Dearth v. Commissioner of Social Security

Filing 26

OPINION AND ORDER The Court GRANTS the relief requested in Plaintiffs Briefin Support of Reversing the Decision of the Commissioner of Social Security DE 16 and REMANDS this matter for further proceedings consistent with this opinion. ***Civil Case Terminated. Signed by Magistrate Judge John E Martin on 3/9/18. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KIMBERLY DEARTH,
Plaintiff,

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v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

CAUSE NO.: 2:16-CV-487-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff on June 3, 2016, and
Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social Security [DE
16], filed on November 14, 2016. Plaintiff requests that the decision of the Administrative Law
Judge be reversed and remanded for further proceedings. On January 18, 2017, the Commissioner
filed a response, and on February 7, 2017, Plaintiff filed a reply. For the following reasons, the Court
grants Plaintiff’s request for remand.
I.

Procedural Background
On February 26, 2013, Plaintiff filed an application for benefits alleging that she became

disabled on August 3, 2012. Plaintiff’s application was denied initially and upon reconsideration.
On February 11, 2015, Administrative Law Judge (“ALJ”) Christopher Helms held a hearing at
which Plaintiff, with an attorney representative, a vocational expert (“VE”), and two of Plaintiff’s
family members testified. On February 26, 2015, the ALJ issued a decision finding that Plaintiff was
not disabled. The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision
the final decision of the Commissioner.
The ALJ made the following findings under the required five-step analysis:
1.
The claimant has not engaged in substantial gainful activity since her alleged

onset date of August 3, 2012.
2.

The claimant has the following severe impairments: seizures; degenerative
disk disease of the cervical and lumbar spine; migraines; fibromyalgia;
anxiety; and depression.

3.

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.

4.

The claimant has the residual functional capacity to perform sedentary work,
sitting for six hours and standing or walking for two hours in an eight-hour
workday and occasionally lifting or carrying up to ten pounds, with the
following limitations: she cannot climb ladders, ropes, or scaffolds; she is
limited to simple, routine, repetitive tasks and occasional contact with the
public; and she must avoid exposure to moving mechanical parts and
unprotected heights.

5.

The claimant is unable to perform any past relevant work.

6.

The claimant was 32 years old, which is defined as a younger individual age
18-44, on the date the application was filed.

7.

The claimant has at least a high school education and is able to communicate
in English.

8.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has
transferable job skills.

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.

10.

The claimant has not been under a disability since her alleged onset date of
August 3, 2012.

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

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U.S.C. § 405(g).
II.

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, decide questions of credibility, 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. 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.

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1997)).
At a minimum, an ALJ must articulate his or 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, as a reviewing
court, we 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.”).
III.

Analysis
Plaintiff argues that the ALJ erred in his RFC assessment because (1) he failed to assess the

frequency of Plaintiff’s seizures and migraines and did not explain how he considered those
impairments in assessing her RFC; and (2) he did not incorporate her moderate limitations in
concentration, persistence, or pace into the RFC or into his hypothetical questions to the VE at the
hearing. The Commissioner argues that the RFC assessment is supported by substantial evidence
and sufficiently accounts for Plaintiff’s limitations.
The RFC is an assessment of what work-related activities the claimant can perform despite
her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §§
404.1545(a)(1); 416.945(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into

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consideration all of the relevant evidence, both medical and non-medical. See 20 C.F.R. §§
404.1545(a)(3); 416.945(a)(3). “In determining an individual’s RFC, the ALJ must evaluate all
limitations that arise from medically determinable impairments, even those that are not severe, and
may not dismiss a line of evidence contrary to the ruling.” Villano v. Astrue, 556 F.3d 558, 563 (7th
Cir. 2009) (citing S.S.R. 96-8p; Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003).
“Both the RFC and the hypothetical [to the VE] must account for all of the plaintiff’s
medically determinable impairments.” Kasberger v. Astrue, No. 06-3868, 2007 WL 1849450, at *3
(7th Cir. June 27, 2007) (citing 20 C.F.R. § 404.1545(a); Young, 362 F. 3d at 1002-03). The ALJ
found that Plaintiff had several severe impairments, including seizures and migraines. A medicallydeterminable impairment is considered “severe” if it “significantly limits an individual’s physical
or mental abilities to do basic work activities.” SSR 96-3p, 1996 WL 374181 at *1. Despite the
finding that migraines and seizures were severe impairments, the ALJ failed to explain how either
was incorporated into the RFC. In explaining his RFC assessment, the ALJ summarized the medical
evidence and testimony related to migraines and seizures. The ALJ then noted that he found the
testimony “partly credible,” without indicating which statements he credit or discredited, or
explaining what limits her migraines and seizures caused to Plaintiff’s workplace abilities.
In addition, the ALJ failed to properly consider Plaintiff’s mental impairments. The ALJ
concluded at step two of his analysis that Plaintiff had moderate difficulties with regard to
concentration, persistence, or pace. However, he did not sufficiently address these difficulties in his
RFC or in the hypothetical questions he posed to the VE. “[B]oth the hypothetical posed to the VE
and the ALJ's RFC assessment must incorporate all of the claimant's limitations supported by the
medical record.” Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014). “Among the mental limitations

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that the VE must consider are deficiencies of concentration, persistence, or pace.” Varga v. Colvin,
794 F.3d 809, 813 (7th Cir. 2015); see also Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009)
(explaining that the hypothetical question “must account for documented limitations of
‘concentration, persistence, or pace’”).
The ALJ incorporated only two mental limitations into Plaintiff’s RFC: no more than
occasional contact with the public, and a limitation to “simple, routine, repetitive tasks.” The
Seventh Circuit has “repeatedly rejected the notion that ... ‘confining the claimant to simple, routine
tasks and limited interactions with others adequately captures temperamental deficiencies and
limitations in concentration, persistence, and pace.’” Varga, 794 F,3d at 814-15 (quoting Yurt, 758
F.3d at 858-59); see also O’Conner-Spinner, 627 F.3d at 614 (“[E]mploying 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.”).
An ALJ’s hypothetical may omit the exact terms “concentration, persistence, or pace” when
it is apparent that the ALJ’s phrasing precludes tasks that someone with the claimant’s limitations
could not perform. See Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir. 2007) (holding that a
limitation to simple, low-stress work with low production standards was sufficient to account for
the mild-to-moderate difficulties in concentration, persistence, or pace caused by claimant’s
problems handling stress). In this case, the agency psychologists who reviewed Plaintiff’s file
determined that she was “moderately limited” in several abilities relating to concentration,
persistence, or pace, including the ability to maintain attention and concentration for extended
periods, and the ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods. A limitation to “simple, routine, repetitive tasks” is insufficient
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to capture those limitations, because tasks that are “simple” and “routine” may still outstrip the
abilities of a person with limitations in concentrating on or pacing tasks, particularly if those tasks
must be performed on a sustained basis at an acceptable rate of production over the course of a work
day. See Stewart v. Astrue, 561 F.3d at 684-685; Warren v. Colvin, 565 F. App’x 540, 544-545 (7th
Cir. 2014) (“The hypothetical must account for both the complexity of the tasks and the claimant’s
ability to stick with a task over a sustained period.”).
Neither the ALJ’s RFC assessment nor any of the hypothetical questions posed to the
vocational expert at the hearing incorporated limitations adequate to address Plaintiff’s difficulties
with maintaining attention and concentration, and with completing normal workdays and workweeks
without interruptions. This leaves the Court unable to discern if the VE overestimated the jobs that
Plaintiff could perform. Therefore, the ALJ failed to “build an accurate and logical bridge from the
evidence to her conclusion” that Plaintiff can work. Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.
2002).
The Court is also concerned with another component of the VE’s testimony. The VE testified
that Plaintiff would be able to perform work as a microfilm document preparer, an ampoule sealer,
and a “paramutual ticket checker” [sic]. The Seventh Circuit Court of Appeals has questioned the
appropriateness of relying on “job descriptions used by the Social Security Administration come
from a 23-year-old edition of the Dictionary of Occupational Titles, which is no longer published,
and mainly moreover from information from 1977 – 37 years ago,” noting that “[n]o doubt many
of the jobs have changed and some have disappeared.” Browning v. Colvin, 766 F.3d 702, 709 (7th
Cir. 2014). That concern is particular relevant in this case, where one of the jobs described by the
VE, that of document preparer, microfilming, is described as follows:

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Prepares documents, such as brochures, pamphlets, and catalogs, for
microfilming, using paper cutter, photocopying machine, rubber
stamps, and other work devices: Cuts documents into individual
pages of standard microfilming size and format when allowed by
margin space, using paper cutter or razor knife. Reproduces
document pages as necessary to improve clarity or to reduce one or
more pages into single page of standard microfilming size, using
photocopying machine. Stamps standard symbols on pages or inserts
instruction cards between pages of material to notify [microfilm
camera operator] of special handling, such as manual repositioning,
during microfilming. Prepares cover sheet and document folder for
material and index card for company files indicating information,
such as firm name and address, product category, and index code, to
identify material. Inserts material to be filmed in document folder and
files folder for processing according to index code and filming
priority schedule.
DOT 249.587-018. The job of preparing documents for microfilm preservation is one that seems
particularly likely to have changed in the last 37 years given the shift to digital storage and advances
in scanning technology.
The Browning court expressed also expressed concern, which may be relevant in this case,
that “[t]here is no official source of number of jobs for each job classification in the Dictionary of
Occupational Titles . . . [a]nd many of the[ VEs] estimate the number of jobs of a type the applicant
for benefits can perform by the unacceptably crude method of dividing the number of jobs in some
large category (which may be the only available data) by the number of job classifications in the
category.” Browing, 766 F.3d at 708. The ALJ found Plaintiff capable of working as a parimutuelticket checker, a job with the following responsibilities: “Counts and records number of parimutuel
tickets cashed at race track to verify records of cashiers. Compares totals with entries on daily
balance sheet. Compares each ticket with sample or examines tickets under fluorescent light to
verify validity of tickets. Reports discrepancies.” DOT 219.587-010. The State of Indiana has just
two horse racing tracks that feature parimutuel betting, yet the ALJ accepted uncritically both the
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VE’s testimony that the parimutuel-ticket checker jobs still exist and the VE’s testimony that they
employ 800 full-time workers in the state. See Indiana Horse Racing Commission,
http://www.in.gov/hrc/ (listing the two race tracks in the state). The Court suspects that the number
may have been arrived at by the “unacceptably crude” method described by the Browning court.
In short, the ALJ has failed to trace the path of his reasoning from his conclusion that
Plaintiff had numerous severe impairments to his RFC assessment, then failed to support his
conclusion that a person with Plaintiff’s impairments could work at jobs existing in reasonable
numbers in the economy. On remand, the ALJ is directed to fully weigh the medical evidence and
explain how Plaintiff’s medically-determinable impairments, including her difficulties with
concentration, persistence, and pace and any limitations arising from her migraine headaches and
seizures, in combination with her other impairments, affect Plaintiff’s ability to work. In addition,
the Court recommends that the ALJ specifically ascertain the source of the VE’s opinion that the
jobs identified as those Plaintiff could perform do, in fact, presently exist in the regional economy
in reasonable numbers.
IV.

Conclusion

For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s Brief
in Support of Reversing the Decision of the Commissioner of Social Security [DE 16] and
REMANDS this matter for further proceedings consistent with this opinion.
SO ORDERED this 9th day of March, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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