Joanne F. v. Berryhill
Joanne F. v. Berryhill
Opinion of the Court
Plaintiff, Joanne F.,
I.
Plaintiff was 59 years old at the time of the ALJ's decision. (R. 33, 207). She has an excellent work history, working steadily from 1982 through 2011 (R. 231), most recently in custodial services with the Chicago public schools, but prior to that, for nearly 25 years as a fleet service clerk for American Airlines. (R. 254). The fleet service work was heavy work, and involved loading and unloading planes, cleaning cabins, de-icing, and driving trucks to transport cargo. (R. 51, 256). Plaintiff left that job following a sexual assault; she started forgetting what she was supposed to do and could no longer keep up with the pace of the job. 9R. 47).
Plaintiff has accumulated over 600 pages of medical evidence (R. 332-942) - covering treatment for a number of issues. As is generally the case, however, the parties indicate that only a small percentage of it is pertinent. Plaintiff cites to about three dozen pages of treatment records to support her argument for overturning the ALJ's decision. (Dkt. # 11, at 2-4, 8). The Commissioner cites to about twenty pages. (Dkt. # 21, at 5, 12-15). Accordingly, we will dispense with a tedious summary and discuss only those doctor visits and medical findings that the parties tell us matter.
*938After an administrative hearing - at which plaintiff, represented by counsel, and a vocational expert testified - the ALJ determined she was not disabled. The ALJ found that plaintiff had several severe impairments: "hypertension ; diabetes mellitus ; obesity ; arthritis of the right knee; history of transient ischemia attack; posttraumatic stress disorder ; and depression." (R. 21). Plaintiff's psychological impairments caused mild limitations in the areas of understanding, remembering, and applying information; interacting with others; and adapting or managing oneself. (R. 22). She had a moderate limitation in concentrating, persisting and maintaining pace. (R. 22). None of plaintiff's impairments, singly or in combination, amounted to a condition that met or equaled an impairment assumed to be disabling in the Commissioner's listings. (R. 21-22).
The ALJ then determined that plaintiff could perform "medium work ... except the claimant is able to lift, carry, push and pull 25 pounds frequently and 50 pounds occasionally; she is able to stand and walk for six hours and sit for six hours out of an eight hour day; she is able to frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; she is able to occasionally climb ladders, ropes, or scaffolds; she is limited to no work around unprotected heights, open flames or dangerous and or moving machinery; and she is limited to work involving simple routine instructions and tasks." (R. 23). The ALJ summarized the medical evidence and found plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for reasons explained in this decision." (R. 24). The ALJ said the medical evidence did not support her allegations, she was non-compliant with treatment, and uncooperative with the state agency in regard to completing daily activity forms. (R. 28).
The ALJ gave some weight to the opinions from the state agency medical consultants that reviewed the medical record, finding they were supported by the medical evidence. (R. 30). She parted company with those reviewing doctors in regard to plaintiff's obesity which she accommodated with further postural limitations. (R. 31). The ALJ gave no weight to a statement from a doctor who examined plaintiff on one occasion and found she was temporarily disabled. The doctor was not a treating source, the statement failed to indicate any specific limitations, and was on a topic reserved for the Commissioner. (R. 30).
Next, the ALJ found that plaintiff unable to perform her past relevant work as a fleet service clerk, because of environmental restriction against working around moving machinery. (R. 31). The work also involved more than simple routine instructions and tasks. (R. 31). Additionally, the ALJ found that plaintiff was 53 years old when she claimed she became disabled, and that made her an individual "closely approaching advanced age" at that time under the Commissioner's regulations. (R. 31) ). She had since moved into the category of "advanced age." (R. 31). Given a full capacity to perform medium work, transferability of job skills was not an issue, plaintiff would be found "not disabled" under the Medical Vocational Guidelines. (R. 31). As she did not, the ALJ relied on the testimony of the vocational expert who said that an individual with plaintiff's restrictions could perform work as a hand packager, cleaner, or laundry worker. (R. 31). As these jobs exist in significant numbers in the national economy, the ALJ found that plaintiff was not disabled and *939was not entitled to benefits under the Act. (R. 32-33).
II.
If the ALJ's decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See
But, in the Seventh Circuit, the ALJ also has an obligation to build an accurate and logical bridge between the evidence and the result to afford the claimant meaningful judicial review of the administrative findings. Varga v. Colvin ,
III.
A.
The ALJ's decision in this case includes a few troubling aspects, some of which require remand on their own, others are simply head-shakers. In any event, though, a remand is required. As such, we won't go through the entire opinion or the entire, massive medical record, or address all of plaintiff's arguments.
We begin with the ALJ's RFC finding. Plaintiff, the ALJ found, has severe arthritis in her right knee and severe obesity. (R. 21). Her BMI has ranged from 37.4 to 44.6; she is either morbidly obese or nearly so, based on readings the ALJ cited from the record. (R. 21); see *940Browning v. Colvin ,
If we thought the Social Security Administration and its lawyers had a sense of humor, we would think it a joke for its lawyer to have said in its brief that the administrative law judge "accommodated [the plaintiff's] obesity by providing that she could never [be required as part of her work duties to] climb ladders, ropes, or scaffolds, and could only occasionally climb ramps or stairs, balance, kneel, crawl, stoop, and/or crouch." ... Does the SSA think that if only the plaintiff were thin, she could climb ropes? And that at her present weight and with her present symptoms she can, even occasionally, crawl, stoop, and crouch?
That's a logical bridge problem, but let's set it aside for the moment. Along the way to arriving at her RFC finding, the ALJ determined that plaintiff had moderate limitations on her ability to concentrate, persist, or maintain pace. (R. 22). The ALJ attempted to account for this by limiting plaintiff to "work involving simple, routine instructions and tasks." (R. 23, 31). The Commissioner thinks that did the trick, arguing that case law is such that a limitations to simple, routine work "may adequately accommodate a moderate limitation in the areas of concentration, persistence, and pace where the medical evidence does not support a finding of 'significant problems' in that functional area." [Dkt. # 21, at 10].
We disagree with the Commissioner and follow the Seventh Circuit's thinking on this issue, recently voiced in Moreno v. Berryhill ,
We cannot accept this argument. "[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."
When an individual has a restriction on their ability to maintain concentration, persistence and pace, it's not a question of how simple the work is. A simple job or an unskilled job may easily exceed the limits of someone who has a moderate restriction on their ability to maintain concentration, persistence, and pace. See Kasarsky v. Barnhart ,
For example, imagine an unskilled job that involves a conveyor delivering a product to a worker who must then place it in a receptacle-product after product, receptacle after receptacle, over and over, all day long. Many unskilled, simple jobs are made up of precisely this type of tedium. Those of a certain age might recall the classic Lucille Ball-Vivian Vance sketch where the two were tasked with wrapping candies coming down a conveyor at a candy factory. See http://www.youtube.com/watch?v=8NPzLBSBzPI. The job is exceedingly simple. It is repetitive, routine, and unskilled. But for one whose concentration waxes and wanes, or cannot persist or maintain a pace throughout the day, it is a daunting if not impossible occupation. This is why a limitation to unskilled, simple work does not necessarily account for a limitation in concentration. It's also why this case has to be remanded to the Commissioner for further proceedings.
At the hearing, the ALJ didn't include any restriction stemming from a moderate limitation in concentration, persistence, or maintaining pace in her hypothetical to the vocational expert, not even a faulty restriction to simple, routine work. (R. 74-75). That was a mistake: an ALJ's hypothetical to a vocational expert must include all the limitations supported by the medical record. Moreno ,
That's probably alright, but it's not ideal: it's out of earshot of the plaintiff's attorney at the hearing and buried in a 942-page record. It also can operate to subtly convey a message to the witness. Rules regarding expert testimony that apply elsewhere don't apply in Social Security disability cases. Chavez v. Berryhill ,
*942Barrett v. Barnhart ,
As it stands, the vocational expert's opinion that plaintiff could be a hand packager, a cleaner, or a laundry worker wasn't swayed by the addition of a restriction to work involving "simple, routine instructions and tasks." (R. 74-74, 315). But, can she do that work? Let's look at hand packager. According to the Dictionary of Occupational Titles, which the vocational expert and ALJ relied upon, hand packager involves working with a conveyor. https://occupationalinfo.org/92/920587018.html. It involves loading materials into "processing machines" and "tending packing machines and equipment." The most important ability in the job is the ability to "quickly make coordinated movements of" the hand and arm. https://occupationalinfo.org/onet/98902a.html. As described in the DOT, this type of work is problematic for someone who has trouble maintaining concentration persistence and pace, as was pointed out earlier. Cf. Browning v. Colvin ,
As is often the case, the descriptions and boxcar numbers for the jobs the vocational expert and the ALJ cited are suspect. See, e.g., Chavez ,
The vocational expert said that, nationally, there were 45,000 hand packager jobs; 95,000 cleaner jobs; and 35,000 laundry worker jobs. (R. 32, 74). We don't know where the vocational expert's numbers came from; we only know they didn't come from the DOT, Chavez ,
On the positive side, the VE in this case seemed to be on the conservative side of these wildly disparate numbers. But, still, there is nothing to prove that her estimates were not "conjured out of whole cloth," Donahue v. Barnhart ,
CONCLUSION
For the foregoing reasons, this case is remanded to the Commissioner for further proceedings.
Northern District of Illinois Internal Operating Procedure 22 prohibits listing the full name of the Social Security applicant in an Opinion. Therefore, the plaintiff shall be listed using only their first name and the first initial of their last name.
The Commissioner also argues that there is no evidence in the record that "plaintiff had any specific functional restrictions relating to problems maintaining concentration, persistence or pace." [Dkt. # 21, at 9]. But it was the ALJ, herself, that so found. (R. 22).
Plaintiff asks that the ALJ's decision be reversed and an award of benefits ordered. "It remains true that an award of benefits is appropriate only if all factual issues have been resolved and the record supports a finding of disability." Allord v. Astrue ,
Reference
- Full Case Name
- JOANNE F. v. Nancy A. BERRYHILL, Acting Commissioner of Social Security
- Cited By
- 7 cases
- Status
- Published