Smith, Patrick v. Colvin, Carolyn et al

Filing 24

ORDER Entering Judgment for plaintiff. Signed by District Judge William M. Conley on 3/20/15. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PATRICK T. SMITH,
Plaintiff,

ORDER

v.
13-cv-304-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). Patrick Smith contends that the
Administrative Law Judge (“ALJ”) erred in finding him “not disabled” under the statute.
In particular, Smith contends that the ALJ’s determination of Smith’s Residual
Functional Capacity (“RFC”) failed to account adequately for deficiencies in his
concentration, persistence and pace (“CPP”), which must be cured on remand. In an
order dated April 18, 2014, this court identified what appeared to be straightforward
deficiencies in the ALJ’s formulation of Smith’s RFC that required remand. (Dkt. # 22.)
Before ordering remand, however, the court directed the Commissioner (1) to stipulate to
remand; or (2) to provide supplemental briefing why summary remand and double costs
should not result in the face of the identified deficiencies. Id.; see generally O'Connor–
Spinner v. Astrue, 627 F.3d 619 (7th Cir. 2010) (“among the limitations the VE
[Vocational Expert] must consider are deficiencies in concentration, persistence and
pace”).

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The Commissioner chose the latter option. After reviewing defendant’s response,
however, the court continues to find that remand is required for the reasons set forth in
the analysis in the court’s order dated February 25, 2015 (dkt.#22).
The Commissioner points the court to a relatively older, 2002 decision of the
Seventh Circuit in Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002). First, as an initial
matter, even the Commissioner acknowledged that there have been many decisions since
Johansen “in which courts have reversed ALJ’s decisions” based on inadequate formulation
of a claimant’s moderate limitations in the RFC, including O’Connor-Spinner itself.
Moreover, while some of the CPP limitations proffered by the medical experts in Johansen
are similar to those found by the ALJ here, the Commissioner ignores the fact that Dr.
Kojis testified to and the ALJ credited at least three additional, related limitations beyond
those at issue in Johansen.

Those three additional limitations are bolded among the

longer list of Smith’s moderate limitations that Dr. Kojis identified: (a) understanding
and remembering detailed instructions; (b) carrying out detailed instructions; (c)
maintaining attention and concentration for extended periods; (d) performing activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances; (e) completing 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; (f) accepting instructions and
responding appropriately to criticism from supervisors; and (g) responding
appropriately to changes in the work setting. (AR 465-66) (emphasis added).)

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Despite the Seventh Circuit holding in O'Connor–Spinner that an ALJ must orient a
vocational expert to the “totality of a claimant’s limitations,” including those involving
“concentration, persistence and pace,” 627 F.3d at 621, the Commissioner essentially
ignores this factual distinction in attempting to draw an analogy between Johansen and
this case. The additional limitations alone are enough to warrant remand, at least under
circumstances where the ALJ afforded Dr. Kojis’s opinion “good weight,” and still failed
to accommodate for all of Smith’s CPP limitations in reaching an RFC determination or
to inform the vocational expert of these limitations at step five of the evaluation process.
(AR 22.) Indeed, the limitations (f) and (g) are arguably among the most crucial to
Smith’s work performance, making their absence from the RFC determination and the
vocational questioning all the more glaring.
The Commissoner’s second response is really just a corollary of the first -- this case
is more like Johansen than Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014). In this respect,
the Commissioner’s argument virtually repeats what the Commissioner argued in Yurt.
Accordingly, the court rejects the argument based largely on the Seventh Circuit’s
response to the Commissioner in Yurt itself:
Johansen is not as applicable as the Commissioner suggests. The three
alleged omissions from the hypothetical in Johansen were moderate
limitations in the claimant's ability to (1) perform activities within a
schedule; (2) complete a normal workweek and perform at a
consistent pace; and (3) accept instructions and respond
appropriately to criticism. Id. at 286. Only one of the limitations
found by Dr. Lovko—performing activities within a schedule—
appears in Johansen. Given the additional limitations Dr. Lovko
found and their bearing on Yurt's limitations in concentration,
persistence, and pace, we would be hard-pressed to conclude that
Dr. Lovko's narrative RFC “went further” in capturing those
limitations.
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Id. at 858 (emphasis added).

Because of the additional, moderate limitations in Dr.

Kojis’s report are credited by the ALJ as bolded above, this court is equally hard-pressed
to find that Smith’s moderate limitations in CPP were properly translated into workrelated limitations to “simple, repetitive tasks and instructions” and “minimal stress.”
(AR 20.)

The Commissioner’s arguments to the contrary are again unpersuasive,

necessitating the need for remand and reconsideration.
Having determined to remand this case, the court is of two minds as to whether to
award sanctions. On one hand, the Commissioner did not come close to alleviating the
court’s concern regarding the ALJ’s formulation of Smith’s RFC in light of his treatment
of Dr. Kojis’s opinions. On the other, the Commissioner makes a non-frivolous response
to the court’s concern based on Johansen. Moreover, however ill-advised, the response
appears to have been made in good faith (albeit belatedly and only when prompted). Cf.
Chambers v. NASCO, Inc., 501 U.S. 32, 33 (1991) (federal courts may exercise inherent
power to assess sanctions “when a party has acted in bad faith, vexatiously, wantonly, or
for oppressive reasons . . . .” (citations omitted)). Accordingly, the court will not grant
sanctions at this time, although the Commissioner is now on notice that should a similar
case as the present come before this court -- and especially if the court were to request
supplemental briefing on the question of frivolousness -- this court may well grant double
costs in the future.

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ORDER

IT IS ORDERED that the decision of defendant Carolyn W. Colvin,
Commissioner of Social Security, denying plaintiff Patrick Smith’s application for
disability benefits is REVERSED AND REMANDED under sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this opinion. The clerk of court is directed
to enter judgment for plaintiff and close this case.
Entered this 20th day of March, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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