PAIGE-ARMSTRONG v. BERRYHILL

Filing 20

ENTRY ON JUDICIAL REVIEW: The Court REVERSES the ALJ's decision denying Paige- Armstrong's benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C.§ 405(g) (sentence 4) as detailed above (SEE ENTRY). Final Judgment will issue accordingly. Signed by Magistrate Judge Mark J. Dinsmore on 3/13/2018.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SHARON K. PAIGE-ARMSTRONG,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

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No. 1:17-cv-01573-MJD-TWP

ENTRY ON JUDICIAL REVIEW
Plaintiff Sharon Paige-Armstrong (“Paige-Armstrong”) applied for disability insurance
benefits (“DIB”) from the Social Security Administration (“SSA”) on October 21, 2013, alleging
an onset date of April 8, 2013. [Dkt. 10-5 at 2.] Her application was initially denied on February
7, 2014, [Dkt. 10-4 at 2], and upon reconsideration on May 20, 2014, [Dkt. 10-4 at 12].
Administrative Law Judge Judy Hilger Odell (the “ALJ”) held a hearing on October 6, 2015. [Dkt.
10-2 at 39-73.] The ALJ issued a decision on January 28, 2016, concluding that Paige-Armstrong
was not entitled to receive disability insurance benefits. [Dkt. 10-2 at 15.] The Appeals Council
denied review on March 9, 2017. [Dkt. 10-2 at 2.] On May 12, 2017, Paige-Armstrong timely
filed this civil action, asking the Court to review the denial of benefits pursuant to 42 U.S.C. §
405(g) and 42 U.S.C. § 1383(c). [Dkt. 1.] For the reasons set forth below, the Commissioner’s
decision is REVERSED and REMANDED.
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 benefits decision, this 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), this 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 must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(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). “If
a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four

2

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).
II.
BACKGROUND
Paige-Armstrong was 50 years old at the time she applied for DIB. [Dkt. 10-5 at 2.] She
has at least a high school education and previously worked as a correctional officer. [Dkt. 10-2 at
28.]1

1

Both parties provided a detailed description of Paige-Armstrong’s medical history and treatment in their briefs.
[Dkt. 17; Dkt. 18.] Because that discussion implicates sensitive and otherwise confidential medical information
concerning Paige-Armstrong, the Court will simply incorporate those facts by reference and detail specific facts only
as necessary to address the parties’ arguments.

3

The ALJ followed the five-step sequential evaluation set forth by the Social Security
Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Paige-Armstrong is
not disabled. [Dkt. 10-2 at 29.] The ALJ found as follows:
•

At Step One, the ALJ found that Paige-Armstrong has not engaged in substantial gainful
activity 2 since April 8, 2013, the alleged onset date. [Dkt. 10-2 at 20.]

•

At Step Two, the ALJ found that Paige-Armstrong has the following severe impairments:
diabetes, migraine[s], pancreatitis, “anxiety/depression/conversion disorder,” obesity, and
status post bilateral rotator cuff surgery. [Dkt. 10-2 at 20.]

•

At Step Three, the ALJ found that Paige-Armstrong does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments. [Dkt. 10-2 at 21.]

•

After Step Three but before Step Four, the ALJ found that Paige-Armstrong has the RFC
to “perform light work as defined in 20 CFR 404.1567(b) except the claimant can
occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but can never
climb ladders, ropes or scaffolds; she can frequently handle and finger with both hands;
she can occasionally reach overhead with both upper extremities; the claimant can
occasionally be exposed to extreme cold, extreme heat, wetness, humidity, vibration,
fumes, odors, dust and gases; she can never be exposed to unprotected heights, or moving
mechanical parts and can never be required to drive a motor vehicle; she can work in an
environment with a noise intensity level of 3 or less (based on the noise intensity chart
based in the DOT, where 1 is very quiet, 2 is quiet, and 3 is a moderate level of noise); she
can move between a sitting and standing position on the job at least every 30 minutes,
assuming that it would take 1 minute to make the change in position; and the claimant is
limited [to] work requiring simple, routine tasks, with occasional contact with supervisors,
coworkers and the general public.” [Dkt. 10-2 at 23.]

•

At Step Four, the ALJ concluded, after considering Paige-Armstrong’s age, education,
work experience, and RFC and relying on the testimony of the vocational expert (“VE”),
that Paige-Armstrong is incapable of performing her past relevant work as a correctional
officer. [Dkt. 10-2 at 28.]

•

At Step Five of the analysis, the ALJ found based on VE testimony considering PaigeArmstrong’s age, education, and RFC, that there were jobs that existed in significant
numbers in the national economy that Paige-Armstrong could have performed through the
date of the decision. [Dkt. 10-2 at 28.]

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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).

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III.
DISCUSSION
Paige-Armstrong makes two assertions of error, 1) the ALJ’s RFC finding that PaigeArmstrong can sustain work is unsupported by substantial evidence or relevant legal standards,
and, 2) the ALJ failed to properly account for limitations resulting from Paige-Armstrong’s
concentration related deficits.
A. Sustaining Work
Paige-Armstrong argues that the ALJ failed to consider whether Paige-Armstrong’s
combined conditions would allow her to sustain full-time work, as required by Social Security
Ruling (“SSR”) 96-8p. [Dkt. 17 at 21-22.] Paige-Armstrong argues that in doing so the ALJ
failed to build a logical and accurate bridge between the evidence and her conclusions while
confronting conflicting evidence. Id. She also argues that her case is indistinguishable from the
Seventh Circuit decision in Gentle. [Dkt. 17 at 23-24.]
The Commissioner argues that the ALJ reasonably supported her RFC finding and
followed SSR 96-8p in doing so. [Dkt. 18 at 16.] The Commissioner also argues that PaigeArmstrong assumes that the ALJ must accept her subjective complaints and attempts to shift her
burden of proof with rhetorical arguments. [Dkt. 18 at 18.] The Commissioner further argues
that the ALJ is not required to address every piece of evidence, having met her burden to
minimally articulate her findings so that the Court can trace her reasoning. [Dkt. 18 at 18-19.]
In her reply, Paige-Armstrong argues that the Commissioner’s response is an example of
forbidden post hoc rationale. [Dkt. 19 at 1.]
When asked to give an opening statement at the administrative hearing, PaigeArmstrong’s representative argued that she would be unable “sustain” any work, due to “the
stress of that work.” [Dkt. 10-2 at 43.] When asked by the ALJ to proceed with the direct
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examination of Paige-Armstrong, her representative focused on “stomach pains” that interrupted
and ultimately ended her employment, [Dkt. 10-2 at 47-48], the need for numerous emergency
room and doctor visits with multiple providers, [Dkt. 10-2 at 29], continuing episodic
disturbance of gait necessitating the use of a walker “once or twice in a month,” [Dkt. 10-2 at 5051], neck pain, [Dkt. 10-2 at 53], and depressive episodes at “least a few times in a month.”
[Dkt. 10-2 at 57].
The ALJ’s own examination of the VE revealed most employers would not tolerate
“much more than one absence per month” with unskilled work, inclusive of using sick days,
personal days, and vacation days (at least two absences a month would not permit competitive
employment with unskilled or semi-skilled jobs). 3 [Dkt. 10-2 at 69-70.] “In assessing RFC, the
adjudicator must discuss the individual's ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or
an equivalent work schedule), and describe the maximum amount of each work-related activity
the individual can perform based on the evidence available in the case record.” SSR 96-8p
[emphasis added]. “The RFC assessment must include a discussion of why reported symptomrelated functional limitations and restrictions can or cannot reasonably be accepted as consistent
with the medical and other evidence.” Id.; see 20 C.F.R. § 402.35(b)(1) (“Social Security
Rulings are binding on all components of the Social Security Administration.”). However, the
ALJ’s decision offers very little in the way of explaining how she concluded that PaigeArmstrong could sustain work on a continuing basis.
In fact, the only relevant analysis offered by the ALJ focuses on Paige-Armstrong’s
activities of daily living. The ALJ notes:

3

The ALJ ultimately found that Paige-Armstrong was limited to unskilled work, as will be discussed more fully
later in the entry. See [Dkt. 10-2 at 29.]

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It appears that despite her impairments, the claimant has engaged in a somewhat
normal level of daily activity and interaction. The record shows that the claimant
goes outside one to three times per week, and shops in the grocery store once per
week. (3E/5). The claimant also watches television, and goes online to play
games and social media. (3E/5). The claimant reports that she goes to church
almost every other week and visits with close friends biweekly, and she denied
problems getting along with others. (3E/6, 7). The physical and mental
capabilities requisite to performing many of the tasks described above as well as
the social interactions replicate those necessary for obtaining and maintaining
employment.
[Dkt. 10-2 at 26 [emphasis added]]. In Bjornson, the Seventh Circuit explained that the “critical
differences between activities of daily living and activities in a full-time job are that a person has
more flexibility in scheduling the former than the latter, can get help from other persons (in this
case, Bjornson's husband and other family members), and is not held to a minimum standard of
performance, as she would be by an employer. The failure to recognize these differences is a
recurrent, and deplorable, feature of opinions by administrative law judges in social security
disability cases.” Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (see Punzio v. Astrue,
630 F.3d 704, 712 (7th Cir. 2011) [additional citations omitted]). The Court largely agrees with
the ALJ that the listed activities have some bearing on Paige-Armstrong’s ability to interact with
others; by extension, they might also indicate the requisite social skills necessary to obtain
employment. However, the ability to go shopping once a week, go outside one to three times a
week, watch television, use the internet, attend church biweekly, and visit friends biweekly
hardly replicates the ability to maintain a full-time working schedule without missing more than
one day per month. All of these tasks could be collectively accomplished even by someone that
has more bad days than good ones.
Paige-Armstrong’s argument that her case is similar to the one in Gentle is well taken. 4
In Gentle, the Court dealt with a case like the instant one involving a claimant found capable of a
4

The Commissioner makes no attempt to distinguish Gentle in her brief.

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range of light work requiring her to be on her feet for most of the day. Gentle v. Barnhart, 430
F.3d 865, 867 (7th Cir. 2005). The Court held that the ALJ’s “analysis of the evidence was
deficient” because it “attached great significance” to the fact that Gentle was able to perform
comparatively more significant activities than here, including taking care of two small children
and household chores. Id. The Court reasoned that even “taking care of an infant, although
demanding, has a degree of flexibility that work in the workplace does not.” Id. PaigeArmstrong testified to receiving assistance from her husband and her daughter for all of the
household chores, due to issues standing and neck and back pain. [Dkt. 10-2 at 57-59.] She also
endorsed at times needing to leave church service early and using a cart to get around the store
when she did go shopping. [Dkt. 10-2 at 61-62.] Returning to Gentle, the Court also found the
error compounded by a failure of the ALJ to consider combined impairments of degenerative
disc disease, obesity, concentration issues, allergies, anxiety and depression, as well as the
stresses of work and their effect on attendance. Gentle, 430 F.3d at 868-69 (The Courts analysis
focuses on a failure to consider obesity at all). 5 Paige-Armstrong suffers from all the same
conditions, except substitute asthma for allergies and add migraines, pancreatitis, shoulder
problems, and conversion disorder.6 As in Gentle, the Court is not saying that the evidence
demonstrates an inability to sustain work, but rather that it’s the ALJ’s duty in the first instance
to decide the issue and explain her findings. Id. The Court’s review of the decision does not see
that the ALJ has done so here, despite the hearing paying ample attention to the issue, other than
the problematic analysis of activities of daily living discussed above.

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In the instant case, the ALJ acknowledges obesity as a severe impairment and discusses that she has considered
that it can affect other conditions, as required by SSR 02-1p, but fails to explain any of her conclusions regarding the
impairment or demonstrate how her findings are supported by the evidence of record. [Dkt. 10-2 at 26.]

6

The ALJ never mentions Paige-Armstrong’s degenerative disc disease of the cervical spine, despite complaints of
back and neck pain both in the record and during the hearing. See [Dkt. 10-10 at 70-71 (MRI of the cervical spine).]

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Paige-Armstrong argues in her brief that her attendance issues are supported by a record
“replete with hospitalizations, headaches, and exacerbations of a psychological condition.” [Dkt.
17 at 21.] “Being in the hospital with abdominal pain, in a dark room due to a headache, or
unable to leave the house because your mind will not allow you to walk are situations which
should have impacted the ALJ’s determination of whether [Paige-Armstrong] could sustain fulltime work. Yet, the ALJ never discusses the implications.” Id. In support, Paige-Armstrong
offers citations to a fairly modest list of doctor visits addressing acute symptoms over a
considerable length of time during the period at issue, with some brief hospital admissions and
further adds that she needs to attend weekly therapy visits. [Dkt. 17 at 22-23.]
In response, the Commissioner attacks the sufficiency of this evidence to support the
ultimate conclusion that Paige-Armstrong is disabled. [Dkt. 18 at 17.] Had the ALJ made the
arguments the Commissioner now makes, the Court might be persuaded. “Under the Chenery
doctrine, the Commissioner's lawyers cannot defend the agency's decision on grounds that the
agency itself did not embrace.” Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012) (citing SEC
v. Chenery Corp., 318 U.S. 80, 87–88 (1943); Parker v. Astrue, 597 F.3d 920, 922 (7th
Cir.2010)). The determinative issue here is not the sufficiency of the evidence, but the ALJ’s
failure to address the reported symptom-related functional limitations and restrictions, as
required by the ruling. SSR 96-8p. Moreover, the ALJ’s lack of explanation frustrates
meaningful review from the Court by running afoul of Seventh Circuit articulation standards.
The ALJ is required to provide a “logical bridge” between the evidence and her conclusions.
Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004). The ALJ’s explanation fails to provide
that logical bridge.

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The Commissioner’s remaining arguments concerning the issue similarly fail. The
Commissioner is correct that the burden is on the claimant to produce sufficient evidence to
substantiate the claim at the first four steps of the process. The Commissioner is also correct that
the ALJ need not address every bit of evidence. And once again, the Commissioner is correct
that the ALJ is not required to adopt the claimant’s subjective complaints. However, the ALJ has
the duty to explain the subjective complaints and why the supporting evidence is not sufficient to
meet the burden of proof in some way that the Court can follow. For the foregoing reasons, the
Court finds that remand is required to address Paige-Armstrong’s specific allegations that she
cannot sustain work.
In the interest of completeness and providing guidance in future adjudication of this
claim, the Court feels obligated to address a related issue to the one above where again the ALJ
fails to provide a logical bridge to her conclusions. The ALJ does not completely ignore
complaints of headaches and abdominal pain, which Paige-Armstrong now argues would
preclude her from sustaining work. The ALJ did find that Paige-Armstrong has corresponding
severe impairments of pancreatitis and migraines. [Dkt. 10-2 at 20.] However, when it comes to
the specific impairments, the ALJ does not explain how she reached the conclusion that PaigeArmstrong’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” [Dkt. 10-2 at 24.]
The ALJ does summarize some of the evidence supporting these complaints, including that
Paige-Armstrong has been to the emergency room on multiple occasions for each condition.
[Dkt. 10-2 at 25.] The ALJ doesn’t explain how the complaints are contradicted.
The only real conclusion the ALJ offers is that the RFC “at a light exertional level, and
the option to sit or stand, accommodates the claimant's rotator cuff impairments, her obesity,

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pain and fatigue related to her diabetes, migraines, and pancreatitis, in that it requires less
standing and walking and lower lifting limits.” [Dkt. 10-2 at 27-28.] For one, complaints of
headaches and abdominal pain might be exacerbated by exertional activity, but the ALJ does not
demonstrate that the evidence shows that exertional limits would fully address complaints of this
type, nor is it logically apparent to the Court that the principal concern with abdominal pain and
headaches is how much one needs to stand, walk and lift.
Even if that were the case, the Court is not persuaded that the ALJ has effectively limited
the amount of standing and walking that would be required of Paige-Armstrong. How does the
RFC demand less standing and walking and in comparison to what exactly? Both light work and
medium work (the exertional level above), ordinarily have the identical requirements of a good
deal of standing and walking “of approximately 6 hours of an 8-hour day.” SSR 83-10 (the
difference between the two exertional levels is with lifting, carrying and postural requirements).
The description of medium work notes that “[a]s in light work, sitting may occur intermittently
during the remaining time.” Id. Ordinarily, light work is distinguished from sedentary work (the
exertional level below), because “it requires a good deal of walking or standing.” Id. However,
a “job is also in this category when it involves sitting most of the time but with some pushing
and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary
work.” Id. “Relatively few unskilled light jobs are performed in a seated position.” Id. The
problem is that the RFC does not effectively limit the total amount of standing and walking
beyond the usual definition of light work. [Dkt. 10-2 at 23.] It’s true that the ALJ adds an
additional limitation that “she can move between a sitting and standing position on the job at
least every 30 minutes, assuming that it would take 1 minute to make the change in position.”
Id. This may preclude the performance of certain jobs that would require standing for more than

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thirty minutes at one time. However, it’s clear when providing light jobs in response to
hypotheticals that the VE was still working under the assumption that the ALJ’s RFC included
the capacity to stand and walk for a total of six hours in an eight-hour day. In response to
questioning from Paige-Armstrong’s representative, the VE testified that if Paige-Armstrong
were limited to standing and walking for four hours in an eight-hour day, the jobs that were
offered as fitting the ALJ’s hypothetical (which would ultimately match her RFC finding) would
be precluded. [Dkt. 10-2 at 71.] The VE reiterated that the jobs that Paige-Armstrong was
ultimately found capable of performing still required standing and walking for six hours, even if
they could accommodate the need for a sit/stand option every thirty minutes. Id. The VE further
testified that there would be no light work at all available for someone that could only stand and
walk for four hours, when combined with the other limitations in the ALJ’s hypothetical. Id. If
the ALJ meant to explain that she had accommodated Paige-Armstrong’s complaints by limiting
her standing and walking at one time, but not total, that distinction appears fairly hollow. Even if
Paige-Armstrong were given the option to sit every thirty minutes, it’s apparent she would not be
able to sit for very long if she was still required to be on her feet for six out of eight hours.
Based on the fact she was found incapable of her past relevant work, her age, the lack of
transferable skills to light or sedentary work, and the Medical-Vocational guidelines, the ability
to do light work is the critical question in determining if she is disabled at Step Five of the
process. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.14 and Rule 202.14. On remand,
clarification is needed to explain how the RFC addresses Paige-Armstrong’s severe impairments
of pancreatitis and migraines. Additionally, clarification is need to explain how the RFC
effectively limits her ability to stand and walk.

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B. The RFC Findings and VE Hypotheticals
Paige-Armstrong argues that the ALJ committed legal error by failing to account for all of
her own findings in hypotheticals to the VE, in particular omitting corresponding limitations of
concentration, persistence, or pace. [Dkt. 17 at 24.]
The Commissioner argues that any error the ALJ may have made in articulating her RFC
and resulting hypotheticals to the VE was harmless, because Paige-Armstrong’s representative’s
questioning properly oriented the VE to all of the limitations supported by the ALJ’s findings.
[Dkt. 18 at 19-22.]
Having found that Paige-Armstrong’s first assignment of error requires remand, the Court
need not fully address her second assignment of error. However, the Court finds that the second
assignment of error also supports remand for further proceedings, albeit while noting that it
implicates multiple issues more nuanced than either party in the suit appears to fully acknowledge
in their briefs. The Court recognizes two distinct but related issues raised by Paige-Armstrong’s
assignment of error. Number one, does the ALJ’s RFC finding and resulting hypotheticals
adequately incorporate the moderate limitations of concentration, persistence or pace that she
found supported by the record in her paragraph “B” mental limitation findings? Number two, was
the VE oriented to all of the limitations supported by the record when providing testimony that
there was other work that could be performed at Step Five? The Court believes the answer to
number one is probably yes. However, regardless of what the answer to issue number one is, the
Court holds that the answer to number two is no, requiring remand.
Working backward and beginning with issue number two, the Court notes the general rule.
The hypothetical question posed 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

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v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994) (citing Cass v. Shalala, 8 F.3d 552, 556 (7th
Cir.1993)). Here, the ALJ states:
It should be noted that, at the hearing, I did not include in my hypothetical to the
vocational expert, the requirements of simple, routine tasks, with occasional contact
with supervisors, coworkers and the general public, which is part of the claimant's
residual functional capacity. These limitations were added after receiving Dr.
Brook's responses to the medical interrogatories, in which he included a mental
residual functional capacity. (41F/8). However, the jobs that the vocational expert
gave, all have a specific vocational preparation of 2, indicating unskilled work,
involving simple, routine tasks.
[Dkt. 10-2 at 29.] At first blush, it appears that the ALJ’s analysis is deficient, because she does
not even attempt to explain how she concluded that the jobs could be performed by an individual
limited to occasional contact with supervisors, coworkers, and the general public. However, the
Court finds that the record demonstrates that these limitations were adequately conveyed to the
VE. First, all of the progressive hypotheticals to the VE included the limitation to occasional
contact with the public. [Dkt. 10-2 at 67-68.] Second, the Court agrees with the Commissioner
that any failure by the ALJ to include limitations to occasional contact with coworkers and
supervisors is harmless where Paige-Armstrong’s hypothetical questions to the VE added these
limitations to the ALJ’s hypotheticals. [Dkt. 10-2 at 72.] It makes no difference how, the critical
question is simply if the VE was adequately oriented to the full limitations. See Herron, 19 F.3d
at 337 (“Moreover, Herron's attorney expanded the record by posing additional hypotheticals to
the VE that included Herron's other nonexertional impairments”); see also Ittel v. Astrue, 2013
WL 704661, at *14 (N.D. Ind. Feb. 26, 2013) (suggesting RFC deficiencies may be harmless so
long as the hypothetical adequately accounts for all the limitations (citing generally O'Connor–
Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010))).
However, none of the hypotheticals posed to the VE included a limitation to simple, routine
tasks. The ALJ made the determination on her own, without the input of an expert, that the jobs
14

the VE had provided in response to hypotheticals could also be performed by an individual limited
to simple, routine tasks. The ALJ sent interrogatories to a medical expert after the hearing to
resolve her questions about Paige-Armstrong’s mental health limitations. The obvious thing to
have done would have been to send interrogatories to the VE to resolve whether an individual with
the additional limitations found by the medical expert could perform other work. Instead, the ALJ
chose to rely on her own lay judgment. While the Court can see, in part, how the ALJ arrived at
her conclusion, the Court is not fully convinced the resolution was proper. The VE did provide
the specific vocational preparation (“SVP”) levels of the jobs she had listed. All three jobs had an
SVP level of two. [Dkt. 10-2 at 67-68.] SSR 00-4p notes that an SVP level of two corresponds
with “unskilled work.” SSR 00-4p. The regulatory definition of unskilled work “is work which
needs little or no judgment to do simple duties that can be learned on the job in a short period of
time.” 20 C.F.R. 404.1568(a) [emphasis added]. However, the Court is not able to resolve whether
the jobs also involve “routine” tasks, simply because they have an SVP level of two. Furthermore,
the Court cannot conclude that there would be no cumulative effect of an additional limitation to
simple, routine tasks when added in combination with the other limitations in the RFC. These are
questions for a VE. The ALJ’s failure to consult an expert as to the effects of the full limitations
of record on the ability to do other work at Step Five requires remand.
Returning briefly to issue one, does the ALJ’s RFC finding and resulting hypotheticals
adequately incorporate the moderate limitations of concentration, persistence or pace that she
found supported by the record in her paragraph “B” mental limitation findings? That is, did the
particular terms of the ALJ’s RFC finding adequately convey the full limitations supporting that
finding? The Court declines to resolve the issue, having found adequate independent grounds to
support the need for remand. The ALJ’s decision frustrates the Court’s analysis where she assigns

15

seemingly equal “great weight” to differing opinions as to Paige-Armstrong’s mental health
limitations. [Dkt. 10-2 at 27-28.] In Milliken, the Seventh Circuit addressed some of the nuances
of this issue, whereby it is not the case that moderate limitations of concentration, persistence, or
pace can never be adequately accounted for by a limitation to unskilled work, so long as the ALJ
is directly adopting the limitations of a medical expert. Milliken v. Astrue, 397 F. App'x 218, 221–
22 (7th Cir. 2010) (citing Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th Cir.2002)). On the one
hand, it appears that the ALJ did adopt the mental health limitations in her RFC finding directly
from the opinion of a medical expert, Dr. Brooks, who responded to medical interrogatories after
the hearing. 7 [Dkt. 10-2 at 27, 29.] However, in Yurt, the Seventh Circuit distinguished Johansen,
rejecting the Commissioner’s argument that the ALJ could directly rely on the limitations found
in a state agency narrative, depending on the particular findings that form the basis of the opinion,
including the claimant’s supporting conditions and the more precise functional areas of concern.
See Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014). The basis of the opinion is critical to the
analysis. The Court finds it particularly confusing that the ALJ appears to adopt the limitations
directly from Dr. Brooks, but that Dr. Brooks opined only mild limitations in concentration,
persistence, or pace. [Dkt. 10-20 at 27.] Whereas, the ALJ found moderate limitations in
concentration, persistence, or pace, citing to the record that Paige-Armstrong’s “attention and
concentration were noted to be only fair during a mental status examination. (23F/ 18).” [Dkt. 102 at 22 (finding moderate limitations in social functioning and citing to Dr. Brook’s opinion
directly).] The ALJ’s analysis is not entirely clear based on the record. The decision as a whole

7

Though not raised by Paige-Armstrong in this suit, the Court finds it rather remarkable that the ALJ issued a
decision on January 28, 2016, without even responding to Paige-Armstrong’s request on November 6, 2015, to
cross-examine Dr. Brooks, who appears from the decision to be the principal witness against her. [Dkt. 10-4 at 59.]
The apparent reason that Paige-Armstrong was not given the opportunity to confront Dr. Brooks, who was contacted
by interrogatory after the hearing, is that Paige-Armstrong made the request one day late, when given only ten days
to respond to the additional evidence.

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appears to the Court to be most similar to Johansen, where the terms of the RFC were deemed
adequate in reliance on a medical opinion. On remand, the ALJ should clarify the basis of her
findings and make sure that the RFC and resulting hypotheticals fully reflect that basis.
IV.
CONCLUSION
For the reasons detailed herein, the Court REVERSES the ALJ’s decision denying PaigeArmstrong’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.
SO ORDERED.

Dated: 13 MAR 2018

Distribution:
Timothy E. Burns
KELLER & KELLER
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Matthew Frederick Richter
KELLER & KELLER LLP
[e-mail]
Joseph R. Wambach
KELLER & KELLER
[e-mail]

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