Marley v. Commissioner of Social Security

Filing 31

OPINION AND ORDER: decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Andrew P Rodovich on 7/1/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CHARLES W. MARLEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) Cause No. 1:14-cv-157
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OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Charles W. Marley, on May 22, 2014. For the following
reasons, the decision of the Commissioner is AFFIRMED.
Background
The plaintiff, Charles W. Marley, filed an application for Disability Insurance Benefits on
June 19, 2009, and for Supplemental Security Income on April 28, 2010, alleging a disability
onset date of November 5, 2008. (Tr. 102). The Disability Determination Bureau denied
Marley’s application on October 29, 2009, and again upon reconsideration on November 16,
2009. (Tr. 102). Marley subsequently filed a timely request for a hearing on November 19,
2009. (Tr. 102). A hearing was held on September 14, 2010, before Administrative Law Judge
(ALJ) John Pope, and the ALJ issued an unfavorable decision on December 3, 2010. (Tr. 102–
10). Vocational Expert (VE) Michelle Peters testified at the hearing. (Tr. 102). The Appeals
Council granted review and remanded the case to an ALJ. (Tr. 120).
On January 11, 2011, Marley filed a subsequent claim for benefits. (Tr. 121). The
Appeals Council found the subsequent claim duplicative and consolidated the new claim and the

remanded claim into one. (Tr. 444). A second hearing was held on September 21, 2012, before
ALJ Steven J. Neary, and the ALJ issued an unfavorable decision on December 4, 2012. (Tr.
14–25). VE Marie N. Kieffer, Denny Garrett, Marley’s brother, and Marley testified at the
hearing. (Tr. 14). The Appeals Council denied review, making the ALJ’s decision the final
decision of the Commissioner. (Tr. 1–10).
The ALJ found that Marley met the insured status requirements of the Social Security Act
through December 31, 2013. (Tr. 16). At step one of the five step sequential analysis for
determining whether an individual is disabled, the ALJ found that Marley had not engaged in
substantial gainful activity since November 5, 2008, the alleged onset date. (Tr. 16). At step
two, the ALJ determined that Marley had the following severe impairments: degenerative disc
disease, coronary artery disease status post angioplasty, osteoarthritis of the knees, bipolar
disorder, and cannabis dependence. (Tr. 16). At step three, the ALJ concluded that Marley did
not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments. (Tr. 17). In determining whether Marley had an
impairment or combination of impairments that met the severity of one of the listed impairments,
the ALJ considered Listing 1.00 for musculoskeletal impairment, Listing 4.00 for cardiovascular
disease, Listing 12.04 for affective disorders, Listing 12.06 for anxiety disorders, and Listing
12.09 for substance addiction disorders. (Tr. 17). For Listing 12.04, the ALJ considered the
Paragraph B criteria and the Paragraph C criteria. (Tr. 18–21).
As part of the Paragraph B criteria, the ALJ found that Marley had moderate difficulties
in concentration, persistence, and pace. (Tr. 20). Marley spent hours watching television, using
the computer, and playing video games each day without any apparent difficulty. (Tr. 20). He
has performed semi-skilled to skilled work previously and completed two years of college. (Tr.

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20). Marley has average intelligence and has not been diagnosed with an attentional disorder.
(Tr. 20). Marley testified that his psychotropic medication had controlled his manic phases but
that he lacked motivation and energy because of depression caused by bipolar disorder. (Tr. 20).
Additionally, Marley’s brother testified that he was less scatterbrained now. (Tr. 20).
In 2009, a consultative psychological examiner suggested that marijuana could be
negatively affecting Marley’s energy and motivation but that Marley had adequate concentration
and attention. (Tr. 20). During the exam, Marley’s responses were thorough, his abstract
reasoning was strong, his memory was good, and he had no cognitive deficits. (Tr. 20).
However, the ALJ found no other evidence that marijuana use had impacted Marley since his
alleged onset date. (Tr. 20). On March 9, 2010, Dr. Negi evaluated Marley and found that he
had a GAF of 55, which indicated moderate difficulty with functioning. (Tr. 20). At that time,
Marley was not using his prescription medications and had poor concentration, but he appeared
to have average intelligence. (Tr. 20).
On March 26, 2011, Marley had a second consultative psychological exam and was able
to maintain his concentration and attention. (Tr. 20). Marley’s fund of information and ability to
abstract were adequate, his IQ appeared average, but his memory was below average. (Tr. 20).
He could not complete serial 7s and his GAF was 57, which indicated moderate difficulty with
sustaining functioning. (Tr. 20–21). However, Marley’s subsequent treatment records indicated
stable functioning. (Tr. 21). A reviewing State Agency psychologist concluded that Marley had
moderate difficulty with sustaining concentration, persistence, and pace but found that he could
handle simple routine tasks. (Tr. 21). The ALJ gave those opinions great weight because they
were consistent with the medical evidence as opposed to Marley’s and his brother’s testimony.
(Tr. 21).

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The ALJ then assessed Marley’s residual functional capacity (RFC) as follows:
the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
the claimant cannot climb, crawl, or kneel; he can occasionally
balance and stoop. He is limited to simple routine tasks with no
more than superficial contacts with other people.
(Tr. 21). The ALJ explained that in considering Marley’s symptoms he followed a two-step
process. (Tr. 22). First, he determined whether there was an underlying medically determinable
physical or mental impairment that was shown by a medically acceptable clinical or laboratory
diagnostic technique that reasonably could be expected to produce Marley’s pain or other
symptoms. (Tr. 22). Then, he evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Marley’s functioning. (Tr. 22).
The ALJ found that Marley’s medically determinable impairments could reasonably
cause some of the alleged symptoms. (Tr. 22). However, the ALJ found Marley’s testimony that
he did not come out of his room or leave his home for several days each month incredible. (Tr.
22). Additionally, he found Marley incredible regarding his marijuana use and the extent and
nature of his pain. (Tr. 22). The ALJ concluded that Marley had some moderate difficulty with
sustaining concentration, persistence, and pace. (Tr. 22). Therefore, the ALJ limited him to
simple routine tasks. (Tr. 22).
At step four, the ALJ found that Marley could not perform his past relevant work. (Tr.
23). Considering Marley’s age, education, work experience, and RFC, the ALJ concluded that
there were jobs in the national economy that Marley could perform, including electrical
accessory assembler (200 jobs regionally, 2,000 jobs in Indiana, and 100,000 jobs nationally),
small products assembler (3,000 jobs regionally, 50,000 jobs in Indiana, and 900,000 jobs

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nationally), and laundry folder (200 jobs regionally, 3,000 jobs in Indiana, and 200,000 jobs
nationally).
Discussion
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097
(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the
correct legal standards and supported her decision with substantial evidence.”); Pepper v. Colvin,
712 F.3d 351, 361–62 (7th Cir. 2013); Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005);
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial evidence has
been defined as “such relevant evidence as a reasonable mind might accept to support such a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 852
(1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed.
2d 140 (1938)); see Bates, 736 F.3d at 1098; Pepper, 712 F.3d at 361–62; Jens v. Barnhart, 347
F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002). An ALJ’s
decision must be affirmed if the findings are supported by substantial evidence and if there have
been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Rice v. Barnhart,
384 F.3d 363, 368–69 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002).
However, “the decision cannot stand if it lacks evidentiary support or an adequate discussion of
the issues.” Lopez, 336 F.3d at 539.

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Disability and supplemental insurance benefits are available only to those individuals
who can establish “disability” under the terms of the Social Security Act. The claimant must
show that he is unable “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). The Social Security regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§
404.1520(b), 416.920(b). If he is, the claimant is not disabled and the evaluation process is over.
If he is not, the ALJ next addresses whether the claimant has a severe impairment or combination
of impairments that “significantly limits . . . physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Williams v. Colvin, 757 F.3d 610, 613
(7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the claimant’s
impairments). Third, the ALJ determines whether that severe impairment meets any of the
impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then
the impairment is acknowledged by the Commissioner to be conclusively disabling. However, if
the impairment does not so limit the claimant’s remaining capabilities, the ALJ reviews the
claimant’s “residual functional capacity” and the physical and mental demands of his past work.
If, at this fourth step, the claimant can perform his past relevant work, he will be found not
disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). However, if the claimant shows that his
impairment is so severe that he is unable to engage in his past relevant work, then the burden of
proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job

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experience, and functional capacity to work, is capable of performing other work and that such
work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1520(f),
416.920(f).
Marley has argued that the ALJ erred because he determined that Marley had moderate
limitations in concentration, persistence, and pace, and failed to incorporate those limitations into
the hypotheticals he posed to the VE. Furthermore, he has argued that the ALJ erred because
none of the exceptions apply. The ALJ’s hypothetical asked the VE to assume an individual
with the same age, education, and work history as Marley. (Tr. 54). Additionally, the individual
was limited to light or sedentary work and could not climb, crawl, or kneel, but could balance
and stoop occasionally. (Tr. 54). The ALJ then included the following mental limitations:
[f]urther assume that the individual could not engage in complex or
detailed tasks, but remain[s] capable of simple, routine tasks
consistent with unskilled work that could be performed throughout
the workday. Further assume that the individual would be limited
to superficial relations with supervisors, co-workers and others. By
superficial I mean just ordinary contact with others.
(Tr. 54). Based on that hypothetical the VE determined that Marley could not perform his past
relevant work but could perform other work that existed in significant numbers in the national
economy. (Tr. 54–55).
The ALJ’s RFC assessment and the hypothetical posed to the VE must incorporate all of
the claimant’s limitations supported by the medical record. Yurt v. Colvin, 758 F.3d 850, 857
(7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010));
Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ relies on testimony
from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the
claimant’s limitations supported by medical evidence in the record.”). That includes any
deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d at 857;
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O’Connor-Spinner, 627 F.3d at 619 (“Among the limitations the VE must consider are
deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th
Cir. 2009) (indicating the hypothetical question “must account for documented limitations of
‘concentration, persistence, or pace’”) (collecting cases). The most effective way to ensure that
the VE is fully apprised of the claimant’s limitations is to include them directly in the
hypothetical. O’Connor-Spinner, 627 F.3d at 619.
However, ALJs do not need to explicitly state “concentration, persistence, or pace” in the
hypothetical for all cases. Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619. Rather, a
court may assume a VE’s familiarity with a claimant’s limitations, despite deficiencies in the
hypothetical, when the VE independently reviewed the medical record or heard testimony
directly addressing those limitations. O’Connor-Spinner, 627 F.3d at 619; Simila v. Astrue, 573
F.3d 503, 521 (7th Cir. 2009). This exception does not apply if the ALJ poses a series of
increasingly restrictive hypotheticals because courts infer that the VE’s attention is focused on
the hypotheticals and not the record. O’Connor-Spinner, 627 F.3d at 619; Young v. Barnhart,
362 F.3d 995, 1003 (7th Cir. 2004). Marley has argued that this exception does not apply
because the ALJ posed a series of increasingly restrictive hypotheticals, and the Commissioner
has not disputed that argument. The court agrees that the ALJ asked a series of increasing
restrictive hypotheticals. Therefore, this exception does not apply.
An ALJ’s hypothetical may omit “concentration, persistence, or pace” when it is apparent
that the ALJ’s phrasing specifically excluded tasks that someone with the claimant’s limitations
could not perform. O’Connor-Spinner, 627 F.3d at 619. For example, courts have upheld
hypotheticals that restricted a claimant to low-stress work when the limitations were stress or
panic related. See Johansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002) (upholding

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a hypothetical formulated in terms of “repetitive, low-stress” work because the description
eliminated positions likely to trigger symptoms of the panic disorder that originated the
claimant’s moderate limitations in concentration, persistence, or pace); Arnold v. Barnhart, 473
F.3d 816, 820, 823 (7th Cir. 2007) (upholding a hypothetical that restricted the claimant to lowstress, low-production work when stress-induced headaches, frustration, and anger caused the
claimant’s difficulties in concentration, persistence, or pace). Marley has argued that this
exception does not apply because the ALJ did not use the term “low-stress work,” his limitations
were not stress or panic related, and the Commissioner has not disputed that argument. The
court agrees that the ALJ did not use the term “low-stress work” and that Marley’s limitations
are not stress or panic related. Therefore, this exception does not apply.
Courts may uphold a hypothetical that does not mention “concentration, persistence, or
pace” when the underlying conditions were mentioned and the link between the underlying
condition and the concentration difficulties was apparent enough to incorporate those difficulties
by reference. See Simila, 573 F.3d at 521–22 (upholding the hypothetical but indicating the
failure to include the specific limitations was “troubling”). Generally, terms like “simple,
repetitive tasks” alone do not exclude from the VE’s consideration those positions that present
significant problems with concentration, persistence, or pace. Stewart, 561 F.3d at 684–85
(finding a hypothetical limited to simple, routine tasks did not account for limitations of
concentration, persistence, or pace); see Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.
2003) (finding hypothetical posed as individual of borderline intelligence did not account for
limitations of concentration). Marley has argued that this exception does not apply because the
ALJ did not mention his underlying conditions in the hypothetical, and the Commissioner has

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not disputed that argument. The ALJ did not mention Marley’s underlying conditions, and
therefore, this exception does not apply.
The Commissioner has argued that the ALJ did not err because he relied on an RFC from
a medical source to formulate the hypothetical. If a medical expert makes an RFC
determination, the ALJ may reasonably rely on that opinion to formulate a hypothetical posed to
a VE. Johansen v. Barnhart, 314 F.3d at 289; see Calhoun v. Colvin, 2013 WL 3834750, at
*10 (N.D. Ind. July 24, 2013) (upholding a hypothetical to a VE when the ALJ did not include a
limitation in concentration, persistence, and pace but relied almost verbatim on a medical
expert’s RFC). In Milliken, a medical expert found that the claimant could perform unskilled
work despite her limitations in concentration, persistence, and pace. Milliken v. Astrue, 397 F.
App’x 218, 222 (7th Cir. 2010). The ALJ’s hypothetical to the VE limited the claimant to
unskilled work but did not include limitations in concentration, persistence, and pace. Milliken,
397 F. App’x at 222. However, the Seventh Circuit upheld the hypothetical because it
adequately accounted for the claimant’s limitations in concentration, persistence, and pace by
incorporating the medical expert’s assessment that she could perform unskilled work. Milliken,
397 F. App’x at 222.
In this case, Dr. Joseph Pressner, a state agency psychologist, completed a Psychiatric
Review Technique and a Mental RFC Assessment. (Tr. 840–57). Dr. Pressner found that
Marley had affective disorders and rated his degree of limitations as mild limitations in activities
of daily living, mild difficulties in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and one or two episodes of decompensation.
(Tr. 844, 854). Although Dr. Pressner concluded that Marley had a severe impairment, he did
not find that Marley’s impairments met or equaled the criteria of a Listing. (Tr. 854–55).

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Dr. Pressner also assessed Marley’s RFC as follows:
[t]he evidence suggests that the [claimant] is able to understand,
remember, and carry-out simple tasks. The [claimant] can relate on
at least a superficial basis on an ongoing basis with co-workers and
supervisors. The [claimant] can attend to task for sufficient periods
of time to complete tasks. The [claimant] can manage the stresses
involved with simple work.
(Tr. 842). Therefore, Dr. Pressner concluded that Marley could perform simple work, despite his
moderate limitations in concentration, persistence, and pace.
Marley has presented persuasive authority from the Southern District of Indiana that
distinguished Johansen and rejected Milliken, an unpublished decision. E.g., Miller v. Colvin,
2013 WL 796722, at *3–4 (S.D. Ind. Mar. 1, 2013). However, courts within this district have
followed Johansen and Milliken, as have other courts within the Southern District of Indiana.
E.g., Suthers v. Colvin, 2014 WL 772605, at *6 (N.D. Ind. Feb. 25, 2014); Calhoun, 2013 WL
3834750 at *10; Torres v. Colvin, 2014 WL 4587153, at *17 (N.D. Ind. Sept. 15, 2014); Dehart
v. Colvin, 2013 WL 6440504, at *4 (S.D. Ind. Dec. 9, 2013). Although Milliken is not binding,
this court will follow that opinion along with the other opinions from this district.
Marley also has complained that the ALJ failed to account for the distinction between the
ability to learn how to do a task of a given complexity and the ability to stick with a task over a
sustained period of time. However, Dr. Pressner acknowledged that Marley had moderate
limitations in his ability to maintain attention and concentration, yet he determined that he could
manage simple work. Furthermore, Dr. Pressner concluded that Marley could “attend to task for
sufficient periods of time to complete tasks.” (Tr. 842). The ALJ adopted this opinion, which
reflected that Marley had the ability both to carry out instructions and to complete tasks in their
entirety. The court finds that this accounts for both Marley’s ability to learn and to sustain tasks
until completion.
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Similar to Johansen and Milliken, the ALJ relied on a medical source’s RFC to
formulate the hypothetical to the VE. The ALJ’s hypothetical limited Marley to “simple, routine
tasks consistent with unskilled work” and “to superficial relations with supervisors, co-workers
and others.” Although not verbatim, the ALJ’s hypothetical incorporated Dr. Pressner’s RFC
that Marley could perform simple work. Therefore, the ALJ adequately accounted for Marley’s
moderate limitations in concentration, persistence, and pace and did not err.
Based on the foregoing reasons, the decision of the Commissioner is AFFIRMED.
ENTERED this 1st day of July, 2015.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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