Voegtle v. Commissioner of Social Security
ORDER. For the reasons stated in the attached Memorandum & Order, the Commissioner's final decision denying Plaintiff's application for social security benefits is AFFIRMED. The Clerk of Court shall enter judgment in favor of Defendant. Signed by Judge David W. Dugan on 7/19/2021. (sth)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GARY K. V., JR., 1
COMMISSIONER OF SOCIAL
Case No. 3:20-cv-625-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final
agency decision denying his application for Disability Insurance Benefits (DIB) pursuant
to 42 U.S.C. § 423.
Plaintiff applied for DIB on January 1, 2015, alleging a disability onset date of May
8, 2014. After holding an evidentiary hearing,
denied the application on December 16, 2016. The Appeals Council
request for review on March 15, 2017. Plaintiff filed a complaint in this Court, seeking
judicial review of the agency decision. After the parties filed a joint motion for remand,
this Court remanded the case for further evaluation. Gary V., Jr. v. Berryhill, No. 17-cv510-JPG-CJP, Doc. 16 (S.D. Ill. Dec. 11, 2017). A second ALJ held an evidentiary hearing
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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on July 10, 2018 and denied the application on July 25, 2018. The Appeals Council denied
agency decision subject to judicial review. Plaintiff exhausted administrative remedies
and filed a timely complaint with this Court.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he has an
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 twelve
To determine whether a claimant is disabled, the ALJ considers the following five
questions in order: (1) Is the claimant presently unemployed? (2) Does the claimant have
a severe impairment? (3) Does the impairment meet or medically equal one of a list of
specific impairments enumerated in the regulations? (4) Is the claimant unable to perform
his former occupation? and (5) Is the claimant unable to perform any other work? See 20
C.F.R. § 404.1520.
An affirmative answer at either step 3 or step 5 leads to a finding that the claimant
is disabled. A negative answer at any step, other than at step 3, precludes a finding of
disability. The claimant bears the burden of
an inability to perform past work, the burden then shifts to the Commissioner to show
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national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
It is important to recogn
findings of the Commissioner of Social Security as to any fact, if supported by substantial
405(g). Accordingly, this Court is not tasked
with determining whether or not Plaintiff was, in fact, disabled at the relevant time, but
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).
The Supreme Court defines su
reasonable mind might accept as ad
Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019) (internal citations omitted).
record into consideration but does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. Burmester v.
Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). 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
The ALJ followed the five-step analytical framework described above. At step one,
she determined that Plaintiff had not engaged in substantial gainful activity since the
alleged onset date of disability. He was 42 years old on the alleged onset date. At step
two, the ALJ found that
Plaintiff had the following severe
lumbago/degenerative disc disease, obesity, anxiety, and depression.
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At step three, the ALJ found that Plaintiff does not have any impairments or
combination of impairments that meet any of the listings. The ALJ determined that
Plaintiff had only a mild limitation in his ability to understand, remember, and apply
information. (Tr. 778) She found that Plaintiff had moderate limitations in his abilities to
interact with others and adapt or manage himself. (Tr. 779) The ALJ also concluded that
Plaintiff had only a moderate limitation in his ability to concentrate, persist, or maintain
pace. Although Plaintiff, his wife, and his mother-in-law described significant limitations
concluded that the evidence as a whole shows
no more than a moderate limitation. (Tr. 779) The ALJ pointed specifically to the facts that
idence consistently found his concentration
and attention to be adequate. (Tr. 779)
Before proceeding to step four, the ALJ found that Plaintiff has the residual
perform light work as defined in 20 C.F.R. § 404.1567(b)
with these additional qualifications:
[H]e cannot climb ladders, ropes, or scaffolds and can only occasionally
climb ramps and stairs. The claimant can engage in occasional balancing,
stooping, kneeling, crouching and crawling. The claimant cannot work in
He is limited to performing simple routine tasks but not in a fast paced
environment such as an assembly line. He is limited to work that requires
only occasional changes in the work setting and he can have occasional
interaction with co-workers with no interaction with public.
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that Plaintiff could not do his past relevant work as a food inspector, store laborer, oil
changer, assistant manager, or material handler. (Tr. 790) However, at step five, the ALJ
found that Plaintiff was not disabled because he was able to do other jobs that exist in
significant numbers in the national econom
The Evidentiary Record
Plaintiff lives in Granite City, Illinois, and is married with two children. (Tr. 809)
the time of the hearing. (Tr. 821) He was injured while serving in the United States Army
in October 2012. (Tr. 811) Since his injury, he has experienced pain in his back and left
leg. (Tr. 811) Plaintiff also suffers from anxiety. (Tr. 815) He testified that he has problems
concentrating. (Tr. 818) For instance, he
changes the channel on the TV every 30 seconds. (Tr. 818)
In 2014, a psychiatrist at the St. Louis Veterans Affairs Medi
examined Plaintiff and found that his concentration, immediate recall, memory for recent
events, and insight and judgment were all good. (Tr. 356) In March 2015, another
psychiatrist noted that Plaintiff had good concentration, although Plaintiff reported that
ery two weeks. (Tr.
checkups in 2015 and 2016, Plaintiff again appeared to have good concentration and
normal attention on examination. (Tr. 473, 531, 538, 1253)
In March 2015, a state agency non-examining psychologist, Dr. Howard Tin,
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ate agency non-examining psychologist, Dr.
Darrell Snyder, reached the same conclusion that Plaintiff has difficulty maintaining
luded that the state agency psychological
tled to great weight. (Tr. 789)
In January 2017, a psychologist at the VA completed a disability benefits
o]ccupational and social impairment with
occasional decrease in work efficiency and intermittent periods of inability to perform
occupational tasks, although generally functioning satisfactorily, with normal routine
behavior, self-care and co
to the questionnaire, Plaintiff
difficulties with concentration. (Tr. 1186) He also report
psychologist completing the
In February 2017, Plaintiff reported to a psychiatrist at the VA that his focus and
concentration decrease almost daily around 4:00 p.m. (Tr. 1182) The psychiatrist
prescribed a stimulant medication to help with his concentration problem. (Tr. 1182) In
April 2017, Plaintiff reported that the stimulant significantly improved his ability to
complete tasks. (Tr. 1178) His examination findings showed good concentration and
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In November 2017, Harry Deppe, Ph.D., examined Plaintiff on referral. (Tr. 1325)
On examination, Dr. Deppe foun
culty staying on task and his
responses to questions and comments were cohe
concluded that Plaintiff had
me weight. (Tr. 790)
record and offered their opinions. Donald Henson, Ph.D., and M.W. DiFonso, Psy.D.,
t short, simple instructions and maintain
concentration was not significantly limited. (Tr. 930, 946) They also indicated that Plaintiff
has moderate limitations in his ability to (1) perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances and (2)
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. (Tr. 930, 946)
Plaintiff raises one argument in favor
account for deficits of concentration, persiste
tasks, not performed in a fast-paced environment such as an assembly line, and requiring
only occasional changes in work setting, limited interactions with co-workers, and no
interactions with the public.
at these limitations do not
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persistence, and pace. (Doc. 15 at 11) Because the hypotheticals posed by the ALJ to the
describe his limitations. (Doc. 15 at 5)
confining the claimant to simple, routine tasks and limited interactions with others
adequately captures temperamental deficiencies and limitations in concentration,
Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015) (internal quotation
y with workplace adaptation, rather than
concentration, pace, or persistence. It is also
a definition, it would have been impossible for the VE
to assess whether a person with [Plainti
Id. at 815.
limitations, such as limiting a claimant to simple, repetitive tasks, may properly account
for moderate limitations in concentration, persistence, and pace, so long as they
2019) (internal quotation marks
Urbanek v. Saul
omitted). For example, limitations in the RF
Case 3:20-cv-00625-DWD Document 23 Filed 07/19/21 Page 9 of 10 Page ID #1523
ncentration, persistence, and pace result
from a panic disorder triggered by stressful environments.
, 627 F.3d at
619 (quoting Johansen v. Barnhart
limitations in concentration, persistence, and pace occur only when the claimant
encounters a complex task. Bruno v. Saul
despite failing to explicitly reference his moderate limitations in concentration,
persistence, and pace. The ALJ found that the medical evidence does not support
787) While Plaintiff, his wife, and his mother-in-law all described Pl
with concentration and his short attention span, his medical records provide adequate
degree as evidence of his ability to accomplish tasks and goals. Further, the ALJ relied on
the opinions of Dr. Tin and Dr. Snyder who opined that Plaintiff has difficulty
concentrating for extended periods of time but can carry out short, simple instructions.
The ALJ also gave some weight to the opinion of Dr. Deppe, who reviewed the medical
records and found that Plaintiff had no difficulties staying on task on examination. Dr.
Deppe concluded that Plaintiff is able to maintain the attention required to perform
simple, repetitive tasks.
Finally, Plaintiff argues that the ALJ erred by not considering the opinions of Dr.
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Any error the ALJ may have committed by
not explicitly considering the opinions of Dr. Henson and Dr. DiFonso is harmless. Their
opinions only confirm that restricting Plaintiff to short, simple tasks and instructions
adequately accounts for his moderate limitations in concentration, persistence, and pace.
See McKinzey v. Astrue
harmless error when the opinion would not change the
result). Based on the medical evidence, the ALJ properly concluded that restricting
moderate limitations in concentration, persistence, and pace.
After careful review of the record as a whole, the Court is convinced that the ALJ
committed no errors of law, and that her findings are supported by substantial evidence.
application for disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
Dated: July 19, 2021
DAVID W. DUGAN
United States District Judge
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