Rorick v. Commissioner of Social Security et al
Filing
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OPINION AND ORDER: the decision of the Commissioner is REVERSED and the case is REMANDED to the Commissioner for further proceedings. The Clerk is directed to enter judgment in favor or Rorick and against the Commissioner. Signed by Magistrate Judge Roger B Cosbey on 3/6/12. (jcp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
NICOLE M. RORICK,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CAUSE NO. 1:11-CV-00037
OPINION AND ORDER
Plaintiff Nicole Rorick appeals to the district court from a final decision of the
Commissioner of Social Security denying her application under the Social Security Act (the
“Act”) for a period of disability and 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 additional proceedings in
accordance with this Opinion.
I. PROCEDURAL HISTORY
Rorick applied for DIB and SSI in June 2008, alleging that she became disabled as of
June 1, 2004. (Tr. 8, 117-23.) The Commissioner denied her application initially and upon
reconsideration, and Rorick requested an administrative hearing. (Tr. 71-81, 84-86.)
Administrative Law Judge (“ALJ”) John Pope conducted a hearing on April 15, 2010, at which
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All parties have consented to the Magistrate Judge. (Docket # 15.) See 28 U.S.C. § 636(c).
Rorick, who appeared pro se; her husband; and a vocational expert (“VE”) testified. (Tr. 29-66.)
On July 22, 2010, the ALJ rendered an unfavorable decision to Rorick, concluding that
she was not disabled because she could perform a significant number of jobs in the national
economy despite the limitations caused by her impairments. (Tr. 8-21.) The Appeals Council
denied Rorick’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (Tr. 1-4.)
Rorick filed a complaint with this Court on January 25, 2011, seeking relief from the
Commissioner’s final decision. (Docket # 1.) Rorick’s sole argument on appeal is that the ALJ
failed to incorporate his finding at step three that she had moderate difficulties in maintaining
concentration, persistence, or pace into the residual functional capacity (“RFC”) and the
hypotheticals he posed to the VE, causing the ALJ’s step five finding to lack the support of
substantial evidence. (Opening Br. of Pl. in Social Security Appeal Pursuant to L.R. 7.3
(“Opening Br.”) 8-15.)
II. FACTUAL BACKGROUND
A. Rorick’s Personal, Medical, and Vocational Background
At the time of the ALJ’s decision, Rorick was forty years old; had a high school
education and a college degree in counseling; and possessed work experience as a case manager,
family support worker, and mental health aide technician. (Tr. 35, 117, 154, 246.) She alleges
that she became disabled on June 1, 2004, due to diabetes, ulnar neuropathy, pedal edema,
fibromyalgia, antiphospholipid syndrome, transient ischemic attacks, endometriosis, obesity,
depression, and anxiety. (Opening Br. 2.)
At the hearing, Rorick, who was 5 feet 2 inches tall and weighed 405 pounds at the time,
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testified that she lives in a two-story home with her husband and daughters, ages seven and five.
(Tr. 35.) Her typical day included caring for her children (one of whom has cerebral palsy and is
assisted by a home health nurse) and performing household tasks, interspersed with frequent rest
periods. (Tr. 43-48.) She stated that she cannot work due to depression, anxiety, and pain from
fibromyalgia and arthritis. (Tr. 38.) She also complained of having anger problems and, once or
twice a week, panic attacks. (Tr. 48.) She stated that the pain was “[a]ll over” her body and that
she experienced side effects from her medication, including memory loss, weight gain,
clumsiness, and dizziness. (Tr. 42, 52.) During an eight-hour period, Rorick estimated that she
could walk for one hour, stand for one hour and fifteen minutes, and sit for three hours.2 (Tr. 5354.)
Because Rorick’s argument on appeal concerns only the ALJ’s consideration of her
concentration difficulties, the Court will focus on the medical evidence pertaining to her mental
impairments. In that regard, on July 16, 2008, Wayne Von Bargen, Ph.D., examined Rorick and
noted that she had a logical thought process and an appropriate, but at times tearful, affect. (Tr.
996-98.) He opined that other than mild concentration limitations, which he thought might be
attributable to her anxiety about medical problems and family responsibilities, she had intact
cognitive functioning. (Tr. 997.) He diagnosed her with anxiety disorder NOS and depressive
disorder NOS and assigned her a Global Assessment of Functioning (“GAF”) score of 60,
reflecting moderate psychological symptoms.3 (Tr. 997-98.)
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Rorick’s husband also testified at the hearing and essentially corroborated her testimony. (Tr. 56-59.)
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To elaborate, GAF scores reflect a clinician’s judgment about the individual’s overall level of
functioning. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS
32 (4th ed., Text Rev. 2000). A GAF score of 51 to 60 reflects moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning
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That same day, J. Gange, Ph.D., a state agency psychologist, reviewed Rorick’s record
and found that she had mild limitations in activities of daily living and social functioning, but
moderate limitations in concentration, persistence, or pace. (Tr. 1024.) He opined that she
“appear[ed] capable of functioning in typical work environments and social settings where
extended periods of concentration or remembering/carrying out detailed instructions is not
required and where interpersonal contact is routine and superficial.” (Tr. 1030.)
On March 6, 2010, Robert Doyal, Ph.D., examined Rorick to determine if she understood
what was involved in her upcoming gastric bypass surgery. (Tr. 1162-65.) He observed that she
had a sad affect and depressed mood, scoring in the most severe category of the Beck Depression
Inventory; she admitted to recent suicidal ideation without intent. (Tr. 1163-64.) However, she
had high-average intelligence, good insight and judgment, and normal thought content and flow.
(Tr. 1164.) Dr. Doyal diagnosed her with recurrent, severe major depression; generalized
anxiety disorder; alcohol dependence in remission; and rule out compulsive over-eating disorder.
(Tr. 1164.) He recommended that she not undergo the gastric bypass surgery because, given her
current emotional state, she would not likely adhere to the post-surgical regimen. (Tr. 1164.)
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).
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
(e.g., few friends, conflicts with peers or co-workers). Id.
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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 result in death or has lasted or 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,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
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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 Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. §§ 404.1520, 416.920. An
affirmative answer leads either to the next step or, with respect to 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 July 22, 2010, the ALJ rendered his decision. (Tr. 8-21.) He found at step one of the
five-step analysis that Rorick had not engaged in substantial gainful activity since her alleged
onset date. (Tr. 10.) At step two, the ALJ concluded that she had the following severe
impairments: diabetes, ulnar neuropathy, pedal edema, fibromyalgia, antiphospholipid syndrome,
transient ischemic attacks, endometriosis, obesity, depression, and anxiety. (Tr. 10.) At step
three, the ALJ determined that Rorick’s impairment or combination of impairments were not
severe enough to meet a listing. (Tr. 10.)
Before proceeding to step four, the ALJ determined that Rorick’s testimony of
debilitating limitations was not credible to the extent it was inconsistent with the following RFC:
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Before performing steps four and five, the ALJ must determine the claimant’s RFC, that is, 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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[T]he claimant has the residual functional capacity to perform sedentary work . . .
except the claimant may only occasionally balance, stoop, kneel, crouch[,] crawl
and climb ramps and stairs. She must never be expected to climb ladders, ropes
or scaffolds, or work in environments where she has concentrated exposure to
wetness and hazards, especially wet slippery surfaces and unprotected heights.
The claimant is limited to unskilled work involving only routine, superficial
contact with others.
(Tr. 13.) Based on this RFC and the VE’s testimony, the ALJ found at step four that Rorick was
unable to perform her past relevant work as a case manager, family support worker, and mental
health technician. (Tr. 20.) The ALJ concluded at step five, however, that she could perform a
significant number of other jobs within the economy, including assembler, hand packer, and
inspector. (Tr. 21.) Therefore, Rorick’s claims for DIB and SSI were denied. (Tr. 27.)
C. The ALJ Erred By Failing to Incorporate His Step Three Finding
That Rorick Had Moderate Deficits in Maintaining Concentration, Persistence, or Pace
Into the RFC and the Hypotheticals He Posed to the VE at Step Five
Rorick argues that the ALJ erred by failing to incorporate his step-three finding that she
had moderate deficits in maintaining concentration, persistence, or pace into the RFC and his
questioning of the VE at step five. Rorick’s argument ultimately has merit and warrants a
remand of the Commissioner’s final decision.
To explain, in determining 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. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(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
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(7th Cir. 2003) (holding that the ALJ erred when neither his RFC nor his hypothetical question
to the VE “[took] into account” his earlier finding that the claimant had deficiencies in
concentration, persistence, or pace); accord 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); accord Stewart, 561 F.3d at 684 (“When
an ALJ poses a hypothetical question to a vocational expert, the question must include all
limitations supported by medical evidence in the record.”).
Here, at step three of his analysis, the ALJ found that Rorick 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 expressly incorporate these findings, instead
limiting Rorick to “unskilled work involving only routine, superficial contact with others.” (Tr.
61.) Moreover, when he posed this hypothetical, the ALJ instructed the VE to “disregard” any
information that he may have gathered in the file or through listening to the testimony other than
what he gave him in the hypothetical. (Tr. 61.) Of course, even if the ALJ had not given this
specific instruction, “where . . . the ALJ poses a series of increasingly restrictive hypotheticals to
the VE, . . . we infer that the VE’s attention is focused on the hypotheticals and not on the
record. O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
Nevertheless, the Commissioner argues that this “unskilled work” limitation in the ALJ’s
hypothetical to the VE adequately accommodates Rorick’s mental health deficits. Rorick
disagrees; she contends that the ALJ’s failure to incorporate her moderate limitations in
concentration, persistence, or pace into the hypothetical left the VE with an incomplete picture of
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her actual limitations.
“[A]n [ALJ] is free to formulate his mental residual functional capacity assessment in
terms such as ‘able to perform simple, routine, repetitive work’ so long as the record adequately
supports that conclusion.” Kusilek v. Barnhart, No. 04-C-310-C, 2005 WL 567816, 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 [his] 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
Rorick’s moderate deficits in concentration, persistence, or pace into a specific RFC finding. Dr.
Gange, the state agency psychologist, opined that, despite her moderate deficits in maintaining
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concentration, persistence, or pace, Rorick “appears capable of functioning in typical work
environments . . . where extended periods of concentration or remembering/carrying out detailed
instructions is not required . . . .”5 (Tr. 1030 (emphasis added).) Thus, Dr. Gange did not
specifically translate Rorick’s moderate deficits in maintaining concentration, persistence, or
pace into an RFC of “unskilled work”; therefore, the ALJ obviously created this limitation of his
own accord. The Seventh Circuit, however, has found a hypothetical 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 his 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 684-85; 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, 627 F.3d at 620, the Seventh Circuit explained 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.” (collecting cases). 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.” Id. (emphasis added) (collecting cases); see 20 C.F.R. §§ 404.1568(a),
416.968(a) (defining “unskilled work” as “work which needs little or no judgment to do simple
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Of course, the ALJ ultimately concluded that Rorick’s concentration deficits were more severe than those
articulated by Dr. Von Bargen, who, in any event, never translated his findings into a specific RFC. (Tr. 998.)
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duties that can be learned on the job in a short period of time”). Accordingly, it concluded that
in most cases, “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-Spinner, 627 F.3d at 620-21.
And here, the ALJ’s omission does not constitute mere harmless error. See Skarbek v.
Barnhart, 390 F.3d 500, 5004 (7th Cir. 2004) (concluding that an error is harmless when it
“would not affect the outcome of the case”). The VE specifically testified that a hypothetical
individual of Rorick’s age, education, and experience with the severity of physical and
psychological impairments—in particular, memory loss and concentration—that Rorick claims
“would not be able to sustain eight hours of work in the day or 40 hours of work per week. And
[she] would not be able to stay on task in competitive employment.” (Tr. 63-64.)
Therefore, 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). Here, the ALJ failed to do so. Consequently, this case will be
remanded to the Commissioner so that the ALJ may properly incorporate Rorick’s moderate
difficulties in maintaining concentration, persistence, or pace, together with the other mental
limitations that he articulated at step three, into his analysis at step five. See Kasarsky, 335 F.3d
at 544.
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V. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is REVERSED, and
the case is REMANDED to the Commissioner for further proceedings in accordance with this
Opinion. The Clerk is directed to enter a judgment in favor of Rorick and against the
Commissioner.
SO ORDERED.
Enter for this 6th day of March, 2012.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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