The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID N.1
)
)
Plaintiff,
)
)
vs. Civil No. 3:20-cv-00403-GCS
)
)
COMMISSIONER of SOCIAL
)
SECURITY,
)
)
Defendant.
MEMORANDUM & ORDER
SISON, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final
agency decision denying his application for Disability Insurance Benefits (“DIB”).2
PROCEDURAL HISTORY
Plaintiff applied for DIB on November 17, 2016 alleging disability as of September
2016. After reconsideration, the Commissioner issued a Notice of Disapproved Claims
dated June 13, 2017. After holding an evidentiary hearing in November 2018,
Administrative Law Judge (“ALJ”) Jason Panek denied the application on February 27,
1 Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns. See
FED. R. CIV. PROC. 5.2(c) and the Advisory Committee Notes thereto.
2 This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. § 636(c). See (Doc. 20).
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2019. (Tr. 27-46). On March 6, 2020, the Appeals Council denied Plaintiff’s request for
review, making the ALJ’s decision the final agency decision subject to judicial review. (Tr.
1-3). Plaintiff exhausted administrative remedies and filed a timely complaint with this
Court.
ISSUES RAISED BY PLAINTIFF
Plaintiff raises the following issues:
1. The ALJ failed to obtain a medical opinion on which to base the RFC
assessment.
2. The ALJ failed to include limitations from moderate deficiencies in
concentration, persistence, or pace in the RFC assessment.
3. The ALJ failed to fully develop the record.
APPLICABLE LEGAL STANDARDS
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he has an
“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 twelve
months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a claimant is disabled, the ALJ considers the following five
questions in order: (1) Is the claimant presently unemployed? (2) Does the claimant have
a severe impairment? (3) Does the impairment meet or medically equal one of a list of
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specific impairments enumerated in the regulations? (4) Is the claimant unable to perform
his former occupation? and (5) Is the claimant unable to perform any other work? See 20
C.F.R. § 404.1520.
An affirmative answer at either step 3 or step 5 leads to a finding that the claimant
is disabled. A negative answer at any step, other than at step 3, precludes a finding of
disability. The claimant bears the burden of proof at steps 1–4. Once the claimant shows
an inability to perform past work, the burden then shifts to the Commissioner to show
the claimant’s ability to engage in other work existing in significant numbers in the
national economy. See Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
It is important to recognize that the scope of judicial review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Accordingly, this Court is not tasked
with determining whether or not Plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether any
errors of law were made. See Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.
2003). The Supreme Court defines substantial evidence as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019) (internal citations omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
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questions of credibility, or substitute its own judgment for that of the ALJ. See Burmester
v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). Though judicial review is deferential, it is not
abject; this Court does not act as a rubber stamp for the Commissioner. See Parker v.
Astrue, 597 F.3d 920, 921 (7th Cir. 2010).
THE DECISION OF THE ALJ
The ALJ followed the five-step analytical framework described above. First, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since September
20, 2016. Second, the ALJ found that Plaintiff had the severe impairment of borderline
intellectual functioning as it significantly limited the ability to perform basic work. Third,
the ALJ found that Plaintiff’s “impairments considered singularly, in combination with
SSR 02-1p, do not meet or equal any physical listing, including the listings under
Category 4.00. This is because the record fails to reveal, for example, the requisite test
results.” (Tr. 22). Next, the ALJ found that Plaintiff has the residential functional capacity
(“RFC”) “to perform a full range of work at all exertional levels but with the following
non-exertional limitations: [c]an understand and remember short, simple instructions
and can attend to and carry out simple, routine tasks.” Additionally, the ALJ found that
Plaintiff could not perform his past relevant work as kitchen worker (dishwasher) or
delivery driver. (Tr. 30). However, the ALJ found that Plaintiff could work as a racker,
stringer, or picking table worker (all unskilled, light work) which jobs exist in significant
numbers in the national economy. (Tr. 31). The Appeals Council denied Plaintiff’s request
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for review.
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in preparing
this Memorandum and Order. The following summary of the record is directed to the
points raised by Plaintiff.
1. Evidentiary Hearing
Plaintiff was represented by an attorney, Dawna A. Hale, at the hearing in
November 2018. (Tr. 14-71). At this hearing, Plaintiff testified as did Plaintiff’s sister,
Sarah Crause, a special education teacher. (Tr. 17). The vocational expert (“VE”), Dr. Trya
Watts, also testified. Id.
Plaintiff testified that he lives by himself in an apartment in Alton, Illinois; that he
works 10 hours per week at $10 an hour delivering medication to hospice patients and
other individuals in the Alton/Godfrey, Illinois area; and that he has a driver’s license
with no restrictions, drives his own car and is able to pay the rent with some financial
help from family. Plaintiff is a high school graduate. During his junior and senior years
in high school, Plaintiff only took special education classes as he could not keep up during
his freshman and sophomore years. (Tr. 44- 47).
From January 2011 to September 2016, Plaintiff worked at the Golden Corral
restaurant as a dishwasher. He was fired from that position when the restaurant changed
hands from Kennedy & Crause (Plaintiff’s sister’s husband’s family) to RFR, Inc. (Tr. 48-
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49). Prior to that employment, Plaintiff worked 16 years at Central Avenue Auto Parts
delivering auto supplies from the store to garages. Plaintiff got this job through his dad,
a customer of the store. At this job, Plaintiff drove a company pickup truck. (Tr. 50).
Plaintiff also testified he is disabled and cannot work full-time because he had a
heart attack three years ago. (Tr. 52). The heart attack slows him down as he easily gets
tired. Id. Currently, Plaintiff does not have any problems or chest pain. Id.
Ms. Crause, Plaintiff’s sister, testified that she sometimes sees him weekly, every
couple weeks, or every three weeks. Plaintiff used to come to her house weekly to do
laundry and have dinner, however, Plaintiff stopped coming over to her house. Plaintiff
told Ms. Crause that he was doing laundry at a friend’s house. Ms. Crause also noted that
she buys Plaintiff new clothes because his clothes smell. (Tr. 54). Ms. Crause indicated
that if she pushes Plaintiff too hard, he shuts down and gets defensive. When Ms. Crause
allowed Plaintiff to have possession of her checkbook (when his mother was alive, his
mother did not allow him to have the checkbook), he spent $900 in two and a half weeks,
and Ms. Crause had to cover the checks. She further testified that discussing finances with
Plaintiff causes him to shut down, that he will not speak to her, and that he has no concept
of money. (Tr. 55-56).
Ms. Crause thinks that Plaintiff has deficits in adaptive behavioral skills, issues
with self-direction, personal hygiene, and social communication. (Tr. 61). Plaintiff was
fired from his job at the Golden Corral for sending out dirty dishes to the customers. (Tr.
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60). Ms. Crause thinks that Plaintiff could work full-time only with multiple prompts a
day, as he has difficulty following anything beyond two-step directions.
Ms. Crause also said that he has bad personal hygiene, that his breath stinks, and
that he does not communicate well. (Tr. 57). In 2015, after their mother passed, Plaintiff’s
apartment was not clean; their mother used to clean the apartment. As a result, Ms.
Crause called Plaintiff’s social worker, and the social worker took care of things at the
apartment.3
Plaintiff sees his social worker every two weeks to touch base, to discuss hygiene,
and to obtain his medication. (Tr. 62). The social worker set up weekly delivery for his
medication. (Tr. 63). Ms. Crause balances Plaintiff’s checkbook, but Plaintiff takes his
checkbook to the social worker, and together they write out the bills because that is what
Plaintiff wants. Id.
Plaintiff will golf with Ms. Crause’s husband. (Tr. 65-66). Plaintiff also participates
in church activities. Id.
Dr. Watts classified Plaintiff’s past work as follows: (1) “kitchen helper DOT code
318.687-010, SVP of 2, which is unskilled, a strength of medium[;]” and (2) “delivery
driver DOT code 292.353.010, SVP of 3, which is semi-skilled and a strength of medium.”
(Tr. 68). Dr. Watts testified that a hypothetical, younger individual with a high school
education and the past work consistent with what was described for the Plaintiff could
3 Ms. Crause said that the apartment was in disarray and smelled. The apartment also had feces on
the floor and urine around the toilet. (Tr. 58).
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not perform the Plaintiff’s past work. (Tr. 68-69). Dr. Watts’s conclusion was also based
on the fact that this younger individual could “understand and remember no more than
short and simple instructions[,]” would be “limited to attending to and carrying out
simple/routine tasks[,]” and would not be “subject to any exertional limitations[.]” Id.
Dr. Watts noted, however, that this hypothetical individual could perform other jobs. (Tr.
69). Specifically, such an individual could work as a racker, stringer or picking table
worker (all unskilled, light work), and such jobs did exist in significant numbers in the
national economy. (Tr. 69-70). Nevertheless, Dr. Watts testified that competitive work
does not exist if an individual required re-direction by a supervisor four times in an eight-
hour workday to remain on task. (Tr. 70).
2. Relevant Medical Records and Evidence
Dr. Frederic Golden, Ph.D.
Dr. Golden evaluated Plaintiff on February 25, 2015 and on March 9, 2015. Plaintiff
was referred to Golden by his brother-in-law, James Crause, to determine Plaintiff’s
potential eligibility for disability insurance benefits. Golden administered the Wechsler
Adult Intelligence Scale – Revised and the Inventory for Client and Agency Planning
tests. Plaintiff’s Full-Scale IQ score was 84, which means that Plaintiff functions
intellectually at the upper limit of the Borderline range. Plaintiff’s Overall Adaptive
Behavior Age Equivalent was 9 years and 9 months. Plaintiff also had a corresponding
ICAP Service Level score of 8, which means there is a need for limited personal care
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and/or regular supervision. Golden summarized as follows:
David Norris is a 45-year old man, who is not viewed to be developmentally
disabled. There are some deficits in self-direction and learning. David received
some special education remediation as a youngster. He graduated from Alton
High School in 1988. David does require some assistance to maintain the
highest possible quality of life. David needs some help to manage his health,
finances, and overall life circumstances. David is competent enough to sign
over his Power of Attorney if he so wishes.
(Tr. 258-259).
Dr. Stephen G. Vincent, Ph.D.
Dr. Vincent saw Plaintiff on March 8, 2017 for a mental status examination at the
request of Defendant. Vincent reviewed Golden’s report. Vincent noted that Plaintiff’s
“personal hygiene and grooming were intact[.]” (Tr. 340). He also noted that Plaintiff
seemed “somewhat slow and concrete requiring repetition and simplification of test
instructions,” but that Plaintiff “had no difficulties responding to all test demands.” Id.
Vincent believed Plaintiff had the ability to manage his own funds. (Tr. 342). Plaintiff
reported that his “memory is poor.” Vincent also noted that “he did have difficulties with
staying focused on task, particularly in regards to processing sequential information
compromising working memory and problem solving abilities limiting his capacity to
initiate, organize, sequence and plan tasks resulting in being error prone with poor self-
correction.” (Tr. 341). Dr. Vincent summarized and concluded in part:
He does report a history of learning disabilities, having been in special
education classes throughout school with a full-scale IQ in file of 84. During
the examination, although somewhat concrete with his responses, he was able
to respond appropriately, but responses were slow and deliberate, many times
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answering in a question-like form due to fear of failure and exposure of
cognitive weakness.
Lastly, Dr. Vincent’s diagnostic impression of Plaintiff was borderline intellectual
functioning as per his history. (Tr. 342).
Dr. Howard Tin, PsyD
On March 27, 2017, Dr. Howard Tin, PsyD, a state agency medical consultant
employed by Defendant, found that Plaintiff had no severe mental impairment. Dr. Tin
stated: “[c]laimant’s allegation of the severity of the disorder is not consistent with the
claimant’s ability to function generally well from day to day.” (Tr. 77).
Dr. Donald Cochran, PhD
On June 7, 2017, Dr. Donald Cochran, PhD, a state agency medical consultant
employed by Defendant, likewise found that Plaintiff had no severe mental impairment
and wrote: “[c]laimant’s allegation of the severity of the disorder is not consistent with
claimant’s ability to function generally well from day to day.” (Tr. 87).
ANALYSIS
First, the Court addresses Plaintiff’s second argument that the ALJ failed to include
limitations from moderate deficiencies in concentration, persistence, or pace in the RFC
assessment.
The ALJ’s RFC assessment and the hypothetical question posed to the VE must
incorporate all of the limitations that are supported by the record. See Yurt v. Colvin, 758
F.3d 850, 857 (7th Cir. 2014). This is a well-established rule. See Stewart v. Astrue, 561 F.3d
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679, 684 (7th Cir. 2009)(collecting cases). If the ALJ finds that a plaintiff has a moderate
limitation in maintaining concentration, persistence or pace, that limitation must be
accounted for in the hypothetical question posed to the VE. In most cases, limiting the
plaintiff to simple, repetitive tasks or to unskilled work is not sufficient to account for
moderate concentration difficulties. The Seventh Circuit has clearly indicated that a
limitation to simple instructions or simple, routine tasks does not adequately account for
a moderate limitation in maintaining concentration, persistence, or pace. “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).
Here, the ALJ found that Plaintiff had moderate limitations in his ability to
understand, remember or apply information, as well as to concentrate, persist or maintain
pace. Specifically, the ALJ found: “[t]he area of understanding, remembering, or applying
information refers to the abilities to learn, recall and use information to perform work
activities. The area of concentrating, persisting or maintaining to pace refers to the
abilities to focus attention on work activities and stay on task at a sustained rate.” (Tr.
22). He noted that while the step three determination is not a mental RFC assessment, the
ultimate RFC assessment “reflects the degree of limitation the undersigned has found in
the ‘paragraph B’ mental functional analysis.” (Tr. 25).
The ALJ found that Plaintiff had the RFC to perform a full range of work at all
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exertional levels, but with the following non-exertional limitations: can understand and
remember short, simple instructions; can attend to and carry out simple, routine tasks.
(Tr. 26).
The Seventh Circuit has repeatedly held, with exceptions not applicable here, that
a limitation to simple, repetitive tasks or unskilled work does not adequately account for
a moderate limitation in maintaining concentration, persistence or pace. In Stewart, for
example, the Seventh Circuit noted that “[t]he Commissioner continues to defend the
ALJ's attempt to account for mental impairments by restricting the hypothetical to
‘simple’ tasks, and we and our sister courts continue to reject the Commissioner's
position.” Stewart, 561 F.3d at 685. The Court has reaffirmed that position several times
in recent years. See O'Connor-Spinner, 627 F.3d at 620; Yurt, 758 F.3d at 857; Varga v. Colvin,
794 F.3d 809, 814 (7th Cir. 2015); Taylor v. Colvin, 829 F.3d 799, 802 (7th Cir. 2016); Moreno
v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018), as amended on reh'g (Apr. 13, 2018); DeCamp
v. Berryhill, 916 F.3d 671, 676 (7th Cir. 2019).
Here, the ALJ found that Plaintiff had the RFC to perform a full range of work at
all exertional levels but with the following non-exertional limitations: can understand
and remember short, simple instructions; can attend to and carry out simple, routine
tasks. (Tr. 26). That is not sufficient to account for a moderate limitation in maintaining
concentration, persistence, or pace. “More to it, observing that a person can perform
simple and repetitive tasks says nothing about whether the individual can do so on a
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sustained basis, including, for example, over the course of a standard eight-hour work
shift.” Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019). As the Seventh Circuit explained
in a recent case:
. . . the relative difficulty of a specific job assignment does not necessarily correlate
with a claimant’s ability to stay on task or perform at the speed required by a
particular workplace. . . . Put another way, someone with problems concentrating
may not be able to complete a task consistently over the course of a workday, no
matter how simple it may be.
Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020).
The ALJ in Martin adequately accounted for deficiencies in maintaining
concentration, persistence, and pace by limiting the plaintiff to jobs that involve “only
simple tasks with low stress, occasional changes, a flexible pace, and superficial
interactions with others.” Martin, 950 F.3d at 373. Similarly, in Burmester, the Seventh
Circuit found no error where the ALJ limited the plaintiff to “simple, routine, repetitive
tasks requiring only simple work-related decisions with few changes in the routine work
setting and no more than occasional interaction with supervisors, coworkers, and the
general public.” Burmester, 920 F.3d at 509. The reviewing doctor in that case “stated in
the ‘Statement of Work Capacity’ portion of his assessment that Burmester had the
‘ability to understand, remember and carry out simple instructions subject to physical
limitations,’ that ‘maintaining concentration and attention should be manageable’ and
that she ‘should be able to withstand routine work stress and adapt to typical job site
changes.’” Burmester, 920 F.3d at 511.
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Seventh Circuit precedent does not require the ALJ to use specific words to express
a claimant’s limitations in maintaining concentration, persistence, or pace. The Seventh
Circuit, however, explained what was required when it stated the following: “[w]e
decline to provide a glossary of adjectives for use in RFC determinations. What we do
require—and our recent precedent makes plain—is that the ALJ must account for the
‘totality of a claimant’s limitations’ in determining the proper RFC.” Martin, 950 F.3d at
374.
Here, the ALJ found that Plaintiff had the severe impairment of borderline
intellectual functioning based on the two psychological evaluations in evidence.
Specifically, the ALJ stated that the borderline intellectual functioning “significantly”
limits the ability to perform basic work activities as required by SSR 85-28. (Tr. 20). The
record does contain differing findings regarding this issue. On the one hand, both of
Defendant’s medical consultants, Drs. Tin and Cochran, found that Plaintiff did not have
a severe mental impairment. Drs. Golden and Vincent, on the other hand, diagnosed
Plaintiff as having borderline intellectual functioning. In fact, Dr. Golden found Plaintiff
had some deficits in self-direction and learning. Likewise, Dr. Vincent observed that
Plaintiff had difficulties staying focused on task, that Plaintiff required repetition and
simplification of test instructions, and that Plaintiff was slow.
In light of the above evidence in the record, the Commissioner’s reliance on Jozefyk
v. Berryhill, 923 F.3d 492 (7th Cir. 2019) is misplaced. In Jozefyk, the Seventh Circuit rejected
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the plaintiff’s argument that it was error to omit a reference to a moderate limitation in
concentration, persistence, or pace from the RFC assessment and hypothetical question
where “according to the medical evidence, his impairments surface only when he is with
other people or in a crowd.” Jozefyk, 923 F.3d at 498. Jozefyk, however, is distinguishable
from the instant case on that very basis. The Seventh Circuit explained as follows in a
later case:
In closing, we owe a word to the Commissioner’s reliance on our recent
decision in Jozefyk v. Berryhill, 923 F.3d 492 (7th Cir. 2019). We do not read Jozefyk
to save the shortfalls in the ALJ’s analysis here. In Jozefyk, we determined that any
error in formulating the RFC was harmless because the claimant had not testified
about any restrictions in his capabilities related to concentration, persistence, or
pace, and the medical evidence did not otherwise support any such limitations.
923 F.3d at 498. As the Commissioner concedes, the facts here are different. The
medical evidence plainly shows, and the ALJ recognized, that Crump suffers
from CPP limitations.
Crump, 932 F.3d at 571. Here, of course, there is testimony and medical evidence
supporting that Plaintiff had trouble staying on task and had difficulty focusing and
concentrating.
The Commissioner fails to address the central point here, which is that, based on
the record, the ALJ found that Plaintiff has moderate limitations in maintaining
concentration, persistence, or pace, but failed to account for that limitation in the RFC
assessment.4
The ALJ’s error requires remand. “If a decision ‘lacks evidentiary support or is so
4 As the Court finds that the ALJ committed error regarding the RFC assessment requiring remand,
the Court need not address Plaintiff’s other two arguments.
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poorly articulated as to prevent meaningful review,’ a remand is required.” Kastner v.
Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (internal citation omitted).
This Memorandum and Order should not be construed as an indication that the
Court believes that Plaintiff was disabled during the relevant period, or that he should
be awarded benefits. On the contrary, the Court has not formed any opinions in that
regard and leaves those issues to be determined by the Commissioner after further
proceedings.
CONCLUSION
The Commissioner’s final decision denying Plaintiff's application for disability
benefits is REVERSED and REMANDED to the Commissioner for rehearing and
reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk
of Court is directed to enter judgment in favor of Plaintiff.
IT IS SO ORDERED. Digitally signed
DATED: May 28, 2021. Aliking Qdy, yee ° eee
10:18:42 -05'00'
GILBERTC.SISON
United States Magistrate Judge
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