Sawaska v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PATRICK S.1, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-176

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court on petition for judicial review of the decision of the

Commissioner filed by the plaintiff, PatrickS., on May 10, 2019. For the following reasons, the

decision of the Commissioner is REMANDED.

Background

The plaintiff, Patrick S., filed an application for Disability Insurance Benefits on

December 10, 2015, alleging a disability onset date of February 6, 2015. (Tr. 15). The

Disability Determination Bureau denied Patrick S.’s applicationinitially on February 29, 2016,

and again upon reconsideration on July 18, 2016. (Tr. 15). Patrick S. subsequently filed a timely

request for a hearing on September 15, 2016. (Tr. 15). A hearing was held on January 22, 2018,

before Administrative Law Judge (ALJ) Jeanette Schrand, and the ALJ issued an unfavorable

decision on March23, 2018. (Tr. 15-24). Vocational Expert (VE) Joseph Thompson appeared

and testified at the hearing. (Tr. 15). The Appeals Council denied review making the ALJ’s

decision the final decision of the Commissioner. (Tr. 1-3).

Patrick S.met the insured status requirements of the Social Security Act through

1To protect privacy, the plaintiff’s full name will not be used in this Order.

September 30, 2021. (Tr. 17). At step one of the five-step sequential analysis for determining

whether an individual is disabled, the ALJ found that Patrick S.had not engaged in substantial

gainful activity since February 6, 2015, the alleged onset date. (Tr. 17).

At step two, the ALJ determined that Patrick S. had the following severe impairments:

the late effects of a right lower extremity amputation (fitted/using prothesis) and an obese body

habitus. (Tr. 18). The ALJ found that Patrick S.’s severeimpairments imposed more than a

minimal limitation on hisphysical or mental ability to engage in basic work activities. (Tr. 18).

The ALJ indicated that Patrick S. had the following non-severe impairments: diabetes mellitus,

hypertension,andleft vision loss. (Tr. 18). TheALJ determinedthat Patrick S.’s non-severe

impairments did not significantly limit his ability to perform basic work-related activities. (Tr.

18).

At step three, the ALJ concluded that Patrick S. did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 18). The ALJ indicated that she

consideredlisting 1.00(B)(2)(b), as well as the exacerbating impact of Patrick S.’s obesity in

determining whether his impairments met or medically equaled a listing. (Tr. 19).

After consideration of the entire record, the ALJ then assessed Patrick S.’s residual

functional capacity (RFC) as follows:

[T]he claimant has the residual functional capacity to perform light

work as defined in 20 CFR 404.1567(b) except the claimant can

never operate foot controls with the right lower extremity. The

claimant can occasionally climb ramps and stairs, balance, and

stoop, but he cannot kneel, crouch, crawl, or climb ladders, ropes,

or scaffolds. The claimant must avoid all exposure to wetness,

slippery uneven surfaces, extreme temperatures, and unprotected

heights and/or dangerous moving machinery. Secondary to his non-

severe left visual impairment, the claimant can never operate a

motor vehicle at night; moreover the claimant can never perform

work that requires precise depth perception, binocular vision, or

peripheral vision on the left. Lastly, he cannot read small print type

instructions (defined as 10 point type or less), but he can use

computers and/or other machinery that permit the user to enlarge

text.

(Tr. 19). The ALJ explained that in considering Patrick S.’s symptoms she followed a two-step

process. (Tr. 19). First, she determined whether there was an underlying medically determinable

physical or mental impairment that was shown by a medically acceptable clinical or laboratory

diagnostic technique that reasonably could be expected to produce Patrick S.’s pain or other

symptoms. (Tr. 19). Then she evaluated the intensity, persistence, and limiting effects of the

symptoms to determine the extent to which they limited Patrick S.’s functioning. (Tr. 19).

Afterconsidering the evidence, the ALJ found that Patrick S.’s medically determinable

impairments reasonably could be expected to produce his alleged symptoms. (Tr. 20). However,

she concluded that his statements concerning the intensity, persistence, and limiting effects of his

symptoms were not entirely consistent with the medical evidence and other evidence in the

record. (Tr. 20). The ALJ noted that Patrick S.’s allegations of symptoms consistent with his

right lower extremity disorder were not accepted as alleged because they were not consistent

with the objective medical evidence. (Tr. 20).

At step four, the ALJ determined that PatrickS. was unable to perform any past relevant

work. (Tr. 22). Considering PatrickS.’s age, education, work experience, and RFC, the ALJ

concluded that there were jobs in the national economy that he could perform, including folder

(60,000 jobs nationally), packer (60,000 jobs nationally), and assembler(150,000 jobs

nationally). (Tr. 23). The ALJ found that Patrick S. had not been under a disability, as defined

in the Social Security Act, from February 6, 2015, through the date of the ALJ’s decision, March

23, 2018. (Tr. 23-24).

Discussion

The standard for judicial review of an ALJ’s finding that a claimant is not disabled within

the meaning of the Social Security Act is limited to a determination of whether those findings are

supported by substantial evidence. 42 U.S.C. §405(g)(“The findings of the Commissioner of

Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);

Moore v. Colvin,743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097

(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the

correct legal standards and supported her decision with substantial evidence.”). Courts have

defined substantial evidence as “such relevant evidence as a reasonable mind might accept to

support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28

L. Ed. 2d 852 (1972) (quotingConsol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,

217, 83 L. Ed. 2d 140 (1938)); seeBates, 736 F.3d at 1098. A court must affirm an ALJ’s

decision if the ALJ supported herfindings with substantial evidence and if there have been no

errors of law. Roddy v. Astrue,705 F.3d 631, 636 (7th Cir. 2013)(citations omitted). However,

“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”

Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

Disability insurance benefits are available only to those individuals who can establish

“disability” under the terms of the Social Security Act. The claimant must show that he is unable

“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).

The Social Security regulations enumerate the five-step sequential evaluation to be followed

when determining whether a claimant has met the burden of establishing disability. 20 C.F.R. §

404.1520. The ALJ first considers whether the claimant is presently employed and “doing . . .

substantial gainful activity.” 20 C.F.R. § 404.1520(b). If he is, the claimant is not disabled and

the evaluation process is over. If he is not, the ALJ next addresses whether the claimant has a

severe impairment or combination of impairments that “significantly limits ...physical or

mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c); see Williams v. Colvin,

757 F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the combined effects of

the claimant’s impairments). Third, the ALJ determines whether that severe impairment meets

any of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it

does, then the impairment is acknowledged by the Commissioner to be conclusively disabling.

However, if the impairment does not so limit the claimant’s remaining capabilities, the ALJ

reviews the claimant’s “residual functional capacity” and the physical and mental demands of his

past work. If, at this fourth step, the claimant can perform his past relevant work, he will be

found not disabled. 20 C.F.R. § 404.1520(e). However, if the claimant shows that his

impairment is so severe that he is unable to engage in his past relevant work, then the burden of

proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job

experience, and functional capacity to work, is capable of performing other work and that such

work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f); see

Biestek v. Berryhill, 139 S. Ct. 1148, 203 L. Ed. 2d 504 (2019) (upon the disability benefits

applicant’s request, vocational expert's refusal to provide the private market-survey data

underlying his opinion regarding job availability does not categorically preclude the expert's

testimony from counting as “substantial evidence” but, instead, the inquiry is case-by-case).

Patrick S. has requested that the court reverse the ALJ’s decision and award benefits, or

in the alternative, remand this matter for additional proceedings. In his appeal, Patrick S. has

argued that the ALJ failed to support herstep five finding with substantial evidence.

A claimant seeking disability insurance benefits bears the burden of proof at steps one

through four of the ALJ’s sequential five-part inquiry. The burden then shifts to the

Commissioner at step five. Briscoe ex rel. Taylor v. Barnhart,425 F.3d 345, 352 (7th Cir.

2005). At this final step, the Commissioner must establish that the claimant’s RFC allows him to

engage in work found in significant numbers in the national economy. Liskowitz v. Astrue,559

F.3d 736, 742-43 (7th Cir. 2009); 20 C.F.R. §§ 404.1520(f), 404.1566. One way the

Commissioner may carry this burden is through the use of vocational expert testimony, provided

that such testimony is reliable. See Liskowitz,559 F.3d at 743.

At the administrative hearing, the ALJ asked the VE to assume a hypothetical individual

of the same age, education, and work experience as Patrick S. (Tr. 88). The ALJ then asked the

VE to assume that the individual is limited to a light exertional level as defined in the regulations

with the following additional limitations:

No right lower leg extremity foot controls; only occasional ramps

and stairs; never ladders, ropes, or scaffolds; and only occasional

balancing, stooping, kneeling, crouching, and crawling. With

respect to vision limitations, never performing work that requires

precise depth perception; never performing work that requires

binocular vision; and never performing work that requires peripheral

vision on the left side; never exposed to wetness; never exposed to

unprotected heights or moving mechanical parts; never exposed to

slick or uneven surfaces; and never required to operate a motor

vehicle at night as part of the job.

(Tr. 88). The ALJ modified thehypothetical as follows:

Never kneeling, crouching, or crawling; never exposed to extreme

cold; never exposed to extreme heat. And add that the hypothetical

person cannot read small-type print instructions, defined as 10-point

type, but can use computers or other machinery that permits the use

of larger or enlarged text.

(Tr. 90). In response to thehypothetical question, which is consistent with the limitations in the

RFC finding, the VE testified that such an individual could perform occupations such as folder,

packer, and assembler. (Tr. 89-90). The ALJ relied on this testimony in finding that there were

jobs that existed in the national economy that Patrick S. could perform. (Tr. 22-23).

Patrick S.’s attorney, Brian Marlowe,then proceeded to question the VE. Attorney

Marloweaskedthe VEwhether apersonwouldbe able to perform the jobs of folder, packer, and

assembler if that person could be on his feet foronlytwo-thirds of the eight-hour day. (Tr. 96).

The VE responded,

While the [Dictionary of Occupational Titles] defines light work as

standing up to six hours, generally the light positions -- and this

would be based on my experience --that the person would be --other

than a sit-stand aspect for light positions -- generally would be

required to stand much longer than the six-hour time frame, and I

believe that if they were not able to doso, that would eliminate those

positions.

(Tr. 96). Patrick S. has argued that the ALJ failed to rely on substantial evidence in finding that

he could perform the jobs foundat step five of the sequential evaluation process.

At the hearing, the ALJ’s hypothetical to the VE encompassed all of the limitations of the

ALJ’s assessment of Patrick S.’s RFC, including limiting him tolight exertional level defined by

the ALJ as “stand and/or walk for up to 6 hours in an 8 hour work period.” (Tr. 19, 88). Based

on the hypothetical, the VE testified that Patrick S. could perform the jobs of folder, packer, and

assembler. (Tr. 89-90). Further, when the ALJ asked the VE if his testimony was consistent

with the DOT, the VE replied affirmatively. (Tr. 94).

However, on cross-examination the VE testified that while the DOT defines light work as

standing up to six hours, based on his experience, persons performing light positions “generally

would be required to stand much longer than the six-hour time frame,” and that he believed “if

they were not able to do so, that would eliminate those positions.” (Tr. 96). Patrick S. contends

that based on the VE’s testimony a limitation to standing and/or walking of only 6 out of 8 hours

would not allow for the performance of the jobs the ALJ found he was capable of performing.

The Commissioner claims that the VE clearly believed that the specific jobs he identified

did not require standing more thansix hours per day. However, Patrick S. is “entitled to a

decision based on the record rather than on a hunch.” Wilder v. Chater,64 F.3d 335, 338 (7th

Cir. 1995). The VE’s initial testimonyand his testimony on cross examinationwere

inconsistent. Therefore, it was unclear whether Patrick S. could perform the jobs of folder,

packer, and assembler. Furthermore, the ALJ elicited noother jobs that considered the limitation

to standing 6 hours in an 8-hour workday.

Before relying on a VE’s opinion, the ALJ must elicit straightforward testimony that the

claimant could perform work existing in significant numbers in the national economy despite his

limitations. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (“The

claimant bears the burden of proof at steps one through four, after which at step five the burden

shifts to the Commissioner.”). The ALJ did not do so here. The ALJ did not ask the VE about

the inconsistencies between his initial testimony and his testimony on cross examination.

Moreover, the ALJ did not resolve these inconsistencies in her decision. “A finding based on

unreliable VE testimony is equivalent to a finding that is not supported by substantial evidence

and must be vacated.” Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 2008) (quoting Britton v.

Astrue, 521 F.3d 799, 803 (7th Cir. 2008)). Accordingly, remand is required.

Patrick S. has requested that the court remand for an award of benefits. An award of

benefits is appropriate “only if all factual issues involved in the entitlement determination have

been resolved and the resulting record supports only one conclusion—that the applicant qualifies

for disability benefits.” Allord v. Astrue,631 F.3d 411, 415 (7th Cir. 2011). The Seventh

Circuit has held that when an ALJ’s decision is not supported by substantial evidence, the

appropriate remedy is to remand for further proceedings unless the evidence before the court

compels an award of benefits. Briscoe v. Barnhart,425 F.3d 345, 355 (7th Cir. 2005). The

record here does not warrant an award of benefits.

Based on the foregoing reasons, the decision of the Commissioner is REMANDED for

further proceedings consistent with this order.

ENTERED this 15thday of May, 2020.

/s/ Andrew P. Rodovich

United States Magistrate Judge