Court finds the reasoning of those cases to be persuasive.
Plaintiff’s first argument about the ALJ’s consideration of her daily activities
fares better.
The ALJ stated that, in a Function Report, plaintiff “states she reads, watches
5

Plaintiff is represented by a different attorney in this Court.

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television, does puzzles, prepares simple meals, does laundry, goes shopping in
stores, and cleans her room, suggesting sufficient functioning for work within the
residual functional capacity assessment.” (Tr. 23).
The ALJ was referring to Exhibit B12E for this information. See, Tr. 20.
That exhibit is the April 2014 Function Report discussed above. The information
contained in that Report was not accurately described by the ALJ. For instance,
plaintiff said that she did puzzles a couple of times a month but needed help to
complete them. She watched TV shows and read books, but they had “different
endings each time.”

She said it took her a week to do laundry, and that her

cooking was limited to sandwiches, noodles, cereal and heating leftovers in the
microwave.
The ALJ also found it suspicious that the Function Report said plaintiff did
laundry, but she testified at the hearing that she did not. (Tr. 21). The ALJ failed
to acknowledge that the Report was submitted almost 3 years before the hearing,
and plaintiff explained at the hearing that she had been told not to do laundry
because she did something wrong to the machine.
“We have repeatedly cautioned that a person’s ability to perform daily
activities, especially if that can be done only with significant limitations, does not
necessarily translate into an ability to work full-time.” Roddy v. Astrue, 705 F.3d
631, 639 (7th Cir. 2013). The Seventh Circuit has called improper consideration
of daily activities “a problem we have long bemoaned, in which administrative law
judges have equated the ability to engage in some activities with an ability to work
full-time, without a recognition that full-time work does not allow for the flexibility
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to work around periods of incapacitation.” Moore v. Colvin, 743 F. 3d 1118, 1126
(7th Cir. 2014).

The ALJ here overstated plaintiff’s ability to do things and

overstated the significance of her activities; the ability to make a sandwich and do a
puzzle once a month with help is not indicative of an ability to sustain full-time
work. See, Alaura v. Colvin, 797 F.3d 503, 506 (7th Cir. 2015), criticizing the ALJ
for relying on plaintiff’s ability to feed his cats and make sandwiches. Further,
plaintiff’s limited ability to read or watch television says very little about her ability
to function at work. See, Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000),
expressing skepticism “that the ability to watch television for several hours
indicates a long attention span.”
The erroneous credibility determination requires remand. “An erroneous
credibility finding requires remand unless the claimant's testimony is incredible on
its face or the ALJ explains that the decision did not depend on the credibility
finding.” Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014). Reconsideration
of plaintiff’s credibility will also require a “fresh look” at plaintiff’s RFC. Ibid.
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 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 plaintiff’s application for social
security disability benefits is REVERSED and REMANDED to the Commissioner
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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.
DATED:

November 21, 2018.

s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE

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