Zenner v. Commissioner of Social Security

Filing 31

OPINION AND ORDER: Accordingly, the Court REVERSES and REMANDS this case for further proceedings in accordance with this Opinion and Order. Signed by Chief Judge Theresa L Springmann on 1/16/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOSEPH F. ZENNER,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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CAUSE NO.: 4:16-CV-51-TLS

OPINION AND ORDER
The Plaintiff, Joseph F. Zenner, seeks review of the final decision of the Commissioner
of the Social Security Administration (“the Commissioner”) denying his application for
disability insurance benefits and for supplemental security income. The Plaintiff argues that the
Commissioner wrongfully denied him disability benefits and supplemental security income and
erred by failing to provide “good reasons” for discrediting the opinions of treating physicians;
making a “patently wrong” adverse credibility determination; failing to adequately account for
limitations in concentration, persistence, and pace; failing to evaluate new and material evidence;
and failing to consult a medical expert regarding whether the Plaintiff’s limitations medically
equaled the relevant listings.

BACKGROUND
On February 12, 2013, the Plaintiff filed his Title II application for a period of disability
and disability insurance benefits, as well as a Title XVI application for supplemental security
income, alleging disability beginning on April 11, 2011. (R. 26.) His claims were denied initially

on April 11, 2013, and upon reconsideration on June 6, 2013. (Id.) On December 3, 2014, the
Plaintiff appeared with counsel and testified at a video hearing before an administrative law
judge (ALJ). (Id.) Leonard M. Fisher, a vocational expert, also appeared and testified at the
hearing. (Id.) On December 22, 2014, the ALJ denied the Plaintiff’s application, finding he was
not disabled prior to his date last insured, June 30, 2013. (R. 26–40.) On April 28, 2016, the
ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied
the Plaintiff’s request for review of the ALJ’s decision. (R. 1–3.)
On June 27, 2016, the Plaintiff filed this claim [ECF No. 1] in federal court against the
Acting Commissioner of the Social Security Administration.

THE ALJ’S FINDINGS
Disability is defined 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.” 42 U.S.C. § 423(d)(1)(A). 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).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits.
20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in
substantial gainful activity (“SGA”). Id. In the case at hand, the ALJ found that the Plaintiff has
been unable to engage in SGA from his alleged onset date, April 11, 2011, to his date last
insured, June 30, 2013. (R. 29.)

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In step two, the ALJ determines whether the claimant has a severe impairment limiting
his ability to do basic work activities under § 404.1520(c). In this case, the ALJ determined that
the Plaintiff had multiple severe impairments, including cervical degenerative disc disease status
post fusion, remote fracture of tibia, remote left hip injury, diabetes mellitus, hypertension, and
cognitive dysfunction. (Id.) The ALJ found that these impairments caused more than minimal
limitations in the Plaintiff’s ability to perform the basic mental and physical demands of work
and had lasted for at least twelve months as required under the statute. (Id.) The ALJ found that
the Plaintiff’s medically determinable impairment of mood disorder was not a severe impairment
because it did not cause more than minimal functional limitations. (Id.)
Step three requires the ALJ to “consider the medical severity of [the] impairment” to
determine whether the impairment “meets or equals one of the [the] listings in appendix 1 . . . .”
§ 404.1520(a)(4)(iii). If a claimant’s impairment(s), considered singly or in combination with
other impairments, rise to this level, there is a presumption of disability “without considering
[the claimant’s] age, education, and work experience.” § 404.1520(d). But, if the impairment(s),
either singly or in combination, fall short, the ALJ must proceed to step four and examine the
claimant’s “residual functional capacity” (“RFC”)—the types of things he can still do, despite his
limitations—to determine whether he can perform “past relevant work,” § 404.1520(a)(4)(iv), or
whether the claimant can “make an adjustment to other work” given the claimant’s “age,
education, and work experience.” § 404.1520(a)(4)(v).
The ALJ determined that the Plaintiff’s impairments did not meet or equal any of the
listings in Appendix 1 and that he had the RFC to perform medium work, as defined in 20 C.F.R.
§ 404.1567(c) and 416.967(c) except that:
[H]e can never climb ladders, ropes, or scaffolds. He is limited to occasional
rotation of the neck, and he is limited to jobs that require no more than occasional
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exposure to vibration and to hazards, such as dangerous moving mechanical parts
or unprotected heights. The claimant is able to understand, remember, and carry out
simple instructions; to make judgments on simple work-related decisions; to
interact appropriately with supervisors and coworkers in a routine work setting; and
to respond to usual changes in a routine work-setting.
(R. 32.)
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled from his
alleged onset date to his date last insured. The ALJ found that the Plaintiff’s medically
determinable impairments could reasonably be expected to cause some of the alleged symptoms.
(R. 33.) But, the ALJ found that the Plaintiff’s testimony and prior statements regarding the
intensity, persistence, and limiting effects of these symptoms were “not entirely credible.” (Id.)
The Plaintiff testified, and his ex-wife filed a third-party report, regarding his level of pain and
the functional restrictions on the Plaintiff’s daily activities. The Plaintiff described lingering
effects from three surgeries, including back pain when he “gets up and moves.” (R. 32.) The
Plaintiff also reported that “he has to sit down and recline to take the pressure off his neck, and
described the pain as the weight of his head shooting pains down into his back, arms, and fingers,
necessitating that he lie down.” (Id.) He testified that he could lift and carry only ten pounds
comfortably, “sit for 1 hour, and stand for 1 ½ to 2 hours as long as he is moving around.” (Id.)
However, he indicated that “he has to lie down for two hours after standing and that after sitting
for one hour, he has to recline for one hour to take pressure off his neck.” (Id.) He further
testified that his neck and shoulder pain requires him to lie down for three quarters of the day.
(Id.) He also claimed that he had trouble with comprehension and memory and that he needs his
ex-wife to take him everywhere and explain things (Id.) However, the Plaintiff’s ex-wife’s third
party report indicated that he was able to make simple meals, do light cleaning such as folding

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towels, drive short distances, run errands, and help package small items for his ex-wife’s eBay
store. (Id.)
The ALJ noted both that the Plaintiff’s claims regarding the intensity, persistence, and
limiting effects of his symptoms were disproportionate with the objective medical evidence, as
shown by the Plaintiff’s conservative treatment records, and that other parts of the Plaintiff’s
testimony were incompatible with his claimed level of incapacity, undermining the Plaintiff’s
credibility. (R. 33–38.)
The Plaintiff had past relevant work as a house repairer, which is a skilled, medium
physical demand job as defined by the Dictionary of Occupational Titles (“DOT”) but performed
by the Plaintiff at the heavy physical demand. (R. 39.) The Plaintiff also had past relevant work
as a tractor-trailer truck driver, which is a semiskilled, medium physical demand as defined by
the DOT but performed by the Plaintiff at the medium to very heavy physical demands. (Id.)
Thus, the ALJ concluded that the Plaintiff was not capable of performing any past relevant work.
(Id.) However, relying on the vocational expert’s testimony, the ALJ found that “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.” (Id.) Thus,
the ALJ found that the Plaintiff was not disabled as defined in the Social Security Act since his
alleged onset date. (R. 40.)

STANDARD OF REVIEW
The decision of the ALJ is the final decision of the Commissioner when the Appeals
Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). The
Social Security Act establishes that the Commissioner’s findings as to any fact are conclusive if

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supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus,
the Court will affirm the Commissioner’s finding of fact and denial of disability benefits if
substantial evidence supports them. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2009).
Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512
(7th Cir. 1999).
It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make
independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399–
400. The reviewing court reviews the entire record; however it does not substitute its judgment
for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 608. The court will “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, and “the decision cannot stand if it
lacks evidentiary support or an adequate discussion of the issues.” Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (internal quotations omitted).
When an ALJ recommends the denial of benefits, the ALJ must first “provide a logical
bridge between the evidence and [her] conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.
2009) (internal quotation marks and citation omitted). Though the ALJ is not required to address
every piece of evidence or testimony presented, “as with any well-reasoned decision, the ALJ
must rest its denial of benefits on adequate evidence contained in the record and must explain
why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
However, if substantial evidence supports the ALJ’s determination, the decision must be

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affirmed even if “reasonable minds could differ concerning whether [the claimant] is disabled.”
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

ANALYSIS
The Plaintiff argues that the ALJ failed to incorporate limitations into his RFC to account
for all of his medically determinable impairments, both severe and non-severe. Specifically, the
Plaintiff argues that his RFC does not account for limitations in concentration, persistence, and
pace as a result of his mental impairments. The Plaintiff also argues that, because these
limitations were not properly incorporated into his RFC, the hypothetical posed to the vocational
expert regarding existing jobs that the Plaintiff could perform was flawed.
The ALJ stated that “[w]ith regard to concentration, persistence or pace, the claimant has
moderate difficulties,” although those difficulties did not meet or medically equal the severity of
one of the listed impairments. 1 (R. 31.) The ALJ considered the Plaintiff’s allegations of
difficulty with concentration and memory and that his ex-wife has to explain television shows to
him. (Id.) The ALJ noted that the Plaintiff did “better with a written list to complete tasks, that he
gets confused with filling out forms, and that he sometimes gets confused when watching TV.”
(Id.) The ALJ further noted that the Plaintiff had received a diagnosis of traumatic brain
injury/cognitive impairment. (Id.). Thus, “[b]ased upon the totality of the evidence, the [ALJ]
[found] that this cognitive impairment is a severe impairment and that it supports a . . . moderate
limitation in maintaining concentration, persistence, or pace.” (Id.) In the Plaintiff’s RFC, the
ALJ accounted for the Plaintiff’s cognitive impairment by limiting him to carrying out only

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The Commissioner argues that the record does not support a finding of a limitation in
concentration, persistence, and pace, but the Court notes that the ALJ found such a limitation
did, in fact exist. (R. 31.)
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“simple instructions,” making “judgment on simple work-related decisions,” interacting
“appropriately with supervisors and coworkers in a routine work setting,” and responding to
“usual changes in a routine work setting.” (R. 32.)
However, 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.” Yurt v.
Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014); see also Varga v. Colvin, 794 F.3d 809, 814–15
(7th Cir. 2015) (limiting a person to simple, repetitive work with “few if any work place changes
and not more than occasional interaction with coworkers or supervisors” insufficient to address
moderate limitations in concentration, persistence, or pace); Stewart v. Astrue, 561 F.3d 679, 985
(7th Cir. 2009) (noting repeated rejection of the contention that “restricting the inquiry to simple,
routine tasks that do not require constant interactions with coworkers or the general public”
accounts for limitations in concentration, persistence, and pace); Craft, 539 F.3d at 677–78
(restriction to unskilled, simple work insufficient to account for difficulties with memory,
concentration, and mood swings). Thus, the RFC does not properly account for all of the
Plaintiff’s limitations.
Moreover, the Seventh Circuit has “stated repeatedly that ALJs must provide vocational
experts with a complete picture of a claimant’s residual functional capacity, and vocational
experts must consider deficiencies of concentration, persistence, and pace.” Jelinek v. Astrue,
662 F.3d 805, 813 (7th Cir. 2011). When the ALJ posed a hypothetical to the vocational expert
regarding the existence of other jobs of sufficient number in the economy that the Plaintiff could
perform, the ALJ referenced only the limitations in the RFC and did not reference the fact that
the Plaintiff had difficulties with concentration, persistence and pace.

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Failure to incorporate references to concentration, persistence, and pace in this manner in
a hypothetical to a vocational expert may be excusable if a medical expert testifies and
“effectively translate[s] an opinion regarding the claimant’s mental limitations into an RFC
assessment.” See Milliken v. Astrue, 397 F. App’x 218, 221 (7th Cir. 2010). However, Milliken is
not applicable to the instant case. The Commissioner has pointed to no specific indication in the
record limiting the claimant to “simple instructions,” making “judgment on simple work-related
decisions,” interacting “appropriately with supervisors and coworkers in a routine work setting,”
and responding to “usual changes in a routine work setting.” See Mollett v. Astrue, No. 3:11-CV238, 2012 WL 3916548, at *9 (N.D. Ind. Sept. 7, 2012) (finding Milliken inapplicable where
“[t]he ALJ’s hypothetical did not ask the [vocational expert] to accept the limitations of any
particular physician; rather, [the ALJ] crafted his own RFC based on his opinion of the record as
a whole”); Potrebic v. Colvin, 2:13-CV-126, 2014 WL 4722525, at *7 (N.D. Ind. Sept. 22, 2014)
(remanding where “the ALJ did not rely on any medical expert to translate Plaintiff’s moderate
limitations in concentration, persistence, and pace into the functional limitation to ‘simple,
routine, and repetitive tasks’”). Moreover, by finding that that the Plaintiff had moderate
difficulty with concentration, persistence, or pace, the ALJ’s conclusion differed from two state
agency medical consultants’ conclusion that “there was no evidence of a mental medically
determinable impairment.” (R. 31); see Manning v. Astrue, 1:13-CV-7, 2013 WL 6095599, at *8
(N.D. Ind. Nov. 20, 2013) (finding Milliken not applicable when “the ALJ flatly rejected [the
expert’s] opinion that [the claimant] had ‘mild,’ rather than ‘moderate,’ restrictions in social
functioning”).
The Commissioner argues that the question posed to the vocational expert (“VE”)
nevertheless appropriately addressed all of the Plaintiff’s limitations in concentration,

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persistence, and pace because the Plaintiff described his limitations as being primarily physical
in nature, citing Simila v. Astrue, where the Seventh Circuit found that a hypothetical limiting the
claimant to unskilled work sufficiently incorporated all the claimant’s limitations because
limitation in concentration, persistence, and pace were “rooted in [the claimant’s] allegations of
pain.” 573 F.3d 503, 522 (7th Cir. 2009). However, Simila is distinguishable. In Simila the
mental diagnoses—chronic pain syndrome and somatoform disorder—causing the limitations in
concentration persistence, and pace were clearly linked to the allegations of pain. See Yurt, 758
F.3d at 859 (distinguishing Simila). Here, the Plaintiff’s cognitive impairment is not clearly
rooted in his allegations of pain. Thus, the hypothetical posed to the VE “[did] nothing to ensure
that the VE eliminated from [his] responses those positions that would prove too difficult for
someone with [the Plaintiff’s] [cognitive impairment].” Id.
Thus, the Court must remand this case for further consideration. On remand, the ALJ
should ensure that any limitations found to exist are adequately incorporated into the Plaintiff’s
RFC and that any hypotheticals posed to a vocational expert adequately apprise the expert of
each limitation. Because the Court is remanding on this issue, the Court need not consider the
remainder of the parties’ arguments.

CONCLUSION
Accordingly, the Court REVERSES and REMANDS this case for further proceedings in
accordance with this Opinion and Order.
SO ORDERED on January 16, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
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