RODRIGUEZ v. BERRYHILL

Filing 27

ENTRY ON JUDICIAL REVIEW - Plaintiff Terri R. requests judicial review of the final decision of Defendant Nancy A. Berryhill, Deputy Commissioner for Operations of the Social Security Administration ("Deputy Commissioner"), denying her a pplications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Court has reviewed the Plaintiff's additional arguments and finds that they are either moot in light of the findings above or are without merit. The decision of the Deputy Commissioner is REVERSED and this case is REMANDED to the Deputy Commissioner for further proceedings consistent with the Court's Entry. (See Entry.) Signed by Judge William T. Lawrence on 9/18/2018. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TERRI R.,1
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, Social Security
Administration,2
Defendant.

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Cause No. 2:17-cv-465-WTL-MJD

ENTRY ON JUDICIAL REVIEW
Plaintiff Terri R. requests judicial review of the final decision of Defendant
Nancy A. Berryhill, Deputy Commissioner for Operations of the Social Security Administration
(“Deputy Commissioner”), denying her applications for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). The Court rules as follows.
I. PROCEDURAL HISTORY
The Plaintiff protectively filed her applications for DIB and SSI on August 4, 2014,
alleging an onset of disability on April 1, 2010. The Social Security Administration (“SSA”)

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In an attempt to protect the privacy interests of claimants for Social Security benefits,
consistent with the recommendation of the Court Administration and Case Management
Committee of the Administrative Office of the United States courts, the Southern District of
Indiana has opted to use only the first name and last initial of non-governmental parties in its
Social Security judicial review opinions.
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It has come to the Court’s attention that on March 6, 2018, the General Counsel of the
U.S. Government Accountability Office (GAO) notified the President that effective November
17, 2017, Nancy A. Berryhill could no longer serve as the “Acting Commissioner” of the Social
Security Administration pursuant to the Federal Vacancies Reform Act of 1998, Pub.L.No. 105277, Div. C, Title I, 112 Stat. 2681-611 (Oct. 21, 1998), as amended, 5 U.S.C. §§ 3345-3349d.
GAO, https://www.gao.gov/products/D18772#mt=e-report (last visited Sept. 14, 2018). The
caption has been updated to reflect Ms. Berryhill’s current official title.

initially denied the Plaintiff’s applications on October 31, 2014. After she timely requested
reconsideration, SSA again denied her claims on January 2, 2015. Thereafter, the Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). An ALJ held a hearing on
August 3, 2016, at which the Plaintiff and a vocational expert (“VE”) testified. The ALJ issued
his decision denying the Plaintiff’s applications on October 11, 2016. After the Appeals Council
denied her request for review on August 1, 2017, the Plaintiff filed this action seeking judicial
review on October 5, 2017.
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).3 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 Deputy 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. § 404.1520(b).

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The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry generally
contains citations to DIB sections only.
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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. §
404.1520(c). At step three, the Deputy 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. § 404.1520(d). At step four, if the claimant is able to perform her past
relevant work, she is not disabled. 20 C.F.R. § 404.1520(f). At step five, if the claimant can
perform any other work in the national economy, she is not disabled. 20 C.F.R. § 404.1520(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 the Plaintiff had engaged in substantial gainful activity
(“SGA”) since the alleged onset date “during the following periods: May 2013-August 2013;
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January 2014-March 2014; May 2014-August 2014; and 2015 until July 2016.” R. at 22
(citations omitted). However, based on a finding that the Plaintiff had not engaged in SGA
during a continuous period of twelve months following the alleged onset date, the ALJ continued
the sequential evaluation process to assess disability during the entire period at issue. At step
two, the ALJ determined that the Plaintiff had the severe impairments of lumbar disc disease,
bilateral knee impairments, carpal tunnel syndrome, obesity, depression, and anxiety. The ALJ
found at step three that the impairments, or combination of impairments, did not meet or equal
the severity of one of the listed impairments. The ALJ’s residual functional capacity (“RFC”)
determination was as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a limited range of light work as defined in
20 CFR 404.1567(b) and 416.967(b). The claimant could balance, stoop, kneel,
crouch and crawl occasionally. The claimant could climb ladders, ropes,
scaffolds, ramps and stairs only occasionally. The claimant could frequently but
not constantly handle, finger and feel bilaterally. The claimant must be allowed
to sit after thirty minutes of being on her feet for five minutes during which she
could continue to work and by so alternating could work throughout the day. The
claimant is restricted to performing simple, routine, unskilled tasks away from the
public and could tolerate only occasional interaction with the public.
R. at 26. The ALJ concluded at step four that the Plaintiff was capable of performing her past
relevant work as a small products assembler. However, the ALJ alternatively found at step five,
based on VE testimony considering Plaintiff’s age, education, work experience, and RFC, that
there are jobs that exist in significant numbers in the national economy that she could perform,
including as an injection mold machine tender, housekeeper, and mail room clerk. Accordingly,
the ALJ concluded that the Plaintiff was not disabled.
V. DISCUSSION
The Plaintiff argues that a host of issues necessitate remand. The Court will address
specific issues as necessary to resolve this appeal.

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A. Moderate Limitations of Concentration, Persistence, or Pace
The Plaintiff asserts that the ALJ’s RFC finding does not adequately capture the full
limitations that the ALJ found to be supported by the record when he assessed the Plaintiff’s
“paragraph B” criteria.4 The ALJ found that the Plaintiff had moderate difficulties in two broad
areas: social functioning and “with regard to concentration, persistence or pace.” R. at 25.
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 he poses to the VE must incorporate all of the claimant’s limitations
supported by medical evidence in the record.”); SSR 96–5p (S.S.A.), 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.”5 Id. at 814 (citing Yurt, 758 F.3d at 857).

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The limitations 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. §
404.1520a(d)-(e). 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. Social Security Ruling (“SSR”) 96-8p (S.S.A.
July 2, 1996), 1996 WL 374184 at *4.
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There is no indication in this case that the VE was otherwise apprised of the full
limitations supported by the record beyond the described limitations that were specifically
conveyed to the VE in hypothetical questioning from the ALJ and the Plaintiff’s representative.
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The Seventh Circuit has repeatedly expressed its concerns with translating 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 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 SSR 85-15 (S.S.A. 1985) 1985 WL 56857 at *6 (“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.
Here, the ALJ attempted to account for the Plaintiff’s mental difficulties by limiting the
Plaintiff’s RFC in relevant part: “claimant is restricted to performing simple, routine, unskilled
tasks away from the public and could tolerate only occasional interaction with the public.” R. at

The ALJ’s step four and step five findings depended on the VE’s testimony given in response to
one of those particular hypotheticals.
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26. The ALJ noted elsewhere in the decision that the state agency psychological consultants
opined both the moderate difficulties with the paragraph B criteria and the specific limitation(s)
“to performing unskilled tasks with superficial interaction,” which the ALJ found were
consistent with the full evidence of record. R. at 31.
The Court agrees with the Plaintiff that the RFC limitation to simple, routine, unskilled
tasks does not adequately capture temperamental deficiencies with concentration, persistence, or
pace as required by Seventh Circuit precedent. Because the RFC as described in the decision
and as described in relevant part to the VE in identical terms does not in any way limit
concentration, persistence, or pace, remand is required for further proceedings to ensure that the
VE is fully apprised of the Plaintiff’s limitations before offering testimony about the Plaintiff’s
ability to perform work at steps four and five. In addition, with regard to the Plaintiff’s moderate
difficulties of social functioning, the RFC finding limits the Plaintiff to “only occasional
interaction with the public,” R. at 26, which differs from the limitations that were actually
conveyed to the VE during hypothetical questions describing an individual who must “be away
from the public and have only occasional interaction with supervisors and coworkers.” R. at 58.
The limitations as actually described to the VE appear to reflect the particular social difficulties
the ALJ found were supported by the record, which the limitation contained in the RFC does not.
The Court has considered the Deputy Commissioner’s argument that the ALJ was entitled
to rely on the state agency consultants’ narratives, which are identical, to articulate the specific
limitations supported by the record. However, the Court finds the argument without merit based
on the specific facts of this case.
This circuit has declined to adopt a blanket rule that checked boxes in Section I 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 . . . areas where [the state psychologist] found moderate
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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 (quoting Yurt, 758 F.3d at 858). As the Deputy Commissioner observes,
the most recent of the identical state agency consultant’s assessments found the Plaintiff to be
moderately limited as to specific functions found in Section I of the MRFCA, including the
ability to “maintain attention and concentration for extended periods,” R. at 175, and “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,” R. at 175-76. The state agency consultant’s narrative limiting the Plaintiff to unskilled
work (and with interaction) is not consistent with those specific assessments. Accordingly, the
ALJ was not entitled to rely on the inconsistent narrative.
The Deputy Commissioner further notes that the Seventh Circuit has “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.” O’Connor-Spinner, 627 F.3d at 619; 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”)). 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”)). However, in this case the Plaintiff’s mental difficulties, including those
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with concentration, persistence, and pace, stem from a combination of depression and anxiety,
which cannot be wholly mitigated by excluding the Plaintiff from those situations that are likely
to trigger panic attacks. Accordingly, unlike the cases cited in Yurt, in this case remand is
required to remedy the ALJ’s failure to account for the Plaintiff’s limitations in concentration,
persistence, and pace.
B. Step Three Listings Findings
The Plaintiff argues that the ALJ did not sufficiently explain how he concluded that the
evidence of record did not support a finding that her back impairment meets the severity of
Listing 1.04. The Plaintiff contends that the ALJ was not entitled to rely on the state agency
assessments because they did not specifically address any of the relevant listings that would be
used to evaluate her physical impairments. In a related argument, the Plaintiff asserts that the
ALJ was not entitled to rely on the state agency assessments as to medical equivalence. In
support of her argument, the Plaintiff points out that the consultants did not review the updated
medical evidence of record, including particular diagnostic imaging.
To prove presumptive disability by meeting the severity of a listed impairment, a
claimant must establish, with objective medical evidence, all of the criteria specified in the
listing. See 20 C.F.R. § 404.1525; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); Rice v.
Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) (“The applicant must satisfy all of the criteria in the
Listing in order to receive an award of” benefits at step three.). In the alternative, a claimant can
establish “medical equivalence” in the absence of one or more of the findings if they have other
findings related to the impairment or have a combination of impairments that “are at least of
equal medical significance.” See 20 C.F.R. § 404.1526(a)-(b). “Whether a claimant’s
impairment equals a listing is a medical judgment, and an ALJ must consider an expert’s opinion
on the issue.” Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004). Moreover, “longstanding
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policy requires that the judgment of a physician (or psychologist) designated by the [Deputy]
Commissioner on the issue of equivalence on the evidence before the administrative law judge or
the Appeals Council must be received into the record as expert opinion evidence and given
appropriate weight.” SSR 96-6p (S.S.A. July 2, 1996), 1996 WL 374180 at *3.
The Court does not find sufficient evidence to establish that the Plaintiff’s lumbar disc
disease meets Listing 1.04. The Plaintiff presents evidence of record that nearly satisfies the
requirements of Listing 1.04(A). To establish Listing 1.04(A), the regulations require:
Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg raising test (sitting
and supine).
20 C.F.R. Pt. 404, Subpt. P, App. 1. The Plaintiff cites to an MRI of her lumbar spine taken
March 9, 2016, which shows “moderate to severe left foraminal compromise with neural
impingement” at L5-S1. R. at 603. The impingement satisfies the diagnostic requirement of the
listing. Additionally, the Plaintiff cites to clinical findings showing corresponding motor loss
with decreased muscle strength in the left lower extremity, id. at 547, and positive straight-leg
raising tests both sitting and supine, id. at 546. However, the Plaintiff does not present evidence
demonstrating that the motor loss is accompanied by sensory or reflex loss. Accordingly, the
Court cannot find that the Plaintiff is able to demonstrate presumptive disability based on
meeting Listing 1.04.
Furthermore, the Court does not find merit with the Plaintiff’s argument that the state
agency consultant’s assessments did not consider the relevant physical listings. The Seventh
Circuit has held that an ALJ may rely on forms completed by the state agency consultants as
substantial evidence that those experts concluded that no listing was met or equaled, even in the
absence of articulating such reliance in the written decision. Scheck v. Barnhart, 357 F.3d 697,
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700-01 (7th Cir. 2004) (citing Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988)); SSR 966p, 1996 WL 374180 at *3. While the state agency consultants did not specifically reference the
relevant listings by name or number, their assessment of the Plaintiff’s RFC and completion of
the disability transmittal forms creates a presumption that they considered the listings based on
the evidence of record that they reviewed.
However, the Plaintiff’s argument that the ALJ was not entitled to rely on this
presumption as to the entire record because the consultants did not review important updated
medical evidence is well-taken. “An ALJ should not rely on an outdated assessment if later
evidence containing new, significant medical diagnoses reasonably could have changed the
reviewing physician’s opinion.” Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) as
amended on reh'g (Apr. 13, 2018) (citing Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016)
(remanding where a later diagnostic report “changed the picture so much that the ALJ erred by
continuing to rely on an outdated assessment”); Goins v. Colvin, 764 F.3d 677, 680 (7th Cir.
2014) (remanding after ALJ failed to submit new MRI to medical scrutiny)). The ALJ
acknowledged that the updated medical evidence showed an increasingly severe combination of
impairments than were present at the time of the last state agency consultant’s assessment. “The
[state agency consultant’s] opinion is well grounded in the objective medical evidence.
However, the preponderance of the evidence now shows a more complicated condition with
additional severe impairments and somewhat greater restrictions.” R. at 29. Despite recognizing
this, the ALJ did not resubmit the record to an expert to make the required medical finding
regarding listing equivalence based on the new evidence. The ALJ’s failure to seek additional
expert guidance was reversible error. The last state agency consultant provided an assessment on
December 31, 2014, reviewing diagnostic imaging that included an x-ray of the Plaintiff’s knee
showing mild degeneration and an MRI of her lumbar spine taken October 21, 2014. Id. at 17311

74. The lumbar MRI showed “no foraminal stenosis.” Id. at 558. By contrast, the updated 2016
MRI noted above showed moderate to severe foraminal stenosis with impingement of the spinal
cord. Given that the updated MRI meets the diagnostic criteria of the Listing 1.04(A), which had
not been previously established by the remote 2014 MRI, the new diagnosis appears potentially
significant in evaluation of the Plaintiff’s claim. Additionally, the updated record included new
MRI imaging of the Plaintiff’s bilateral knees with findings that precipitated surgical
intervention during the period covered by the updated record after the last review. Id. at 674; R.
at 697-98. As the Deputy Commissioner points out, the ALJ did review the updated medical
evidence in the decision. However, the ALJ’s own review of the significant medical updates is
not a substitute for the required medical finding of an expert as to medical equivalence. Nor is
the Court able to conclude that increasingly severe back problems and bilateral knee problems
would not have equaled a listing in combination. Accordingly, the Court finds that remand is
required for a full evaluation of the limiting effects of the Plaintiff’s combined impairments.
C. Additional Arguments
The Court has reviewed the Plaintiff’s additional arguments and finds that they are either
moot in light of the findings above or are without merit.
VI. CONCLUSION
For the reasons set forth above, the decision of the Deputy Commissioner is
REVERSED and this case is REMANDED to the Deputy Commissioner for further
proceedings consistent with the Court’s Entry.
SO ORDERED: 9/18/18

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

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