HENDERSON SEARS v. BERRYHILL

Filing 26

ORDER adopting 24 Report and Recommendations. The Commissioner's objections are overruled. This case is REMANDED with instructions that it be returned to the ALJ for further proceedings. Signed by Judge Richard L. Young on 12/13/2017. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
BETHANY ANN HENDERSON SEARS,

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

4:17-cv-00042-RLY-TAB

ENTRY ON DEFENDANT’S OBJECTIONS TO THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
On November 15, 2017, the Magistrate Judge issued a Report and
Recommendation recommending that Plaintiff’s request for remand be granted under
sentence four of 42 U.S.C. § 405(g). He found the ALJ’s hypothetical presented to the
Vocational Expert (“VE”) was fatally inadequate because it failed to address her
limitations in regard to persistence and pace. He further found that, because he was
recommending remand, the ALJ should consider a peer-reviewed article Plaintiff
provided the ALJ after the hearing. The Commissioner objects because, she contends,
the record shows no reversible error.
An ALJ’s “hypothetical posed to a VE must incorporate all of the claimant’s
limitations supported by the medical record—including moderate limitation[s] in
concentration, persistence, and pace.” Varga v. Colvin, 794 F.3d 809, 814 (7th Cir.
2015). Here, the ALJ found that Plaintiff had moderate difficulties in those areas, but
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failed to include, in the hypothetical, any mention of persistence and pace. That was
error. Id. The court therefore OVERRULES the Commissioner’s Objections (Filing
No. 25) and ADOPTS the Magistrate Judge’s Report and Recommendation (Filing No.
24). This case is REMANDED with instructions that it be returned to the ALJ for
further proceedings consistent with this opinion.

SO ORDERED this 13th day of December 2017.

Distributed Electronically to Registered Counsel of Record.

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