GRAY v. COLVIN

Filing 25

ENTRY ON JUDICIAL REVIEW - Plaintiff Heather Gray 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 contained in this Entry. For the reasons set forth in this Entry, 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 3/21/2018.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HEATHER GRAY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,1
Defendant.

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Cause No. 1:16-cv-2662-WTL-MPB

ENTRY ON JUDICIAL REVIEW
Plaintiff Heather Gray 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
Gray protectively filed her application on October 31, 2012, alleging onset of disability
on January 1, 2010.2 The Social Security Administration (“SSA”) initially denied Gray’s
application on March 7, 2013. After Gray timely requested reconsideration, SSA again denied
her claim on July 25, 2013. Thereafter, Gray requested a hearing before an Administrative Law
Judge (“ALJ”). An ALJ held a hearing on July 14, 2015, at which Gray, a vocational expert
(“VE”), and two medical experts testified. The ALJ issued his decision denying Gray’s

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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.
2
In an SSI claim, the application date is the beginning of the relevant period at issue, as
benefits are not retroactive. See Social Security Ruling (“SSR”) 83-20.

application on July 31, 2015. After the Appeals Council denied her request for review on August
6, 2016, Gray filed this action seeking judicial review on October 5, 2016.
II. EVIDENCE OF RECORD
The relevant evidence of record is amply set forth in the parties’ briefs and need not be
repeated here. Specific facts relevant to the Court’s disposition of this case are discussed below.
III. 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 her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment that 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. § 416.920(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. §
416.920(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 twelve-month durational requirement; if so, the claimant is deemed disabled. 20 C.F.R. §
416.920(d). At step four, if the claimant is able to perform her past relevant work, she is not

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disabled. 20 C.F.R. § 416.920(f). 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(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, 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).
IV. THE ALJ’S DECISION
The ALJ found at step one that Gray had not engaged in substantial gainful activity since
the application date. At step two, the ALJ determined that Gray had the severe impairments of
degenerative disk disease, a history of superficial phlebitis in the lower extremity, degenerative
joint diseased of the right shoulder, obesity, a depressive disorder, an anxiety disorder with panic
attacks, and a post-traumatic stress disorder. 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:
After consideration of the entire record, the Administrative Law Judge finds that
the claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 416.967(a) except: She is able to sit for two hours at a time and
for about six hours during an eight-hour workday. However, she should have the
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opportunity to stand for about five minutes every hour. She is able to stand for
thirty to sixty minutes at one time. She is able to walk for fifteen to thirty minutes
at one time. She is able to stand and/or walk for two hours during an eight-hour
workday. She is able to reach overhead occasionally and she is able to reach in
other planes frequently. She has no limitations for fingering, grasping or handling
objects. She is able to operate foot controls occasionally with the left lower
extremity and she is able to operate foot controls with the right lower extremity
frequently. She is able to climb ramps or stairs occasionally, but she is not able to
climb ladders, ropes or scaffolds. She is not able to crouch or crawl, but she is
able to balance, stoop, or kneel occasionally. She should avoid activities that
involve exposure to unprotected heights or elevations or moving mechanical
parts. She should avoid concentrated exposure to dust, fumes, odors, pulmonary
irritants and extreme cold or heat. She is limited to jobs work [sic] that involves
performance of simple, repetitive tasks with only occasional interaction with
supervisors, coworkers or the public.
R. at 17-18 (footnote omitted). The ALJ concluded at step four that Gray does not have any past
relevant work. At step five, the ALJ found, based on VE testimony considering Gray’s age,
education, work experience, and RFC, that there are jobs that exist in significant numbers in the
national economy that she could perform. Accordingly, the ALJ concluded that Gray was not
disabled.
V. DISCUSSION
Gray argues that the ALJ erred in numerous respects, which the Court addresses, in turn
below, as necessary to resolve this appeal.
A. Moderate Difficulties with Concentration, Persistence, or Pace
Gray argues that despite finding that moderate difficulties with concentration,
persistence, or pace were supported by the record, the ALJ failed to account for limitations that
resulted from those difficulties in his RFC finding. Gray adds that the ALJ further did not
include the limitations in hypothetical questions to the VE, which were only conveyed in the
identical terms of the RFC finding.
The general rule is simple enough. Regardless of the basis, a hypothetical question put
by the ALJ to the VE “must fully set forth the claimant’s impairments to the extent that they are
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supported by the medical evidence in the record.” Herron v. Shalala, 19 F.3d 329, 337 (7th Cir.
1994); Indoranto v. Barnhart, 374 F.3d 470, 473-74 (7th Cir. 2004) (“If the ALJ relies on
testimony from a vocational expert, the hypothetical question he poses to the VE must
incorporate all of the claimant’s limitations supported by medical evidence in the record.” (citing
Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004) (additional citations omitted)); see also
SSR 96–5p, 1996 WL 374183, at *5 (RFC assessment “is based upon consideration of all
relevant evidence in the case record, including medical evidence and relevant nonmedical
evidence”); 20 C.F.R. § 416.945. “Among the mental limitations that the VE must consider are
deficiencies of concentration, persistence, or pace.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir.
2015) (citing Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014); Stewart v. Astrue, 561 F.3d 679,
684 (7th Cir.2009)). “Although it is not necessary that the ALJ use the precise terminology of
‘concentration,’ ‘persistence,’ or ‘pace,’ we will not assume that a VE is apprised of such
limitations unless he or she has independently reviewed the medical record.” Id. at 814 (citing
Yurt, 758 F.3d at 857).3
The ALJ found that the record supported moderate difficulties in concentration,
persistence, or pace when assessing the “paragraph B” criteria used to evaluate the severity of
mental health conditions.4 R. at 17. The ALJ also gave “great weight” to the opinion of a
clinical psychologist, Dr. Olive, who testified as a medical expert at the administrative hearing

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In response to questioning by Gray’s representative, the VE affirmed that he had not
assumed any other facts than those that were specifically conveyed to him in the hypothetical
questions. R. at 66.
4
The difficulties identified in the “paragraph B” criteria are used to rate the severity of
mental impairments at steps two and three of the sequential evaluation process. 20 C.F.R. §
416.920a(d)-(e). Gray does not challenge the ALJ’s paragraph B findings. However, the RFC
assessment used at steps four and five requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B of the adult mental disorder
listings. SSR 96-8p. Gray challenges the ALJ’s RFC finding based on an alleged failure to
itemize her more detailed functional restrictions.
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after reviewing the complete medical record and concluded that Gray “retains adequate mental
functional capacity for work that involves performance of simple, repetitive tasks with only
occasional interaction with supervisors, coworkers or the public.” R. at 22.
The Seventh Circuit has repeatedly expressed its concerns with translating moderate
limitations of concentration, persistence, or pace into limitations as to the skill level demands of
a job. “In most cases, however, employing terms like ‘simple, repetitive tasks’ on their own will
not necessarily exclude from the VE’s consideration those positions that present significant
problems of concentration, persistence and pace.” O’Connor-Spinner v. Astrue, 627 F.3d 614,
620 (7th Cir. 2010) (citing Stewart, 561 F.3d at 684-85 (limiting hypothetical to simple, routine
tasks did not account for limitations of concentration, persistence, and pace); see also Craft v.
Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (restricting hypothetical to unskilled work did not
consider difficulties with memory, concentration or mood swings)). “The ability to stick with a
given task over a sustained period is not the same as the ability to learn how to do tasks of a
given complexity.” O’Connor-Spinner, 627 F.3d at 620 (citing Stewart, 561 F.3d at 684-85;
Craft, 539 F.3d at 677; see also Social Security Ruling 85-15 (1985) (“Because response to the
demands of work is highly individualized, the skill level of a position is not necessarily related to
the difficulty an individual will have in meeting the demands of the job. A claimant's [mental]
condition may make performance of an unskilled job as difficult as an objectively more
demanding job.”)). “[W]e have repeatedly rejected the notion that a hypothetical like the one
here confining the claimant to simple, routine tasks and limited interactions with others
adequately captures temperamental deficiencies and limitations in concentration, persistence, and
pace.” Yurt, 758 F.3d at 858-59.
The Court agrees with Gray that O’Connor-Spinner is controlling in this case. The
ALJ’s RFC does not in any way account for temperamental deficiencies in concentration,
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persistence, or pace. The VE testified that an individual could not be off task any more than five
percent of a workday and remain competitively employed. R. at 64-65. However, the RFC does
no more than limit the skill level and interaction, which is inadequate based on the combined
holdings in O’Connor-Spinner and Yurt cited above. The Commissioner argues that this case
can be distinguished from O’Connor-Spinner:
The Seventh Circuit has held that when a medical source of record translates his
findings into a particular residual functional capacity assessment, the ALJ may
reasonably rely on that assessment to formulate his residual functional capacity
finding and hypothetical question. Johansen v. Barnhart, 314 F.3d 283, 285-86
(7th Cir. 2002) (concluding that the ALJ could reasonably rely upon the opinion
of “the only medical expert who made an RFC determination” that translated
“findings into a specific RFC assessment”); see also Milliken v. Astrue, 397 F.
App’x 218, 221-22 (7th Cir. 2010) (affirming ALJ’s residual functional capacity
finding limiting claimant to unskilled work because medical expert opined that
the claimant retained ability to perform “unskilled work tasks” despite her
limitations in concentration, persistence, or pace); Calhoun v. Colvin, No. 12-204,
2013 WL 3834750, at *10 (N.D. Ind. July 24, 2013) (affirming ALJ’s residual
functional capacity finding limiting claimant to “simple, repetitive tasks” because
the ALJ relied “almost verbatim” on residual functional capacity translation of the
state agency psychologist). As described above, that reliance on the psychological
medical expert’s translation is exactly what occurred in this case.
Dkt. No. 21 at 5-6. However, there is no evidence in this case that the medical expert, Dr. Olive,
was aware that the ALJ would find there were moderate difficulties in concentration, persistence,
or pace, let alone that he concurred with the ALJ’s findings. The terms used by Dr. Olive to
describe the limitations he opined were supported in Gray’s claim cannot be viewed as a
translation of the paragraph B findings that he was not aware of in the first instance. The result
may be different if Dr. Olive had opined that Gray had moderate difficulties with concentration,
persistence, or pace, articulated limitations that translated that finding, and the ALJ had adopted
those opinions. However, the ALJ could not simply rely on only the medical expert’s articulated
limitations when there is no evidence that they accommodated the ALJ’s complete findings.
Remand is required to correct this error and ensure that the VE is adequately apprised of all of
the limitations supported by Gray’s claim.
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B. Gray’s Treating Mental Health Counselor’s Opinion
Gray also asserts that the ALJ ignored an opinion from her treating mental health
counselor, Amanda Brock, LCSW, LCAC. Gray admits that the opinion is not from an
acceptable medical source as defined by the regulations. However, sources who have contact
with the claimant in their professional capacities are “valuable sources of evidence for assessing
impairment severity and functioning. Often these sources have close contact with the individual
and have personal knowledge and expertise to make judgments about their impairment(s),
activities, and level of functioning over a period of time.” SSR 06-03p.
Although there is a distinction between what an adjudicator must consider and
what the adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these
“other sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome
of the case.
Id. The ALJ did not completely ignore Brock’s opinion, referencing that Gray’s “former
therapist completed an assessment in January of 2014 indicating that the claimant was having
only moderate difficulties (Ex. 17F).” R. at 21 (citing R. at 1063-72). However, the ALJ
provides no further discussion of the opinion, the weight it was given, or the reasons supporting
the weight it was given; nor does he recognize any conflict with the opinion and his decision and
explain how the conflict was resolved. The portion of Brock’s opinion that the ALJ explicitly
references could support his finding that Gray would have moderate difficulties with
concentration, persistence, or pace. However, Brock opined that those moderate difficulties
would result in specific limitations that differ from the ALJ’s RFC finding; specifically, she
described Gray’s ability to maintain attention and concentration for two-hour periods was ninety
percent of normal and her ability to perform at a consistent pace without an unreasonable number
and length of rest periods was ninety percent of normal. R. at 1072. These restrictions appear to
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preclude all work in light of the VE’s testimony that an individual may only be off task a
maximum of five percent of the day and remain employable. However, the ALJ never mentions
the limitations found by Brock and does not explain why he discounted her opinion. On remand,
the ALJ should correct this omission.
C. Gray’s Other Arguments
Gray also raises issues relating to the ALJ’s credibility determination and the VE’s
testimony. Each of these issues should be reexamined by the ALJ on remand in light of the
reassessment of the RFC and opinion evidence as discussed above.
VI. 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: 3/21/18
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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