Scott v. Astrue
Filing
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DECISION AND ORDER signed by Judge Rudolph T Randa on 5/13/11. Commissioners denial of benefits is REVERSED, and this matter is REMANDED for further proceedings consistent with this opinion. 42 U.S.C. § 405(g) (sentence four). (cc: all counsel)(nts)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LOVETTA L. SCOTT,
Plaintiff,
Case No. 10-C-754
-vsMICHAEL J. ASTRUE,
Commissioner of Social Security Administration,
Defendant.
DECISION AND ORDER
Lovetta Scott (“Scott”) appeals from the denial of her application for social security
disability benefits. The Administrative Law Judge (“ALJ”) found that Scott suffers from the
following severe impairments: migraine headaches; hand tremor; obesity; obstructive sleep
apnea; asthma; gastroesophageal reflux disease (GERD); left shoulder pain; left deep vein
thrombosis; carpal tunnel syndrome; back pain; bipolar disorder; panic disorder;
agoraphobia; depression; and anxiety disorder. The ALJ concluded that Scott has the
residual functional capacity (RFC) to perform the demands of light work including tasks that
involve no climbing, balancing, or exposure to heights or hazards (to account for her
occasional migraines, sleep apnea and pain); no exposure to concentrated fumes or
environmental irritants (to account for her asthma); and does not require more than frequent
hand use (to account for her shoulder impairment). Continuing, the ALJ noted that Scott
demonstrated some symptoms of bipolar disorder, panic, depression, and anxiety, the
“practical consequences” of which are captured by limiting her to unskilled, simple, low-
stress work with no public contact and only occasional interaction with co-workers and
supervisors.
On review, the Court will overturn the Commissioner’s final decision only if it lacks
support by substantial evidence, is grounded in legal error, or is too poorly articulated to
permit meaningful review. Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 699 (7th Cir.
2009). Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000).
The Court views the record as a whole but does not reweigh the evidence or substitute its
judgment for that of the ALJ. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000). The ALJ
is not required to address every piece of evidence or testimony presented, but must provide
a “logical bridge” between the evidence and her conclusions. Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000).
A state agency reviewing psychologist, Dr. Keith Bauer, completed a Psychiatric
Review Technique which indicated that Scott had moderate difficulties in maintaining
concentration, persistence or pace. R. 326. The ALJ seemed to address this evidence briefly,
stating that the “record shows she experienced moderate difficulties in concentration and
pace of performance by preoccupation of unfortunate past events in her life and worries but
not to a degree she could not carry out activities.” R. 69.
Scott argues that the ALJ erred by not including her moderate limitation on
concentration, persistence and pace in the hypothetical posed to the vocational expert (“VE”).
“Among the limitations the VE must consider are deficiencies of concentration, persistence
and pace. Our cases, taken together, suggest that the most effective way to ensure that the
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VE is apprised fully of the claimant’s limitations is to include all of them directly in the
hypothetical.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (internal
citations omitted). This is not a “per se” requirement, and the Commissioner argues that it
should be excused in this case because the hypothetical adequately accommodates these
restrictions by limiting her to “simple, low-stress work.” For example, 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. We most often
have done so when a claimant’s limitations were stress- or panic-related and the hypothetical
restricted the claimant to low-stress work.” Id. Here, it is unclear whether Scott’s limitations
are “stress- or panic-related” (i.e., caused by panic or anxiety disorder), or whether they are
caused by one of her other conditions like depression (as in O-Connor-Spinner) or even
bipolar disorder. Therefore, the Court must abide by the admonition that “the ALJ should
refer expressly to limitations on concentration, persistence and pace in the hypothetical in
order to focus the VE’s attention on these limitations and assure reviewing courts that the
VE’s testimony constitutes substantial evidence of the jobs a claimant can do.” Id. at 620-21.
IT IS HEREBY ORDERED THAT the Commissioner’s denial of benefits is
REVERSED, and this matter is REMANDED for further proceedings consistent with this
opinion. 42 U.S.C. § 405(g) (sentence four).
Dated at Milwaukee, Wisconsin, this 13th day of May, 2011.
BY THE COURT:
s/ Rudolph T. Randa
HON. RUDOLPH T. RANDA
U.S. District Judge
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