Kennedy v. Berryhill

Filing 26

DECISION AND ORDER REVERSING the Commissioner's decision and REMANDING this case to the Commissioner pursuant to 42 U.S.C. § 405(g) (sentence four). Signed by Chief Judge William C Griesbach on 3/1/2019. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

WILLIAM J. KENNEDY,
Plaintiff,
v.

Case No. 17-C-1630

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER

This is an action for judicial review of the final decision of the Commissioner of Social
Security denying Plaintiff William J. Kennedy’s application for disability insurance benefits (DIB)
and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. 42
U.S.C. § 405(g). Kennedy challenges the decision by the Administrative Law Judge (ALJ) denying
him benefits, arguing that the ALJ failed to follow Social Security Administration (SSA) rulings
and regulations. For the reasons stated in this opinion, the Commissioner’s decision will be
reversed and remanded.
BACKGROUND
Kennedy has filed a number of applications for an award of DIB. A hearing on Kennedy’s
previous application, alleging disability beginning October 7, 2008, was held before ALJ Roger E.
Winkelman on September 12, 2013. On October 11, 2013, ALJ Winkelman issued a decision
finding Kennedy was not disabled. R. 139–49. Kennedy filed the most recent application for DIB
on April 21, 2014, and an application for SSI on August 24, 2015. Both applications alleged

disability beginning October 7, 2008.

After the applications were denied initially and on

reconsideration, Kennedy requested an administrative hearing. ALJ Edward P. Studzinski held a
hearing on August 24, 2016. R. 105–35. Kennedy, who was represented by a non-attorney
representative, and a vocational expert (VE) testified. Prior to the hearing, Kennedy, through the
non-attorney representative, amended the alleged onset date to October 12, 2013, the day after the
date of the prior unfavorable decision. R. 33.
At the time of the second hearing, Kennedy was 51 years old and lived with his sister and
her husband in a house. R. 119. Kennedy testified that he cannot work because he is in pain and
does not want to leave the house. R. 117. Kennedy had a work-related injury in August 2008 after
he lost his balance while carrying a heavy object. R. 637. He underwent spinal intervention,
specifically a C4-C7 anterior cervical decompression arthrodesis. R. 530. Kennedy reported that
he had pain in his neck, that he described as a spasm and a choking sensation, ever since. R. 115.
As a result of the pain, Kennedy lays down two to three times a day for approximately 2 hours and
20 minutes each day. R. 116. Kennedy testified that his pain is constant. R. 113. He also reported
that he has sporadic migraines. He indicated that he was not sure what causes the headaches but
sunlight makes them worse. Kennedy testified that he stays in bed when he has a migraine. R. 114.
As to his mental impairments, Kennedy testified that he was diagnosed with depression and
anxiety. R. 111. He reported having suicidal thoughts in 2013. R. 112. Kennedy explained that
he does not like to be around people, does not want to get out of bed two or three times a week, and
usually sits by himself. R. 112.
In a written decision dated October 31, 2016, the ALJ concluded Kennedy was not disabled.
R. 31–47. Following the agency’s five-step sequential evaluation process, the ALJ concluded at
step one that Kennedy met the insured status requirements since December 31, 2013, and had not
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engaged in substantial gainful activity since October 12, 2013, the amended alleged onset date.
R. 33. At step two, the ALJ found Kennedy had the following severe impairments: obesity;
disorders of the back, neck, and shoulder with a history of cervical spine decompression and fusion;
pace maker implant; migraine headaches; and depression. Id. At step three, the ALJ determined
Kennedy’s impairments or combination of impairments did not meet or medically equal any listed
impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 34.
After reviewing the record, the ALJ concluded Kennedy has the residual functional capacity
(RFC) to
lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, and has no
limitations in the total amount of time he is able to sit, stand or walk throughout an
8 hour workday. The claimant needs to alternate his position between sitting,
standing, and walking for no more than five minutes out of every hour. While doing
so, he would not need to be off task. The claimant can occasionally climb ramps and
stairs, and he can occasionally stoop, kneel, balance, crouch and crawl, but he can
never climb ladders, ropes or scaffolds. The claimant is unable to perform repetitive
or extreme (greater than 75% of normal range of motion) neck flexion, rotation, or
extension. He is not limited in his ability to perform such movements from 0-75%
of normal ranges of motion. He can never reach overhead. He is not capable of
working where he would be exposed to excessive noise or bright, flashing lights
exceeding what is generally encountered in an office-type work environment. The
claimant is limited to working in non-hazardous environments, i.e., no driving at
work, operating moving machinery, working at unprotected heights or around
exposed flames and unguarded large bodies of water, and he should avoid
concentrated exposure to unguarded hazardous machinery. The claimant is further
limited to simple, routine tasks, work involving no more than simple decisionmaking, no more than occasional and minor changes in the work setting, and work
requiring the exercise of only simple judgment. He is further precluded from work
involving direct public service, in person or over the phone, although the claimant
can tolerate brief and superficial interaction with the public, which is incidental to
his primary job duties. He is unable to work in crowded, hectic environments. The
claimant can tolerate brief and superficial interaction with supervisors and coworkers, but is not to engage in tandem tasks.
R. 36–37. With these limitations, the ALJ found at step four that Kennedy is unable to perform any
past relevant work as a tractor trailer driver. R. 44. Considering Kennedy’s age, education, work

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experience, and RFC, the ALJ concluded there are jobs that exist in significant numbers in the
national economy that Kennedy can perform, including assembler of small products, sewing
machine operator, and hand packer. R. 45. Based on these findings, the ALJ concluded Kennedy
was not disabled within the meaning of the Social Security Act. R. 46. The ALJ’s decision became
the final decision of the Commissioner when the Appeals Council denied Kennedy’s request for
review. Thereafter, Kennedy commenced this action for judicial review.
LEGAL STANDARD
The Commissioner’s final decision will be upheld if the ALJ applied the correct legal
standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is “such relevant evidence as a
reasonable mind could accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869,
874 (7th Cir. 2010). Although a decision denying benefits need not discuss every piece of evidence,
remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn.
Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and
conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636,
638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ.
Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80,
93–95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
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ANALYSIS
Kennedy raises a number of challenges to the ALJ’s decision, but the court finds that only
one need be addressed since it is enough by itself to require a remand. Kennedy argues that the
hypothetical question and the RFC failed to properly account for his moderate limitations in
concentration, persistence, and pace (CPP). A claimant’s RFC specifies the most that a claimant
can do despite the limitations caused by his physical and mental impairments. 20 C.F.R.
§ 404.1545(a)(1). An ALJ assesses a claimant’s RFC “based on all the relevant evidence” in the
case record, including severe and non-severe impairments as well as medical and non-medical
evidence. § 404.1545(e). “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.”
Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014); see also Varga v. Colvin, 794 F.3d 809 (7th Cir.
2015). Although the ALJ need not specifically include the terms “concentration, persistence, or
pace” in the hypothetical or RFC, O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010),
the ALJ’s phrasing must accommodate the claimant’s specific limitations in CPP.
The ALJ concluded in his decision that Kennedy’s “moderate limitation in social functioning
and concentration, persistence and pace are addressed in the residual functional capacity with
simple, routine tasks.” R. 42. But under the law of this circuit, this account of Kennedy’s
limitations is not enough. Indeed, the Seventh Circuit has “repeatedly rejected the notion that a
hypothetical . . . confining the claimant to simple, routine tasks and limited interactions with others
adequately captures temperamental deficiencies and limitations in concentration, persistence, and
pace.” DeCamp v. Berryhill, No. 18-2105, — F.3d —, 2019 WL 923692, at *4 (7th Cir. Feb. 26,
2019) (quoting Yurt, 758 F.3d at 858–59); see also Radosevich v. Berryhill, No. 17-3326,
— F. App’x —, 2019 WL 286172 (7th Cir. Jan. 22, 2019). While the ALJ’s hypothetical and RFC
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in this case did include several limitations that went beyond “simple, routine, and repetitive tasks,”
the ALJ did not connect those limitations to Kennedy’s specific limitations in CPP.
In addition, the Seventh Circuit has recognized that “an ALJ must explicitly address those
[CPP] limitations in the hypothetical unless one of three exceptions applies: (1) the vocational
expert was independently familiar with the claimant’s medical file; (2) the hypothetical adequately
apprised the vocational expert of the claimant’s underlying mental conditions; or (3) the
hypothetical otherwise accounted for the limitations using different terminology.” Lanigan v.
Berryhill, 865 F.3d 558, 565 (7th Cir. 2017) (citation omitted). In this case, there is no evidence
in the record to suggest that the vocational expert engaged in an independent review of Kennedy’s
medical records or was independently familiar with Kennedy’s CPP limitations. As a result, the VE
did not have an opportunity to evaluate all of Kennedy’s impairments. Because the hypothetical
question to the VE or the corresponding RFC did not account for Kennedy’s moderate limitations
in CPP, the case must be remanded.
CONCLUSION
For these reasons, the Commissioner’s decision is REVERSED and REMANDED to the
Agency pursuant to 42 U.S.C. § 405(g) (sentence four). The Clerk is directed to enter judgment
accordingly.
SO ORDERED this 1st day of March, 2019.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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