Garth v. Commissioner of Social Security
Filing
35
OPINION AND ORDER GRANTING 28 Pla's Brief in Support of Reversing the Decision of the Commissioner of Social Security, REVERSING the final decision of the Commissioner of Social Security, REMANDING this matter for further proceedings consistent with this Opinion and Order, and DENYING Pla's request to award benefits. Signed by Magistrate Judge Paul R Cherry on 10/26/2018. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WILLIE D. GARTH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.
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CAUSE NO.: 2:16-CV-428-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Willie D. Garth on
September 23, 2016, and on Plaintiff’s Brief in Support of Reversing the Decision of the
Commissioner of Social Security [DE 28], filed on May 30, 2018. Plaintiff requests that the
February 12, 2015 decision of the Administrative Law Judge denying him disability insurance
benefits and supplemental security income be remanded for further proceedings or, in the alternative,
for an award of benefits. On September 13, 2018, the Commissioner filed a response, and Plaintiff
filed a reply on September 24, 2018. For the following reasons, the Court grants Plaintiff’s request
for remand for further proceedings.
PROCEDURAL BACKGROUND
On January 23, 2013, Plaintiff Willie D. Garth filed applications for disability insurance
benefits and supplemental security income, alleging disability beginning September 27, 2012. The
claims were denied initially and on reconsideration. On December 3, 2014, a hearing was held via
videoconferencing technology before Administrative Law Judge (“ALJ”) Rebecca LaRiccia. Present
at the hearing were Plaintiff, a witness, and an impartial vocational expert (“VE”). Plaintiff was not
represented at the hearing by an attorney or other representative. The ALJ issued a written decision
on February 12, 2015, concluding that Plaintiff was not disabled based on the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through March 31, 2014.
2.
The claimant has not engaged in disqualifying substantial gainful activity
since September 27, 2012, the alleged onset date.
3.
The claimant has the following severe impairments: Asthma, mild carpal
tunnel syndrome, diabetes, knee arthritis, gout, mild concentric left
ventricular hypertrophy and mild tricuspid regurgitation with history of
congestive heart failure and obesity.
4.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) except he can only
occasionally balance, stoop, kneel, crouch or crawl. He can occasionally
climb ramps and stairs but never climb ladders, ropes or scaffolds. He must
avoid extreme temperatures, humidity and wetness. He can only have
occasional exposure to dust and mold. The claimant can frequently use the
hands to handle and finger.
6.
The claimant is capable of performing past relevant work as a Personnel
director. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity.
7.
The claimant has not been under a disability, as defined in the Social Security
Act, from September 27, 2012, through the date of this decision.
(AR 13-20).
Plaintiff then sought review before the Agency’s Appeals Council, which denied his request
on July 19, 2016, leaving the ALJ’s decision as the final decision of the Commissioner. See 20
C.F.R. §§ 404.981, 416.1481.
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The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. §§ 405(g), 1383(c)(3).
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “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) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000);
Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an
ALJ’s finding that a claimant is not disabled within the meaning of the Social Security Act is not
whether the claimant is, in fact, disabled, but whether the ALJ “uses the correct legal standards and
the decision is supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v.
Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
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2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse the decision
“without regard to the volume of evidence in support of the factual findings.” White v. Apfel, 167
F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the
reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing
court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from
doing his previous work, but considering his age, education, and work experience, it must also
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prevent him from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If no, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if no, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
residual functional capacity (RFC), age, education, and experience? If yes, then the claimant is not
disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The RFC
“is an administrative assessment of what work-related activities an individual can perform despite
[his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be
based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R.
§ 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the
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burden at step five is on the ALJ. Zurawski, 245 F.3d at 885-86; see also Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
ANALYSIS
Plaintiff argues that this matter should be remanded due to errors regarding Plaintiff’s
unrepresented appearance at his administrative hearing, treating physician opinions, the RFC
assessment, and Plaintiff’s ability to perform past relevant work. The Court will address these
arguments below.
A. Representation at the Administrative Hearing
A claimant has a right to counsel at an administrative hearing on disability benefits.
Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991) (citing 42 U.S.C. § 406; 20 C.F.R. §
404.1700). To secure a valid waiver of counsel, an ALJ must explain to an unrepresented claimant:
“(1) the manner in which an attorney can aid in the proceedings, (2) the possibility of free counsel
or a contingency arrangement, and (3) the limitation of attorney fees to 25% of past due benefits and
required court approval of the fees.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (quoting
Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994); Thompson, 933 F.2d at 584). If the claimant’s
waiver of counsel is invalid, the burden of proof shifts to the Commissioner to show that the ALJ
adequately developed the record. Id. at 842 (citing Binion, 13 F.3d at 245).
Plaintiff concedes that the ALJ informed him that he was entitled to a representative, who
would be paid on a contingency fee basis, and that such a representative could explain the law, help
Plaintiff obtain and submit medical records, and present the evidence in the light most favorable to
Plaintiff. Plaintiff argues, however, that the matter must be remanded because the ALJ failed to
explain that a representative could question Plaintiff and the witness and could cross-examine the
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vocational expert during the hearing. Plaintiff also asserts that the ALJ also committed error by
failing to explain to Plaintiff that a representative would be able to contact doctors for clarification
if the doctors’ opinions failed to provide specific functional deficits.
Prior to Plaintiff’s 2013 and 2014 administrative hearings, Plaintiff was mailed a document
titled “Your Right to Representation” with the Notice of Hearing. (AR 181-82, 195-96). The
document explains how an attorney can assist Plaintiff, how Plaintiff can receive free counsel, and
the limit on attorney fees, including the cap of 25% of past due benefits. The Commissioner
maintains that Plaintiff must have received these documents because he appeared at the hearings as
scheduled in the Notices of Hearing.
At the December 3, 2014 administrative hearing, the ALJ informed Plaintiff:
Now you are entitled to representation, and again let me just reiterate that again, a
representative can be an attorney or non-attorney. That person would explain the law
to you, help you obtain and submit medical records, and in general present the
evidence in the light most favorable to your case. And they are paid on a contingency
fee basis. There’s [INAUDIBLE] people out there that don’t take a fee, but they are
paid on a contingency fee basis, 25% or $6,000 of past due benefits, whichever is
less. If you would like some time to obtain representation, we can go ahead and give
you that time.
(AR 30-31). Plaintiff declined the offer of additional time to obtain representation.
The Court need not determine whether the ALJ obtained a valid waiver of counsel, thus
triggering a heightened duty to develop the record, because, as will be shown below, the record as
developed at the administrative level shows remand to be necessary.
B. Treating Physician Opinions
Plaintiff argues that the “little weight” assigned by the ALJ to the opinions of Plaintiff’s
treating physicians Dr. Anekwe and Dr. Artis was assigned in error.
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Under the “treating physician rule,” which is found in the version of the regulations that
apply to Plaintiff’s claim, the opinion of a treating physician on the nature and severity of an
impairment is given controlling weight if it “is well-supported by medically acceptable clinical and
laboratory techniques and is not inconsistent with the other substantial evidence in [the] case
record.” Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011); 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2) (applicable to claims filed before March 27, 2017). “An ALJ must offer good reasons
for discounting the opinion of a treating physician.” Israel v. Colvin, 840 F.3d 432, 437 (7th Cir.
2016) (citing Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014)). When an ALJ does not give
controlling weight to the opinion of a treating physician, she must weigh the opinion in accordance
with the factors in 20 C.F.R. §§ 404.1527, 416.927. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)
(“When we do not give the treating source’s opinion controlling weight, we apply the factors listed
in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining the weight to give the opinion.”); Scrogham v. Colvin,
765 F.3d 685, 697-98 (7th Cir. 2014); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2006).
Plaintiff’s first argument on this point is that the ALJ should have done more to develop the
record in regard to medical evidence supporting these opinions or clarification of the opinions
themselves. However, as described above, the Court has declined to address whether the ALJ had
a heightened duty to develop the record due to a lack of valid waiver of representation. Thus, the
Court will not address this argument, which is built upon the waiver of representation argument.
Plaintiff next posits that the ALJ did not address the regulatory factors listed in 20 C.F.R.
§§ 404.1527, 416.927. Plaintiff maintains that the regulatory factors show that Dr. Anekwe’s and
Dr. Artis’s opinions were due greater weight. Both doctors were treating physicians, and their
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separate opinions were consistent with each other. Additionally, Dr. Artis is a specialist in
cardiology.
Dr. Anekwe signed statements on November 20, 2014, and December 1, 2014, naming
Plaintiff’s diagnoses and concluding that “[d]ue to the above mentioned medical conditions
[Plaintiff] is unable to get gainful employment or find suitable employment opportunity.” (AR 525,
532). Dr. Anekwe did not include any opinion regarding specific limitations in Plaintiff’s ability to
work or symptoms that Plaintiff suffers from.
Dr. Artis signed a letter on December 3, 2014, that likewise lists only diagnoses and a
conclusion that “[i]n view of his medical history [Plaintiff] has been unable to obtain gainful
employment or find suitable employment opportunities.” (AR 549).
The ALJ assigned Dr. Anekwe’s opinion little weight “as the conclusion is not supported by
Dr. [Anekwe’s] own treatment notes or a review of the evidence of record as a whole.” (AR 19). The
ALJ assigned little weight to Dr. Artis’s opinion because “Dr. Artis did not provide any support for
his conclusions. Moreover, this opinion does not specify the limitations that prevent him from
finding employment.” Id.
The factors named by the ALJ—supportability and consistency—are from the relevant
regulations. See 20 C.F.R. §§ 404.1527(c)(3), (4), 416.927(c)(3), (4). Further, the statements that
Plaintiff is unable to find work does not bind the ALJ to a finding of disability, as they are opinions
on issues reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Thus, the Court
finds that the ALJ’s decision to afford little weight to the opinions of Dr. Anekwe and Dr. Artis is
based on the correct legal standard and is supported by substantial evidence. Plaintiff has not shown
a reason for remand here.
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C. RFC Assessment
The RFC is a measure of what an individual can do despite the limitations imposed by his
impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. §§ 404.1545(a),
416.945(a). The determination of a claimant’s RFC is a legal decision rather than a medical one. 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four
and five of the sequential evaluation process and must be supported by substantial evidence. SSR
96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.
“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.
“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence
includes medical history; medical signs and laboratory findings; the effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts
to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In
arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.” Id. The “ALJ must also consider the combined effects of all the claimant’s
impairments, even those that
would not be considered severe in isolation.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); see
also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
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ALJs must fairly evaluate the record. “Thus, although the ALJ need not discuss every piece
of evidence in the record, the ALJ may not ignore an entire line of evidence that is contrary to the
ruling. Golembiewski, 322 F.3d at 917(citations omitted) (citing Dixon, 270 F.3d at 1176; Zurawski,
245 F.3d at 888); accord Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014); Parker v. Astrue, 597
F.3d 920, 921 (7th Cir. 2010) (“[W]e cannot uphold an administrative decision that fails to mention
highly pertinent evidence” (citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (per curiam)).
In making a disability determination, the ALJ must consider a claimant’s statements about
his symptoms, such as pain, and how the symptoms affect his daily life and ability to work. See 20
C.F.R. §§ 404.1529(a), 416.929(a). Subjective allegations of disabling symptoms alone cannot
support a finding of disability. Id. The ALJ must weigh the claimant’s subjective complaints, the
relevant objective medical evidence, and any other evidence of the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other
symptoms.
See 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3). “Because the ALJ is in the best position to determine
a witness’s truthfulness and forthrightness . . . a court will not overturn an ALJ’s credibility
determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012)
(quotation marks omitted) (quoting Skarbek v Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004)); see
also Prochaska, 454 F.3d at 738. Nevertheless, “an ALJ must adequately explain [her] credibility
finding by discussing specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367
(7th Cir. 2013) (citing Terry, 580 F.3d at 477); SSR 96-7p, 1996 WL 374186, at *2 (Jul. 2, 1996)
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(“The determination or decision must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.”).
The ALJ found that Plaintiff has “mild carpal tunnel syndrome,” (AR 13), and
correspondingly found that Plaintiff can frequently handle and finger, (AR 18). Under the Social
Security Administration’s framework, activity that is done “frequently” is that which is done up to
two-thirds of the workday. SSR 83-10, 1983 WL 312151, *6 (Jan. 1, 1983).
The ALJ recounted Plaintiff’s testimony that repetitive motions of his hands bother him, that
he experiences numbness of his hands, and that his pain level was 5 on a scale of 10. The ALJ’s
analysis of Plaintiff’s carpal tunnel syndrome is as follows:
[T]his condition has caused numbness of the left wrist. Despite these complaints, he
was allowed to return to work in two weeks after November 15, 2010. At the August
2013, internal medicine consultative examination, although he complained of carpal
tunnel syndrome causing pain, numbness, and tingling and alleged that it prevented
him from holding anything with his hands, Dynamometer testing showed that he was
able to generate 18 kilograms of force bilaterally with his hands. He testified that he
had some difficulty buttoning buttons, but was able to write a short note. Other than
wearing splints at night, no other treatment has been prescribed. While carpal tunnel
release surgery was discussed, the claimant indicated that he was not interested in
this procedure, given his age. The claimant’s allegations are not supported by the
objective medical evidence and thus, the undersigned finds that he can frequently
handle and finger in a work setting.
(AR 18 (citations omitted)).
The evidence cited and not cited by the ALJ regarding Plaintiff’s carpel tunnel syndrome is
troubling. The November 2010 incident occurred approximately 22 months prior to the alleged
disability onset date and may not be indicative of his condition on the onset date. The ALJ does not
cite to any medical interpretation of the dynamometer testing results, and the ALJ is not qualified
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to determine on her own what this result means. See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir.
2014). The ability to write a short note says little about the ability to perform tasks with one’s hands
at the Social Security Administration’s “frequent” level. One of Plaintiff’s doctors considered
Plaintiff’s carpel tunnel syndrome to be severe enough to discuss carpel tunnel release surgery,
which the ALJ diminishes by noting that Plaintiff ultimately decided not to pursue this option.
While the evidence suggests that Plaintiff retains some ability to handle and finger despite
his carpal tunnel syndrome, the ALJ has not adequately explained how the evidence that she cites
shows Plaintiff to be able to perform these activities “frequently” as defined by the regulations.
Furthermore, the ALJ does not cite the findings of both consulting medical examiners, Dr. Smejkal
and Dr Bautista, who opined that Plaintiff could “button, zip, and pick up coins but not repetitive.”
(AR 431, 485).
There is no logical bridge connecting the evidence cited by the ALJ and her finding that
Plaintiff can handle and finger for over five hours in an eight hour work day. This finding is further
called into question by the findings of the Social Security Administration’s consulting examiners
that Plaintiff cannot repetitively button, zip, and pick up coins. Remand is required on this basis.
In light of this need for remand, the Court need not analyze Plaintiff’s other arguments
regarding the ALJ’s determination of his credibility and RFC.
D. Past Relevant Work
Plaintiff argues that the ALJ committed reversible error by failing to make specific findings
as to the physical and mental demands of his past work, and cites in support Nolen v. Sullivan, 939
F.2d 516, 519 (7th Cir. 1991).
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In Nolen, the Seventh Circuit Court of Appeals reiterated “that an ALJ must specify the
duties involved in a prior job and assess the claimant’s ability to perform the specific tasks.” 939
F.2d at 519 (quoting Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir. 1984)). But in both Nolen
and Strittmatter, the ALJ described the previous jobs generally based on their exertional level.
Nolen, 939 F.2d at 519 (“unskilled at the light exertional level”); Strittmatter, 729 F.3d at 509
(“sedentary”). The Seventh Circuit Court of Appeals has since construed Nolen narrowly, holding
that “an ALJ cannot describe a previous job in a generic way, e.g., ‘sedentary,’ and on that basis
conclude that the claimant is fit to perform all sedentary jobs without inquiring into any differences
in what the job requires while sitting.” Cohen v. Astrue, 258 F. App’x 20, 28 (7th Cir. 2007) (citing
Smith v. Barnhart, 388 F.3d 251, 252-53 (7th Cir. 2004)). In Cohen, the ALJ considered the specific
jobs the plaintiff had held, and, thus, the court found Nolen to be inapplicable. The court found that
there was ample support for the ALJ’s conclusion that the plaintiff could have returned to her
previous jobs.
In the instant case, like in Cohen, the ALJ’s consideration of Plaintiff’s past
work did not consist simply of a generic label of “sedentary;” rather, the ALJ considered Plaintiff’s
specific past work as a “convenience store manager, retail store manager,” “manager trainee,” and
“personnel director,” which were described by the vocational expert. See (AR 20, 52-53); see also
Metzger v. Astrue, 263 F. App’x 529, 533 (7th Cir. 2008) (finding sufficient an ALJ’s reliance on
vocational expert’s testimony describing the duties of the claimant’s past work). Although the ALJ’s
decision itself cites the vocational expert’s testimony regarding the physical demand and skill level
identified in the Dictionary of Occupational Titles (DOT), the record contains sufficient evidence
of the requirements of the job. See Metzger, 263 F. App’x at 533 (citing Nolen, 939 F.2d at 518).
At the hearing, the vocational expert testified that he did not need any work history clarification
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from Plaintiff. (AR 52). In his Work History Report, which is in the record, Plaintiff provided details
of the requirements of the jobs as he performed them. (AR 273-78). The vocational expert identified
Plaintiff’s past jobs by name and DOT code and provided their exertional and skill levels. The ALJ
then set out for the vocational expert a hypothetical residual functional capacity consistent with the
RFC determination in this decision. In response, the vocational expert testified that Plaintiff’s past
job as personnel director as generally performed in the national economy would accommodate those
limitations. (AR 53).
Thus, the ALJ did not err by relying on the vocational expert’s testimony, which was
supported by the record, and the ALJ’s decision at step four was not in error in light of the record
evidence. Remand is not warranted on this basis.
F. Request for Award of Benefits
Plaintiff asks the Court to reverse and remand for an award of benefits or, in the alternative,
for additional proceedings. An award of benefits is appropriate “only if all factual issues involved
in the entitlement determination have been resolved and the resulting record supports only one
conclusion—that the applicant qualifies for disability benefits.” Allord v. Astrue, 631 F.3d 411, 415
(7th Cir. 2011). Based on the discussion above, remand, not an immediate award of benefits, is
required.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS Plaintiff’s Brief in Support of Reversing
the Decision of the Commissioner of Social Security [DE 28], REVERSES the final decision of the
Commissioner of Social Security, and REMANDS this matter for further proceedings consistent
with this Opinion and Order. The Court DENIES Plaintiff’s request to award benefits.
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So ORDERED this 26th day of October, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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