Moore v. Commissioner of Social Security
Filing
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MEMORANDUM AND OPINION. The Commissioner's final decision denying plaintiff's application for 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 11/28/2018. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN C M., 1
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Plaintiff,
vs.
COMMISSIONER of SOCIAL
SECURITY,
Defendant.
Case No. 18-cv-546-CJP 2
MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff, 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
Plaintiff applied for benefits in May 2014, alleging disability beginning on
October 30, 2010. After holding an evidentiary hearing, ALJ Stephan Bell denied
the application on May 26, 2017.
(Tr. 19-30).
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.
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. 14.
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Issue Raised by Plaintiff
Plaintiff raises the following point:
1.
Whether the ALJ erred by failing to account for deficits of
concentration, persistence, or pace in the residual functional capacity
finding.
Applicable Legal Standards
To qualify for DIB or SSI, 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). 3
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 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. 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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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 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
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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).
“Substantial evidence” means “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. 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.
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The Decision of the ALJ
ALJ Bell 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. He was insured for DIB only through December 31, 2016.
The ALJ found that plaintiff had severe impairments of neurocognitive disorder
status post traumatic brain injury, schizophrenia, schizoaffective disorder, bipolar
affective disorder, generalized anxiety disorder, cannabis and alcohol abuse, and
hypogonadism.
He determined that these impairments did not meet or equal a
listed impairment. At this step, the ALJ determined that plaintiff had moderate
difficulties in ability to maintain concentration, persistence or pace. (Tr. 23).
The ALJ determined that plaintiff had the residual functional capacity (RFC)
to do “medium work … except he can never work at unprotected heights, be
exposed to moving mechanical parts, or operate a motor vehicle as a job duty. He
is limited to simple, routine and repetitive tasks and simple work-related decisions.
He can have occasional interaction with coworkers and supervisors, but no
interaction with the public.”
Based upon the testimony of a vocational expert, the ALJ found that plaintiff
could not perform his past work. However, he was not disabled because he 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
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is directed to the point raised by plaintiff and is confined to the relevant time
period.
1.
Agency Forms
Plaintiff was born in 1982 and was 28 years old on the alleged date of
disability.
(Tr. 224).
He had worked as a telephone customer service
representative and a telemarketer. (Tr. 247).
2.
Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in April
2017. (Tr. 36).
Plaintiff testified regarding his impairments, symptoms, and activities. He
suffered a brain injury in a fall in 2010. Since then, he had panic attacks. He had
difficulty concentrating. He took Klonopin, which helped, but did not stop his
panic attacks. He also received an Invega injection once a month to help control
the symptoms of schizophrenia (auditory and visual hallucinations). (Tr. 40-54).
A vocational expert also testified.
The ALJ asked her a hypothetical
question that corresponded to the ultimate RFC findings. The VE testified that
this person could do jobs such as kitchen helper, laundry laborer, and linen room
attendant. She testified that he would be unemployable if he were to miss 2 days of
work a month or he were to be off-task for more than 20% of the work day. (Tr.
59-63).
3.
State Agency Consultants’ Mental RFC Assessment
In October 2014, acting as a state agency consultant, Donald Henson, Ph.D.,
assessed plaintiff’s mental RFC based on a review of the file contents. He used an
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electronic version of an agency form that is commonly used for this purpose in
social security cases. (Tr. 71-74). 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. Henson answered “yes” to the question “Does the individual have
sustained concentration and persistence limitations?”
He rated plaintiff as
“moderately limited” in ability to carry out detailed instructions; ability to perform
activities within a schedule, maintain regular attendance, and be punctual; and
ability to 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.
He also rated plaintiff “not
significantly limited” in ability to maintain attention and concentration for extended
periods. In the section for narrative remarks, Dr. Henson wrote, “The degree [of]
functional limitation that is reported is not consistent with the available
medical/psychological evidence and there is no credible evidence that the severity of
mental symptoms would preclude the ability to perform simple routine activities
which have few social demands.” (Tr. 72).
A second state agency consultant, Dr. DiFonso, agreed with Dr. Henson’s
analysis in May 2015. (Tr. 96-97).
Analysis
Plaintiff argues that the RFC assessment was erroneous because it failed to
account for his moderate limitation in maintaining concentration, persistence, or
pace.
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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 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, the ultimate RFC assessment “reflects the degree of limitation I have
found in the ‘paragraph B’ mental function analysis.” (Tr. 23-24). Later, when
explaining his RFC assessment, the ALJ gave “great weight” to the opinions of Drs.
Henson and DiFonso. (Tr. 26). 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, repetitive
tasks and simple work-related decisions.
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
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pace.
In Stewart, supra, a case decided in 2009, the Court observed, “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 position.” Stewart, 561 F.3d at 685.
The Court 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 attempts to distinguish O’Connor-Spinner on the basis
that the ALJ here added mental limitations that were not part of the RFC in that
case, i.e., limitations to simple work-related decisions; occasional interaction with
co-workers and supervisors; and no interaction with the public. Doc. 19, p. 7.
Her argument is not convincing. First, it is not clear that a limitation to simple
decisions adds anything beyond a limitation to unskilled work.
argument contradicts the ALJ’s own reasoning.
And, that
The ALJ explained that the
limitations on interactions with others were designed to accommodate his anxiety,
panic attacks, periodic hallucinations, anger, and uncooperative behavior. His
“decreased concentration, memory, and cognition” were addressed by the
limitation to simple tasks and decisions. (Tr. 27). The ALJ’s decision cannot be
upheld based upon the Commissioner’s after-the-fact rationalization. Hughes v.
Astrue, 705 F.3d 276, 279(7th Cir. 2013) (“Characteristically, and sanctionably,
the government's brief violates the Chenery doctrine…..”); McClesky v. Astrue, 606
F.3d 351, 354 (7th Cir. 2010) (It is “improper for an agency's lawyer to defend its
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decision on a ground that the agency had not relied on in its decision....”).
The Commissioner defends the ALJ’s decision by arguing that Drs. Henson
and DiFonso said in their narrative remarks that plaintiff could do work requiring
only simple, routine activities which have few social demands. Doc. 19, p. 8. She
argues that the narrative section of the form constitutes the actual RFC assessment,
and that the ALJ may therefore disregard the earlier “worksheet” section of the
form completed by the state agency consultant. This is incorrect. “Worksheet
observations, while perhaps less useful to an ALJ than a doctor's narrative RFC
assessment, are nonetheless medical evidence which cannot just be ignored.”
Varga v. Colvin, 794 F.3d 809, 816 (7th Cir. 2015).
This argument is also
somewhat of a red herring because the ALJ found that plaintiff had moderate
difficulties in maintaining concentration, persistence or pace and said that the RFC
assessment “reflects the degree of limitation I have found in the ‘paragraph B’
mental function analysis.” (Tr. 23-24). The Seventh Circuit has been very clear
that a limitation to simple instructions or simple, routine tasks does not adequately
account for a moderate limitation in maintaining concentration, persistence, or
pace. “The ability to stick with a given task over a sustained period is not the same
as the ability to learn how to do tasks of a given complexity.” O'Connor-Spinner,
627 F.3d at 620.
Drs. Henson and DiFonso opined that plaintiff also had moderate limitations
in ability to perform activities within a schedule, maintain regular attendance, and
be punctual; and ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent
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pace without an unreasonable number and length of rest periods.
The ALJ
ignored this part of the state agency consultants’ opinions in his decision.
Lastly, the Commissioner complains that plaintiff is trying to shift the burden
of proving his claim to the agency. Doc. 19, p. 9. She ignores the fact that, at step
five, the burden shifts to her to show that the claimant can perform some other job.
Rhoderick, 737 F.2d at 715; Zurawski, 245 F.3d at 886.
The ALJ’s error requires remand. “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)(internal citation omitted).
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 plaintiff’s application for
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:
November 28, 2018.
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s/ Clifford J. Proud
CLIFFIRD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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