Gilman Jr v. Commissioner of Social Security
OPINION AND ORDER: The decision is REVERSED and REMANDED. The Clerk is DIRECTED to enter judgment in favor of Plaintiff and against Defendant. Signed by Judge Holly A Brady on 1/7/2021. (bas)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
GLENN WAYNE GILMAN, JR.,
ANDREW M. SAUL,
Commissioner of Social Security,
Cause No. 2:19-CV-315-HAB
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Brief in Support of his Motion to Reverse
the Decision of the Commissioner of Social Security (ECF No. 15). Defendant Andrew M. Saul,
Commissioner of Social Security (the “Commissioner”) has responded (ECF No. 16), and Plaintiff
has replied (ECF No. 19). This matter is now ripe for review.
On June 4, 2015, Plaintiff protectively filed a Title II application for a period of disability
and disability insurance benefits. Plaintiff also filed a Title XVI application for supplemental
security income the same day. In both applications, Plaintiff alleged a disability onset date of
December 15, 2011. The claims were denied initially and upon reconsideration. Plaintiff requested
a hearing and, consistent with his request, a video hearing was held on October 12, 2017. Following
the hearing, Plaintiff amended the date of onset to June 4, 2014.
On December 8, 2017, Administrative Law Judge Michelle Whetsel issued her Decision
finding that Plaintiff was not disabled. (R. 140–50) (the “Decision”). Thereafter, Plaintiff
requested review by the Appeals Council. On June 20, 2019, the Appeals Council issued its
Decision (R. 5–10). The Appeals Council largely adopted the ALJ’s Decision, but found that
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Plaintiff was disabled as of April 24, 2017, due to his cirrhosis of the liver. Having exhausted his
administrative remedies, Plaintiff filed his Complaint (ECF No. 1) on August 20, 2019.
Standard of Review
A claimant who is found to be “not disabled” may challenge the Commissioner’s final
decision in federal court.1 This Court must affirm the ALJ’s decision if it is supported by
substantial evidence and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002). Substantial evidence is “more than a mere scintilla of proof.” Kepple v.
Massanari, 268 F.3d 513, 516 (7th Cir. 2001). It means “evidence a reasonable person would
accept as adequate to support the decision.” Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir. 2007);
see also Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation and
In determining whether there is substantial evidence, the Court reviews the entire record.
Kepple, 268 F.3d at 516. However, review is deferential. Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007). A reviewing court will not “reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute [its] own judgment for that of the Commissioner.” Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003) (quoting Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000)).
Nonetheless, if, after a “critical review of the evidence,” the ALJ’s decision “lacks
evidentiary support or an adequate discussion of the issues,” this Court will not affirm it. Lopez,
336 F.3d at 539 (citations omitted). While the ALJ need not discuss every piece of evidence in the
Plaintiff’s opening brief asserts that, in addition to the Decision, he is also challenging “the Appeals Council decision
on his supplemental security income benefits claim from June 4, 2014[,] through April 24, 2017.” (ECF No. 15 at 2).
However, no argument is made regarding the Appeals Council’s decision, and the Court deems any such arguments
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record, she “must build an accurate and logical bridge from the evidence to [the] conclusion.”
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Further, the ALJ “may not select and
discuss only that evidence that favors [her] ultimate conclusion,” Diaz, 55 F.3d at 308, but “must
confront the evidence that does not support [her] conclusion and explain why it was rejected,”
Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004). Ultimately, the ALJ must “sufficiently
articulate [her] assessment of the evidence to assure” the court that she “considered the important
evidence” and to enable the court “to trace the path of her reasoning.” Carlson v. Shalala, 999 F.2d
180, 181 (7th Cir. 1993) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985) (internal
quotation marks omitted)).
The ALJ’s Decision
A person suffering from a disability that renders him unable to work may apply to the
Social Security Administration for disability benefits. See 42 U.S.C. § 423(d)(1)(A) (defining
disability as the “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months”). To be found
disabled, a claimant must demonstrate that his physical or mental limitations prevent him from
doing not only his previous work, but also any other kind of gainful employment that exists in the
national economy, considering his age, education, and work experience. § 423(d)(2)(A).
If a claimant’s application is denied initially and on reconsideration, he may request a
hearing before an ALJ. See 42 U.S.C. § 405(b)(1). An ALJ conducts a five-step inquiry in deciding
whether to grant or deny benefits: (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
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disabling impairment, whether he has the residual functional capacity to perform his past relevant
work, and (5) whether the claimant is capable of performing any work in the national economy.
Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since June 4, 2014. At step two, the ALJ found that Plaintiff suffered from the following severe
impairments: diabetes; peripheral neuropathy; obesity; cirrhosis of the liver; hypertension; high
cholesterol; and alcohol abuse and adjustment disorder with depressed mood.
At step three, the ALJ determined that Plaintiff did 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” (R. 143). The ALJ specifically considered listings 5.05,
11.14, and Social Security Rulings 02-1p and 14-2p. It was further determined that Plaintiff’s
mental impairments did not meet the criteria of listings 12.04 or 12.06.
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
he can occasionally climb ramps and stairs, but can never climb ladders, ropes, or
scaffolds; the claimant can occasionally, balance, stoop, kneel, crouch and crawl.
He should avoid concentrated exposure to moving machinery, unprotected heights
and wet slippery surfaces; the claimant can occasionally push/pull and operate foot
controls bilaterally; the claimant can remember and follow simple but not detailed
instructions; perform the tasks assigned, but not always at a production rate pace;
he can however, meet the end of day work goals; the claimant can occasionally
adapt to rapid changes in the workplace and must use a cane to balance and
(R. 144) (all sic). Based on this RFC, the ALJ concluded that Plaintiff was not able to perform any
past relevant work. However, she went on to find that Plaintiff could perform jobs that exist in
significant numbers in the national economy and, therefore, that Plaintiff was not disabled.
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The ALJ Erred in Relying on Testimony from the Vocational Expert that Conflicted with
Information Provided in the DOT
Plaintiff makes several arguments in his briefing, but the Court finds one dispositive.
Plaintiff’s final argument claims that the vocational expert’s testimony was inconsistent with both
the RFC and the Dictionary of Occupational Titles (“DOT”), and therefore the ALJ erred when
she relied upon that testimony. The Court agrees, and further finds that the conflict between the
VE’s testimony and the DOT was obvious enough that the ALJ should have identified the
inconsistency without help from Plaintiff.
“[A]n ALJ has an ‘affirmative responsibility’ to ask whether a vocational expert’s evidence
‘conflicts with information provided in the DOT’ before relying on that evidence to support a
determination of nondisability.” Overman v. Astrue, 546 F.3d 456, 462–63 (7th Cir. 2008) (quoting
SSR 00–4p at 4); see also Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007); Prochaska
v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006). The ALJ performed the first part of her
responsibility when she asked the VE if his testimony was consistent with the DOT. (R. 79). The
VE answered yes but, as all parties now agree, that answer was incorrect.
As part of her many hypotheticals to the VE, the ALJ asked the VE to assume that the
individual in question could “remember and follow simple, but not detailed, instructions.” (R. 76).
After considering this hypothetical, the VE testified that the individual could perform three jobs:
clerk/cashier, addressing clerk, and document clerk. (R. 77). The parties agree that all three of
these jobs are categorized as Reasoning Level 2 under the DOT. Such jobs require the employee
to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral
instructions. Dictionary of Occupational Titles, Appendix C – Components of the Definition
Trailer, 1991 WL 688702 (January 1, 2016) (emphasis added). It is undisputed that the ALJ’s
hypothetical, which expressly stated that Plaintiff could follow “simple, but not detailed”
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instructions is inconsistent with the VE’s testimony that Plaintiff could perform jobs that required
him to follow detailed instructions.
The Commissioner responds by noting, correctly, that since Plaintiff did not raise the
conflict at the hearing this Court can only reverse the ALJ’s determination if it concludes that the
conflict was “obvious enough that the ALJ should have picked up on it without any assistance.”
(ECF No. 16 at 13) (quoting Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)). The
Commissioner then cites several cases where conflicts were not found to be so apparent.
The problem with the Commissioner’s argument is that conflicts don’t get more apparent
than in this case. The ALJ’s hypothetical asked the VE for jobs that would not require Plaintiff to
follow detailed instructions, but all the proposed vocations required Plaintiff to follow detailed
instructions. This conflict is apparent as the conflicts between yes and no, up and down, Pepsi and
Coke. Indeed, if an ALJ cannot be expected to spot the difference between “detailed” and “not
detailed” without assistance, then the Court struggles to imagine any scenario where a VE’s
testimony could be incorrect enough to support remand.
What the Court is left with, then, is a finding of non-disability based on a list of jobs that
Plaintiff undisputedly cannot perform. This is the very definition of error. The Court so finds and
will remand this matter for further proceedings.
For the foregoing reasons, the Decision is REVERSED and REMANDED. The Clerk is
DIRECTED to enter judgment in favor of Plaintiff and against Defendant.
SO ORDERED on January 7, 2021.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT
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