Melby, Scott v. Colvin, Carolyn W.

Filing 18

ORDER directing the Commissioner to advise by 11/10/2014 why remand is not required and why double fees and costs are not awarded to plaintiff. Signed by District Judge William M. Conley on 10/9/2014. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SCOTT A. MELBY,
Plaintiff,

ORDER

v.
13-cv-268-wmc
CAROLYN W. COLVIN,
Acting Commissioner Social Security Administration,
Defendant.
This is an action for judicial review of an adverse decision of the Commissioner of
Social Security brought pursuant to 42 U.S.C. § 405(g). Scott A. Melby contends that
the Administrative Law Judge (“ALJ”) erred in finding that he was not disabled under the
statute. Since the ALJ’s proposed Residual Functional Capacity (“RFC”) finding fails to
account for deficiencies in his concentration, persistence and pace (“CPP”) in direct
violation of settled Seventh Circuit case law, the court is of the opinion that remand is
required, but will give the Commissioner an opportunity to respond before ordering
remand and such other relief as may be appropriate to deter her apparent unwillingness
to consent to remand.
Specifically, Melby contends that the RFC formulation and related questions to
the vocational expert failed to account for his limitations in CPP despite medical
evidence of depression. For example, Dr. Turner opined that Melby “definitely meets
clinical criteria for depression” and prescribed citalopram with the possibility of
psychotherapy. (AR 477, 481).

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Based on this medical evidence, the ALJ found that Melby had moderate
limitations in “concentration, persistence and pace”. (AR 45). Once this finding was
made, Melby argues persuasively that the ALJ should have properly oriented the
vocational expert to Melby’s CPP limitations at step five of the evaluation process. In
O'Connor–Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010), the court held that an ALJ
must orient a vocational expert to the “totality of a claimant’s limitations,” including
limitations in “concentration, persistence and pace.” Id. at 609; see also Craft v. Astrue,
539 F.3d 668, 677-78 (7th Cir. 2008) (limiting hypothetical to simple, unskilled work
does not account for claimant's difficulty with memory, concentration, or mood swings);
Young v. Barnhart, 362 F.3d 995, 1003-1004 (7th Cir. 2004).
This is hardly the first time that the Commissioner has stubbornly refused to
acknowledge the import of O’Connor-Spinner. Indeed, the Seventh Circuit has repeatedly
critiqued the Commissioner for her continued efforts to defend these actions without
meaningful, never mind persuasive, legal analysis. See Stewart v. Astrue, 561 F.3d 679,
685 (7th Cir. 2009); Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014). To no avail, this
court, too, has echoed the Seventh Circuit.1 See e.g., Byczek v. Colvin, 11-CV-434-WMC,
2014 WL 1233667 (W.D. Wis. Mar. 25, 2014) (ALJ found moderate limitations in
concentration but also found that the residual functional capacity involved performing
The Western District of Wisconsin is hardly alone in reading O’Connor-Spinner to mandate
remand where a conflict exists in an ALJ’s CPP findings and RFC formulation. See Gray v. Astrue,
2009 WL 1228632 (N.D. Ind. May 1, 2009); McGee v. Astrue, 770 F.Supp.2d 945, (E.D.Wis.
2011) (remand for use of simple, routine, repetitive when moderate CPP found); Kell v. Astrue,
2011WL 2970891 (S.D. Ind., July 21, 2011) (“(T)he ALJ's failure to include a moderate
difficulty in concentration, persistence, and pace in his hypothetical question to the VE requires
remand.”).
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simple, routine work); Traver-Musselman v. Colvin, 12-CV-423 2014, WL 1007302 at *8
(W.D. Wis. March 14, 2014). In Traver-Musselman, Dr. Ludvigson’s mental limitations
were not put to the vocational expert despite the ALJ purporting to assign great weight to
that opinion. There, too, the Commissioner was unable to articulate any reason why
O'Connor–Spinner did not control, yet refused to consent to a remand. Id. at 8; see also,
Marchel v. Astrue, 12-CV-47 (W.D.Wis., Nov. 16, 2012).

While the entire Social

Security Administration, certainly including overburdened ALJs, have been given the
Herculean task of moving a mountain of claims, this does not excuse burdening the
courts, plaintiffs and indeed its own lawyers with obviously meritorious appeals requiring
remand.
Granted, this case is not one where the ALJ has used the phrase “simple, routine
tasks” to account for moderate deficiencies in CPP. Still, it is a case where the RFC
appears not to account for credited deficiencies in concentration and persistence, and
certainly not for pace.

Specifically, the ALJ qualifies the moderate limitations in

concentration and persistence because Melby “was very good at reading, watching
television, gardening and sports cards.”2 (AR 45.) However, even if the court were to
assume that the ALJ’s credited limitations for concentration and pace were appropriately
Even this reading begs a question: if the ALJ meant to account for concentration and persistence
-- by effectively saying that Melby was good in both these areas -- why did the ALJ make a finding
of “moderate,” rather than “mild,” limitation in CPP? While the court is reticent to speculate, a
fair inference can be made that deficiencies in pace must have provided the tipping point for the
moderate finding in CPP. Because of this, however, there was perhaps even more of a need to
orientate the VE as to the third leg of the CPP limitation. The ALJ’s failure to do so only tends to
place a brighter spotlight on the issue, as well as provide another reason for remand -- the need for
clarification. See Ehrhart v. Secretary of Health and Human Servs., 969 F.2d 534, 538 (7th Cir.
1992) (The ALJ must also explain his “analysis of the evidence with enough detail and clarity to
permit meaningful appellate review”).
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accommodated for in the RFC by this observation -- contrary to prevailing case law -- the
RFC still lacks any even arguable accommodation for Melby’s pace.
A vocational expert “must consider deficiencies in [1] concentration, [2]
persistence and [3] pace.” O'Connor–Spinner, 627 F.3d at 619. If the proper question is
not posed to the vocational expert regarding the claimant’s limitations in the RFC
formulation, the expert’s opinion is obviously tainted. Moreover, reliance on such an
opinion leads the ALJ into error and warrants a remand. Id. at 620-21. Here, the ALJ
did not translate moderate limitations, at least with respect to pace. This case starkly
mirrors many of the other CPP cases that the Seventh Circuit, this court and other
district courts have repeatedly found require remand. See discussion, supra.
Compounding the court’s concern with the Commissioner’s refusal to stipulate to
remand is her glaring failure to point to any of the exceptions recognized in O'Connor–
Spinner.

On the contrary, the Commissioner’s brief seeks to shift the onus back on

Melby to provide the proper verbiage for how pace should have been proposed to the
vocational expert. As Melby rightly points out in his reply brief, however, at step five the
burden shifts back to the Commissioner to support any finding with substantial evidence.
Having made a finding that Melby had moderate limitations in CPP, the Commissioner
was required to translate those limitations into relevant questions for the purposes of the
vocational expert. In any event, no reading of O’Conner-Spinner shifts the burden back to
the claimant at step five.
Moreover, the Commissioner need only look to decisions that pre-dates this one
for an indication of what may be appropriate. For example, in a recent case before this
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court, the ALJ found moderate limitations in CPP. See Ambelang v. Colvin, 12-cv-805wmc, 2014 U.S. Dist. LEXIS 138227, at *1(WIWD September 30, 2014). There, the
ALJ stated that the claimant should be “free of fast-paced production requirements,
require[ing] only simple work-related decisions and few changes day-to-day.” Id. at 5-6
While the case was remanded for failing to accommodate deficiencies with respect to
concentration and persistence, the court stated that the “the RFC limitations do seem to
accommodate for [claimaint’s] limitations as to pace.” Id.
Having found that the Melby was moderately limited in CPP, the court is at a loss
as to why the ALJ did not seek to accommodate the pace limitation with verbiage that
resembles the RFC verbiage in Ambelang. Had she done so, it is likely that the parties,
counsel and the court would not be confronting a seemingly obvious error in the ALJ’s
decision necessitating remand. In light of this record, the court directs the Commissioner
to advise within 30 days why remand is not required and double attorney fees and costs
should not be awarded to plaintiff as a sanction. If the Commissioner concludes before
that time that remand is necessary, the parties are instructed to stipulate to a remand
pursuant to sentence four of Section 205 of the Social Security Act, 42 U.S.C. § 405(g),
including an award of reasonable fees and costs awarded to plaintiff. Any stipulation
should make reference to the deficiencies discussed in this order, along with any other
arguably meritorious deficiencies raised in briefing in order to assist the ALJ on remand.

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ORDER
IT IS ORDERED that the Commissioner shall advise why remand is not required
and why double fees and costs are not awarded to plaintiff on or before November 10,
2014.
Entered this 9th day of October, 2014.

BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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