Johnson v. Commissioner Social Security Administration

Filing 16

ORDER signed by Judge Rudolph T. Randa on 6/25/2015 REVERSING denial of benefits and REMANDING CASE to Commissioner of Social Security for further proceedings pursuant to 42 U.S.C. § 405(g) (sentence four). (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LATRICE MESHELL JOHNSON,
Plaintiff,
-vs-

Case No. 14-C-1159

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration,
Defendant.
DECISION AND ORDER
Latrice Meshell Johnson appeals the Acting Commissioner’s denial of
her application for social security disability benefits. For the reasons that
follow, this matter will be remanded for a rehearing.
The Administrative Law Judge found that Johnson suffers from the
following severe impairments: diverticulitis, fibromyalgia, depression, and
anxiety. The ALJ further found that Johnson has the residual functional
capacity to perform a full range of work at all exertional levels with no more
than occasional crouching or stooping. In addition, the ALJ’s RFC
determination limited Johnson to routine two to three step tasks that allow
for being off task up to ten percent of the workday in addition to regularly
scheduled breaks, do not require fast paced production and involve few, if any,
workplace adjustments or changes. At step 4, the ALJ found that Johnson

could perform her past work as a cook helper. Alternatively, at step 5, the ALJ
found Johnson could perform a variety of representative occupations: general
assembler,

packing/hand

packager,

housekeeper/custodian;

and

bench

assembler.
To uphold the denial of benefits, the ALJ’s decision must be supported
by substantial evidence, untainted by an erroneous credibility finding.
Engstrand v. Colvin, --- F.3d ----, 2015 WL 3505585, at *4 (7th Cir. June 4,
2015). Courts defer to a credibility finding that is not patently wrong, but the
ALJ “still must competently explain an adverse-credibility finding with
specific reasons ‘supported by the record.’” Id. (quoting Minnick v. Colvin, 775
F.3d 929, 937 (7th Cir. 2015)). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).
Johnson argues, and the Court agrees, that the ALJ’s credibility
finding is deficient. The ALJ wrote that Johnson’s “numerous inconsistent
and/or exaggerated symptoms undermine her credibility and allegations of
disabling symptoms.” R. 23. The ALJ then noted a series of discrepancies in
the record including, for example, that Johnson “reported that she can only
pay attention for one to two minutes, but displayed normal attention span
during examination;” that she “stated that she can only stand for two to three
minutes at [a] time, but is noted to walk daily, including ten miles in one day,

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and is working as a cashier, requiring standing for periods of up to 4 hours;”
and that “she indicated that she does not prepare her own meals and does no
cleaning, yet treatment records document her preparing a ‘huge’ Sunday meal
and cleaning the house.” Id. However, the ALJ did not attempt to resolve
these inconsistencies — e.g., by asking how often she made the “huge Sunday
meal,” how long it took to make the meal, and whether she had any help
making the meal. Therefore, the ALJ’s credibility determination is not
supported by substantial evidence. See, e.g., Murphy v. Colvin, 759 F.3d 811,
817 (7th Cir. 2014) (“we cannot assess the validity of the ALJ’s determination
because the record is devoid of information that might support her assessment
and the ALJ did not ask follow-up questions that might prove insightful”).
Next, Johnson argues that the ALJ failed to properly evaluate the
following severe impairments at step two of the sequential evaluation process:
rheumatoid arthritis, neuropathic pain, and obesity. Once again, the Court
agrees. For example, the ALJ acknowledged that Johnson’s Body Mass Index
exceeds 45, indicating level three (extreme) obesity. However, SSR 02-1p
requires the ALJ to “consider the effects of obesity not only under the listings
but also when assessing a claim at other steps of the sequential evaluation
process, including when assessing an individual’s residual functional
capacity.” The ALJ incorporated a “crouching or stooping” limitation in the
RFC, but failed to explain how this limitation accounts or compensates for

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extreme obesity. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (ALJ “must
provide an ‘accurate and logical bridge’ between the evidence and the
conclusion that the claimant is not disabled, …”).
The ALJ’s RFC finding was also faulty because it fails to account for
Johnson’s moderate limitation in concentration, persistence, or pace. R. 20.
The Seventh Circuit has repeatedly explained that “employing terms like
‘simple repetitive tasks,’” as the ALJ did here, “will not necessarily exclude
from the VE’s consideration those positions that present significant problems
of concentration, persistence and pace” because 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 v. Astrue, 627 F.3d 614,
620 (7th Cir. 2010); see also Yurt v. Colvin, 759 F.3d 811, 820 (7th Cir. 2014)
(“we 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 the temperamental deficiencies and limitations in
concentration, persistence, and pace”). This failure infects the ALJ’s finding
that Johnson could perform past relevant work and other work that exists in
significant numbers in the national economy (steps 4 and 5).
Finally, even if the RFC was correctly formulated, the ALJ erred at
steps 4 and 5 because Johnson’s past relevant work and other relevant jobs
require more than three steps, see, e.g., Dictionary of Occupational Titles

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(DOT) 318.687-010 (KITCHEN HELPER (hotel & rest.) alternate titles:
cookee; cook helper; kitchen hand; …); DOT 706.684-022 (ASSEMBLER,
SMALL PRODUCTS I), whereas the ALJ expressly limited Johnson to two to
three step tasks.
For all of the foregoing reasons, the Commissioner=s denial of benefits
is REVERSED, and this matter is REMANDED for further proceedings
pursuant to 42 U.S.C. ' 405(g) (sentence four). The Court suggests, as
requested by the plaintiff, that this matter be assigned to a different ALJ on
remand. The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 25th day of June, 2015.

SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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