Spry v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: The Commissioner's decision is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 1/11/22. (jld)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MELISSA L. SPRY,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant

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Cause No. 3:20-CV-742-RLM-MGG

ORDER AND OPINION
Melissa Spry seeks judicial review of the final decision of the Commissioner
of Social Security denying her application for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. § 1381 et seq. The court has
jurisdiction over this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The
court took the appeal under advisement following a telephonic hearing on
January 10, 2022, and for the following reasons REVERSES the Commissioner’s
decision and REMANDS for further proceedings.

I.

BACKGROUND

Ms. Spry suffers from several physical and mental impairments that affect
her ability to work. She applied for disability insurance benefits in August 2018,
alleging that her disability began in June 2017. Ms. Spry’s claim was denied
initially and on reconsideration. She attended an administrative hearing on
October 28, 2019, where she and a vocational expert testified.

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The ALJ issued an unfavorable decision to Ms. Spry on November 20,
2019. The ALJ concluded that:
1. Ms. Spry met the insured status requirements of the Social
Security Act through September 30, 2022.
2. Ms. Spry hadn’t engaged in substantial gainful activity since
June 29, 2017, the alleged onset date. 20 C.F.R. § 404.1571 et seq.
3. Ms. Spry had the following severe impairments: degenerative and
discogenic changes in the lumbar spine (status post L4-5
decompression and fusion surgery), obesity, persistent/major
depressive disorder with anxious distress, and posttraumatic stress
disorder. 20 C.F.R. § 404.1520(c).
4. Ms. Spry’s impairments weren’t severe enough, either singularly
or in combination, to meet or medically equal any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ
considered listings 1.04 (disorders of the spine), 12.04 (depressive,
bipolar and related disorders), 12.06 (anxiety and obsessivecompulsive disorders), and 12.15 (trauma- and stressor-related
disorders).
5. Ms. Spry has the residual functional capacity to perform
sedentary work except that she is never able to climb ladders, ropes,
or scaffolds and she can only occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl. She must avoid
unprotected heights, dangerous moving machinery, and wet,
slippery, or dangerous terrain. She can understand, remember, and
carry out simple, routine, and repetitive tasks with no production
rate pace (like assembly-line work) and with only occasional, simple,
work-related decision-making. She can also maintain attention and
concentration for two-hour segments, and she can respond
appropriately to occasional, predictable, routine changes in the
workplace. She can further have brief and superficial interactions
with supervisors (defined as occasional interaction with supervisors
apart from what is necessary for general instruction, task
completion, or training). She can also have brief and superficial
interactions with coworkers, defined as occasional interaction with
coworkers, and can have occasional interaction with the general
public. She cannot perform tandem tasks.
6. Ms. Spry was unable to perform any past relevant work. 20 C.F.R.
§ 404.1565.

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7. Ms. Spry was a younger individual (thirty-nine years old) at the
alleged onset date and her age didn’t change as of the date of the
ALJ’s decision. 20 C.F.R. § 404.1563.
8. Ms. Spry has at least a high school education and is able to
communicate in English. 20 C.F.R. § 404.1564.
9. Transferability of job skills isn’t an issue because the MedicalVocational Rules supported a finding that Ms. Spry wasn’t disabled
regardless of whether she has transferable job skills.
10. Considering Ms. Spry’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that Ms. Spry can perform. The
ALJ indicated that she considered the vocational expert’s testimony
that Ms. Spry would be able to perform the requirements of
occupations such as: small parts assembler (106,100 job
nationally), laminator (95,400 job nationally), and addressing clerk
(75,000 positions nationally).
The ALJ concluded that Ms. Spry wasn’t entitled to disability benefits
because she wasn’t disabled within the meaning of the Social Security Act. When
the Appeals Council denied her request for review, the ALJ’s decision became the
final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107 (2000);
Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). This appeal followed.

II.

STANDARD OF REVIEW

“The Social Security Act, 42 U.S.C. § 405(g), requires the Commissioner's
findings to be sustained if supported by substantial evidence.” Rohan v. Chater,
98 F.3d 966, 970 (7th Cir. 1996). A reviewing court doesn’t decide whether a
claimant is disabled, but evaluates whether substantial evidence supports the
ALJ’s decision that a claimant wasn’t disabled. Scott v. Astrue, 647 F.3d 734,
739 (7th Cir. 2011); Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).

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Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). In
reviewing the ALJ’s decision, the court can’t reweigh the evidence, make
independent findings of fact, decide credibility, or substitute its own judgment
for that of the Commissioner. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009);
Powers v. Apfel, 207 F.3d 431, 434–435 (7th Cir. 2000). Instead, the court must
conduct “a critical review of the evidence, considering both the evidence that
supports, as well as the evidence that detracts from, the Commissioner’s
decision.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (internal
quotations omitted). While the ALJ isn’t required “to address every piece of
evidence or testimony presented, she must provide a ‘logical bridge’ between the
evidence and the conclusions so that [the court] can assess the validity of the
agency’s ultimate findings and afford the claimant meaningful judicial review.”
Jones v. Astrue, 623 F.3d at 1160.

III.

DISCUSSION

Ms. Spry argues that the ALJ’s decision isn’t supported by substantial
evidence because the ALJ improperly considered medical evidence and
inadequately considered certain limitations. Specifically, Ms. Spy objects to how
the ALJ considered (1) the state agency psychologist’s opinion regarding
checkbox limitations, (2) the state agency psychologist’s opinion regarding
interactions with others, (3) Dr. Nordstrom’s consultative opinions, (4) Dr.

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Garcia’s consultative opinion, (5) Dr. Curry’s opinion regarding use of a service
dog, and (6) Ms. Spry’s concentration-related limits.
Ms. Spry first argues that the ALJ erred by ignoring the checkbox
limitations of Dr. Lovko, one of the state agency psychologists. Dr. Lovko
assessed Ms. Spry’s medical history in March 2019 and marked a checkbox
indicating that Ms. Spry was “moderately limited” in “[t]he 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.” Dr. Lovko’s narrative response, which was included
in the same assessment, indicated that Ms. Spry could understand, carry out,
and remember simple instructions, make judgments related to simple, repetitive
tasks, respond appropriately to brief supervision and interactions with
coworkers and work situations, and deal with changes in a routine work setting.
The ALJ developed a residual functional capacity that limited Ms. Spry to
simple, routine, and repetitive tasks, limited her to maintaining attention and
concentration for two-hour segments, limited Ms. Spry to brief and superficial
interactions with others, and prohibited tandem tasks. The ALJ presented the
residual functional capacity as a hypothetical to the vocational expert and the
vocational expert opined that jobs were available for someone with that residual
functional capacity. The vocational expert further testified, though, that
competitive employment wouldn’t be available to someone who’s off task more
than ten percent of the workday or who would miss more than one day of work
per month.

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Ms. Spry argues that the ALJ’s decision is unsupported because the
residual functional capacity and hypotheticals to the vocational expert don’t
address Dr. Lovko’s checkbox limitations. According to Ms. Spry, the residual
functional capacity includes limitations that might address other psychologically
based limitations, but they don’t address a moderate limitation in completing a
workday or workweek without unreasonable interruptions or limitations in
maintaining pace without unreasonable rest periods. She contends that these
limitations are especially crucial given the vocational expert’s testimony that the
jobs available to someone like Ms. Spry wouldn’t be available if the worker was
off task more than ten percent of the time or missed more than one day of work
per month.
The Commissioner responds that the ALJ’s decision is supported even
though the ALJ didn’t directly address Dr. Lovko’s checkbox opinion. The
Commissioner concedes that the ALJ didn’t explain why she ignored the
checkbox limitation but argues that it’s harmless error because Dr. Lovko didn’t
repeat or reiterate the checkbox limitation in the narrative portion of the
assessment. The Commissioner characterizes the ALJ’s decision as implicitly
acknowledging these limitations in the residual functional capacity.
The ALJ didn’t properly account for or explain Dr. Lovko’s checkbox
limitations, so remand is appropriate. When posing hypotheticals to a vocational
expert, an ALJ must explicitly account for all limitations supported by medical
evidence, unless the vocational expert has independently reviewed the medical
record. DeCamp v. Berryhill, 916 F.3d 671, 675 (7th Cir. 2019); Moreno v.

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Berryhill, 882 F.3d 722, 730 (7th Cir. 2018). Even if a medical source provides
a narrative explanation and the ALJ relies on that explanation, the ALJ must
still include other checkbox limitations in the residual functional capacity and
hypotheticals. DeCamp v. Berryhill, 916 F.3d at 676. Dr. Lovko’s checkbox
limitation specifically indicated that Ms. Spry was moderately limited in
completing a workday or workweek without psychologically based symptoms and
in working at a consistent pace without an unreasonable number and length of
rest periods. The residual functional capacity addresses similar limitations, such
as limitations in concentration, but the ALJ didn’t account for these limitations.
Even if the ALJ implicitly acknowledged these limitations, that isn’t enough when
ALJs are required to explicitly account for all limitations. Id. at 675. The
Commissioner’s argument that any error was harmless doesn’t square with the
vocational expert’s testimony about the unavailability of jobs to people who are
off task more than ten percent of the time or who miss more than one day of
work per month. Remand is appropriate so that the ALJ can reconsider Dr.
Lovko’s checkbox limitations and either include the limitations in the residual
functional capacity and hypotheticals, or fully explain why it’s proper to exclude
Dr. Lovko’s checkbox limitations.

IV.

CONCLUSION

Based on the foregoing analysis, the court concludes that the ALJ erred
by not addressing Dr. Lovko’s checkbox limitations or explaining why they were
unsupported by medical evidence, which resulted in a final determination that

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was unsupported by substantial evidence. The Commissioner’s decision is
therefore REVERSED, and the case is REMANDED for further proceedings
consistent with this opinion.
SO ORDERED.
ENTERED: January 11, 2022
/s/ Robert L. Miller, Jr.
Judge, United States District Court

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