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Yokem v. Commissioner of Social Security

United States District Court, C.D. Illinois, Springfield Division

February 23, 2017

BRADLEY D. YOKEM, Plaintiff,



         Plaintiff Bradley D. Yokem appeals from the denial of his application for Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income Disability Benefits (SSI) under Title XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c (collectively Disability Benefits). This appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). The parties consented to proceed before this Court pursuant to 28 U.S.C. § 636(c). Consent to the Exercise of Jurisdiction by a United States Magistrate and Reference Order entered March 23, 2016 (d/e 9). This matter is before this Court on Yokem's Brief in Support of Motion for Summary Judgment (d/e 13) (Yokem's Motion), and Defendant Commissioner of Social Security's Motion for Summary Affirmance (d/e 16) (Commissioner's Motion). For the reasons set forth below, Yokem's Motion is ALLOWED, the Commissioner's Motion is DENIED, and the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence 4 of 42 U.S.C. § 405(g).


         Yokem raises narrow issues on appeal related to the Administrative Law Judge's (ALJ) characterization of Yokem's Residual Functional Capacity (RFC) and the ALJ's treatment of the hearing testimony of Vocational Expert Gary Weimhold. The Court will focus on the facts relevant to these issues. Yokem was born on August 21, 1969. He completed high school. He previously worked as a carpenter and laborer. He last worked on September 26, 2008. In his applications, Yokem alleged he became disabled on September 27, 2008. The last date that Yokem was insured for Disability Benefits was December 31, 2013. Yokem suffers from degenerative cervical disc disease, Buerger's disease, degenerative joint disease in his right shoulder, and status post lumbar spinal surgery. Yokem also lost the tip of his dominant right index finger. Certified Transcript of Proceedings before the Social Security Administration (d/e 11) (R.), at 85, 87, 298.

         On September 4, 2014, the ALJ held an evidentiary hearing. Yokem appeared with his counsel. Vocational Expert Weimhold also appeared at the hearing by telephone. R. 103. Yokem testified at the hearing, and then Weimhold testified. The ALJ asked Weimhold the following question:

Q . . . I'd like to ask you to please assume a hypothetical individual, 45 years of age, high school education, no relevant past work for purposes of my question. I'd like to further assume the hypothetical individual that I'm referring to would be able to lift and/or carry 20 pounds occasionally, 10 pounds frequently. Further assume the hypothetical individual would be able to stand and/or walk for two hours of an eight hour work day, and sit for about six hours of an eight hour work day. The hypothetical individual would be able to occasionally climb ramps and stairs, but no ladders, ropes, or scaffolds; occasionally stooping, kneeling, crouching; no crawling. The hypothetical individual would be able to frequently reach, but only with occasional overhead reaching, frequently handle, occasionally finger and feel. The hypothetical would need to avoid temperature extremes of cold, hazards such as dangerous machinery or unprotected heights.
. . . .
Q Please tell us in your opinion if the hypothetical individual I described would be able to perform in any unskilled occupations, in the national economy?

R. 154-55.

         Weimhold opined that such a person could perform the jobs of parking lot attendant, with 25, 000 such jobs existing nationally; information clerk, with 60, 000 such jobs existing nationally; and unskilled cashier II jobs limited to environments in which the person is able to sit while cashiering, with 19, 000 such jobs existing nationally. Weimhold testified that the number of parking lot attendant jobs would be limited to jobs available in parts of the country with warmer climates due to the need to avoid extreme cold. Weimhold opined that this additional limitation would reduce the available relevant parking lot attendant jobs by 50 percent. R. 155-56.

         Weimhold testified that his opinion was inconsistent with the Dictionary of Occupational Titles (DOT) published by the Department of Labor. He testified that the jobs were all listed as light exertional jobs in the DOT. R. 155.

         The ALJ asked Weimhold about the inconsistencies:

Q All right. Could you describe the inconsistencies with the Dictionary of Occupational Titles that you referred to earlier?
A Yes; the main inconsistency would be -- the DOT would say that these jobs would be light and require up to six hours of either standing or walking. And I'm deviating from that in these reduced occupational base projections by saying that these situations the jobs could be performed with six hours of sitting and intermittent standing or walking of up to two hours during the course of a day.
Q So if your answer is not based on the Dictionary of Occupational Titles what's it based on?
A That would -- in other ways is it all consistent with the DOT; but this is based upon my experience and having surveys, labor markets that are relative to these kinds of jobs, and my observation of persons performing this work.

R. 157.

         Yokem's attorney asked Weimhold about the inconsistencies with the DOT:

Q . . . And is it -- I just want to make sure I understand exactly what you're saying. You're saying those jobs are described by the Dictionary of ...

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