Godfrey v. Berryhill
Filing
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DECISION AND ORDER signed by Chief Judge William C Griesbach on 3/14/2019. The decision of the Commissioner is REVERSED and REMANDED to the SSA. The Clerk is directed to enter judgment accordingly. (cc: all counsel)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARY GODFREY,
Plaintiff,
v.
Case No. 17-C-1721
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
performing the duties and functions not reserved
to the Commissioner of Social Security,
Defendant.
DECISION AND ORDER
Plaintiff Mary Godfrey filed this action for judicial review of a decision by the
Commissioner of Social Security denying her application for disability insurance benefits under
Title II of the Social Security Act. Godfrey contends that the administrative law judge’s (ALJ)
decision is flawed and requires remand because the ALJ erred in his evaluation of medical opinions
and the ALJ’s residual functional capacity (RFC) assessment and hypothetical posed to the
vocational expert (VE) did not adequately account for her concentration, persistence, and pace
(CPP) limitations. For the reasons that follow, the Commissioner’s decision will be reversed and
remanded.
BACKGROUND
In March of 2012, Godfrey filed a Title II application for disability insurance benefits,
alleging that her disability began on February 1, 2012. R. 20. Godfrey listed piriformis syndrome
and chronic diarrhea as the conditions that limited her ability to work. R. 169. After her application
was denied initially and on reconsideration, Godfrey had a hearing before an ALJ on March 12,
2014. In a decision issued on May 15, 2014, the ALJ found that Godfrey had several severe
impairments, including morbid obesity with BMI above 60, an associated history of piriformis
syndrome, and major depression, but was not disabled. Godfrey sought judicial review of the
Commissioner’s final order at that time, and on March 22, 2016, the court remanded the case to the
Social Security Administration (SSA) based on the parties’ stipulation to evaluate findings
regarding Godfrey’s cognitive impairment, obtain a consultative examination with cognitive testing
as warranted, and obtain medical expert testimony as warranted. R. 423. On April 12, 2017, ALJ
Jeffry Gauthier conducted a video hearing where Godfrey, who was represented by counsel, and a
VE testified. R. 348–84.
At the time of the hearing, Godfrey was 34 years old, was five feet four inches in height, and
weighed 333 pounds. She was single and lived with her parents, both of whom are on disability,
in Lakewood, Wisconsin. R. 352–54, 56. Godfrey has no income and has never been employed.
R. 349, 354. Godfrey testified that she has a driver’s license and receives medical coverage from
the state. R. 355–56.
Regarding her physical impairments, Godfrey testified that she has constant sharp pain in
her lower back that also radiates down into her leg on a daily basis. R. 360, 370–71. As a result,
Godfrey stated that on a good day she has difficulties staying seated for more than ten minutes and
needs to get up and walk around but that she is unable to walk around for more than five minutes
before she is uncomfortable again. R. 373–74. On bad days, which occur 4 to 5 times a week,
Godfrey is unable to be comfortable while standing or sitting. R. 374. Godfrey testified that the
prescription medicine she takes to help with pain and sleeping, Gabapentin, is ineffective, she
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occasionally uses heat pads for pain, weight loss does not improve her condition, and although she
was referred to physical therapy she never attempted it because she did not think it would help her
improve. R. 360–61, 364–65. Godfrey is able to lift a gallon of milk. R. 374.
Godfrey also testified regarding her cognitive capabilities, reporting that she was not good
at counting and remembering. R. 365. In response to questions from her attorney, Godfrey stated
she can make change and do basic arithmetic. R. 373. Godfrey stated that without her back issues
her cognitive impairment would not prevent her from being a dishwasher or working in a childcare
setting. R. 365–66. Godfrey also stated that she does not like being around groups of people and
is scared to go anywhere alone. R. 364.
During a normal day, Godfrey testified that she usually sits and talks with her mother,
occasionally watches tv, and spends a couple of hours each day reading mostly romance novels on
her Kindle. R. 367–68, 370. Godfrey stated that she usually cannot read for more than twenty
minutes before she becomes uncomfortable due to her back pain and has to get up to walk around.
R. 369. Godfrey testified that she helps take care of the family dog, but is no longer able to help
with chores around the house. R. 372.
In a written decision dated October 3, 2017, the ALJ concluded Godfrey was not disabled.
R. 327–39. Following the agency’s five-step sequential evaluation process, the ALJ concluded that
Godfrey had not engaged in substantial gainful activity since her application date, March 16, 2012.
R. 329. At step two, the ALJ found Godfrey had the following impairments: degenerative disc
disease of lumbar spine, obesity, affective disorder, and borderline intellectual functioning. R. 330.
At step three, the ALJ determined Godfrey’s impairments or combination of impairments did not
meet or medically equal any listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
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At step four, the ALJ concluded Godfrey has the RFC to perform light work with additional
limitations. R. 332. Relevant to the case at hand, the ALJ found the following limitations:
With regard to understanding, remembering and carrying out instructions, she can
perform simple, routine, and repetitive tasks but not at a production rate pace (e.g.
assembly line work). With regard to use of judgment in the workplace, she can
make simple work related decisions. The claimant is capable of occasional
interaction with the public and frequent interaction with supervisors and coworkers.
She can tolerate occasional changes in a routine work setting. In addition to
regularly scheduled breaks, she will be off task less than 10% of the time in a 8-hour
workday.
Id. Godfrey has no past relevant work. R. 337. At step five, the ALJ concluded that there were
jobs that existed in significant numbers in the national economy that Godfrey could have performed,
such as small part assembler, electronics assembler, and laundry folder. R. 337–38. Based on these
findings, the ALJ concluded Godfrey was not disabled within the meaning of the Social Security
Act since the date her application was filed. R. 338. The ALJ’s decision became the final decision
of the Commissioner when the Appeals Council denied Godfrey’s request for review. Thereafter,
Godfrey 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 conclusion drawn.
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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)).
ANALYSIS
Godfrey raises a number of challenges to the ALJ’s decision, but the court finds that only
one need be addressed since it is sufficient by itself to require a remand. Godfrey claims that the
ALJ’s RFC Assessment and hypothetical question posed to the VE did not fully encapsulate the
limitations caused by her mental impairments and did not fully inform the VE of those limitations.
It is well established that “[b]oth 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).
At steps two and three of the sequential evaluation process, the ALJ, utilizing the SSA’s
“special technique” for assessing mental impairments, 20 C.F.R. § 416920a, found that Godfrey had
moderate limitations in “understanding, remembering, or applying information;” “interacting with
others;” “concentrating, persisting, or maintaining pace;” and “adapting or managing oneself.”
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R. 330–31. Because her mental impairments did not cause at least two “marked” limitations or one
“extreme” limitation, the ALJ concluded the “Paragraph B” criteria were not satisfied for a listed
impairment. R. 331. If a claimant has an impairment that is of a severity that meets or medically
equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix I, and meets
the duration requirement, the claimant is deemed disabled. 20 C.F.R. § 416.920(d). At the same
time, because the degrees of limitation were more than “none” or “mild,” the impairment was found
to be severe, requiring further assessment. 20 C.F.R. § 416.920a(d); SSR 96-8p, 1996 WL 374184,
at *4 (July 2, 1996).
Further assessment of Godfrey’s mental impairment was done by James Heider, an
Education Specialist and licensed psychologist; Brenda Reed, Psy.D., a clinical psychologist; and
Eric Edelman, Ph.D., a state agency consultant. After a thorough discussion of their respective
opinions and reports, the ALJ gave Dr. Edelman’s opinion “great weight,” R. 336, Dr. Reed’s
opinion “some weight,” R. 335, and Mr. Heider’s opinion less weight, R. 336. Since it is Dr.
Edelman’s opinion that received the greatest weight, the RFC determined by the ALJ should have
at least included the limitations Dr. Edelman noted.
Dr. Edelman noted in Section I of the Mental Residual Functional Assessment (MRFCA)
form that Godfrey was “moderately limited” in the ability to understand and remember detailed
instructions, the ability to carry out detailed instructions, the ability to maintain attention and
concentration for extended periods, the 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 ability to interact appropriately with the general
public, and the ability to respond appropriately to changes in the work setting. R. 73–75.
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Notwithstanding these limitations, Dr. Edelman provided the following narrative description of
Godfrey’s MRFC: “The clt’s depressive disorder would limit her to unskilled work. Because she
is shy and uncomfortable in social situations, she may also do best in jobs that do not require
significant contact with the general public.” R. 75.
The ALJ actually found Godfrey to have a mental RFC significantly more restrictive than
Dr. Edelman assessed. As noted above, the ALJ determined that Godfrey was limited to “simple,
routine, and repetitive tasks but not at a production rate pace (e.g. assembly line work).” R. 332.
The ALJ further limited Godfrey to “simple work related decisions,” only “occasional interaction
with the public and frequent interaction with supervisors and coworkers,” “occasional changes in
a routine work setting,” and added a 10% off-task limitation. Id. Despite this fact, Godfrey
contends that the ALJ erred in failing to include all of these “moderate” limitations in the RFC and
hypothetical question posed to the VE.
Godfrey’s argument finds strong support in several Seventh Circuit opinions, including most
recently DeCamp v. Berryhill, 916 F.3d 671 (7th Cir. Feb. 26, 2019). The ALJ may have thought
that limiting Godfrey to “simple, routine, and repetitive tasks but not at a production rate pace (e.g.
assembly line work)” was sufficient to account for the moderate difficulties in CPP the ALJ found,
but the Seventh Circuit has made clear that it is not. As the court explained only last month in
DeCamp,
We have previously rejected similar formulations of a claimant’s limitations because
there is no basis to suggest that eliminating jobs with strict production quotas or a
fast pace may serve as a proxy for including a moderate limitation on concentration,
persistence, and pace. The ALJ’s analysis is similarly flawed with respect to
DeCamp’s mild limitations in understanding, remembering, and carrying out simple
instructions and her moderate limitations in concentration, persistence, and pace as
found by Dr. Goldstein. An ALJ need not use specific terminology, but we have
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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.
Id. (internal citation omitted) (alteration in original).
The ALJ further erred in failing to include in the RFC the additional limitations Dr. Edelman
noted Godfrey had with respect to other more specific activities within the CPP domain, including
the ability to complete a normal workday or workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods. R. 74. Having given “great weight” to Dr. Edelman who identified these
limitations, the ALJ was required to include those limitations as well in both his RFC and the
hypothetical he posed to the VE, or explain why he did not. Again, returning to DeCamp,
The ALJ’s hypothetical to the vocational expert omitted any mention of DeCamp’s
moderate limitations in the four areas identified by Dr. Pape (whose opinion the ALJ
cited to support her finding): maintaining attention and concentration for extended
periods; performing activities within a schedule, maintaining regular attendance, and
being punctual within customary tolerances; working in coordination or proximity
to others without being distracted; and completing a normal workday and workweek
without interruptions from psychologically based symptoms and performing at a
consistent pace.
Id.; see also Radosevich v. Berryhill, No. 17-3326, 2019 WL 286172 (7th Cir. Jan. 22, 2019).
In DeCamp, the Seventh Circuit rejected the arguments that the ALJ’s findings on the
“Paragraph B” criteria at steps 2 and 3 of the sequential evaluation process and the State agency
consultants worksheet findings in Section I of the MRFCA form do not constitute RFC findings.
DeCamp explicitly held that while an ALJ may rely on the narrative description of the plaintiff’s
ability to perform work related tasks in the MRFCA form, “the ALJ still must adequately account
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for limitations identified elsewhere in the record, including specific questions raised in check-box
sections of standardized forms such as the PRT and MRFC forms.” 961 F.3d 671.
In this case, the ALJ used language in his RFC formulation that the Seventh Circuit has
explicitly found insufficient to convey the moderate limitations in CPP that the ALJ found. In
addition, the ALJ failed to include other limitations noted by Dr. Edelman in Section I of the
MRFCA form, including Godfrey’s moderate limitations in her ability “to maintain attention and
concentration for extended periods, the 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.” R. 74. Having accorded great weight to Dr.
Edelman, it was incumbent upon the ALJ to either include those additional limitations or explain
why he did not. He did neither.
It is also clear from DeCamp and Radosevich that under the law of this circuit, “moderately
limited” means more than some impairment. Exactly what more it means is unclear. While the
ALJ’s attempt to translate such a limitation into job-related restrictions that fit within a VE’s
terminology is understandable, doing so risks likely appeal and almost certain reversal. See, e.g.,
Winsted v. Berryhill, 915 F.3d 466, 471 (7th Cir. 2019) (“Though particular words need not be
incanted, we cannot look at the absence of the phrase ‘moderate difficulties with concentration,
persistence, and pace’ and feel confident this limitation was properly incorporated in the RFC and
in the hypothetical question.” (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.
2010))).
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The Seventh Circuit recognizes three circumstances where an ALJ need not explicitly
address a claimant’s limitations in CPP. “[A]n 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). None of those exceptions apply here. There is no evidence in the
record that indicates the VE was independently aware or apprised by the hypothetical question of
Godfrey’s limitations in CPP or the other limitations noted. And under controlling case law of this
circuit, the ALJ’s alternative language did not account for all of the limitations noted in the forms
on which the ALJ relied. The Commissioner’s decision must therefore be reversed.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner 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 14th day of March, 2019.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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