PHARES v. COLVIN
ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the Court finds that the ALJ adequately addressed Phares' objection that U.S. Publishing is not reliable, and the ALJ discussed all of Phares' mental limitations when finding t hat Phares could "concentrate and persist for two hours at a time." The Court, however, REMANDS the ALJ's decision for the sole purpose of addressing Phares' objection regarding inconsistencies between the VE's testimony and the DOT. (See Entry.) Signed by Judge Tanya Walton Pratt on 3/27/2017.(JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JOHNNY W. PHARES,
NANCY A. BERRYHILL , Acting Commissioner )
of the Social Security Administration,
Case No. 1:15-cv-2056-TWP-MJD
ENTRY ON JUDICIAL REVIEW
Plaintiff Johnny W. Phares (“Phares”) requests judicial review of the final decision of the
Commissioner of the Social Security Administration (“the Commissioner”), denying his
application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 423(d) (“the Act”). For the following reasons, the Court reverses in
part the final decision of the Commissioner and remands this action for further proceedings.
On January 9, 2013, Phares filed an application for DIB, alleging a disability onset date of
June 30, 2010, due to hypertension, insomnia, depression, and a panic disorder with agoraphobia.
His claim was initially denied on February 18, 2013, and upon reconsideration on March 28, 2013.
Phares filed a written request for a hearing on May 9, 2013. On July 10, 2014, a hearing was held
via telephone conference before Administrative Law Judge Daniel J. Mages (“the ALJ”). Phares
Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Rule 25 (d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for former Acting Commissioner Carolyn
W. Colvin as the defendant in this suit.
was present and represented by Andrew S. Youngman, a non-attorney, as well as by counsel. A
vocational expert, Ray O. Burger (“the VE”), appeared and testified at the hearing. On August 8,
2014, the ALJ denied Phares’ application for DIB. Following this decision, Phares requested
review by the Appeals Council on September 2, 2014. On November 5, 2015, the Appeals Council
denied Phares’ request for review, thereby making the ALJ’s decision the final decision of the
Commissioner for purposes of judicial review. On December 28, 2015, Phares filed this action for
judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). (Filing No. 1.)
B. Factual Background
At the time of his alleged disability onset date, Phares was forty-seven years old, and he
was fifty-one years old at the time of the ALJ’s decision. He is a high school graduate. Prior to
the onset of his alleged disability, Phares worked as a self-employed carpet installer. On January
30, 2010, he stopped working after suffering a panic attack and he has not worked since that date.
In June 2010, an emergency room physician diagnosed Phares with anxiety, and discharged
him with a prescription for Xanax. (Filing No. 8-8 at 5-6.) One month later, on July 13, 2010,
Phares had a followed-up visit with Lonna Weaver, APN 2 and reported that Xanax worked well
and prevented panic attacks, however, once he completed the prescription he experienced another
panic attack. Id. at 77. Nurse Weaver prescribed Zoloft, Xanax, and Ambien, which Phares later
reported helped ease his anxiety and panic disorder. Id. at 75, 78. On October 12, 2010, Nurse
Weaver changed Phares’ Zoloft prescription after he complained of certain side effects. Id. at 73.
The following month, Phares reported to Nurse Weaver that he suffered approximately four to five
panic attacks. Thereafter, Nurse Weaver adjusted Phares’ medication and referred him to a
psychiatrist. Id. at 71-72.
Advanced Practice Nurse
On February 21, 2011, Nurse Weaver increased Phares’ Xanax dosage after he complained
that the medication did not control his anxiety as well as before. Id. at 66-67. Nurse Weaver again
increased Phares’ Xanax dosage on May 10, 2011, because Phares reported suffering several panic
attacks. Id. at 65. Ten days later, Phares reported suffering insomnia, as well as panic attacks at
bedtime, but stated that he felt better than he had felt in a long time. Id. at 62. Nurse Weaver
observed that Phares appeared less anxious than he had in the past. Id.
On January 20, 2012, Phares visited his primary care provider, Stina Wedlock, M.D.,
regarding his anxiety and panic disorder. Id. at 58. Phares reported “functioning as somewhat
difficult,” and complained of anxious thoughts, difficulty sleeping, excessive worry, racing
thoughts, and restlessness. Id. Phares stated that conflict and stress aggravated his anxiety. Id.
Dr. Wedlock opined that Phares had a good response to medication, and prescribed Xanax and
On April 23, 2012, Phares visited Dr. Wedlock and again reported his functioning as
somewhat difficult, as well as anxious thoughts, difficulty falling asleep, excessive worry, and
shaking. Id. at 54, 56. Dr. Wedlock noted that Phares demonstrated the appropriate mood and
affect, and continued Phares’ Xanax prescription. Id. at 57. On July 26, 2012, Dr. Wedlock opined
that Phares’ panic disorder was stable and Phares handle medication well. Id. at 51. Dr. Wedlock
refilled Phares’ medications without change. Id. at 53. On October 18, 2012, Dr. Wedlock again
noted that Phares remained stable. Id. at 48. On January 11, 2013, Dr. Wedlock indicated that
Phares’ panic attacks were under “fair control,” Phares demonstrated the appropriate mood and
affect, and continued Phares’ Xanax prescription without change. Id. at 45-47.
On February 12, 2013, at the request of the state agency, Robert Kurzhals, Ph.D., evaluated
Phares and reported that Phares goes out on his own once a month to purchase groceries, serves as
his father’s power of attorney, and manages his father’s finances. Id. at 90. Phares also informed
Dr. Kurzhals that he has anxiety about driving, but he maintains a driver’s license and drives
himself to appointments. Id. at 90-91. Dr. Kurzhals suggested a diagnosis of panic disorder with
agoraphobia and personality disorder NOS with dependent traits. Id. at 93.
On April 16, 2013, Phares returned to Dr. Wedlock and reported that he was doing well.
(Filing No. 8-9 at 46.) Dr. Wedlock noted that Phares’ condition was stable, and continued his
medication without change. Id. at 46-48. On July 16, 2013, Dr. Wedlock opined that Phares’
panic attacks were stable, and again continued his medication without change. Id. at 45. On
October 17, 2013, Dr. Wedlock again reported that Phares’ panic attacks were stable, and noted
that Phares had no associated symptoms. Id. at 37.
On January 17, 2014, Phares visited Dr. Wedlock and reported that driving and being
around people made his panic attacks worse. Id. at 36. Dr. Wedlock refilled Phares’ medication
and recommended that he return in three to four months. Id. When Phares returned on April 18,
2014, he reported that his Xanax and Amitriptyline prescriptions continued to work well. Id. at
31. Dr. Wedlock noted that Phares’ anxiety was stable. Id. at 32.
Phares’ hearing before the ALJ was held on July 10, 2014. Phares testified that he
requested a telephonic hearing because his severe panic attacks prevented him from driving, and
appearing in person. (Filing No. 8-2 at 37.) He testified that he grocery shops once a month, but
did not go more frequently because he was afraid of driving to the store and had difficulty being
around people. Id. at 38. He also testified that he had difficulty with memory and concentration
because he sometimes forgot to buy things at the grocery store and had trouble following the story
lines of television programs. Id. at 43. Phares further testified that Xanax controlled his anxiety
and kept him from getting the shakes. Id. at 41. He stated that he had a minor panic attack “every
now and then” when he failed to take his anxiety medication on time, but noted that his anxiety
and panic attacks were fairly well controlled around the house and while he is on his medication,
and worsens when he leaves his home. Id. at 41-42.
The VE testified that his opinions would be consistent with the Dictionary of Occupational
Titles (“DOT”) and the Selected Characteristics of Occupations, or he would identify any
discrepancies between his testimony and those publications. Id. at 47. The VE testified that
Phares’ past work as a carpet installer amounted to heavy work under DOT. Id. The ALJ presented
to the VE a hypothetical individual of the same age, education, and work experience as Phares
who could perform a full range of light work: limited to simple, routine, tasks with the ability to
attend, concentrate, and persist for two hours at a time and have no more than brief and superficial
interaction with the public, coworkers, or supervisors, as well as no work in crowds. Id. at 47-48.
The VE responded that the hypothetical person could not perform Phares’ past work, but other
jobs in the state and national economy existed that such person could perform. Id. at 48. Those
jobs included housekeeping cleaner, stocker, and mail clerk. Id. The ALJ then tweaked the
original hypothetical and asked whether there were any other jobs in the state or national economy
that the hypothetical person could perform if the individual were further limited to no interaction
with the public. Id. The VE testified that those jobs as a housekeeper, stocker and mail clerk
would still exist. Id. The ALJ further adjusted his hypothetical and asked whether any jobs were
available if the hypothetical individual would be off task at least ten percent of the workday on a
regular and continued basis due to panic attacks, anxiety, and other symptoms of his mental
disorders. Id. The VE testified that there would be no work whatsoever for such individual. Id.
Thereafter, Phares asked the VE about the sources of his numbers, to which the VE replied
“United States Publishing” and testified that the numbers came from the fourth quarter of 2013.
Id. at 49. The VE also testified that he studied the housekeeper, stocker and mail clerk positions,
but it has been a while since he conducted labor market surveys regarding those positions. Id.
Phares objected to the source, positions and numbers offered by the VE and the ALJ agreed to
keep the record open for ten days in order to allow Phares time to submit a follow up brief rebutting
the VE’s testimony. Id. at 50-51.
On July 16, 2014, six days after the hearing, Phares filed written objections to the
sufficiency of the VE’s testimony. Phares first noted that inconsistencies exist between the VE’s
testimony and the DOT. Phares asserts the DOT describes “Housekeeping Cleaner” as “renders
personal assistance to patrons,” and lists “Stocker” as heavy work, rather than light work. (Filing
No. 8-7 at 3.) Phares also notes that based on current job information, specifically O*NET,
“housekeeping cleaner” and “mail clerk” are semi-skilled to skilled positions, rather than unskilled
positions. Id. at 5. Phares further argues that the Social Security Administration (“SSA”) does not
recognize U.S. Publishing as a reliable source for determining job information and objected to the
VE’s reliance on the DOT, rather than O*NET, because the DOT has not been updated since 1991.
Id. at 3-4.
DISABILITY AND STANDARD OF REVIEW
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). In order to be found disabled, a claimant must demonstrate
that his physical or mental limitations prevent him from doing not only his previous work, but any
other kind of gainful employment which exists in the national economy, considering his age,
education, and work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled,
despite his medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the
claimant does not have a “severe” impairment (i.e., one that significantly limits his ability to
perform basic work activities) that meets the durational requirement, he is not disabled. 20 C.F.R.
§ 416.920(a)(4)(ii). At step three, the ALJ 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. Part 404, Subpart P, Appendix 1, and whether the impairment meets
the twelve month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. §
In order to determine steps four and five, the ALJ must determine the claimant’s Residual
Functional Capacity (“RFC”). RFC is the “maximum that a claimant can still do despite [his]
mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20
C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to perform his past
relevant work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and final step, it must
be determined whether the claimant can perform any other work in relevant economy, given his
RFC and considering his age, education, and past work experience. 20 C.F.R. § 416.920(a)(4)(v).
The claimant is not disabled if he can perform any other work in the relevant economy.
The combined effects of all impairments of the claimant shall be considered throughout the
disability determination process. 42 U.S.C. § 424(d)(2)(B). The burden of proof is on the claimant
for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y of
Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the Court “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). In
reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the findings are
supported by substantial evidence 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. Further, this Court may not reweigh
the evidence or substitute its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d 456, 462
(7th Cir. 2008). While the Court reviews the ALJ’s decision deferentially, the Court cannot uphold
an ALJ’s decision if the decision “fails to mention highly pertinent evidence, . . . or that because
of contradictions or missing premises fails to build a logical bridge between the facts of the case
and the outcome.” Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s decision must be
based upon consideration of all the relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). 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).
III. THE ALJ’S DECISION
The ALJ first determined that Phares met the insured status requirements of the Act through
September 30, 2014. He then began the five step analysis. At step one, the ALJ found that Phares
had not engaged in substantial gainful activity since June 30, 2010, the alleged onset date. At step
two, the ALJ found that Phares had the following severe impairments: hypertension, insomnia,
depression, and a panic disorder with agoraphobia. At step three, the ALJ concluded that Phares
does not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ
then determined that Phares had an RFC to perform a full range of light work with the following
limitations: “simple routine tasks with the ability to attend, concentrate and persist for two hours
at a time; no more than brief and superficial interaction with the public, coworkers or supervisors;
and no work in crowds.” (Filing No. 8-2 at 22.) At step four, the ALJ determined that Phares was
unable to perform any of his past relevant work. The ALJ went on to determine at step five that
Phares was not disabled because there were jobs that existed in significant numbers in the national
economy that Phares could perform, considering his age, education, work experience, and RFC.
Those jobs included housekeeping cleaner and mail room clerk. Therefore, the ALJ denied Phares’
application for DIB because he was not disabled.
In his request for judicial review, Phares asserts two reasons for remand. First, he argues
the ALJ failed to meet his step five burden because the ALJ did not address Phares’ objections to
the VE’s testimony. He next argues that the ALJ’s RFC conclusion fails to describe and account
for Phares’ deficiencies in concentration, persistence, and pace. The Court will address each issue
Step Five Burden of Proof
Phares argues that the Court should reverse and remand the ALJ’s decision because the
ALJ failed to address all of Phares’ objections regarding the VE’s testimony and, as such, the ALJ
did not meet his burden under step five. “The ALJ must (on the record) … [r]ule on any
objection(s). The ALJ may address the objection(s) on the record during the hearing, in narrative
form as a separate exhibit, or in the body of his or her decision.” HALLEX § I-2-6-74; see SSR
13-2p (requiring “adjudicators at all levels of administrative review to follow agency policy, as set
out in … the Hearings, Appeals and Litigation Law manual (HALLEX)”).
Phares asserts the ALJ failed to address his objection that the VE’s testimony is based
solely on a resource that the SSA no longer recognizes as a reliable source. See 20 C.F.R. §
404.1566 (the SSA takes administrative notice of reliable job information available from various
governmental and other publications, including DOT, County Business Patterns, Census Reports,
Occupational Analyses, and Occupational Outlook Handbook). Phares contends that U.S.
Publishing is not listed as an administratively noticed source, and further relies on Herrmann when
arguing that job numbers produced by U.S. Publishing are unreliable because it uses an inherently
unreliable statistical method. See Herrmann v. Colvin, 772 F.3d 1110, 1112 (7th Cir. 2014)
(stating VEs create arbitrary estimates when utilizing U.S. Publishing because U.S. Publishing
obtains statistics from census data, but the Census Bureau does not report the number of jobs in
each broad job category).
Phares also argues that his written objections specifically noted that the housekeeper and
mail clerk positions cited by the VE are identified as semiskilled to skilled jobs on O*NET, an upto-date information source provided by the Department of Labor, however, the RFC makes clear
that Phares could perform only light, unskilled work (“the DOT, not only is that an obsolete catalog
of jobs (most of the entries in it date back to 1977) but it contains no statistics regarding the number
of jobs in a given job category that exist in the local, state, or national economy”). Herrmann, 772
F.3d at 1112. Phares asserts the ALJ failed to address this objection and failed to obtain a
reasonable explanation for the inconsistency. Under SSR 00–4p, an ALJ has an “affirmative
responsibility” to ask whether a VE’s testimony “conflicts with information provided in the DOT”
before relying on the VE’s evidence to support a determination that a person lacks a disability.
Overman v. Astrue, 546 F.3d 456, 462–63 (7th Cir. 2008) (quoting SSR 00-4p at 4). If evidence
from a VE “appears to conflict with the DOT,” SSR 00–4p requires further inquiry, specifically,
an ALJ must obtain “a reasonable explanation for the apparent conflict.” Id. at 463 (quoting SSR
00–4p at 5).
In response, the Commissioner contends that Phares’ reliance on Herrmann is misplaced
because Herrmann does not stand for the proposition that a VE may never rely on U.S. Publishing
sources. Herrmann, 772 F.3d at 1112 (recognizing vocational experts normally rely on U.S.
Publishing publications). The Commissioner also relies on Donahue when asserting that Phares’
objections are late because the hearing was the proper time to object to U.S. Publishing’s statistical
methods and the VE’s inconsistencies with DOT. See Donahue v. Barnhart, 279 F.3d 441, 447
(7th Cir. 2002) (“Raising a discrepancy only after the hearing… is too late. An ALJ is not obliged
to reopen the record. On the record as it stands—that is, with no questions asked that reveal any
shortcomings in the vocational expert’s data or reasoning—the ALJ was entitled to reach the
conclusion she did”). The Commissioner contends, even despite Phares’ late objections, the ALJ
acknowledged that there was indeed a conflict between the DOT and the VE’s testimony regarding
the stocker position, but found no discrepancy between the DOT and the VE’s testimony as it
relates to the remaining positions.
The Commissioner also explains that the ALJ addressed Phares’ argument regarding the
housekeeper position and points to the ALJ’s statement that Phares’ objection was based on the
assertion that the housekeeping job “requires that he render personal assistance to patrons.” (Filing
No. 8-2 at 26.) The ALJ, however, noted that the RFC limits only superficial interaction, but does
not state that Phares cannot tolerate any interaction. The Commissioner argues that, as such, there
is no discrepancy between the DOT and the VE’s testimony because the DOT does not indicate
that “personal assistance” requires more than brief or superficial contact.
The Court first notes that the Commissioner’s reliance on Donahue is misplaced. Phares
requested ten days to file written objections to the VE’s testimony. Here, the ALJ, not only
permitted Phares’ request but, agreed to leave the record open for ten days. See Donahue, 279
F.3d at 447 (“[a]n ALJ is not obliged to reopen the record”) (emphasis added). Ultimately
however, the Commissioner’s position is well taken. The Court finds that the ALJ’s decision
adequately addressed Phares’ objection that U.S. Publishing is not reliable. The ALJ specifically
stated that “[Phares] questioned whether [the VE] based his opinion upon ‘reliable’ information”
and the ALJ found “no evidence that the [VE] relied upon any information that those in his
profession do not regularly rely upon in rendering vocational opinions” (Filing No. 8-2 at 26); see
Herrmann, 772 F.3d at 1112 (recognizing VEs normally rely on U.S. Publishing). Accordingly,
because the ALJ addressed this objection, remand is not warranted on this issue.
The Court, however, is persuaded by Phares’ second objection that the VE’s testimony is
inconsistent with up-to-date information provided by the Department of Labor; and the ALJ never
responded to this written objection. Phares specifically objected to the housekeeper and mail clerk
positions because they are currently classified as semi-skilled to skilled positions, but the RFC
states that Phares is capable of performing only light work. (Filing No. 8-7 at 5.) Neither the
Commissioner, nor the ALJ, addressed this objection. Accordingly, because the ALJ has an
obligation to address all objections, remand is warranted on this issue. See HALLEX § I-2-6-74
(“[t]he ALJ must (on the record) … [r]ule on any objection(s)”); see SSR 13-2p (requiring
“adjudicators at all levels of administrative review to follow agency policy, as set out in…
RFC Incorporation of Phares’ Mental Impairments
The ALJ found that Phares could “concentrate and persist for two hours at a time,”
however, Phares argues that the RFC does not account for his moderate deficiencies in this area.
“[RFC] is the most you can still do despite your limitations.” 20 C.F.R. § 404.1545. “In
determining the impact of a mental disorder on an individual’s capacities, inability to perform
substantial gainful activity (SGA) must be demonstrated through a detailed assessment of the
individual’s capacity to perform and sustain mental activities which are critical to work
performance.” SSR 85-16. “All limits on work-related activities resulting from the mental
impairment must be described in the mental RFC assessment.” Id. Phares contends that the Court
should reverse and remand the ALJ’s decision because the ALJ gave a generic finding that Phares
could perform simple, routine, repetitive tasks, but failed to describe all limits on work-related
activities resulting from Phares’ deficiencies. “[L]imiting a hypothetical to simple, repetitive work
does not necessarily address deficiencies of concentration, persistence and pace” See O'ConnorSpinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010) (finding “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”).
In response, the Commissioner asserts that the ALJ did not err in determining Phares’ RFC,
and contends that the ALJ discussed all evidence regarding Phares’ mental functioning. The
Commissioner notes that Phares points to no evidence that would require the ALJ to find a more
restrictive RFC, nor does Phares explain what limitations the ALJ omitted from the RFC finding.
The Commission contends that the RFC determination relied on Phares’ own testimony about his
mental functioning, Phares’ testimony about acting as his father’s power of attorney and managing
his father’s finances, medical records indicating that Phares’ anxiety improved, as well as Dr.
Kurzhals’ and state agency psychologists’ conclusions that Phares could follow and understand
simple instructions, among other evidence in the record. (Filing No. 8-2 at 24.) The Commission
explains that the ALJ then provided a detailed explanation of how he translated the record evidence
and testimony into the RFC finding. See id. The Commissioner argues that the ALJ’s explanation
far exceeded his obligation to minimally articulate his reasoning. See Scheck 357 F.3d at 700 (the
ALJ is required to articulate only a minimal, but legitimate, justification for his acceptance or
rejection of specific evidence of disability).
The Commissioner lastly asserts that Phares’ reliance on O-Connor-Spinner is misplaced
because the ALJ not only limited Phares to simple routine tasks, but also included specific
limitations to address Phares’ problems interacting with others, as well as Phares’ anxiety
regarding crowds and exposure to people. See Coleman v. Colvin, No. 13-CV-216-BBC, 2014
WL 910334, at *5 (W.D. Wis. Mar. 10, 2014) (stating “the lesson from O'Connor–Spinner is not
that the administrative law judge must use a particular term when setting forth the plaintiff's
residual functional capacity, but rather that the language he uses must reflect all of the limitations
that the plaintiff has”); see also Pepper v. Colvin, 712 F.3d 351, 363 (7th Cir. 2013) (holding an
ALJ’s discussion sufficiently addressed limitations that were supported by substantial evidence
from the record); SSR 96-8p (RFC is based on all of the relevant evidence in the case record). The
Commissioner argues that the RFC finding is reasonable and should be affirmed because the ALJ
identified and accommodated each work-related limitation that was supported by the evidence.
After reviewing the ALJ’s decision and the record evidence, the Court determines that the
record supports the ALJ’s conclusion that Phares has the mental capacity to “concentrate and
persist for two hours at a time.” Phares testified that he sometimes have difficulties concentrating
and remembering, but the opinions of Dr. Kurzhals, as well as those of the state agency
psychologists, show that Phares maintains the capacity to understand, remember, and follow
simple instructions. Additionally, the ALJ relied on Phares’ own testimony that he acted as his
father’s power of attorney and managed his father’s finances when determining Phares’ mental
RFC. The ALJ also addressed Phares’ anxiety limitations by limiting Phares’ contact and
interaction with people and crowds. The Court finds that the ALJ explained at length his
consideration of the entire record and how he translated all evidence regarding Phares’ limitations
into the RFC finding. (Filing No. 8-2 at 24.) The Court further notes that Phares has not presented
evidence specifically explaining any other limitations supported by the record that the ALJ failed
to include or discuss when determining the RFC finding. Accordingly, remand is not warranted
on this issue.
For the reasons set forth above, the Court finds that the ALJ adequately addressed Phares’
objection that U.S. Publishing is not reliable, and the ALJ discussed all of Phares’ mental
limitations when finding that Phares could “concentrate and persist for two hours at a time.” The
Court, however, REMANDS the ALJ’s decision for the sole purpose of addressing Phares’
objection regarding inconsistencies between the VE’s testimony and the DOT.
Karl E. Osterhout
OSTERHOUT DISABILITY LAW, LLC
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?