JARRARD v. COLVIN
ENTRY ON JUDICIAL REVIEW: The decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Entry (see Entry for details). Signed by Judge William T. Lawrence on 3/19/2014.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CAROLYN W. COLVIN, acting
Commissioner of the Social Security
) Cause No. 1:13-cv-386-WTL-DML
ENTRY ON JUDICIAL REVIEW
Plaintiff Heather Jarrard requests judicial review of the final decision of Defendant,
Carolyn W. Colvin, Commissioner of the Social Security Administration (“Commissioner”),
denying Ms. Jarrard’s application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“the Act”). The Court rules as follows.
Heather Jarrard protectively filed for DIB on January 25, 2011, alleging she became
disabled on September 28, 2010, due to chronic sinusitis and borderline intellectual functioning.
Ms. Jarrard’s application was denied initially on March 24, 2011, and again upon reconsideration
on April 18, 2011. Following the denial upon reconsideration, Ms. Jarrard requested and
received a hearing in front of an Administrative Law Judge (“ALJ”). A video hearing, during
which Ms. Jarrard was represented by counsel, was held in front of ALJ Rebecca LaRiccia on
February 1, 2012. The ALJ issued her decision denying Ms. Jarrard’s claim on February 17,
2012. The Appeals Council also denied Ms. Jarrard’s request for review on February 27, 2013.
After the Appeals Council denied review of the ALJ’s decision, Ms. Jarrard filed this timely
EVIDENCE OF RECORD
The evidence of record is aptly set forth in Ms. Jarrard’s brief. Specific facts are set forth
in the discussion section below where relevant.
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b). At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 404.1520(f). At step five, if the claimant can perform any other work in the national economy,
she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this Court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Dixon, 270 F.3d at 1176.
THE ALJ’S DECISION
The ALJ determined at step one that Ms. Jarrard had not engaged in substantial gainful
activity since September 28, 2010, the alleged onset date. At steps two and three, the ALJ
concluded that Ms. Jarrard has the severe impairments of borderline intellectual functioning and
chronic sinusitis, R. at 19, but that her impairments, singly or in combination, did not meet or
medically equal a listed impairment. At step four, the ALJ determined that Ms. Jarrard had the
residual functional capacity (“RFC”) to perform medium work with the following restrictions:
“The claimant should avoid concentrated exposure to temperature extremes, humidity,
pulmonary irritants such as dust, fumes, odors, gases, perfumes, and smoke. Based on her
mental impairments, the claimant is limited to understanding, remembering, and carrying out
simple work in an environment with no fast-paced production standards.” Id. at 21. Given that
RFC, the ALJ determined that she could perform her past relevant work as a cashier1 and
stocker. Accordingly, the ALJ concluded that Ms. Jarrard was not disabled as defined by the
Ms. Jarrard alleges that the ALJ erred in assessing a mental RFC that did not account for
all of her limitations. To this, she only raises one argument for the Court’s review2—that the
ALJ did not sufficiently explain her reasons for rejecting the opinions of Drs. Unversaw and
Kladder. Dr. Unversaw completed a mental RFC assessment for Ms. Jarrard on March 18,
2011, concluding that she “is capable of unskilled, simple repetitive tasks on a sustained basis
without special considerations.” Id. at 339. On April 13, 2011, Dr. Kladder affirmed Dr.
In her decision, the ALJ gave little weight to Dr. Unversaw’s opinion stating:
[T]he undersigned accords little weight to the assessment of DDS medical
consultant and psychologist, Dr. Donna Unversaw . . . Given the claimant’s
testimony that repetitive type work is difficult for her, the undersigned finds that
limiting the claimant to understanding, remember, and carrying out simple work
in an environment with no fast-paced production standards is more consistent
with the overall record, including the claimant’s testimony, the results of her
psychological evaluations and her reported activities of daily living.
The Court notes that the DOT number the VE actually gave for Ms. Jarrard’s past
relevant work, 299.677-010, is that for a sales attendant, not a cashier.
Ms. Jarrard initially also argued that the ALJ’s mental RFC assessment was defective
because it did not include her moderate difficulties in maintaining concentration, persistence, or
pace. In her Reply, however, she withdrew this argument. See Pl.’s Reply at 1, n. 1.
Id. at 24. This conclusion was based in part on Ms. Jarrard’s own testimony that “if I do . . . the
same thing over and over again, they [her hands] go to sleep.” Id. at 45.3
The ALJ did not agree with Dr. Unversaw’s opinion that Ms. Jarrard was limited to
repetitive work, noting that there was “no real difference demonstrated in [Ms. Jarrard’s] present
mental functional capabilities to those present at the time she engaged in her past work—her
cognitive/intellectual functioning remains unchanged.” Id. at 25. The Court agrees with Ms.
Jarrard that this explanation is insufficient, especially in light of Ms. Jarrard’s own testimony.
Ms. Jarrard testified that she was fired from her position at Kmart due to “cashier problems.” Id.
at 39. She also stated that while she was employed at a Carson’s department store, she “got
frustrated” and “got a little bit confused” when she worked as a cashier. Id. at 36-37. She also
testified in regard to being a cashier that “[w]hen there’s too many people in a line, I get
confused; I get frustrated.” Id. at 39. She testified that she was fired from her position at
Menards, where she worked as a stocker and paint mixer, due to “too many guest complaints”
because she “couldn’t understand most of the guests, I couldn’t hear them.” Id. at 37.
Thus, while the ALJ believed that Ms. Jarrard’s mental functional capabilities had not
deteriorated since the time she engaged in her past work, it is clear that Ms. Jarrard struggled in
her previous employment. A reasonable inference to draw from this would be that Ms. Jarrard
did not have the mental capacity to sustain her past employment. This would be supported by
The Court notes that while the ALJ did take Ms. Jarrard’s complaints of hand numbness
into account in crafting her RFC, the ALJ found that “there is no underlying clinical diagnosis to
support the claimant’s assertions [of upper extremity numbness]. More specifically, the evidence
does not include any objective medical testing or any evidence of medical treatment to
corroborate the claimant’s allegations in this regard.” R. at 20. From the Court’s own review of
the record, the only relevant medical evidence with regard to this complaint appears to be a
report from January 2000 when Ms. Jarrard complained of “progressive pain in her left wrist
associated with repetitive movement at work.” Id. at 373. Dr. Ronald Bennett recommended that
Ms. Jarrard continue wearing a wrist splint that her mother bought for her. Id. In February 2000,
Ms. Jarrard noted that the use of the splint alleviated some of her pain. Id.
Dr. Unversaw’s conclusion that Ms. Jarrard is only mentally capable of performing repetitive
tasks, which, as the VE noted, would eliminate employment as a cashier and a stocker. See R. at
50-51. That her previous employers may have been accommodating in hiring Ms. Jarrard and in
maintaining her employment for a period of time despite her deficiencies does not mean she
possessed the mental capacity to perform those jobs. The ALJ erred in crafting an RFC that is
unsupported by the record simply so it would allow her to conclude at Step Four that Ms. Jarrard
was capable of performing her past relevant work. Remand is thus required so that the ALJ may
assign a proper mental RFC that is supported by the record.
As set forth above, the ALJ in this case erred in assessing a mental RFC that is not
supported by the record. The decision of the Commissioner is therefore REVERSED AND
REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 03/19/2014
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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