BOCK v. COLVIN

Filing 23

ENTRY ON JUDICIAL REVIEW: As the Court cannot find a complete logical bridge in the ALJ's five-step sequential analysis, the Commissioner's decision is vacated and REMANDED for further proceedings. See Entry. Signed by Magistrate Judge Mark J. Dinsmore on 10/31/2017.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DARLA J. BOCK,

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Plaintiff,
vs.
NANCY A. BERRYHILL,
Defendant.

No. 1:16-cv-03334-MJD-TWP

ENTRY ON JUDICIAL REVIEW
Darla J. Bock (“Bock”) requests judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) under Title XVI of the Social Security Act (“the Act”). See 42
U.S.C. §§ 416(i), 423(d), 1382c(a)(3)(A). For the reasons set forth below, the Commissioner’s
decision is REVERSED AND REMANDED.
I.

Background
Bock filed an application for DIB on April 19, 2013, alleging an onset of disability date

of December 10, 2012. [Dkt. 10-2 at 14.] Bock alleges disability due to osteoarthritis and allied
disorders, spine disorders, affective disorders, and fibromyalgia. 1 [Dkt. 10-2 at 16.] Bock’s
application was initially denied on June 19, 2013, and denied again on August 20, 2013, upon
reconsideration. [Dkt. 10-2 at 14.] Bock timely filed a written request for a hearing, which was
held on May 20, 2015, before Administrative Law Judge Kimberly Sorg-Graves. (“ALJ”). Id.

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Bock and the Commissioner recited the relevant factual and medical background in more detail in their opening
briefs. [See Dkt. 19 and Dkt. 21.] Because these facts involve Bock’s confidential and otherwise sensitive medical
information, the Court will incorporate by reference the factual background in the parties’ briefs but will articulate
specific facts as needed below.

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The ALJ issued a decision on July 20, 2015, again denying Bock’s applications for SSI. [Dkt.
10-2 at 11.] On October 7, 2016, the Appeals Council denied Bock’s request for review, making
the ALJ’s decision the final decision for purposes of judicial review. [Dkt. 10-2 at 1.] Bock
timely filed her Complaint with this Court on December 9, 2016, which Complaint is now before
the Court.
II.

Legal Standard
To be eligible for DIB or SSI, a claimant must have a disability pursuant to 42 U.S.C. §

423. 2 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 determine whether a claimant is disabled, the Commissioner, as represented by the
ALJ, employs a five-step sequential analysis: (1) if the claimant is engaged in substantial gainful
activity, she is not disabled; (2) if the claimant does not have a “severe” impairment, one that
significantly limits his ability to perform basic work activities, she is not disabled; (3) if the
claimant’s impairment or combination of impairments meets or medically equals any impairment
appearing in the Listing of Impairments, 20 C.F.R. pt. 404, subpart P, App. 1, the claimant is
disabled; (4) if the claimant is not found to be disabled at step three and she is able to perform
her past relevant work, she is not disabled; and (5) if the claimant is not found to be disabled at
step three and cannot perform her past relevant work but she can perform certain other available

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In general, the legal standards applied in the determination of disability are the same regardless of whether a
claimant seeks DIB or SSI. However, separate, parallel statutes and regulations exist for Disability Insurance
Benefits and Supplemental Security Income claims. Therefore, citations in this opinion should be considered to
refer to the appropriate parallel provisions as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.

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work, she is not disabled. 20 C.F.R. § 404.1520. Before proceeding from step three to step four,
the ALJ must assess the claimant’s residual functional capacity (RFC), identifying the claimant’s
functional limitations and assessing the claimant’s remaining capacity for work-related activities.
S.S.R. 96-8p.
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. This Court may not reweigh the
evidence or substitute its judgment for that of the ALJ but may only determine whether
substantial evidence supports the ALJ’s conclusion. Overman v. Astrue, 546 F.3d 456, 462 (7th
Cir. 2008) (citing Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007)). 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) (citing Stephens
v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985); Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir.
1984)). 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). 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,” he must “provide some glimpse into his reasoning” and “build
an accurate and logical bridge from the evidence to [his] conclusion.” Dixon, 270 F.3d at 1176.
III.

The ALJ’s Decision
The ALJ first determined that Bock has not engaged in substantial gainful activity since

December 10, 2012, the alleged onset date. [Dkt. 10-2 at 16.] At step two, the ALJ determined
that Bock “has the following severe impairments: osteoarthritis and allied disorders; spine

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disorders; and affective disorders.” Id. However, at step three, the ALJ found that Bock does not
have an impairment or combination of impairments that meets or medically equals a listed
impairment. [Dkt. 10-2 at 17.] In making this determination, the ALJ considered Listings 1.02
(Major Dysfunction of a Joint), 1.04 (Disorders of the Spine), and 12.04 (Depression). Id.
The ALJ next analyzed Plaintiff’s residual functional capacity (“RFC”). She concluded
that Plaintiff had the RFC to perform a range of light work except:
[N]o climbing ladders, ropes, or scaffolds; occasionally climbing ramps
and stairs; occasionally balancing, stooping, kneeling, crouching, and
crawling; no more than frequent over the head reaching; no more than
occasional bilateral fingering; able to understand, remember, and carryout
(sic) semiskilled tasks; and no more than occasional superficial interaction
with the general public and superficial interaction with coworkers and
supervisors.
In finding these limitations, the ALJ considered Bock’s “symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence.” [Dkt. 10-2 at 19.] The ALJ then acknowledged that the evidence
presented could reasonably show that Bock suffers from the symptoms she alleges, but the ALJ
found Bock’s statements “not entirely credible.” [Dkt. 10-2 at 20.] At step four, the ALJ
concluded the Plaintiff is unable to perform any past relevant work. [Dkt. 10-2 at 24.] The ALJ
thus proceeded to step five, at which time she received testimony from the vocational expert
indicating that someone with Plaintiff’s education, work experience, age, and RFC would be able
to perform unskilled light occupations such as a ticket taker, shipping and receiving weigher, and
baker helper. Because these jobs existed in significant numbers in the national economy, the ALJ
concluded that Plaintiff was not disabled. [Dkt. 10-2 at 26.]

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IV.

Discussion
Bock asserts the ALJ committed two errors that require remand: (1) the ALJ failed to

properly address Bock’s moderate limitations in maintaining concentration, persistence, or pace
in the RFC and hypothetical to the VE; and (2) the ALJ failed to articulate a reason for her
rejection of a medical opinion.
A. Residual Functional Capacity
Bock argues that the ALJ erred by failing to accommodate Bock’s moderate limitations
in concentration, persistence, or pace in Bock’s RFC and the hypothetical questions posed to the
VE. As a general rule, both the hypothetical posed to the VE and the ALJ’s RFC assessment
must incorporate all of the claimant’s limitations supported by the medical record. See, e.g.,
O’Connor-Spinner v. Astrue, 627 F.3d 614, 615 (7th Cir. 2010); see also Stewart v. Astrue, 561
F.3d 679, 684 (7th Cir. 2009). This includes any deficiencies the claimant may have in
concentration, persistence, or pace (“CPP”). Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014).
The Seventh Circuit has repeatedly rejected—most recently in Lanigan v. Berryhill—the
notion that limiting a claimant to “simple, routine, and repetitive tasks” adequately addresses
CPP deficiencies. 2017 WL 3172428, at *6 (7th Cir. July 26, 2017). “These terms refer to
‘unskilled work,’ which the regulations define as work that can be learned by demonstration in
less than 30 days. See 20 C.F.R. §§ 404.1568, 404.1520.We have explained that the speed at
which work can be learned is unrelated to whether a person with mental impairments—i.e.,
difficulties maintaining concentration, persistence, or pace—can perform such work.” Id. See
also Yurt, 758 F.3d at 858–59; Stewart, 561 F.3d at 685 (7th Cir. 2009); Craft v. Astrue, 539
F.3d 668, 677–78 (7th Cir. 2008).

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Here, the ALJ found that Bock has moderate difficulties with CPP, and then devised an
RFC that provides (and communicated to the VE that) Bock is able to perform more than simple,
routine tasks. Bock’s RFC includes the ability to “understand, remember, and carryout (sic)
semiskilled tasks.” [Dkt. 10-2 at 19.] Bock argues these findings are inconsistent, and the Court
agrees. If, as is established by Seventh Circuit precedent, a limitation to unskilled work does not
adequately account for a moderate limitation in CPP, it is difficult to see how a limitation to
semi-skilled work would suffice. See Klein v. Colvin, 2017 WL 192753, at *5–6 (S.D. Ill. 2017)
(finding that ALJ’s limitation to semi-skilled work in claimant’s RFC did not adequately account
for moderate concentration difficulties).
The Commissioner defends the ALJ's decision by pointing to the Mental RFC
Assessment completed by the state agency consultant, to which the ALJ designated great weight.
Dr. Horton, the consulting psychiatrist, indicated in the “check the box” worksheet form that
plaintiff had a moderate limitation in understanding and remembering detailed instructions and
had sustained concentration and persistence limitations. [Dkt. 10-3 at 9-10.] In the narrative, Dr.
Horton opined that the evidence suggested Bock “can understand, remember, and carry-out (sic)
semi-skilled tasks” and “can attend to tasks for sufficient periods of time to tasks (sic)”. [Dkt. 103 at 11.] The Commissioner asserts Dr. Horton’s assessment supports both the ALJ’s finding of
moderate CPP limitations and the RFC for semi-skilled tasks.
It is true that Dr. Horton’s report states both of those findings: Dr. Horton’s worksheet
form denotes a moderate limitation in understanding and remembering detailed instructions and
the narrative indicates Bock is able perform semi-skilled tasks. But adopting each of Dr.
Horton’s findings (the worksheet form and the narrative) does not make them internally
consistent, and Dr. Horton’s findings clearly are inconsistent. It unreasonable to find that a

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person who is moderately impaired in understanding and remembering is also able to understand,
remember and carry out semi-skilled tasks. It follows, then, that the ALJ’s adoption of Dr.
Horton’s internally inconsistent findings does not constitute substantial evidence in support of
the RFC.
It is clear the ALJ formulated Bock’s RFC using language from Dr. Horton’s narrative
(“understand, remember, and carry-out semi-skilled tasks”). However, the ALJ may rely on the
state agency consultant’s narrative only where it “adequately encapsulates and translates” the
worksheet observations. Varga v. Colvin, 794 F.3d 809, 816. See also Vineyard v. Colvin, 2016
WL 6872949, at *5 (S.D. Ill. 2016). In this case, the narrative and the worksheet observations are
at odds with one another. Instead of citing additional evidence to resolve the inconsistency and
build the “logical bridge” from the evidence of mental impairment to the RFC, the ALJ granted
Dr. Horton’s inconsistent report great weight and adopted its inconsistent findings. Therefore,
this case must be remanded.
B. Dr. Rasmussen’s Report
Bock also argues the ALJ erred by failing to adequately explain the rejection of the
opinion of consultative examiner Dr. Rasmussen. [Dkt. 10-10 at 36-40.] The ALJ noted Dr.
Rasmussen’s finding that Bock “may not be able to do more than her current level of work
[commercial embroidery] 12 to 16 hours a week” and Dr. Rasmussen’s estimation of Bock’s
current Global Assessment of Functioning (“GAF”) at 54 (indicating moderate functional
limitations). [Dkt. 10-2 at 24.] The ALJ gave Dr. Rasmussen’s opinion little weight because it
was “not well supported by the claimant’s treatment history or the clinical findings of treating
sources.” Id. Bock asserts the ALJ did not sufficiently explain her reasoning for rejecting Dr.
Rasmussen’s opinion.

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An ALJ must consider all medical opinions in the record. Roddy v. Astrue, 705 F.3d 631,
636 (7th Cir. 2013); see 20 C.F.R. § 404.1527(b). “[W]hen the evidence comes in the form of a
medical opinion from a state agency physician, the agency's own regulations and rules require
that the ALJ ‘not ignore these opinions and must explain the weight given to the opinions in their
decisions.’” McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011); SSR 96–6p. The Court has
already found that the ALJ committed reversible error in her analysis of Dr. Horton’s opinion
and the resulting RFC determination. Although the ALJ minimally articulated reasons for
granting Dr. Rasmussen’s opinion little weight, on remand the ALJ should more thoroughly
address the reasons underlying the weight given to each medical opinion, and the opinion of Dr.
Rasmussen in particular.
V.

Conclusion
The standard for review of the Commissioner’s denial of benefits is narrow. The Court

reviews the record as a whole, but neither does it reweigh the evidence nor substitute its
judgment for the ALJ’s. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). Where, as here, the
ALJ did not build a logical bridge between the evidence in the record and the ALJ’s conclusion,
the Court must remand. As the Court cannot find a complete logical bridge in the ALJ’s fivestep sequential analysis, the Commissioner’s decision is vacated and REMANDED for further
proceedings.

Dated: 31 OCT 2017

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Distribution:
Joseph R. Wambach
KELLER & KELLER
[e-mail]
Nicholas Thomas Lavella
KELLER & KELLER
[e-mail]
Timothy E. Burns
KELLER & KELLER
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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