Mollett v. Commissioner of Social Security et al
Filing
24
OPINION AND ORDER: the Commissioner of SocialSecuritys final decision is REVERSED and this case is REMANDED forproceedings consistent with this opinion pursuant to sentence fourof 42 U.S.C. section 405(g). ***Civil Case Terminated. Signed by Judge Rudy Lozano on 9/7/12. (jld)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RICK L. MOLLETT,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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No. 3:11-CV-238
OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of Social Security’s decision denying Disability Insurance Benefits
and Supplemental Security Income to Plaintiff, Rick L. Mollett.
For the reasons set forth below, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED to
the
Social
Security
Administration
for
further
proceedings
consistent with this opinion pursuant to sentence four of 42 U.S.C.
section 405(g).
BACKGROUND
On August 26, 2008, Plaintiff, Rick L. Mollett (“Mollett” or
“claimant”),
applied
for
Social
Security
Disability
Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C.
section 401 et seq. and Supplemental Security Insurance (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. sections 1381
et seq.
Mollett alleged that his disability began on December 15,
2007, while he was employed as a cable installer.
134).
(Tr. 14, 131,
The Social Security Administration denied his initial
application and also denied his claims on reconsideration.
63-70, 75-88).
at
an
(Tr.
On April 1, 2010, Plaintiff appeared with counsel
administrative
hearing
before
(“ALJ”) John S. Pope (“Pope”).
Administrative
(Tr. 28).
Law
Judge
Testimony was provided
by the claimant, Luanne Mollett (the claimant’s wife), and Melissa
Benjamin (a vocational expert).
(Id).
On July 22, 2010, ALJ Pope
denied the claimant’s DIB and SSI claims, finding that Mollet had
not been under a disability as defined in the Social Security Act.
(Tr. 11-27).
The claimant requested that the Appeals Council review the
ALJ’s decision and the request was denied.
(Tr. 1-7, 226-35).
Accordingly, the ALJ’s decision became the Commissioner’s final
decision. See 20 C.F.R. § 422.210(a)(2005).
initiated
the
instant
action
for
judicial
The claimant has
review
of
the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
Facts
Mollett was born on September 6, 1968. (Tr. 134).
Mollett
alleges the following impairments: nocturnal seizures, type 2
-2-
diabetes,
intellectual
hypertension,
functioning
otherwise specified.
obesity,
(“BIF”),
depression,
and
cognitive
borderline
disorder
not
Mollett had past relevant work as a cable
installer. (Tr. 225).
The medical evidence can be summarized as follows:
In February of 2007, Mollett met with Dr. Thomas M. Banas, a
neurologist. (Tr. 261-62).
Dr. Banas’ impressions were that
Mollett suffered from recurrent nocturnal seizures, obesity, mild
cognitive impairment, questionable obstructive apnea, and a history
of fatigue and depression.
(Id).
Dr. Banas noted that “the
nocturnal seizures are typically triggered by sleep deprivation and
excessive fatigue and/or component of sleep cycles transitions; but
it could be related to frontal lobe discharge, which is typically
easily controlled on almost any anticonvulsant given at night,
which had been demonstrated by the patient.”
(Id. at 261).
Dr.
Banas also noted that “[w]ith his current obesity, and progressive
symptoms of potential apnea and gingival hyperplasia, I would
consider changing to alternative medication if tolerated, noting
that he probably will always be at risks [sic] for nocturnal
seizures in the right fatigue setting.”
(Id).
Dr. Banas put
Mollett on Topamax to be increased from 25 milligrams to 100
milligrams over a four week period as he slowly decreased his
Dilatin. (Tr. 262). He also recommended aggressive exercise of 45
minutes of walking for five or six days a week, review of food
-3-
groups, and continued monitoring for sleep apnea which could
provoke nocturnal seizures.
(Id).
Dr. Banas next saw Mollett in August of 2007.
(Tr. 252).
He
noted that the transition had been successfully made from Dilatin
to Topamax.
(Id).
There were no reported seizures.
(Id).
He
also noted that the last laboratory showed an elevated Glucose
greater than 200 and that Mollett had been taking Metformin. (Id).
Mollett’s physical examination was normal except for some trace
edema. (Id). The diagnosis included nocturnal seizures, metabolic
syndrome and hypertension.
(Id).
Dr. Banas saw Mollett again in February of 2008, and there had
been no reports of seizures since the last visit.
(Tr. 246).
Dr.
Banas observed that Mollett seemed to be somewhat mentally dulled
by the Topamax, and he had been unable to perform and keep up at
work which resulted in the loss of his job.
(Id).
Mollett’s
family also noted progressive decline, and his wife was concerned
that he had early dementia as it ran in the extended family.
(Id).
On physical exam Mollett appeared somewhat sleepy and dazed. (Id).
He was slow to respond, and he was searching for words.
(Id).
He
had no obvious aphasia, no nystagmus, and no tremors.
(Id).
He
had noticeable truncal obesity.
having
progressive
memory
(Id).
Mollett was diagnosed as
loss/confusion/sedation,
nocturnal
seizures (controlled), metabolic syndrome, and hypertension. (Id).
Dr. Banas noted the decline in Mollett’s cognition following the
-4-
institution of Topamax which, at this dose Dr. Banas felt would be
expected in perhaps fifteen to twenty percent of those taking the
drug.
(Id).
Dr. Banas did not believe that there had been any
paroxysmal strokes or step-wise changes in his memory.
(Id).
He
thought the only other possibility would be an early presentation
of dementia which he believed to be less likely.
baseline cognitive abilities should be reviewed.
(Id).
(Id).
He thought
Dr. Banas
also decided to taper down and take Mollett off the Topamax and put
him on Lacictal.
(Id).
He also suggested a PET scan.
(Id).
Mollet was seen again by Dr. Banas in May of 2008 on a followup for his progressive memory loss.
(Tr. 242).
Dr. Banas noted
“that our neuropsychologists have done extensive testing concerning
his baseline performance that was borderline and noting after some
discrepancy that his decreased effort was a valid effort due to
borderline intellectual functioning.”
(Id).
He had low average
verbal intellectual abilities and verbal memory, but significantly
impaired visual spatial perceptions and visual motor abilities.
(Id).
A strong indicator of premorbid low intellectual function
was noted, and the doctor noted that it might be exacerbated by
Mollett’s nocturnal seizures, diabetes, or hypertension. (Id). In
retrospect, Mollett’s wife noted a decline in his ability over a
12-year period of time.
(Id).
The change to Lanictal prevented
nocturnal seizures, and there was no significant history of apnea.
(Id).
However, Mollett was not sleeping well and apparently did
-5-
better on Topamax at night.
(Id).
The physical exam was normal
except for truncal obesity.
(Id).
His diagnosis was borderline
intellectual
deficits
and
abilities
questionably
significant
visual
seizures, and type 2 diabetes.
declining
(Id).
premorbid
deficits,
spatial
with
nocturnal
Dr. Banas wanted to arrange
additional testing to help characterize potential early dementia.
(Id).
If these were negative, he wanted to continue to follow the
present medical problems avoiding hypoglycemia and treating his
risk factors as much as possible.
Lamictal
back
to
Topamax.
(Id).
(Id).
He also switched his
Apart
from
a
functional
evaluation though occupational therapy, Dr. Banas did not know what
form of employment Mollett could perform with his visual perceptual
limitations and inability to handle rapidly changing environments
or new tasks, but he believed a functional evaluation through
occupational therapy might be of value.
(Id).
Dr. Banas believed
that Mollett should seek Social Security disability “due to his low
functional abilities that appear to be premorbid and progressively
declining at an early age.”
(Tr. 243).
He also noted that if
there is any evidence of increasing sleep apnea he would recommend
a formal sleep study to exclude this and hypoxia as an etiology of
his symptoms.
(Id).
On October 8, 2008, Mollett met with Dr. Coulter-Kern who
performed a psychological evaluation at the request of the Social
Security Administration.
(Tr. 307).
-6-
Mollett reported that he had
experienced seizures since he was 9 or 10, but that he was not
actually diagnosed as having them until age 27.
(Id).
Mollett
reported that he typically goes to bed around 10:00 or 11:00 p.m.,
but he does not fall asleep until 3:00 and 4:00 a.m.
(Id).
Mollett stated that he typically wakes up around 7:30-8:00 a.m.
(Id). Mollett’s mood was “okay” and his affect was consistent with
his mood.
(Tr. 308).
Although he received a high school diploma,
he was in learning disabled classes in school.
(Id).
Mollett had
worked longest at Comcast Cable Company which was for 5 years;
however, he stated that he left in December of 2007 because he was
having memory difficulties.
(Id).
Mollett also reported that he
rarely cooks, and when he does his wife helps him.
(Id).
When
cooking he would typically stay at the stove so he did not forget
about the food.
(Id).
Mollett is also able to go to the grocery
store if his wife writes a grocery list.
(Id).
He can clean and
do laundry, but he must focus and concentrate on one thing until it
is done.
finances,
(Id).
Mollett reported that his wife takes care of the
and he is able to manage his own personal hygiene
without assistance.
(Id).
On a typical day Mollett gets up at
8:00 a.m. and once he is dressed he looks after his 2 year old
daughter and changes her diaper. (Id). He turns on the television
and lets her watch Sesame Street or whatever else is on.
(Id).
Mollett is able to make his daughter simple things to eat such as
cereal, and there are usually a few dishes that he does.
-7-
(Id).
Then he usually sits and plays with her, trying to keep busy until
his wife comes home from work.
(Id).
Dr. Coulter-Kern noted that although Mollett’s motor behavior
was normal, he seemed dazed when responding to questions.
309).
(Tr.
On his mental status examination Mollett was able to recall
only one of five words given to him after a five minute delay.
(Id).
He was able to repeat four digits forward and three digits
backwards.
(Id).
verbally was fair.
His ability to perform simple calculations
(Id).
He had difficulty with serial 7's, and
he did serial 3's in 25 seconds with one error which overall showed
poor
mental
control.
(Id).
His
ability
interpret abstract information was poor.
to
(Id).
understand
and
His ability to
understand how two items were conceptually alike or different was
fair.
(Id).
His judgment and insight appeared to be good.
His fund of information was fair.
(Tr. 310).
Mollett was administered the Wechsler Memory Scale-3.
310).
(Id).
(Tr.
The results indicated that his overall memory was low and
his working memory (ability to hold information in his head while
he manipulates it to produce a result) was poor.
(Tr. 311).
Dr.
Coulter-Kern found that his current scores were likely to reflect
his true ability.
(Id).
Dr. Coulter-Kern also found that Mollett
needed significant structure in order to work in a safe and
productive manner, and close supervision would likely be needed.
(Id).
He found that overall Mollett’s functioning was low.
-8-
(Id).
Dr. Coulter-Kern diagnosed Mollett with Cognitive Disorder, NOS and
assigned Mollett a current Global Assessment of Functioning (“GAF”)
score of 50. (Id). Dr. Coulter-Kern also found that Mollett would
likely be able to complete simple repetitive tasks in a work
environment, but that he would have difficulty with complex, multistep procedures given his memory functioning.
(Tr. 316).
On October 20, 2008, Mollett met with Dr. Sadaf Sohrab who
performed a physical examination at the request of the Social
Security Administration.
(Tr. 317).
Mollett reported that he had
a problem with his memory for at least 5 years which he thought was
due to his seizure disorder.
(Id).
He reported that his short
term memory seemed to be more affected than his long-term memory.
(Id).
Mollett reported having a problem remembering names and
faces.
(Id).
Mollett also reported that he had memory testing
done which showed that he was suffering from some memory loss,
possibly early dementia.
(Id).
Mollett stated that he is unable
to do jobs which require him to do a lot of things quickly.
(Id).
The physical examination revealed that Mollett was morbidly obese
with
slow
speech
during
conversations,
understand and answer appropriately.
diagnosed
Mollett
as
having
memory
but
he
(Tr. 318).
loss,
was
to
Dr. Sohrab
nocturnal
disorder, and being borderline mentally handicapped.
able
seizure
(Tr. 319).
On November 5, 2008, Dr. J. Pressner completed the Psychiatric
Review Technique Form.
Dr. Pressner noted that Mollett had an
-9-
organic mental disorder.
(Tr. 323).
Dr. Pressner found that
Mollett had moderate limitations in daily living activities and
mild
limitations
in
maintaining
social
concentration, persistence, or pace.
episodes of decompensation.
(Id).
functioning
(Tr. 333).
and
He found no
Dr. Pressner opined that the
opinions of Dr. Coulter-Kern pertaining to Mollett’s need for
significant structure and close supervision were not supported by
the test scores or the report of his activities.
(Tr. 335).
Dr.
Pressner noted that when Dr. Coulter-Kern was questioned on the
basis for his opinions he reported that Mollett could perform
simple repetitive tasks but no complex multi-step procedures.
(Id).
Dr. Pressner gave no weight to Dr. Coulter-Kern’s original
opinions because he believed they were contrary to the facts.
(Id).
He found that Mollett did not meet any listing.
(Id).
Dr. Pressner also completed a Mental Residual Functional
Capacity Assessment for Mollett. (Tr. 339). He found that Mollett
should be able to attend to a task for a two hour period of time,
was capable of maintaining a schedule, could understand, remember
and carry out simple tasks, could relate on a superficial basis and
on an ongoing basis with co-workers and supervisors, could attend
to tasks for sufficient periods of time to complete them, and could
manage the stresses involved with simple work.
(Id).
Mollett saw Dr. Banas again in August of 2009 for a follow-up
on his seizure disorder and progressive memory loss.
-10-
(Tr. 379).
Mollett had experienced no seizures on low-dose Topamax, but he
appeared to be declining, noting that his wife reported that he can
drive around town but not outside of that area.
(Id).
Mollett’s
wife reported that Mollett had been out of town in Huntington and
Fort Wayne, and he could not find his away back to Wabash and had
to call for directions.
(Id). He appeared to have difficulties
with names, and at the same time he appeared to be regressing into
a depressed state without interest in doing any activity.
On his physical exam, Mollett made poor eye contact.
(Id).
(Id).
He had
an almost mechanical quality to his gait. (Id). The diagnosis was
progressive memory loss, depression, nocturnal seizures, and type
2 diabetes.
(Id).
Dr. Banas found that Mollett had failed to
thrive, and that he had borderline intellectual abilities prior to
his decline.
(Id).
Dr. Banas also found that Mollett appeared to
be disabled from any previous work, and his decondition and
depression have added to his symptom complex.
(Id).
Dr. Banas
noted that he intended to introduce Wellbutrin XL to see if it was
a stimulating antidepressant.
(Id).
He also suggested walking on
a daily basis for 30 to 45 minutes a day.
(Id).
Mollett saw Dr. Banas again in December of 2009 at which time
Mollett was very frustrated, noting that he cannot perform work
because he was unable to keep up and that the neuropsychologist
noted that he has a developmental delay, perhaps a handicap.
373).
(Tr.
Because of the family’s complaint of progressive memory
-11-
decline, markers for slowly progressive dementia were reviewed and
were negative.
(Id).
Mollett had a PET scan which was normal.
(Id).
Mollett also had a seizure after he fell and hit his head.
(Id).
He had run out of Topamax and Wellbutrin for depression.
(Id).
Mollett admitted to some depression, but it was difficult
to characterize.
(Id).
Mollett had poor eye contact during his
physical examination, he was very slow, and he appeared to be
somewhat sedated.
without rigidity.
(Id).
Mollett ambulated slowly across the room
(Id).
Dr. Banas’s diagnosis was cognitive
impairment; questionably progressive; history of seizure disorder;
recent seizure; and diabetes.
(Id).
Dr. Banas found that he was
unable to explain the cognitive decline, but he suspected his
borderline
abilities
at
baseline
depression and current medications.
noting
that
he
suspected
disability for many reasons.
that
are
perhaps
(Id).
Mollett
aggravated
by
Dr. Banas concluded by
was
a
candidate
for
(Id. at 374).
Review of Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits. 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 . . . .”
Id.
Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a decision.”
-12-
Richardson v. Perales, 402 U.S. 389, 401 (1971).
In determining
whether substantial evidence exists, the Court shall examine the
record in its entirety, but shall not substitute its own opinion
for the ALJ’s by reconsidering the facts or re-weighing evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
With that in
mind, however, this Court reviews the ALJ’s findings of law de novo
and if the ALJ makes an error of law, the Court may reverse without
regard
to
findings.
the
volume
of
evidence
in
support
of
the
factual
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
or SSI benefits under the Social Security Act, the claimant must
establish that he is disabled. To qualify as being disabled, the
claimant must be 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 has lasted
or can be expected to last for a continuous period of not less than
twelve months.”
determine
42 U.S.C. §§ 423(d)(1)(A) and 1382(a)(1).
whether
a
claimant
has
satisfied
this
To
statutory
definition, the ALJ performs a five step evaluation:
Step 1:
Is the claimant performing substantial gainful activity:
If yes, the claim is disallowed; if no, the inquiry
proceeds to step 2.
Step 2:
Is the claimant’s impairment or combination of
impairments “severe” and expected to last at least twelve
months? If not, the claim is disallowed; if yes, the
inquiry proceeds to step 3.
Step 3:
Does the claimant have an impairment or combination of
-13-
impairments that meets or equals the severity of an
impairment in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404 Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if not, then the
inquiry proceeds to step 4.
Step 4:
Is the claimant able to perform his past relevant work?
If yes, the claim is denied; if no, the inquiry proceeds
to Step 5, where the burden of proof shifts to the
Commissioner.
Step 5:
Is the claimant able to perform any other work within his
residual functional capacity in the national economy: If
yes, the claim is denied; if no, the claimant is
disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that Mollett suffered from severe
mental impairments that significantly affected his ability to work.
The ALJ further found that Mollett did not meet or medically equal
one of the listed impairments, and could not perform any of his
past
relevant
work,
but
nonetheless
retained
the
residual
functional capacity (“RFC”) to perform a full range of work at all
exertional levels with the following nonexertional limitations:
simple repetitive work tasks, avoidance of even moderate exposure
to
work
hazards;
and
pulmonary irritants.
avoidance
(Tr. 18).
of
concentrated
exposure
to
After considering Mollett’s age,
education, work experience and RFC, the ALJ relied upon the
testimony of a vocational expert and concluded that Mollett was not
disabled and not entitled to DIB or SSI because he retained the
capacity to perform a significant number of jobs despite his
functional limitations. (Tr. 26). Thus, Mollett’s claim failed at
step five of the evaluation process.
-14-
(Tr. 27).
Mollett believes
that the ALJ committed several errors requiring reversal.
Hypothetical Question Posed to Vocational Expert
The ALJ found that Mollett had moderate difficulties in
concentration, persistence, or pace.
finding,
referring
the
ALJ’s
instead
RFC
to
repetitive work tasks.
the
does
not
(Tr. 17).
reference
nonexertional
(Tr. 18).
Despite this
this
limitation,
limitation
of
simple,
Mollett contends the ALJ erred
by posing a hypothetical question to the vocational expert (“VE”)
without including all limitations supported by the medical evidence
of record, including deficiencies of concentration, persistence and
pace.
(Tr. 18).
The Commissioner believes that the ALJ’s finding
that Plaintiff was limited to simple repetitive work adequately
accounted
for
his
determination
that
Plaintiff
deficiencies in concentration, persistence, or pace.
had
moderate
(DE 19 at 6-
7).
At the hearing, the following exchange occurred between the
ALJ and VE:
Q: All right, let me ask you a
hypothetical question. Please disregard any
information you may have gathered from reading
the file or listening to the testimony, I’ll
just
give
you
a
hypothetical.
This
hypothetically [sic] individual in the age
range of 39-41 educated at a 12th grade level.
He has [INAUDIBLE}, same as Claimant. Limited
to only the simpler repetitive tasks that
avoid even moderate exposure to the hazards
and
avoid
concentrate
exposure
to
the
pulmonary irritants.
That would eliminate
past work, is that right?
A: That is correct – sorry the back work
is semi-skilled.
-15-
Q: All right, are there any available
jobs for such an individual?
A: Yes, Your Honor.
* * *
ALJ:
Okay,
now
let’s
assume
the
Claimant’s testimony is fully credible,
[INAUDIBLE] supported by the evidence. Do you
believe there would be a job such an
individual could be able to perform?
VE: Well, Your Honor, due to the ability
to be able [to] remain on task and possible
absenteeism issues the person would need to be
on [sic] task less than 15 percent of a work
day.
If they were off task more than that
they
would
be
terminated.
With
the
absenteeism a person would need to attend
–sorry, an employee, if they miss anywhere
between one to two days a month with the
average being 1.75 days a month would be
terminated from competitive employment.
(Tr. 55-57).
In the Seventh Circuit, an ALJ is generally require to orient
the VE to the totality of a claimant's limitations. O’ConnorSpinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
“Among the
limitations the VE must consider are deficiencies of concentration,
persistence and pace.”
Id. (citing Stewart v. Astrue, 561 F.3d
679, 684 (7th Cir.2009); Kasarsky v. Barnhart, 335 F.3d 539, 544
(7th Cir.2003); Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.
2002)).
“[T]he most effective way to ensure that the VE is
apprised fully of the claimant's limitations is to include all of
them directly in the hypothetical.”
619.
O’Connor-Spinner, 627 F.3d at
But, there is not “a per se requirement that the terminology
(“concentration, persistence and pace”) be used in the hypothetical
in all cases.”
Id.
For example, it can be assumed that a VE is familiar with the
-16-
claimant’s limitations, despite any gaps in the hypothetical posed
by the ALJ, “when the record shows that the VE independently
reviewed the medical record or heard testimony directly addressing
these limitations.”
where
the
ALJ
Id.
poses
However, this exception is inapplicable
a
series
of
increasingly
restrictive
hypotheticals to the VE, because it can then be inferred that the
VE’s attention is focused on the hypotheticals rather than the
record.
Id.
ALJ Pope explicitly asked the VE who testified at
Mollett’s hearing to disregard any information he may have gathered
from reading the file or listening to the testimony and then asked
his first
hypotheticals.
(Tr. 55-57).
When the VE was later
asked to accept the claimant’s testimony as fully credible, the VE
determined that the reported limitations would likely prohibit
competitive employment.
(Tr. 55-57). Accordingly, this exception
is inapplicable.
Additionally, where the ALJ’s hypothetical omits the terms
“concentration, persistence and pace,” the Court has declined to
find
error
when
“the
ALJ’s
alternative
phrasing
specifically
excluded those tasks that someone with the claimant’s limitations
would be unable to perform.”
O’Connor-Spinner, 627 F.3d at 619.
This exception is most frequently utilized where the claimant’s
limitations
were
stress
or
panic
related
restricting the claimant to low-stress work.
in
a
Id.
hypothetical
This is not a
case about stress, and the limitation to simple, repetitive work
does not appear to adequately take into account the limitations
imposed
by
Mollett’s
moderate
-17-
limitations
with
regards
to
concentration, persistence and pace stemming from his cognitive
disorder and difficulties with focus and concentration.
The facts
of this case do not fit within this particular exception to the
general rule that an ALJ must orient the VE to the totality of a
claimant's limitations.
The Seventh Circuit, in O’Connor-Spinner, discussed the case
of Simila v. Astrue as an example of a case that falls outside of
the general rule, but “just barely so.” O’Connor-Spinner, 627 F.3d
at 619-21 (7th Cir. 2010)(citing Simila v. Astrue, 573 F.3d 503, 522
(7th Cir. 2009)).
In Simila, the claimant’s difficulties with
concentration, persistence and pace stemmed from a chronic pain
syndrome and somatoform disorder, and, although the limitations of
concentration, persistence and pace were not mentioned in the
hypothetical,
the
underlying
conditions
were
mentioned.
The
Seventh Circuit stated in O-Connor-Spinner that “[o]n the facts of
that case [Simila], the link between the claimant’s pain and his
concentration difficulties was apparent enough that incorporating
those difficulties by reference to his pain was consistent with the
general rule, albeit just barely so.”
at 620.
O-Connor-Spinner, 627 F.3d
After describing the ALJ’s failure to include limitations
of concentration, persistence and pace in the hypothetical as
“troubling,” the Court noted the following:
In 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
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not the same as the ability to learn how to do
tasks of a given complexity. . . .
. . . . As discussed, limiting a
hypothetical to simple, repetitive work does
not necessarily address deficiencies of
concentration, persistence and pace.
We
acknowledge
that
there
may
be
instances where a lapse on the part of the ALJ
in framing the hypothetical will not result in
a remand. Yet, for most cases, the ALJ should
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 (citations omitted).
Mollett’s underlying condition
was not referenced in the ALJ’s hypothetical.
Accordingly, the
exception noted in Simila is inapplicable.
A little over a month prior to the Seventh Circuit’s decision
in O’Connor-Spinner, the Seventh Circuit addressed a similar issue
in an unpublished1 case, Milliken v. Astrue, 397 F. App’x 218, (7th
Cir. 2010).
The Commission relies upon Milliken to support its
statement that, in the Seventh Circuit, “a limitation to unskilled
or simple work can adequately account for moderate deficiencies in
concentration, persistence, or pace.”
(DE 19 at 7).
In Milliken,
the hypothetical posed to the VE was based on the testimony of a
medical expert who essentially translated his medical opinion into
a RFC assessment.
The Court held that a hypothetical limited to
unskilled work adequately took into account the medical expert’s
assessment
of
the
claimant’s
mental
1
limitations,
including
According to Circuit Rule 32.1, unpublished opinions such
as Milliken are not to be treated as precedents.
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limitations
in
concentration,
persistence
and
pace.
The
Commissioner has made no effort to explain how Milliken, which
falls outside the general rule, is applicable to the instant case.
No medical expert testified at Mollett’s hearing.
The ALJ’s
hypothetical did not ask the VE to accept the limitations of any
particular physician; rather, he crafted his own RFC based on his
opinion of the record as a whole.
Thus, to the extent that the
unpublished opinion of Milliken can be viewed as creating another
exception to the general rule, it is one that is not applicable
here.
The Seventh Circuit has clearly stated that, “for most cases,
the ALJ should 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.”
O-Connor-Spinner, 627 F.3d at 620-21. That did
not occur here, and none of the exceptions to the general rule
appear to apply.
On the record before this Court, there is no
assurance that the VE’s testimony adequately took into account the
claimant’s limitations of concentration, persistence and pace.
In
fact, the VE’s response to the ALJ’s second hypothetical (the
hypothetical asking the VE to assume the claimant’s testimony was
fully credible) suggests that limits in concentration, persistence
and pace may indeed have resulted in the VE concluding that no jobs
existed for the hypothetical individual.
The ALJ should have
referred expressly to limitations on concentration, persistence and
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pace in the hypothetical, and the error requires reversal.
Because the ALJ’s error regarding the hypothetical questions
requires
remand,
the
Court
need
not
consider
the
claimant’s
arguments regarding the treatment of one of Dr. Banas’ statement or
the ALJ’s credibility determination.
However, it is worth noting
that
statements
reading
the
ALJ’s
repeated
that
Mollett’s
allegations were “not credible to the extent they are inconsistent
with” the ALJ’s assessment of the RFC brought to mind the recent
decision of the Seventh Circuit in Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012), in which it was noted that such language
“backwardly implies that the ability to work is determined first
and is then used to determine the claimant’s credibility.”
Tr. at 19-20, 24, 25).
(See
This argument was not made by the parties,
and this Court does not intend to develop it for them, but since
the case is being remanded, the Commission is directed to keep the
Seventh Circuit’s recent opinion of Shauger and others like it in
mind upon remand.
CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED for
proceedings consistent with this opinion pursuant to sentence four
of 42 U.S.C. section 405(g).
DATED: September 7, 2012
/s/ Rudy Lozano, Judge
United States District Court
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