Mark F. v. Saul

MARK F., Plaintiff, v. ANDREW M. SAUL Commissioner of the Social Security Administration, Defendant.

No. 1:20-cv-00550-SEB-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

March 18, 2021

REPORT AND RECOMMENDATION

Claimant Mark F. requests judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"). See 42 U.S.C. §§ 423(d). Judge Sarah Evans Barker has designated the undersigned Magistrate Judge to issue a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [Dkt. 10.] For the reasons set forth below, the Magistrate Judge RECOMMENDS that the Court REVERSE AND REMAND the decision of the Commissioner.

I. Background

Claimant applied for DIB in January 2015, alleging an onset of disability as of May 10, 2014. [Dkt. 8-2 at 12.] Claimant's application was denied initially and upon reconsideration, and a hearing was held before Administrative Law Judge Gladys Whitfield ("ALJ") on May 4, 2017. Id. at 30. The ALJ issued a partially favorable decision on June 22, 2017, finding that Claimant became disabled on November 28, 2015, the date of his 55th birthday, which is when he entered the "individual of advanced age" category. Id. at 12. After the Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner, Claimant appealed to this court the Commissioner's determination that he was not disabled prior to November 2015. On March 6, 2019, the undersigned reversed and remanded the Commissioner's decision, instructing the Commissioner to consider two issues on remand, one relating to Claimant's physical impairments and the other relating to Claimant's moderate deficiencies in concentration, persistence, or pace. Mark F. v. Berryhill, 2019 WL 1055098, at *1 (S.D. Ind. Mar. 6, 2019).

The ALJ held a post-remand hearing on November 15, 2019. [Dkt. 8-5 at 111.] On December 13, 2019, the ALJ issued her determination, again finding that Claimant was not disabled prior to November 28, 2015. Id. at 58. Claimant appealed directly to this Court pursuant to 20 C.F.R. § 404.984(d), and timely filed his Complaint on February 19, 2020, seeking judicial review of the ALJ's decision. [Dkt. 1.]

II. Legal Standards

To be eligible for benefits, a claimant must have a disability pursuant to 42 U.S.C. § 423. Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is disabled, the Commissioner, as represented by the ALJ, employs a sequential, five-step analysis: (1) if the claimant is engaged in substantial gainful activity, he is not disabled; (2) if the claimant does not have a "severe" impairment, one that significantly limits his ability to perform basic work activities, he is not disabled; (3) if the claimant's impairment or combination of impairmentsmeets or medically equals any impairment appearing in the Listing of Impairments, 20 C.F.R. pt. 404, subpart P, App. 1, the claimant is disabled; (4) if the claimant is not found to be disabled at step three, and is able to perform his past relevant work, he is not disabled; and (5) if the claimant is not found to be disabled at step three, cannot perform his past relevant work, but can perform certain other available work, he is not disabled. 20 C.F.R. § 404.1520. Before continuing to step four, the ALJ must assess the claimant's residual functional capacity ("RFC") by "incorporat[ing] all of the claimant's limitations supported by the medical record." Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019).

Because Claimant's case was remanded by this court for further consideration, the decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. § 404.984(d). In reviewing Claimant's appeal, the Court will reverse only "if the ALJ based the denial of benefits on incorrect legal standards or less than substantial evidence." Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020). Thus, an ALJ's decision "will be upheld if supported by substantial evidence," which means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019).

An ALJ need not address every piece of evidence but must provide a "logical bridge" between the evidence and her conclusions. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015). This Court may not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its judgment for that of the ALJ. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). Where substantial evidence supports the ALJ's disability determination, the Court must affirm the decision even if "reasonable minds could differ" on whether Claimant is disabled. Id.

III. ALJ Decision

The ALJ first determined that Claimant did not engage in substantial gainful activity during the relevant time period, between the alleged onset date of May 10, 2014, and November 2015. [Dkt. 8-5 at 61.] At step two, the ALJ found that Claimant had the following severe impairments during the relevant time period: "degenerative disc disease of the lumbar and cervical spine; possible shoulder strain/pain; carpal tunnel syndrome; depression; and panic disorder." Id. At step three, the ALJ found that Claimant's impairments did not meet or equal a listed impairment during the relevant time period. Id. The ALJ then found that, during the relevant time period, Claimant had the residual functional capacity ("RFC")

to perform light work as defined in 20 CFR 404.1567(b) except: lift and/or carry twenty pounds occasionally and ten pound[s] frequently; stand and/or walk for about six hours; sit for up to six hours; never climb ladders, ropes, or scaffolds, but occasionally perform other postural maneuvers; able to understand, remember, [carry out] simple tasks with limited demand, pressure, and complexity, and familiar tasks with limited work hassle and pace restrictions; can attend to tasks for sufficient periods of time to complete tasks; can handle stresses of a routine work setting; can relate on at least a superficial basis, meaning interactions are of no consequence to the job or are not a required activity, and no more than occasional interaction, with coworkers, supervisors, and the general public; perform simple, routine, repetitive tasks, that is, short cycle work, performing a few routine tasks, over and over again, according to set procedures or sequence; no fast paced production requirements; no tandem tasks or team work; allowed to alternate positions for one to two minutes every thirty minutes; and does not require greater than 45 degree forward flexion of the lumbar spine.

Id at 63.

At step four, the ALJ found that Claimant was not able to perform his past relevant work during the relevant time period. Id. at 70. At step five, the ALJ, relying on testimony from a vocational expert ("VE"), determined that during the relevant time period Claimant was able to perform jobs that exist in significant numbers in the national economy. Id. at 71. Accordingly, the ALJ concluded Claimant was not disabled during the relevant time period. Id. at 72.

IV. Discussion

Claimant's single argument is that the ALJ failed to properly account for Claimant's moderate limitations in concentration, persistence, or pace and in interacting with others in her RFC determination and her hypothetical questions to the VE. The Magistrate Judge's prior order remanding this case to the Commissioner addressed this issue, and it is an issue that has been addressed repeatedly by the Seventh Circuit. See, e.g., DeCamp v. Berryhill, 916 F.3d 671, 676 (7th Cir. 2019); Varga, 794 F.3d at 814; Yurt v. Colvin, 758 F.3d 850, 858 (7th Cir. 2014); O'Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010); Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008). Those cases have made it clear that when, as here, an ALJ finds moderate limitations in one of the so-called "B criteria" at step three, see 20 C.F.R. § 404.1520a, those limitations must be accounted for in the RFC determination and the hypothetical questions posed to a VE expert who is not otherwise familiar with Claimant's medical records.¹ See, e.g., DeCamp, 916 F.3d at 675 ("The ALJ must explicitly account for all a claimant's limitations in her hypothetical, including limitations in concentration, persistence, or pace, unless the vocational expert has independently reviewed the medical record.") (citing Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018); Lanigan v. Berryhill, 865 F.3d 558, 563, 565 (7th Cir. 2017)). The cases also make clear that accounting for moderate limitations in concentration, persistence, or pace by including generic restrictions such as "simple, routine tasks" or "unskilled work" in the RFC, without further explanation, is not sufficient. See, e.g., DeCamp, 916 F.3d at 676 (finding "no basis to suggest" that restriction to "unskilled work" with no "fast-paced productionline or tandem tasks . . . may serve as a proxy for including a moderate limitation on concentration, persistence, and pace"); Yurt, 758 F.3d at 858-59 ("[W]e 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 temperamental deficiencies and limitations in concentration, persistence, and pace."). Claimant argues that the ALJ's RFC and hypothetical questions were similarly deficient in this case.

In addition to physical restrictions, the ALJ's string of hypothetical questions to the VE included the following:

the individual

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