ELLIOTT v. COLVIN

Filing 21

ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for further proceedings consistent with the Court's Entry. ***SEE ENTRY*** Signed by Judge William T. Lawrence on 8/23/2017.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KATHY J. ELLIOTT,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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) Cause No. 1:16-cv-309-WTL-DML
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ENTRY ON JUDICIAL REVIEW
Plaintiff Kathy Elliott requests judicial review of the final decision of Defendant
Nancy A. Berryhill, Acting Commissioner of Social Security (“Commissioner”), denying her
application for supplemental security income (“SSI”). The Court rules as follows.
I. PROCEDURAL HISTORY
Elliott protectively filed her application for SSI in January 2013, alleging onset of
disability on December 31, 2004. The Social Security Administration initially denied Elliott’s
application on April 1, 2013. After Elliott timely requested reconsideration, the Social Security
Administration again denied her claim on May 20, 2013. Thereafter, Elliott requested a hearing
before an Administrative Law Judge (“ALJ”). The ALJ held a hearing on July 1, 2014, at which
Elliott, two medical experts, and a vocational expert testified. At the hearing, Elliott amended
her alleged onset date to January 31, 2013. The ALJ issued his decision denying Elliott’s SSI

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Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill automatically
became the Defendant in this case when she succeeded Carolyn Colvin as the Acting
Commissioner of Social Security on January 23, 2017.

application on October 30, 2014. After the Appeals Council denied Elliott’s request for review,
she filed this action seeking judicial review.
II. APPLICABLE STANDARD
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 his physical or mental limitations prevent him from doing not only his previous
work, but any other kind of gainful employment that exists in the national economy, considering
his 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. ' 416.920(a)(4)(i). 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. ' 416.920(a)(4)(ii).
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. '
416.920(a)(4)(iii). At step four, if the claimant is able to perform her past relevant work, she is
not disabled. 20 C.F.R. ' 416.920(a)(4)(iv). At step five, if the claimant can perform any other
work in the national economy, she is not disabled. 20 C.F.R. ' 416.920(a)(4)(v).
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
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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. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). In order to be affirmed, the
ALJ must articulate his analysis of the evidence in his decision; while he “is not required to
address every piece of evidence or testimony presented,” he must “provide an accurate and
logical bridge between the evidence and [his] conclusion that a claimant is not disabled.”
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). “If a decision lacks evidentiary support or
is so poorly articulated as to prevent meaningful review, a remand is required.” Id. (citation
omitted).
III. THE ALJ’S DECISION
The ALJ found at step one that Elliott had not engaged in substantial gainful activity
since January 31, 2013, the alleged disability onset date. At step two, the ALJ determined that
Elliott had the following severe impairments: cerebral trauma, multiple types; central nervous
system vascular accident; carotid artery occlusion; diabete mellitus II with associated peripheral
neuropathy; sleep apnea; obesity; amnestic disorder; and depressive disorder, not otherwise
specified. The ALJ found at step three that these impairments did not, individually or in
combination, meet or equal the severity of one of the listed impairments. The ALJ’s residual
functional capacity (“RFC”) determination was as follows:
[T]he claimant retains the residual functional capacity to lift up to 10 pounds
occasionally. The claimant can sit for about six hours in an eight-hour work day,
and stand or walk each, in combination, for about two hours in an eight-hour work
day, all with normal breaks. The claimant can occasionally balance and stoop.
She can never kneel, crouch, crawl, climb ramps or stairs, or climb ladders, ropes,
or scaffolds. She can never operate foot controls. She can frequently reach
(including overhead reaching) handle (i.e., gross manipulation) finder (i.e., find
manipulation), and feel. The claimant can never work at unprotected heights or
use moving machinery. She can never operate a commercial vehicle. The
claimant further is able to do no more than simple, routine tasks.
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R. at 38-39. The ALJ concluded at step four that Elliott had no past relevant work. At step five,
the ALJ found that, considering her age, education, work experience, and RFC, there were jobs
that exist in significant numbers in the national economy that she could perform, including lens
inserter, document preparer, and touch-up circuit board assembler. Accordingly, the ALJ
concluded that Elliott was not disabled.
IV. DISCUSSION
The relevant facts of record are set forth in the ALJ’s decision and the Commissioner’s
brief and need not be repeated here.
The ALJ stated in his decision that Elliott’s “combined cognitive deficits from her
amnestic disorder and depression would permit her to understand, remember, and follow no
more than simple instructions.” R. at 38. Elliott argues that the ALJ erred because he failed to
include this restriction in his RFC assessment and in his hypothetical questions to the vocational
expert. The Court agrees. While the RFC and relevant hypothetical question referred to “simple,
routine, repetitive tasks,” the Court cannot say as a matter of law that that restriction addresses
the need for her supervisors to ensure that they give her only simple instructions. Therefore the
Commissioner has not carried its burden at Step 5 to demonstrate that there are jobs that Elliott
can perform in light of the restrictions expressly found by the ALJ.
Elliott also argues that “[s]ubstantial evidence does not support the ALJ’s residual
functional capacity assessment or corresponding hypothetical question to the vocational expert
upon which the ALJ relied for her Step-5 decision because the ALJ did not comply with
O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010) . . . and its progeny.” Dkt. No. 16 at
6. The Court disagrees. Elliott is referring to the fact that if an ALJ finds that a claimant has
limitations of concentration, persistence, or pace, those limitations must be accounted for in his
RFC determination and any relevant hypothetical questions to the vocational expert. Stewart v.
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Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (hypothetical question “must account for documented
limitations of ‘concentration, persistence, or pace’”) (collecting cases) (cited in Yurt v. Colvin,
758 F.3d 850, 858–59 (7th Cir. 2014)). In this case, however, the ALJ made the following
finding;
While the undersigned notes a “moderate” limitation in the Paragraph B criteria
above for concentration, persistence, or pace, this is based upon the record as a
whole, and all the situations the claimant might encounter. However, when
limited to simple and repetitive tasks, her ability to function is higher. Within
these parameters, she is able to sustain the attention, concentration and persistence
needed to perform in an ordinary work setting on a regular and continuing basis.
R. at 38. In light of this finding, which Elliott does not dispute (or even recognize), the Court
finds that the ALJ avoided the O’Connor-Spinner error.
V. CONCLUSION
For the reasons set forth above, the decision of the Commissioner is REVERSED and
this case is REMANDED to the Commissioner for further proceedings consistent with the
Court’s Entry.
SO ORDERED: 8/23/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication

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