Vanbuskirk v. Commissioner of Social Security
Filing
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OPINION AND ORDER REVERSING the decision of the Commissioner and REMANDED case for further proceedings consistent with this Opinion and Order. Clerk directed to enter judgment in favor of Pla Diana L Vanbuskirk and against Dft Commissioner of Social Security. Signed by Magistrate Judge Roger B Cosbey on 7/26/2011. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DIANA VANBUSKIRK,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CAUSE NO.: 1:10-CV-360
OPINION AND ORDER
Plaintiff Diana Vanbuskirk appeals to this Court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application under the Social
Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).1 (Docket # 1.) For the following reasons, the Commissioner’s decision will be
REVERSED, and the case will be REMANDED for further proceedings in accordance with this
Opinion.
I. PROCEDURAL HISTORY
Vanbuskirk applied for DIB and SSI in April 2007, alleging that she became disabled as
of June 24, 2004. (Tr. 145-47, 153-58.) The Commissioner denied her application initially and
upon reconsideration, and Vanbuskirk’s application was denied by Administrative Law Judge
(“ALJ”) Yvonne K. Stam in an August 26, 2009, decision. (Tr. 7-18.) Vanbuskirk filed a
Request for Review with the Appeals Council. (Tr. 1-6.) The Appeals Council, however, denied
Vanbuskirk’s request on August 13, 2010, making the ALJ’s decision the final decision of the
1
All parties have consented to the Magistrate Judge. See 28 U.S.C. § 636(c).
1
Commissioner. (Tr. 1-6.)
Vanbuskirk filed a complaint with this Court on October 15, 2010, seeking relief from
the Commissioner’s final decision. (Docket # 1.) On appeal, Vanbuskirk argues that the ALJ’s
hypothetical question inadequately accounted for her limitations in concentration, persistence, or
pace. (Opening Br. of Pl. in Social Security Appeal Pursuant to L.R. 7.3 (“Br.”) 10-15.)
II. FACTUAL BACKGROUND
A. Background
Vanbuskirk was thirty-five years old at the time of her alleged onset date. (Tr. 145.) She
has a high school education and past relevant work as a stocker, production assembler, desk
clerk, and in accounts payable/receivable. (Tr. 186, 260.) Vanbuskirk alleges that she is disabled
due to dysthymia, major depression, edema, morbid obesity, right-foot bone spur, cellulitis,
degenerative joint disease in both knees, and lower back pain. (Br. 2.)
B. Summary of Relevant Medical Evidence2
In September 2002, Vanbuskirk saw Dr. Julie Utendorf and reported that she had been
very depressed over the last year because she had gained a large amount of weight. (Tr. 367.) In
April 2005, she returned to discuss possible bariatric surgery. (Tr. 369.) She weighed 402
pounds and had tried multiple home treatments for weight loss without success, including the
Atkins diet, a six-week make-over diet, Weight-Watchers, Curves, and medications. (Tr. 369.)
Dr. Utendorf discussed the possibility of depression, and Vanbuskirk reported that she was
depressed because of her excessive weight, could not get around with her child, and was in pain.
(Tr. 369.) Dr. Utendorf thought she would be a good candidate for bariatric surgery. (Tr. 369.)
2
Because Vanbuskirk’s challenge to the ALJ’s decision is largely procedural, and in the interest of brevity,
this Opinion recounts only the portions of the 420-page administrative record necessary to the decision.
2
Vanbuskirk was again seen in March 2006 for a problem related to swelling on the back
of her calf. (Tr. 371.) She was diagnosed with a large mass on the left leg with the possibility of
secondary infection. (Tr. 371.) She returned in May 2006 to discuss weight loss. (Tr. 371.)
Vanbuskirk had spoken with a dietician and her weight was to be checked monthly to keep her
accountable to her diet and exercise program. (Tr. 371.) On exam, her affect was saddened and
she was crying easily. (Tr. 371.) The record reflects that Vanbuskirk returned every month for a
weight check and exam until December 2006, yet failed to lose weight. (Tr. 372-75.)
Dr. Henry Martin, a consultative psychologist, examined Vanbuskirk in June 2007. (Tr.
329-32.) Vanbuskirk informed Dr. Martin that although she suffered from depression, she had
never sought mental health treatment. (Tr. 329.) Vanbuskirk reported that she did all of the
cooking, cleaning, and laundry for herself and her daughter. (Tr. 331.) She drove a car, ran
errands, visited her parents, and frequently saw her friends. (Tr. 331-32.) Dr. Martin observed
that Vanbuskirk had no unusual thought content and was oriented to the time and date. (Tr. 330.)
Vanbuskirk could recall two of three objects after five minutes and remember six digits forward
and three backwards. (Tr. 331.) She did not know the correct answer to seven times nine, but
could otherwise perform simple addition, subtraction, and division. (Tr. 331.) She answered
several knowledge assessment questions correctly and could name five large cities. (Tr. 331.)
Dr. Martin diagnosed Vanbuskirk with a mood disorder and assigned her a Global Assessment of
Functioning (“GAF”) score of 52.3 (Tr. 332.)
Donna Unversaw, a state agency psychological consultant, reviewed Vanbuskirk’s
3
A GAF score measures a clinician’s judgment of the individual’s overall level of psychological, social, and
occupational functioning. See DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS - Text Revision 32 (4th
ed. 2000). The higher the GAF score, the better the individual’s psychological, social, and occupational functioning.
A GAF score of 52 is indicative of someone with some moderate symptoms or moderate difficulty in social,
occupational, or school functioning.
3
medical records and assessed her impairment in June 2007. (Tr. 335-48.) Dr. Unversaw
concluded that Vanbuskirk’s mental impairments were not severe. (Tr. 335.) Dr. Unversaw
found that VanBuskirk had no restrictions in her activities of daily living, maintaining social
functioning, or maintaining concentration, persistence or pace. (Tr. 345.) Dr. Unversaw further
noted that Vanbuskirk had not had any episodes of decompensation. (Tr. 345.) Another state
agency psychologist, Dr. Larsen, concurred with Dr. Unversaw’s conclusions. (Tr. 364.)
Vanbuskirk was seen by Dr. Brandon Dickey on June 16, 2007, at the request of Social
Security, secondary to claims of morbid obesity and osteoarthritis of the bilateral knees. (Tr.
324.) She complained of chronic pain in both her knees and from pains in her hands and feet.
(Tr. 324.) On physical exam she was 67.5 inches tall and weighed 428 pounds. (Tr. 324.) Dr.
Dickey found 2+ pitting edema in her lower extremities, and she had reduced range of motion in
the low back and knees. (Tr. 325-26.) She was unable to perform heel walk, toe walk, or tandem
gait because of her obesity, which also made joint examination very difficult. (Tr. 325.) X-rays
were taken of both knees and showed degenerative joint disease. (Tr. 362-63.)
Vanbuskirk sought mental health treatment for the first time in July 2007. (Tr. 358.) A
licensed mental health care provider at the Bowen Center, Ms. Lynn Baker, diagnosed her with
major depressive disorder. (Tr. 359.) Vanbuskirk reported that she had gone through 150 job
interviews without success. (Tr. 358.) Ms. Baker found that Vanbuskirk did not demonstrate any
thought disorder; was oriented to time, place, and person; and her memory was intact. (Tr. 358.)
She further observed that Vanbuskirk was alert and goal oriented. (Tr. 358.) Vanbuskirk saw
Ms. Baker again in March, April, and May 2008. (Tr. 397-99.)
Dr. J. Sands performed a Physical Residual Functional Capacity Assessment on July 5,
4
2007. (Tr. 349-56.) Dr. Sands found that Vanbuskirk could occasionally lift and/or carry up to
ten pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk at least 2 hours in
an 8-hour workday; sit for about 6 hours in an 8-hour workday; and push and/or pull without
limitation, except as consistent with lift and/or carry. (Tr. 350.) Dr. Sands also found postural
limitations including only occasional climbing, balancing, stooping, kneeling, crouching, and
crawling. (Tr. 351.) Dr. D. Neal reviewed Dr. Sands’s findings and affirmed them on September
29, 2007. (Tr. 365.)
Vanbuskirk was seen again by Dr. Utendorf in September 2007 to discuss gastric bypass
surgery. (Tr. 377.) She reported intermittent depression without any suicidal thoughts. (Tr. 377.)
She was seen again in November 2007 for problems with her right foot. (Tr. 378.) X-rays
showed a spur which was not plantar related, and the doctor thought her right foot pain was
degenerative in nature. (Tr. 378.)
Vanbuskirk returned in April 2008 for a medication check. (Tr. 394.) She reported that
things were going well for her emotionally and that she was continuing her weight loss efforts,
but had not had any success. (Tr. 394.)
In August 2008, Vanbuskirk was admitted to the emergency room with a rash on her
face. (Tr. 401.) She also discussed her depression at length, and reported that her medication
was not helping very much. (Tr. 401.) She stated that she had been under a lot of stress, and she
was not watching her diet or exercising. (Tr. 401.) Dr. Utendorf discussed simple lifestyle
modifications, such as diet and exercise, that could improve her health. (Tr. 401.)
Vanbuskirk returned in January 2009, complaining about a problem with an area on her
leg. (Tr. 401-2.) She was diagnosed with having a mass on her left leg, most likely of thickened
5
skin, but there was no evidence of edema. (Tr. 401-2.)
C. Vanbuskirk’s Hearing Testimony
On August 4, 2009, Vanbuskirk appeared with counsel and testified before the ALJ. (Tr.
20-47.) Ms. Donna Vanbuskirk, the claimant’s mother and Dr. Robert Vargas, the Vocational
Expert (“VE”), also testified. Vanbuskirk testified that she suffered from edema in her
extremities and she needed to elevate her legs for half of the day to alleviate the discomfort. (Tr.
30-31.) She asserted that she could be on her feet for three hours in an eight-hour day, but that
she had trouble lifting, bending, crawling, stooping and crouching. (Tr. 36-37.)
Vanbuskirk alleged that she suffered from depression, her concentration was affected,
and she had trouble focusing, but she stated that Prozac helped. (Tr. 26, 33-36.)
In Vanbuskirk’s application for SSI benefits, she asserted that her disability began in
June 2004. (Tr. 153.) At the hearing, however, Vanbuskirk testified that she stopped working in
July 2004 because her employer went out of business. (Tr. 23.) She asserted that she would have
remained in that job (an accounts receivable position) if the company had not ceased business.
(Tr. 23.) She further clarified that if she were allowed to sit or stand at will, she could still
perform her previous position 8 hours a day, 40 hours a week. (Tr. 24-25.)
Vanbuskirk also described her efforts to find another job during her alleged disability
period. She testified that she applied for another job as recently as a month prior to the hearing
and had sought assistance in obtaining work from Indiana Vocational Assistance Services. (Tr.
26-29.) She noted that she would go to the Vocational Assistance office every other day to look
for work, but was nonetheless unsuccessful in finding work. (Tr. 28-29.) Vanbuskirk expressed
frustration that she had gone to “so many interviews” without success. (Tr. 29.)
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Vanbuskirk’s mother also testified and asserted that Vanbuskirk’s edema limited her
functioning. (Tr. 39-40.) She claimed that, in her opinion, Vanbuskirk’s depression was
severe and that, at times, Vanbuskirk experienced difficulty focusing. (Tr. 41-42.) In a third
party function report, however, Vanbuskirk’s mother noted that Vanbuskirk had no difficulty
paying attention, finishing what she started, or following written and spoken instructions. (Tr.
230.)
Finally, Dr. Vargas, the VE, testified. (Tr. 42-47.) The ALJ asked the VE to consider a
hypothetical individual with Vanbuskirk’s age, education, and past work experience, who could
occasionally lift up to ten pounds but frequently less than ten pounds, can stand or walk at least
two hours in an eight-hour day, and sit with normal breaks for a total of about six hours. (Tr. 43.)
The ALJ also directed the VE to consider that the individual had no limitations in her ability to
push and pull and could only occasionally climb, balance, stoop, kneel, crouch, or crawl. (Tr.
43.) In response, the VE testified that such an individual could perform Vanbuskirk’s past
relevant work. (Tr. 43.) When the ALJ added the requirement of a sit/stand option, the VE
testified that such an individual could perform unskilled work as a surveillance monitor (150
jobs in the region), order clerk (150 jobs in the region), and credit clerk (100 jobs). (Tr. 44.) The
VE further testified that the identified jobs required less concentration and focus than
VanBuskirk’s past work in accounts receivable. (Tr. 44.)
III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
7
The Court’s task is limited to determining whether the ALJ’s factual findings are
supported by substantial evidence, which means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th
Cir. 2005) (citation omitted). The decision will be reversed only if it is not supported by
substantial evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003). Nonetheless, “substantial evidence” review should not be a simple rubber-stamp
of the Commissioner’s decision. Clifford, 227 F.3d at 869.
IV. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if she establishes an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
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requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App. 1; (4) whether the claimant is unable to perform her past work; and (5)
whether the claimant is incapable of performing work in the national economy.4 See 20 C.F.R.
§§ 404.1520, 416.920; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). An affirmative
answer leads either to the next step or, on steps three and five, to a finding that the claimant is
disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any point
other than step three stops the inquiry and leads to a finding that the claimant is not disabled. Id.
The burden of proof lies with the claimant at every step except the fifth, where it shifts to the
Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On August 26, 2009, the ALJ rendered her opinion. (Tr. 7-18.) She found at step one of
the five-step analysis that Vanbuskirk had not engaged in substantial gainful activity since her
alleged onset date of July 30, 2004. (Tr. 12.) At step two, she determined that Vanbuskirk had
the following severe impairments: morbid obesity, knee pain, back pain, and depression. (Tr.
12.) At step three, she determined that Vanbuskirk’s impairments were not severe enough to
meet a disability listing. (Tr. 12-13.) The ALJ found that Vanbuskirk’s mental impairments
created mild limitations in her activities of daily living and social functioning and that she had
moderate difficulties in concentration, persistence, and pace. (Tr. 12.) Additionally, the ALJ
4
Before performing steps four and five, the ALJ must determine the claimant’s Residual Functional
Capacity (“RFC”) or what tasks the claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a),
416.920(e), 416.945(a). The RFC is then used during steps four and five to help determine what, if any, employment
the claimant is capable of. 20 C.F.R. §§ 404.1520(e), 416.920(e).
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determined that Vanbuskirk possessed the RFC to perform sedentary work, except that she could
only occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 13.) The ALJ also found
that she could only perform unskilled work because of her inability to sustain the concentration
and focus required by skilled work and that she needed to be able to alternate between sitting and
standing as needed. (Tr. 13.)
Based on this RFC and the VE’s testimony, the ALJ concluded at step four that because
Vanbuskirk could only perform unskilled, sedentary work, she could not return to her past
relevant work. (Tr. 17.) However, the ALJ found that there are a significant number of jobs in
the national economy that Vanbuskirk could perform. (Tr. 17.) She therefore concluded at step
five that Vanbuskirk was not under a disability at any time from the alleged onset date through
the date of the decision and her claim for benefits was denied. (Tr. 17-18.)
C. The ALJ Erred By Failing to Incorporate Her Finding That Vanbuskirk
Had Moderate Deficits in Maintaining Concentration, Persistence, or Pace
into Her Questioning of the VE at Step Five
Vanbuskirk argues that the ALJ erred by failing to incorporate her finding that she had
moderate deficits in maintaining concentration, persistence, or pace, into the RFC and into her
questioning of the VE at step five. (Br. 10 (citing Tr. 13, 44).) Vanbuskirk’s argument is
ultimately persuasive and warrants a remand of the Commissioner’s final decision.5
To determine the severity of a claimant’s mental impairment, the ALJ must address a
claimant’s degree of functional limitation in four “broad functional areas”: activities of daily
living; social functioning; concentration, persistence, or pace; and episodes of decompensation.
5
Vanbuskirk also advances a summary and undeveloped argument that the ALJ erred when evaluating the
credibility of her symptom testimony. Because remand is warranted on her first argument, the Court need not
consider Vanbuskirk’s credibility argument.
10
20 C.F.R. §§ 404.1520a(c)(3), 416.920(a)(c)(3); see, e.g., Jones v. Massanari, No. 01-C-0024-C,
2001 WL 34382025, at *13 (W.D. Wis. Oct. 18, 2001). The Seventh Circuit Court of Appeals
has stated that the ALJ must then “incorporate” these limitations into the hypothetical questions
posed to the VE at step five. Kasarsky v. Barnhart, 335 F.3d 539, 543-44 (7th Cir. 2003)
(holding that the ALJ erred when neither his RFC nor his hypothetical question to the VE “[took]
into account” his finding at step two that the claimant had deficiencies in concentration,
persistence, or pace); see also Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009). Stated more
broadly, “to the extent the ALJ relies on testimony from a vocational expert, the question posed
to the expert must incorporate all relevant limitations from which the claimant suffers.”
Kasarsky, 335 F.3d at 543 (emphasis added); see also Stewart, 2009 WL 859830, at *3 (“When
an ALJ poses a hypothetical question to a vocational expert, the question must include all
limitations supported by medical evidence in the record.”).
At step three of her analysis, the ALJ found that Vanbuskirk had moderate deficiencies in
maintaining concentration, persistence, or pace. (Tr. 12.) Yet, the RFC and the hypothetical
question posed by the ALJ to the VE did not incorporate these findings, and the ALJ instead
obliquely referred to the work Vanbuskirk could supposedly perform as “unskilled.” (Tr. 42.)
The Commissioner argues that the ALJ’s limitation adequately accommodates
Vanbuskirk’s mental health deficits. Vanbuskirk disagrees and argues that the ALJ’s failure to
incorporate her moderate limitations in concentration, persistence, or pace into the hypothetical
posed to the VE, left the VE with an incomplete picture of her actual limitations.
“[A]n [ALJ] is free to formulate [her] mental residual functional capacity assessment in
terms such as ‘able to perform simple, routine, repetitive work’ so long as the record adequately
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supports that conclusion.” Kusilek v. Barnhart, No. 04-C-310-C, 2005 WL 56716, at *4 (W.D.
Wis. Mar. 2, 2005). That is, courts have held that when a medical source of record translates his
findings into a particular RFC assessment, the ALJ may reasonably rely on that opinion in
formulating a hypothetical question for the VE. See, e.g., Johansen v. Barnhart, 314 F.3d 283,
289 (7th Cir. 2002) (concluding that the ALJ’s limitation to low-stress, repetitive work
adequately incorporated the claimant’s moderate mental limitations because the consulting
physician had essentially “translated her findings into a specific RFC assessment, concluding
that [the claimant] could still perform low-stress, repetitive work.”); Howard v. Massanari, 255
F.3d 577, 581-82 (8th Cir. 2001) (concluding that the ALJ adequately captured the claimant’s
deficiencies in concentration, persistence, or pace in his RFC that limited the claimant to simple,
repetitive tasks, in part because the state agency psychologist concluded in his functional
capacity assessment that the claimant could sustain sufficient concentration and attention to
perform simple, repetitive, and routine activity); Smith v. Halter, 307 F.3d 377, 379 (6th Cir.
2001) (finding that the ALJ’s limitation of plaintiff to work that is “routine and low stress” as
recommended by one medical source of record adequately accounted for the fact that plaintiff
often suffered from deficiencies in concentration, persistence, or pace).
This, however, is not a case where the ALJ relied upon a medical source’s translation of
Vanbuskirk’s moderate deficits in concentration, persistence, or pace into a specific RFC
finding. To explain, Dr. Unversaw, the state agency physician, found that Vanbuskirk had no
difficulties in maintaining concentration, persistence, or pace, and never translated that finding
into a specific RFC. (Tr. 345.) The ALJ, however, ultimately concluded that Lee’s mental
deficits were more severe than those articulated by the state agency physician, finding that she
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had moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 12.)
Thus, the Court in its review of the record noted no medical source opinion that
translated Vanbuskirk’s moderate deficits in maintaining concentration, persistence, or pace into
an RFC of “unskilled work”; therefore, the ALJ obviously created this limitation of her own
accord. The Seventh Circuit Court of Appeals, however, has found a hypothetical question
flawed where it “purported to tell the vocational expert what types of work [the claimant] could
perform rather than setting forth [the claimant’s] limitations and allowing the expert to conclude
on her own what types of work [the claimant] could perform.” Young v. Barnhart, 362 F.3d 995,
1004 n.4 (7th Cir. 2004); see also Stewart, 561 F.3d at 2009 WL 859830, at 684; Everroad v.
Astrue, No. 4:06-cv-100, 2007 WL 2363375, at *8 (S.D. Ind. Aug. 10, 2007) (“By using
conclusory language to describe [the claimant’s] limitations, the ALJ did not allow the expert to
make a reliable determination about what work the claimant could perform.”).
In O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010), the Seventh Circuit
stated that in most cases, “employing terms like ‘simple, repetitive tasks’ on their own will not
necessarily exclude from the VE’s consideration those positions that present significant
problems of concentration, persistence and pace.” See also Stewart, 561 F.3d at 684-85 (limiting
hypothetical to simple, routine tasks did not account for limitations of concentration, persistence
and pace); Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (restricting hypothetical to
unskilled work did not consider difficulties with memory, concentration or mood swings). The
Court explained that “[t]he 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 677-78. (emphasis added) (collecting cases).
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As emphasized supra, when an ALJ relies on a VE’s testimony, the hypothetical
questions based on the claimant’s RFC must incorporate all of the claimant’s limitations that are
supported by medical evidence in the record. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir.
2004). That is, “the ALJ should refer expressly to limitations on concentration, persistence and
pace in the hypothetical in order to focus the VE’s attention on these limitations and assure
reviewing courts that the VE’s testimony constitutes substantial evidence of the jobs a claimant
can do.” O’Connor, 627 F.3d at 620-21.
Accordingly, this case will be remanded to the Commissioner so that the ALJ may
properly incorporate Vanbuskirk’s moderate difficulties in maintaining concentration,
persistence, or pace, together with the other limitations that she articulated at step three, into her
analysis at step five.6 See Kasarsky, 335 F.3d at 544.
V. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is REVERSED and
REMANDED for further proceedings consistent with this Opinion and Order. The Clerk is
directed to enter judgment in favor Vanbuskirk and against the Commissioner.
SO ORDERED.
Enter for July 26, 2011.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
6
To be clear, in remanding the case, the Court is not finding that Vanbuskirk is entitled to benefits. That
decision rests with the ALJ after correcting a procedural error in her hypothetical.
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