United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY T. GILBERT, Magistrate Judge.
Plaintiff Randee Lee Kobal ("Claimant") seeks review of the final decision of the Acting Commissioner of Social Security Administration ("Commissioner") denying her application for supplemental security income under section 1614(a)(3)(A) of the Social Security Act. Claimant filed this appeal pursuant to 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1 for all proceedings, including entry of final judgment.
This matter is before the Court on the parties' cross-motions. For the reasons stated herein, Claimant's Motion to Reverse the Decision of the Commissioner of Social Security [ECF 20] is granted, and the Commissioner's Motion for Summary Judgment [ECF 27] is denied. This case is remanded for further proceedings consistent with this Memorandum Opinion and Order.
I. PROCEDURAL HISTORY
Claimant filed an application for supplemental security income on August 16, 2010, alleging a disability beginning March 1, 2004. (R. 23). Claimant suffers from asthma/chronic obstructive pulmonary disorder ("COPD"), multiple bilateral breast surgeries, degenerative disc disease of the cervical spine, obesity, anxiety and depression. (R. 25). The application was denied on April 14, 2011 and again after reconsideration on September 1, 2011. (R. 23). Claimant filed a written request for a hearing before an Administrative Law Judge ("ALJ") on September 27, 2011. (R. 23). Claimant appeared and testified at a hearing held on April 13, 2012, and she was represented by an attorney at the hearing. (R. 43-88). A vocational expert also testified at the hearing. Id.
On July 20, 2012, the ALJ denied Claimant's application for supplemental security income and found her not disabled under the Social Security Act. (R. 23-36). At step one, the ALJ found that Claimant had not engaged in substantial gainful activity since August 16, 2010, the application date. (R. 25). At step two, the ALJ found that Claimant had the severe impairments of asthma/COPD, multiple bilateral breast surgeries, degenerative disc disease of the cervical spine, obesity, anxiety and depression and the non-severe impairments of tendonitis of the left wrist, carpal tunnel syndrome and ganglion cyst. (R. 25). At step three, however, the ALJ found Claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R part 404, Subpart P, Appendix 1 (20 C.F.R §§ 416.920(d), 416.925 and 416.926) of the regulations. (R. 26).
At step four, the ALJ found that Claimant has the residual functional capacity ("RFC") "to perform medium work as defined in 20 CFR 416.967(c) except the claimant can occasionally push and pull hand controls with upper extremities; occasionally climb ramps and stairs, never climb ladders, ropes or scaffolds; occasionally reach in all directions with bilateral upper extremities; have no more than occasional exposure to concentrated levels of dust, fumes or gases and is limited to simple, routine tasks." (R. 28). At step five, the ALJ concluded that Claimant was unable to perform any of her past relevant work but found that there are jobs in the national economy that she could perform. (R. 34-35). Accordingly, the ALJ concluded that Claimant was not disabled under the Social Security Act. (R. 36).
Claimant requested review of the ALJ's decision by the Appeals Council, but her request for review was denied on April 11, 2013 (R. 1), leaving the ALJ's decision as the final decision of the Commissioner. See 20 C.F.R. § 404.981. This Court, therefore, has jurisdiction pursuant to 42 U.S.C. § 405(g).
Claimant argues that this case should be reversed or remanded because the ALJ (1) failed to account for Claimant's limitation with regard to concentration, persistence or pace in her RFC assessment, (2) ignored portions of the opinion of the State agency's psychologist, (3) failed to analyze her impairments in combination, (4) impermissibly rejected her use of portable oxygen when she assessed Claimant's RFC, (5) relied on erroneous testimony from the vocational expert, and (6) improperly analyzed Claimant's allegations of pain. After reviewing the parties' briefs and the administrative record, the Court concludes that remand is required. At a minimum, the ALJ must reevaluate her assessment of Claimant's RFC, provide a better explanation of Claimant's RFC, including how the ALJ accounts for Claimant's moderate limitation with regard to concentration, persistence or pace and Claimant's use of portable oxygen, and include, as appropriate, any additional limitations in the hypotheticals posed to the vocational expert.
A. THE ALJ DID NOT ACCOUNT FOR CLAIMANT'S MODERATE LIMITATION IN CONCENTRATION, PERSISTENCE OR PACE IN CLAIMANT'S RFC ASSESSEMENT
Claimant argues that the ALJ erred when she failed to incorporate Claimant's moderate limitation with regard to concentration, persistence or pace in her assessment of Claimant's RFC. Claimant's Brief [ECF 20], at 7-9. The Court agrees.
An ALJ's assessment of a claimant's RFC is a determination of the maximum level of activity that the claimant is capable of sustaining despite her impairments. Social Security Ruling 96-8p. An ALJ must include all limitations that are produced by medically determinable impairments. Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). Any limitations found by the ALJ at step three of her analysis should be included in the RFC assessment. Kasarsky v. Barnhart, 335 F.3d 539, 543-44 (7th Cir. 2002) (limitations found by the ALJ at step 3 of her analysis should be included in the RFC assessment); O'Connor-Spinner v. Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010) (holding that in most cases an ALJ should "refer expressly to limitations on concentration, persistence and pace in the hypothetical in order to focus the [vocational expert's] attention on these limitations and assure reviewing courts that the [vocational expert's] testimony constitutes substantial evidence of the jobs that a claimant can perform"). Unfortunately, the ALJ did neither here.
The Commissioner contends that the ALJ sufficiently accommodated Claimant's limitation in concentration, persistence or pace by limiting Claimant to performing simple, routine work. Commissioner's Brief [ECF 27], at 3-4. The Commissioner argues that the ALJ relied upon the opinion of the state agency psychiatrist Dr. Henson who opined that Claimant suffered from mild limitation in concentration, persistence or pace yet retained the RFC to perform simple, routine work. (R. 34, 556). The ALJ, however, determined that Claimant's impairment in concentration, persistence or pace was moderate (not mild), a greater limitation than what Dr. Henson had opined. (R. 27). While a restriction to perform simple, routine work was supported in this record to accommodate a mild limitation in concentration, persistence or pace for Claimant, the ALJ concluded that Claimant had moderate limitation in concentration, persistence or pace. Therefore, the Commissioner cannot rely upon Dr. Henson's opinion that restricting ...