Tubbs v. Commissioner of Social Security
Filing
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OPINION AND ORDER: This cause is REMANDED for further proceedings consistent with this order. Signed by Chief Judge Philip P Simon on 9/11/2012. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHAEL B. TUBBS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
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2:11-cv-92
OPINION AND ORDER
Plaintiff Michael Tubbs appeals the Social Security Administration’s (“SSA”) decision to
deny his application for disability insurance benefits. An administrative law judge found that
Tubbs was not disabled within the meaning of the Social Security Act. As explained in detail
below, I find that the ALJ improperly ignored evidence in the record that supported Tubbs’ claim
and will therefore remand this matter to the ALJ to fully and properly develop the administrative
record.
BACKGROUND
Plaintiff Michael Tubbs filed his applications for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) in August of 2007, alleging that he became disabled on
January 8, 2002 as a result of a mental disability. [R. 229-40.] His applications were denied
initially and upon reconsideration. [R. 104-131.] At a subsequent hearing before an ALJ, four
witnesses testified: Tubbs, two of his friends, and a vocational expert. [R. 23-99.] The ALJ
issued a decision in which he found that Tubbs was not disabled within the meaning of the
Social Security Act. [R. 10-17.] Tubbs appealed that decision, but the Appeals Council denied
his request for review of the ALJ’s decision. [R. 1-9.] At that point the ALJ’s decision became
the final decision of the Commissioner, and Tubbs therefore filed this civil action, pursuant to 42
U.S.C. § 405(g), for review of the Agency’s decision.
Tubbs is now 37 years old and was 27 years old at the alleged onset of his disability in
2002. [R. 229.] He completed high school in a special education program, receiving mostly A’s
and B’s. [R 296, 336.] Between 1992 and 2007, Tubbs has worked on-and-off as a dishwasher,
janitor, stocker, and grocery bagger. [R. 293, 298.]
Since applying for benefits Tubbs has undergone various medical and psychological
evaluations. In a December 2003 evaluation, Carl Hale, Psy.D., noted mostly normal results
(speech rate and volume, coherent thought processes, and proper orientation) and diagnosed
Tubbs with mild mental retardation. [R. 345-49.] In a July 2006 evaluation, Raymond Bucur,
Ph.D., assessed Tubbs’ IQ score at 69, observed that he spoke with “some minor slurring but was
easily understood,” and concluded that he was “best suited for very simple jobs in which he can
work with his hands” in a structured environment. [R. 158–61, 403–06.] In a January 2008
evaluation, Roger Parks, Psy.D., indicated mostly normal results (including rational and coherent
thought processes) but noted that Tubbs had some difficulty with his concentration and
diagnosed him with attention deficit hyperactivity disorder (ADHD) and mild mental retardation.
[R. 364–67.] Tubbs also indicated to Dr. Parks that medication (Adderall) had improved his
attention span. [R. 364.]
A February 2008 mental capacity evaluation by state agency reviewing doctor Joseph
Pressner, Ph.D., concluded that Tubbs could follow a routine; concentrate on assigned work with
only occasional prompting; perform simple, routine tasks; respond appropriately to instructions
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and criticism; get along well with co-workers; and independently perform various activities. [R.
368–85.] Another state agency reviewing doctor William Shipley, Ph.D., affirmed Dr.
Pressner’s conclusions two months later. [R. 386.] Finally, in a May 2008 evaluation several
mental health specialists concluded that Tubbs was capable of making simple daily decisions,
should continue to seek employment, could require assistance with making major life decisions,
and could benefit from the assistance of a job coach. [R. 394-400.]
The record of the April 2009 hearing before the ALJ, reflects the central tension of this
case: Tubbs clearly has mental development issues that make regular and sustained work
difficult, but he also has a fairly substantial employment history. The most sustained discussion
of this tension comes in the testimony from two of his friends. They testified about their
repeated and unsuccessful efforts to get Tubbs a long-term job – he would have a job for a few
days and then end up getting fired. [R. 68, 72.] He had tried working with vocational
rehabilitation counselors but was still unable to keep a job. [R. 48, 64.] When Mr. Tubbs was
working as a dishwasher, what would take another employee an hour and a half would take him
five hours to finish. [R. 39.] When he worked at McDonalds he could perform simple jobs, but
he was unable to multitask and he annoyed customers by talking to them too much and
complaining to them that he was hungry. [R. 44.] He was too friendly with other people to the
point that it was socially unacceptable and minor tasks had to be constantly explained to him.
[R. 57-58.]
A vocational expert (“VE”) also testified at the hearing. As is customary in these
hearings, the ALJ asked the VE to consider a hypothetical work limitation that he believed
Tubbs possessed and to determine what jobs would be available for someone with those
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restrictions. The ALJ thus asked the expert whether there were jobs that a person with Tubbs’
vocational characteristics could perform if “limited to simple, unskilled positions with no more
than superficial contact with supervisors and co-employers and . . . no public contact.” [R. 81.]
The VE replied that such a person could perform Tubbs’s past relevant work as a dishwasher or
janitor since those jobs were simple, routine, and repetitive. [R. 81-2.] On the other hand, if the
person was off task 15 minutes an hour, if they worked at half the rate as the other employees, or
if they had to re-wash dishes, they would not be able to sustain those jobs. [R. 83-4.]
In making his disability determination, the ALJ followed the familiar five-step sequential
inquiry prescribed by the SSA’s regulation: (1) whether the claimant is currently employed; (2)
whether the claimant has a severe impairment; (3) whether the claimant’s impairment is one that
the Commissioner considers conclusively disabling; (4) if the claimant does not have a
conclusively disabling impairment, whether he can perform his past relevant work; and (5)
whether the claimant is capable of performing any work in the national economy. 20 C.F.R. §
404.1520; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
The ALJ determined that 1) Tubbs was not currently employed, 2) his mild mental
retardation qualified as a severe impairment, and 3) that his impairments did not meet or
medically equal a listing that was conclusively disabling. [R. 12-14.] With respect to the fourth
factor, the ALJ found that Tubbs had “the residual functional capacity to perform a full range of
work at all exertional levels but is limited to simple, unskilled work with no public contact and
no more than superficial contact with supervisors and co-workers.” [R. 14.] In his analysis of
the fifth factor, the ALJ concluded that, based on Tubbs’ residual functional capacity and the
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testimony of the VE, Tubbs could perform a significant number of jobs in the national economy
and was, therefore, not disabled. [R. 16–17.]
DISCUSSION
My review of an ALJ’s decision to deny social security benefits is limited to determining
whether the decision is supported by substantial evidence. Young v. Barnhart, 362 F.3d 995,
1001 (7th Cir. 2004). “Evidence is substantial if a reasonable person would accept it as adequate
to support the conclusion.” Id. In other words, the ALJ’s decision, if supported by substantial
evidence and reached under the correct legal standard, will be upheld even if reasonable minds
could differ as to the appropriate conclusion. See Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir.
2000). It is not my job to re-weigh evidence, choose among conflicting versions of events,
decide questions of credibility, or substitute my own judgment for the ALJ’s. Young, 362 F.3d at
1001.
To receive disability benefits under the Social Security Act, a claimant must be
“disabled” as defined by the Act. 42 U.S.C. § 423(a)(1)(E). A claimant qualifies as disabled if
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). Moreover, a claimant’s physical or mental impairment or impairments
must be of such severity that he is not only unable to do his previous work but cannot,
considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
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Tubbs objects to the ALJ’s decision on four grounds: (1) the ALJ’s decision was biased;
(2) the ALJ failed to properly analyze whether Tubbs met or equaled Listing 12.05(C); (3) the
ALJ’s credibility determination was improper; and (4) the ALJ did not properly account for
Tubbs’ moderate limitations in concentration, persistence, or pace in his residual functional
capacity finding. The second of these arguments is the most persuasive and requires remand.
I. The ALJ Failed Properly Analyzed Whether Tubbs Met or Equaled Listing 12.05(C)
Tubbs argues that the ALJ erred in step three of the analysis by failing to consider
evidence of Tubbs’ alleged attention deficit hyperactivity disorder (ADHD) in analyzing whether
he met Listing 12.05(C). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. This is important because
if a claimant has an impairment that meets the criteria for a listing (like 12.05(C)), that
impairment is presumptively disabling. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).
Listing 12.05(C) requires that a claimant have “[a] valid verbal, performance, or full
scale I.Q. of 60 through 70 and a physical or other mental impairment imposing an additional
and significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.05. An IQ over 60 is insufficient by itself to establish disability under Listing 12.05 alone,
since people with low IQ’s may be able to perform gainful employment. Novy v. Astrue, 497
F.3d 708, 709 (7th Cir. 2007). Thus, a claimant with an IQ between 60 and 70 also must show a
“physical or other mental impairment” that creates an additional, and significant, limitation on
his ability to work. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1 § 12.05(C). See Maggard v. Apfel,
167 F.3d 376, 380 (7th Cir. 1999) (same).
The ALJ agreed that Tubbs met the IQ requirements of Listing 12.05(C), but he
disagreed that Tubbs had a “physical or other mental impairment imposing an additional and
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significant work-related limitation of function.” [R. 13.] Tubbs argues that this conclusion
ignored the evidence of his ADHD, which should have qualified as a significant mental
impairment sufficient to qualify under Listing 12.05(C).
In making a decision about whether an impairment is “significant,” the ALJ is allowed to
consider evidence concerning past work history in assessing “ability or inability to function in a
work setting.” 20 C.F.R. § 401, pt. 404, subpt. P, app. 1 § 12.00(A). See Adkins v. Astrue, 226
Fed. Appx 600, 605 (7th Cir. 2007) (while low IQ scores might be an indicator of retardation,
other items, “including ... employment history, must be considered and weighed;” claimant failed
to prove deficits prior to age 22 even though school records were submitted showing only eighth
grade was completed, due in part to his long work history); Maggard, 167 F.3d at 380 (no mental
retardation, even though a low IQ score existed, in part due to claimant’s “ability to withstand
the stress and pleasures associated with a day-to-day work activity”). Courts considering
whether an individual meets Listing 12.05 generally have focused their analysis on the
claimant’s IQ scores, education, work experience, activities, and ability to perform daily life
activities. See Adkins, 226 Fed. Appx. at 605; Maggard, 167 F.3d at 380.
Tubbs believes the ALJ failed to analyze his ADHD and as a result reached the erroneous
conclusion that his impairment was not significant. Tubbs’ argument is focused on a January
2008 diagnosis of ADHD by Dr. Parks. [R. 365-66.] The ALJ did not explicitly discuss this
diagnosis.
The Commissioner argues the ALJ didn’t need to explicitly address Tubbs’ ADHD
because an “ALJ’s failure to address [certain] specific findings . . . does not [necessarily] render
his decision unsupported by substantial evidence because an ALJ need not address every piece of
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evidence in his decision.” Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002). The ALJ stated
that his analysis of Listing 12.05(c) was based on, among other things, the opinions of state
agency consultants and consultative examiners, and the conclusion the ALJ reached (that Tubbs’
did not have a significant impairment) tracks the opinions of these examiners, who themselves
considered Tubbs’ treatment history for any alleged learning disabilities. [R. 13, 15–16, 345–49,
364–67, 368–85, 386, 394–400.] The government argues, therefore, that even if the ALJ should
have explicitly discussed Tubbs’ ADHD diagnosis in his opinion, it amounts to little more than
harmless error because the record does not support Tubbs’s argument that his ADHD imposed an
additional and significant work-related limitation of function. See Shinseki v. Sanders, 129 S.
Ct. 1696, 1706 (2009) (burden of showing harmful error on party attacking the agency’s
determination).
I take the Commissioner’s point. As noted earlier, the central tension of this case is
reconciling Tubbs mental development issues with his somewhat substantial employment
history. If one focuses on Tubbs’ work history, it might be easy to conclude that his ADHD is
not “an additional and significant work-related limitation of function.”
Ultimately, however, the Commissioner’s position is unpersuasive. The fundamental
problem is neither the Commissioner nor the ALJ have cited any source in the record that
explicitly considered and explained why Tubbs’ ADHD did not constitute an additional mental
impairment imposing a significant work-related limitation of functioning. There is simply no
analysis of this point. And as the Seventh Circuit has explained:
The government seems to think that if it can find enough evidence in the record
to establish that the administrative law judge might have reached the same result
had she considered all the evidence and evaluated it as the government’s brief
does, it is a case of harmless error. But the fact that the administrative law judge,
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had she considered the entire record, might have reached the same result does
not prove that her failure to consider the evidence was harmless. Had she
considered it carefully, she might well have reached a different conclusion.
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). The ALJ needed to consider the ADHD.
Instead, he only briefly mentioned the psychologist’s diagnosis of ADHD in his summary of the
evidence [R. 15], while failing to analyze it and explain whether he accepted the diagnosis
whether it amounted to a “significant work-related limitation of function” under Listing
12.05(C). The “failure to discuss or even cite a listing, combined with an otherwise perfunctory
analysis, may require a remand” and “[t]he omission of any discussion of [a claimaint’s]
impairments in conjunction with the listings frustrates any attempt at judicial review.” Brindisi
ex rel. Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003)
The case will be remanded so that the ALJ can properly conduct the Listing 12.05(C)
analysis.
II. Tubbs’ Other Arguments
Because remand is necessary for further consideration, I need not address Tubbs’ other
arguments. Eskew v. Astrue, 462 Fed. App’x. 613, 615 (7th Cir. 2011) (given the court’s remand
on one of claimant’s arguments, it “need not address [her] remaining arguments”); Fike v.
Astrue, 2012 WL 1200670, at *10, n.6 (N.D. Ind. 2012); Todd v. Astrue, 2012 WL 3096681, at
*7 (N.D. Ill. 2012). Nevertheless, in an attempt to provide some guidance on remand, I will
briefly analyze each of them.
A. Bias
Tubbs argues that the ALJ refused to award him benefits because he was biased against
him. The government’s initial response is that Tubbs waived the bias argument by failing to
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raise it in his appeal to the Appeals Council. Because the government’s waiver argument is
squarely foreclosed by Johnson v. Apfel, 189 F.3d 561, 562–63 (7th Cir.1999), I will address
Tubbs’ claim of bias.
Tubbs points to two main places in the hearing transcript following statements from the
hearing as evidence of this bias:1
•
The ALJ stated that “once I make a decision on this, it’s like I’m
condemning these people to disability for the rest of their lives” because
there were “counter-incentives” for people to go back to work and worried
that he “might hurt [claimants] by putting them on Social Security,
because they might never do anything with themselves.” [R. 93.]
•
The ALJ stated that Tubbs’s speech was not consistent with other
individuals he knew who were mentally retarded and used an example of a
mentally retarded “kid” he knew who worked himself up to being a
manager. [R. 96-97.]
He believes that the “tenor of the ALJ’s questions” during these points of the hearing are “not
that of a neutral fact-finder but one of an advocate with a predetermined mind destined to reach a
predetermined result.” Fulwood v. Heckler, 594 F. Supp. 540, 547 (D.C.D.C. 1984).
Courts “begin with the presumption that ALJs are impartial,” Martin v. Astrue, 345 F.
App’x 197, 203 (7th Cir. 2009), and parties alleging judicial bias bear a “heavy burden.” Keith
v. Barnhart, 473 F.3d 782, 789 (7th Cir. 2007). Thus, “opinions formed by the judge on the
basis of facts introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they display a
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Tubbs originally pointed to a third section of the transcript that he thought indicated bias
– a discussion with the vocational expert about vocational rehabilitation programs for Tubbs so
he could go back to work. [R. 70-72.] Tubbs reply brief abandoned this line of argument,
however, apparently (and correctly) acceding to the Commissioner’s point that in questioning the
vocational expert the ALJ was simply attempting to better understand what happened during
Plaintiff’s past attempt to obtain vocational counseling.
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deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 555 (1994).
In reviewing the transcript, I do not believe that the ALJ’s comments reflect a
“deep-seated ... antagonism” towards Plaintiff. Id. First, when read in context, the ALJ’s
comments about the structure of the disability benefits system amount to little more than a
somewhat rambling, offhand discussion about the incentives and disincentives at play in the
system:
So it’s really, see, the problem that I got, and this is where I’m at, is this is almost
the last stretch. People come here for their last gasp. . . . And once I make a
decision on this, it’s like I’m condemning these people to disability for the rest of
their lives. I’m not saying people can’t get off, because there’s all kinds of work
incentives. But the problem is because of the counter-incentives, both in medical
and, now, those might change in the future because we’re talking about a little bit
different medical system. The problem with the counter, disincentives to work,
makes it almost impossible for a marginal person who’s having a rough time ever
to go to work, because the disincentives are so great. So then, I really got to think
about it, and on . . . on people who are, where the case is kind of up and I’m
trying to figure out what I’m going to do, the fact that they might get better, and,
with the help that’s on Social Security has to be balanced with the fact that I
might hurt them by putting them on Social Security, because they might never do
anything with themselves, and they’ve got some capacity.
[R. 92-93.]
These comments by the ALJ about weighing the incentives and disincentives at play in
the system of disability were largely an aside. But it would be a stretch to construe them as
evidence of a “deep-seated . . . antagonism” towards disability benefits generally or towards
Tubbs specifically. This is especially so because they were in response to his counsel’s
explanation about Tubbs’ plan to get on disability benefits, then later seek vocational counseling
and work full time. In that context, the ALJ’s comments are not evidence that he would refuse to
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judge Tubbs’ disability claim fairly on the merits, but are rather evidence of a reluctance to find
someone disabled based simply on the promise that they would later seek work.
B. Credibility Determination
Tubbs next challenges the ALJ’s credibility determination on the ground that the analysis
was conclusory. To determine a claimant’s credibility, “an ALJ must consider several factors,
including the claimant’s daily activities, his level of pain or symptoms, aggravating factors,
medication, treatment, and limitations.” Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
“The finding must be supported by the evidence and must be specific enough to enable the
claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539 F.3d 668, 678
(7th Cir. 2008).
The ALJ’s pointed to numerous inconsistencies between the Tubbs’ testimony and other
evidence in the record, including the medical record and Tubbs’ relatively significant work
history, and then resolved those inconsistencies by giving more credence to that evidence rather
than to Tubbs’ testimony. [R. 14-16.] However, in this evaluation the ALJ first employed a
piece of “meaningless boilerplate seen frequently in decisions from ALJs,” Shauger v. Astrue,
675 F.3d 690, 696 (7th Cir. 2012), stating:
After careful consideration of the evidence, I find that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.
[R. 15.] This boilerplate backwardly “implies that the ability to work is determined first and is
then used to determine the claimant’s credibility,” rather than evaluating credibility as an initial
matter in order to come to a decision on the ultimate question of work capacity. Bjornson v.
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Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012). On remand, the ALJ should take care to avoid
this “backwards” analysis, id., and conduct a detailed credibility finding.
C. The Residual Functional Capacity Finding
Lastly, in assessing Tubbs’ residual functional capacity (“RFC”), the ALJ found that
Tubbs was limited to simple, unskilled work. [R. 14.] This finding was reflected in the
hypothetical posed to the VE, in which ALJ asked whether there were jobs that a person with
Tubbs’ vocational characteristics could perform if “limited to simple, unskilled positions with no
more than superficial contact with supervisors and co-employers and . . . no public contact.” [R.
81.] Tubbs argues that the ALJ’s finding and the hypothetical were flawed because they failed
to account for the ALJ’s other finding that Tubbs suffers from “moderate difficulties in
maintaining concentration, persistence, or pace.” [R. 14.]
In determining the severity of a claimant’s mental impairment, the ALJ must address the
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. § 416.920a, 404.1520a(c)(3). The Seventh Circuit has stated that the ALJ must then
“incorporate” these limitations into his RFC determination. Kasarsky v. Barnhart, 335 F.3d 539,
543–44 (7th Cir. 2003) (holding that the ALJ erred when his RFC did not “take into account” his
finding at step two that the claimant had deficiencies in concentration, persistence, or pace).
As noted, the ALJ found that Tubbs had “moderate difficulties in maintaining
concentration, persistence, or pace.” [R. 14.] The ALJ then found that Tubbs had the RFC to
“perform a full range of work at all exertional levels but is limited to simple, unskilled work with
no public contact and no more than superficial contact with supervisors and co-workers.” [R.
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14.] Tubbs argues that this conclusion was erroneous: that an ALJ cannot properly account for
moderate limitations in concentration, persistence, or pace if he restricts the inquiry to simple,
unskilled work. Tubbs cites to various Seventh Circuit cases for the proposition that “a
limitation to simple routine work does not sufficiently take into consideration limitations in
concentration, persistence, or pace.” [DE 20 at 13.] See Stewart v. Astrue, 561 F.3d 679,
684–85 (7th Cir. 2009); Craft v. Astrue, 539 F.3d 668, 677–78 (7th Cir. 2008); Young v.
Barnhart, 362 F.3d 995 (7th Cir. 2004).
The Commissioner responds that the medical evidence supports the ALJ’s limitation of
Tubbs to simple, unskilled work. The Commissioner points to Johansen v. Barnhart, 314 F.3d
283, 289 (7th Cir. 2002), in which the Seventh Circuit held that an RFC for simple, routine work
adequately accounted for moderate limitations in concentration, persistence, and pace because
the reviewing doctor had essentially “translated [his] findings into a specific RFC assessment,
concluding that [the claimant] could still perform low-stress, repetitive work.” Id. at 288–89.
The Commissioner argues the same is true here: “the ALJ did not merely assume that simple,
unskilled work accounted fully for moderate limitations in concentration, persistence, or pace,”
but rather supported his conclusion with the medical opinions of the state agency reviewing
doctors who opined that Tubbs could perform simple, routine work and that his impairments did
not meet a listing despite moderate limitations in concentration, persistence, or pace. [DE 27 at
20.]
Which side has the better of the argument on this issue is open for debate. Since remand
is already necessary, however, the best course is simply to direct the ALJ to follow the Seventh
Circuit’s recent direct guidance on the issue. In O’Connor–Spinner v. Astrue, 627 F.3d 614 (7th
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Cir. 2010), the court stressed that “[i]n 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. 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.” Id. at 620 (internal citations omitted). Therefore, on remand the ALJ should
take care to “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.” Id. at
620-21.
CONCLUSION
For the reasons stated above, this cause is REMANDED for further proceedings
consistent with this order.
SO ORDERED.
ENTERED: September 11, 2012
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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