Fischer v. Commissioner of Social Security
Filing
23
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 12/14/2018. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KELLY E. F., 1
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
COMMISSIONER of SOCIAL
SECURITY,
Defendant.
Case No. 18-cv-989-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 her application for
Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in April 2014, alleging disability beginning on
February 14, 2014. After holding an evidentiary hearing, ALJ Vicky Ruth denied
the application on June 5, 2017.
(Tr. 13-27).
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.
Issue Raised by Plaintiff
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.
2
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. 10.
1
1
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, 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).
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
2
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
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
3
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.
The Decision of the ALJ
ALJ Ruth followed the five-step analytical framework described above. She
determined that plaintiff had not been engaged in substantial gainful activity since
4
the alleged onset date and that she was insured for DIB through June 30, 2019.
The ALJ found that plaintiff had severe impairments of degenerative disc disease
with lumbar radiculopathy, tremor, migraine headaches, trigeminal neuralgia,
atypical facial pain, obesity, generalized anxiety disorder, and major depressive
disorder. 3 She 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 and moderate
limitations in interacting with others. (Tr. 17-18).
The ALJ determined that plaintiff had the residual functional capacity (RFC)
to do sedentary word, except that she can “no more than occasionally climb
ladders, ropes, or scaffolds; can no more than occasionally climb ramps or stairs;
can no more than frequently balance, stoop, kneel, crouch, or crawl; can no more
than frequently handle or finger; must avoid concentrated exposure to dangerous
machinery, unprotected heights, and pulmonary irritants, such as fumes, odors,
dust, and gas; limited to simple routine tasks with no more than occasional
interaction with the public and supervisors; and can perform work at the moderate
noise level.”
Based upon the testimony of a vocational expert, the ALJ found that plaintiff
could not perform her past work. However, she was not disabled because she was
capable of performing other jobs that exist in significant numbers in the national
“Trigeminal neuralgia is a chronic pain condition that affects the trigeminal nerve, which carries
sensation from your face to your brain. If you have trigeminal neuralgia, even mild stimulation of
your face — such as from brushing your teeth or putting on makeup — may trigger a jolt of
excruciating pain.” https://www.mayoclinic.org/diseases-conditions/trigeminal-neuralgia/symptoms
-causes/syc-20353344, visited on December 13, 2018.
3
5
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 point raised by plaintiff and is confined to the relevant time
period.
1.
Agency Forms
Plaintiff was born in 1978 and was almost 36 years old on the alleged date of
disability. (Tr. 189). She had worked at jobs such as human resources clerk,
invoice clerk, dispatcher, and hotel desk clerk. (Tr. 210).
2.
Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in May
2017. (Tr. 35).
Plaintiff testified regarding her impairments, symptoms, and activities.
(Tr. 39-47).
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 not do any of plaintiff’s past relevant work, but she could do other
jobs such as patcher (household appliance industry), eyeglass frame polisher, and
table worker (fabricated products industry). She testified that plaintiff would be
unemployable if she were to miss 2 days of work a month or she were to be off-task
for 15% of the work day. (Tr. 48-53).
3.
State Agency Consultants’ Mental RFC Assessment
6
In August 2014, acting as a state agency consultant, 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. 64-66). 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 plaintiff 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 interact appropriately with the public
and ability to accept instructions and 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.”
A second state agency consultant, Dr. Voss, agreed with Dr. DiFonso’s
analysis in March 2015. (Tr. 82-84).
Analysis
Plaintiff argues that the RFC assessment was erroneous because it failed to
account for her moderate limitation in maintaining concentration, persistence, or
pace.
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,
7
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. She noted that, while the step three determination is not a mental
RFC assessment, the ultimate RFC assessment “reflects the degree of limitation the
undersigned has found in the ‘paragraph B’ mental functional analysis.” (Tr. 19).
Further, the ALJ gave “considerable but not full weight” to the opinions of
Drs. DiFonso and Voss.
(Tr. 26).
She noted that the “paragraph B” criteria
regulations were amended in the interim between the doctors’ reports and her
decision, “which reduces the relevancy of [their] paragraph B criteria determination
but does not affect their determinations of severity or their determined mental
functional capacity.” She noted that their opinions were generally consistent with
the medical evidence. (Tr. 24).
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.
The Seventh Circuit has repeatedly held, with exceptions not applicable here,
8
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, 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); Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018), as
amended on reh'g (Apr. 13, 2018).
The Commissioner attempts to distinguish O’Connor-Spinner and other
similar cases on the basis that the ALJ here “did accommodate all limitations she
found supported by the evidence.” Doc. 22, p. 6. Her argument fails to respond
to plaintiff’s central point, which is that the ALJ and the state agency consultants
found that plaintiff had a moderate limitation in maintaining concentration,
persistence or pace.
The Commissioner also argues that the ALJ reasonably relied on the
narrative portions of the state agency consultants’ reports.
Doc. 22, p. 7.
However, the ALJ cannot simply ignore the consultant’s answers to the questions in
the first part of the mental RFC form. “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,
9
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 the undersigned has found in the ‘paragraph B’ mental functional
analysis.” (Tr. 19).
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.
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 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
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).
10
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE:
December 14, 2018.
s/ Clifford J. Proud
CLIFFIRD J. PROUD
UNITED STATES MAGISTRATE JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?