COLLINS v. BERRYHILL

Filing 33

ORDER the Court REVERSES the ALJ's decision denying Ms. Collins's benefits and REMANDS this matter for further proceedings. Signed by Judge Sarah Evans Barker on 3/12/2018.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
EMMA COLLINS,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting Commissioner )
of Social Security,
)
)
Defendant.
)

No. 1:17-cv-01549-SEB-TAB

ORDER
Plaintiff Emma Collins applied for disability insurance benefits (“DIB”) and/or
supplemental security income (“SSI”) from the Social Security Administration (“SSA”) on June
5, 2014, alleging a disability onset date of June 2, 2012. [Filing No. 17-5 at 8.] Her application
was initially denied on September 10, 2014, [Filing No. 17-4 at 8], and reaffirmed upon
reconsideration on November 14, 2014, [Filing No. 17-4 at 31]. The ALJ conducted a hearing on
July 19, 2016, [Filing No. 17-2 at 30-63], resulting in a decision on November 23, 2016 that Ms.
Collins was not entitled to receive DIB or SSI, [Filing No. 17-2 at 10]. The Appeals Council
denied review on March 6, 2017. [Filing No. 17-2 at 2.] On May 10, 2017, Ms. Collins timely
filed this action seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g)
and 42 U.S.C. § 1383(c). [Filing No. 1.] For the reasons detailed below, the decision of the ALJ
is REVERSED and the case REMANDED for action consistent with this order.
I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits … to
individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214 (2002). “The statutory

1

definition of ‘disability’ has two parts. First, it requires a certain kind of inability, namely, an
inability to engage in any substantial gainful activity. Second, it requires an impairment, namely,
a physical or mental impairment, which provides reason for the inability. The statute adds that the
impairment must be one that has lasted or can be expected to last … not less than 12 months.” Id.
at 217.
When an applicant appeals an adverse decision, the Court’s role is limited to ensuring that
the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ’s
decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the
purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ “is
in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d 668, 678
(7th Cir. 2008), the Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731,
738 (7th Cir. 2006) (quotations omitted).
The ALJ is required to apply the five-step inquiry in sequence set forth in 20 C.F.R. §
404.1520(a)(4)(i)-(v), to determine:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals one of
the impairments listed by the [Commissioner]; (4) whether the claimant can
perform her past work; and (5) whether the claimant is capable of performing work
in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). 1
“If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a

1

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 DIB and SSI claims. Therefore, the citations in this opinion refer to the appropriate parallel
2

claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable
impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ
uses the RFC at Step Four to determine whether the claimant can perform her own past relevant
work and if not, at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 404.1520(iv), (v). The burden of proof is on the claimant for Steps One through Four;
only at Step Five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate where all factual issues have been resolved and the record can
yield but one supportable conclusion.” Id. (citation omitted).

provisions as context dictates. The same applies to citations of statutes or regulations found in
quoted court decisions.
3

II.
BACKGROUND
Ms. Collins, Plaintiff herein, was 55 years of age at the time she applied for DIB and/or
SSI. [Filing No. 17-5 at 8.] She has completed 10 years of high school, [Filing No. 17-2 at 32],
and previously worked as an inserter and an attendant at a coin operated laundry. [Filing No. 172 at 55.] 2
The ALJ followed the five-step sequential evaluation set forth by the Social Security
Administration in 20 C.F.R. § 404.1520(a)(4), ultimately concluding that Ms. Collins is not
disabled. [Filing No. 17-2 at 22.] The ALJ found as follows:
•

At Step One, the ALJ found that Ms. Collins has not engaged in substantial gainful activity3
since June 2, 2012, the alleged onset date. [Filing No. 17-2 at 15.]

•

At Step Two, the ALJ found that Ms. Collins has the following severe impairments:
degenerative disk disease in the cervical, lumbar, and thoracic spine; degenerative joint
disease of the left knee; obesity, anxiety, and depression. [Filing No. 17-2 at 15-16.]

•

At Step Three, the ALJ found that Ms. Collins does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments.
[Filing No. 17-2 at 16.]

•

After Step Three but before Step Four, the ALJ found that Ms. Collins has the RFC to
“perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: She is able
to lift, carry, push or pull up to twenty pounds occasionally and up to ten pounds frequently.
She is able to sit for six hours in an eight-hour workday, stand for six hours or walk for six
hours with normal work breaks. She is not able to climb ladders, ropes, or scaffolds, but
she is able to climb stairs or ramps occasionally. She is able to kneel, crouch, or crawl

2

Both parties provided a detailed description of Ms. Collins’s medical history and treatment in
their briefs. [Filing No. 22; Filing No. 29.] Because that discussion implicates sensitive and
otherwise confidential medical information concerning Ms. Collins, we will simply incorporate
those facts by reference and detail specific facts only as necessary to address the parties’
arguments.
3

Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a).
4

occasionally. She is able to understand, remember and carry out simple, routine instruction
and tasks and to make simple work-related decisions. She is limited to work that involves
no more than occasional interaction with the public.” [Filing No. 17-2 at 19 (footnote
omitted).]
•

At Step Four, the ALJ concluded, after considering Ms. Collins’s age, education, work
experience, and RFC and relying on the testimony of the vocational expert (“VE”), that
Ms. Collins is capable of performing her past relevant work as an inserter. [Filing No. 172 at 22.]
III.
DISCUSSION
Ms. Collins advances several claims of error regarding the ALJ’s decision. However, we

shall focus our analysis on the error that we have concluded requires remand.
A. The ALJ’s RFC Finding and Resulting Hypothetical Posed to the VE Failed to
Incorporate All of the Limitations Supported by the Record.
Ms. Collins notes that the ALJ found that she had moderate limitations of concentration,
persistence, and pace, but failed to adequately account for these limitations in her RFC finding (or
in hypothetical questions posed to the VE). [Filing No. 22 at 31-32.] In support, Ms. Collins relies
on the Seventh Circuit precedent in Varga. [Filing No. 22 at 32-33.]
The Commissioner asserts that Ms. Collins mistakenly interprets Varga to hold that an
RFC limitation to “simple, routine tasks” is per se unreasonable by its failure to accommodate
moderate limitations of concentration, persistence, and pace. [Filing No. 29 at 13.] In making this
argument, the Commissioner relies on the nonprecedential decision of the Seventh Circuit in
Capman that held that an RFC of simple, routine tasks can adequately address moderate limitations
of concentration, persistence, and pace when the RFC “accurately reflect[s] the reliable narrative
opinion of a state-agency psychologist.” Id. The Commissioner describes this case as “virtually
identical to Capman.” [Filing No. 29 at 14.]

5

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
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 [she] poses to the VE must incorporate all of
the claimant’s limitations supported by medical evidence in the record.”); 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. §
404.1545.

“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). 4
Without any further elaboration as to the supporting evidence of record in assessing the
“paragraph B” criteria, the ALJ found that “[t]he State agency mental health professionals opined
that the claimant had moderate difficulty with concentration, persistence and pace (Ex. 6A, page
7). I concur with that assessment.” 5 [Filing No. 17-2 at 18.] The identical assessments of the two

4

There is no evidence in this case that the VE independently reviewed the medical record or was
otherwise oriented to the full limitations supported by the record, beyond what was conveyed in
hypothetical questioning from the ALJ and Ms. Collins’s representative.
5

The limitations identified in the “paragraph B” criteria are used to rate the severity of mental
impairments at Step Two and Step Three of the sequential evaluation process. 20 C.F.R. §
404.1520a(d)-(e). Ms. Collins does not challenge the ALJ’s paragraph B findings. However, the
6

state agency reviewing psychologists arrived at the paragraph B criteria finding by assessing the
level of limitation in more specific functional areas. They found moderate limitations in four
specific areas with regard to Ms. Collins’s ability to: understand and remember detailed
instructions, carry out detailed instructions, complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods, and accept instructions and respond
appropriately to criticism from supervisors. [Filing No. 17-3 at 10-11; Filing No. 17-3 at 37-38.]
After rating the level of impairment in each functional area, both psychologists’ opinions
referenced a single narrative, which is also identical, addressing the cumulative capacities or
limitations as follows: “evidence suggests that claimant can understand, remember, and carry-out
semi-skilled tasks. The claimant can relate on an ongoing basis with co-workers and supervisors.
The claimant can attend to task[s] for sufficient periods of time to complete tasks. The claimant
can manage the stresses involved with semi-skilled work.” [Filing No. 17-3 at 12; Filing No. 173 at 39.] The ALJ determined that the record supported a greater level of limitation than the
reviewing opinions with social functioning (moderate, as opposed to mild). [Filing No. 17-2 at
18.]

The ALJ incorporated these paragraph B findings into her RFC finding and in the

hypotheticals provided to the VE, to wit: that Ms. Collins “is able to understand, remember and
carry out simple, routine instruction and tasks and to make simple work-related decisions. She is
limited to work that involves no more than occasional interaction with the public.” [Filing No. 172 at 19.]

RFC assessment used at Step Four and Step 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. Ms. Collins challenges the ALJ’s RFC finding based on an
alleged failure to itemize her more detailed functional restrictions.
7

The Seventh Circuit has repeatedly expressed its concerns with imputing moderate
limitations of concentration, persistence, and 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, 539 F.3d at
677-78 (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.
We concede that Seventh Circuit precedent has not imposed a per se rule that a mental
RFC for simple, routine tasks can never reasonably accommodate moderate limitations of
concentration, persistence, and pace. However, the Seventh Circuit hasn’t created a per se rule
allowing an ALJ always to rely on the narrative portion of a reviewing opinion in making this
determination. “This circuit has declined to adopt a blanket rule that checked boxes in Section I

8

of the MRFCA form indicating moderate difficulties in mental functioning need not be
incorporated into a hypothetical to the VE. In fact, in Yurt, we explicitly rejected the argument
that ‘we should be unconcerned ... with the failure of the ALJ to mention the six areas where [the
state psychologist] found moderate limitations because the narrative portion of the form adequately
translated these limitations into a mental RFC that the ALJ could reasonably adopt.’” Varga, 794
F.3d at 816 (citing Yurt, 758 F.3d at 858).
The Commissioner’s reading of Capman is thus too narrow, given the Seventh Circuit’s
directive in that opinion that “the ALJ may reasonably rely on the examiner’s narrative in Section
III, at least where it is not inconsistent with the findings in the Section I worksheet.” Capman v.
Colvin, 617 Fed.Appx. 575, 579 (7th Cir. 2015) [emphasis added]. The Court further explained:
“[T]he ALJ's RFC findings accurately reflected [the reviewing psychologist’s] assessment by
restricting Capman to simple, routine tasks and limited interactions with others. Both the medical
evidence and Capman’s testimony support the finding that any limitations in concentration,
persistence, and pace stem from Capman’s anxiety attacks, which occur when he is around other
people. Therefore, the limitations incorporated into the ALJ’s RFC findings adequately addressed
Capman’s deficiencies in concentration, persistence, and pace.” Id. (citing O'Connor–Spinner,
627 F.3d at 619 (7th Cir.2010) (“We also have let stand an ALJ's hypothetical omitting the terms
‘concentration, persistence and pace[,]’ when it was manifest that the ALJ’s alternative phrasing
specifically excluded those tasks that someone with the claimant’s limitations would be unable to
perform.”); See also Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th Cir. 2002) (concluding that
substantial evidence supported the denial of disability benefits where the ALJ’s mental RFC
assessment and hypothetical to the VE failed to explicitly note the three areas referenced by one
consultative physician that the claimant was “moderately limited”)).

9

The Seventh Circuit

explained in Yurt: “[W]e allowed the hypothetical in Johansen to stand despite its omissions
because its description of ‘repetitive, low-stress work’ specifically excluded positions likely to
trigger the panic disorder that formed the basis of the claimant’s limitations in concentration,
persistence, and pace.” Yurt, 758 F.3d at 858 (citing O'Connor–Spinner, 627 F.3d at 619
(collecting and distinguishing cases, including Johansen, upholding hypotheticals that omitted
restrictions in “concentration, persistence, and pace”)).
We do not share the Commissioner’s view that the facts of the case before us make it
indistinguishable from Capman (or Johansen). Ms. Collins testified to problems she has with
concentration, task completion and memory, giving examples from her behaviors at home, as
opposed to those triggered by crowds or in public places. [Filing No. 17-2 at 50.] Contrary to the
ALJ’s repeated assertions that the medical evidence showed Ms. Collins’s memory to be intact,
[Filing 17-2 at 17 and 21], mental status examinations consistently found her recent memory
impaired, [Filing No. 17-13 at 80 (June 9, 2014); Filing No. 17-14 at 14 (October 22, 2014); Filing
No. 17-16 at 3 (January 22, 2015); Filing No. 17-18 at 8 (June 26, 2015).]
We view this case as being highly similar to the relevant facts of Yurt (finding the narrative
limitations to inadequately capture the full limitations of record), which involved issues with
concentration and memory stemming not only from anxiety, but from psychotic features with
obsessive compulsive tendencies and the close alignment among the specific functional
limitations. See Yurt, 758 F.3d at 852, 854 and 855 (narrative rejected despite explicitly stating,
within the context of the skill level, the ability to “attend to tasks for sufficient periods of time to
complete,” as noted in the instant narrative); see also [Filing No. 17-2 at 17 (noting diagnosis of
major depressive disorder with psychotic features, obsessive-compulsive symptoms, and
chronically dysphoric mood)]. Here, the ALJ’s RFC does not adequately account for Ms. Collins’s

10

moderate limitations in her ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods.
The Commissioner’s rationale that the ALJ adequately accounted for limitations to pace
by “generously limiting” Ms. Collins to “even simpler work than opined by the state agency
psychologists” invokes the oft expressed criticisms by the Seventh Circuit. Simply put, the skill
level of a job does not necessarily equate to the pace requirements of the job, and a psychologist
is not qualified to determine that by limiting a particular job capacity to a semi-skilled level it
would automatically limit the pace requirements. An ALJ similarly is not qualified to determine
that by limiting the job to unskilled work it would adequately limit the pace requirements. The
analytical deficiencies underlying the final determination in the case before us for review are
revealed in the testimony of the VE, who is qualified to make the required determination. When
asked how much “time off task” would be tolerated in the particular job Ms. Collins was found
capable of performing (her past relevant work as an inserter), the VE testified as follows:
Well, again it is, it’s, it’s a production type job, you know, that -- and, and if she’s
not meeting the, the production schedules or on time or have to slow this -- the line
down because keeping pace or have to be away from the work site, you know, then
I think that that -- again, any, any more than five percent would be not, not, not
tolerable. Normally my, my, my time off task is ten percent, but in this particular
job, you know, I think the type of work she was doing would be not much time to
be not doing her work, particularly at an unskilled SVP: 1 job.
[Filing No. 17-2 at 60.] The VE’s testimony properly explicates how the demands of pace and
remaining on task do not directly or necessarily correlate with the skill level of the job. In fact,
the VE further testified that with this particular job, the reduced skill level actually allows less
tolerance for interruptions of pace or remaining on task. The ALJ’s failure to account for
limitations of pace by simply lowering the skill level and interaction in her RFC and resulting

11

hypotheticals provided to the VE requires remand for further proceedings. See Varga, 794 F.3d at
812 (the additional limitation to simple decisions does not affect the analysis).
The ALJ’s error is of particular significance to the ultimate outcome of Ms. Collins’s
disability claim. The ALJ denied her claim at Step Four after finding she could return to her past
work as an inserter, despite VE testimony that suggests that even a modest limitation of no
production pace work or providing for time off task would preclude such work. If Ms. Collins
were found to be unable to perform her past relevant work, based on a modified light exertional
capacity and the “Medical-Vocational Guidelines,” she would qualify for disability, at least for the
period of time after reaching advanced age (beginning at age 55). See 20 C.F.R Pt. 404, Subpt. P,
App. 2, Table No. 2, Rule 202.04.
B. Other Assignments of Error
Having determined that a remand for further proceedings is required for the reasons
explicated above, we need not address Ms. Collins’s remaining assignments of error. We assume
on remand that careful attention will be paid to any newly submitted evidence, particularly if such
new evidence materially conflicts with the prior decisions, perhaps by seeking further expert
review. See Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016); see also Goins v. Colvin, 764
F.3d 677, 680 (7th Cir. 2014). We note that the consulting opinions addressed only the first eight
of the twenty-four medical exhibits in the “F” section and that a light RFC was appropriately based
on, “2/2013 steady gait” and “7/2014 negative SLR, normal motor & sensory BLE.” [Filing No.
17-3 at 9; Filing No. 17-3 at 36.] Subsequent evidence submitted following those reviews included
additional diagnostic imaging as well as contradictory examination findings reflecting antalgic
gait, diminished sensation, and decreased reflexes. See [Filing No. 17-17 at 86-87; Filing No. 17-

12

17 at 92-94.] On remand, the Commissioner may be well advised to submit the medical record to
additional review by the expert analysts.
We have not opined as to whether the ALJ’s assessment of Ms. Collins’s alleged symptoms
passes deferential review. However, given the discussion above, further review of the evidence of
her reduced recent memory may be warranted.
IV.
CONCLUSION
For the reasons detailed herein, the Court REVERSES the ALJ’s decision denying Ms.
Collins’s benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. §
405(g) (sentence 4) as detailed above. Final Judgment will issue accordingly.

3/12/2018
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Nicholas Thomas Lavella
KELLER & KELLER
[e-mail]
Matthew Frederick Richter
KELLER & KELLER LLP
[e-mail]
Eric Harris Schepard
SOCIAL SECURITY ADMINISTRATION
[e-mail]
13

Joseph R. Wambach
KELLER & KELLER
[e-mail]

14