United States District Court, N.D. Illinois, Eastern Division
CARLA Y. GORDON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge
October 6, 2014, I granted a motion filed by the Commissioner
under Fed.R.Civ.P. 60(b) and 62.1 in the case of Triplett
v. Colvin, 12-CV-4382. Some eleven months after the
ruling affirming the ALJ's decision in that case, the
Commissioner argued that the case should be remanded based on
six opinions that were issued in the summer of 2014, and
explained in chambers upon presentation of the motion that
these represented drastic changes in the law. See Yurt v.
Colvin, 758 F.3d 850 (7th Cir. July 10, 2014);
Murphy v. Colvin, 759 F.3d 811 (7th Cir. July 22,
2014); Hanson v. Colvin, 760 F.3d 759 (7th Cir. July
30, 2014); Moon v. Colvin, 763 F.3d 718 (7th Cir.
2014); Goins v. Colvin, 764 F.3d 677 (7th Cir.
2014); Browning v. Colvin, 766 F.3d 702 (7th Cir.
2014). Triplett v. Colvin, 12-CV-4382 (Dkt. # 47,
50). Among the issues the Commissioner represented as
affected by these cases in Triplett were the
ALJ's assessment of the claimant's residual
functional capacity, and the use of vocational expert
testimony. Triplett v. Colvin, 12-CV-4382 (Dkt. #
47, at 2).
case, at least one of these issues, which recur frequently in
these cases, is apparent from initial review of the
administrative record. The ALJ determined that the plaintiff
has moderate limitations on her concentration, persistence,
and pace. (R. 26). She purported to account for that by
limiting the plaintiff to “simple, routine tasks”
in both her RFC finding and her hypothetical to the
vocational expert. (R. 27, 76-77). In the aforementioned
Yurt, and other cases, the Seventh Circuit has taken
ALJs to task for attempting to accommodate concentration
problems with simple work or routine work or unskilled work.
The fact that a job might be simple or easy to learn does not
mean that someone who has difficulty maintaining
concentration or focus can perform it. See, e.g., Varga
v. Colvin, 794 F.3d 809, 814 (7th Cir.
2015)(hypothetical question positing a person capable of
performing “simple, routine, and repetitive
tasks” but unable to perform work involving “fast
paced production” did not account for difficulties
maintaining concentration, persistence, and pace);
Yurt, 758 F.3d at 858-59 (“we 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.”); O'Connor-Spinner v. Astrue,
627 F.3d 614, 620 (7th Cir. 2010)(“In most cases ...
employing terms like ‘simple, repetitive tasks' on
their own will not necessarily exclude from the VE's
consideration those positions that present significant
problems of concentration, persistence and pace.”).
there are some concerns with the ALJ's rejection of the
plaintiff's allegations regarding her pain and other
symptoms. The ALJ faulted plaintiff for not regularly taking
medication ®. 28), but failed to explore or discuss the
possible reasons for this as required by Seventh Circuit case
law. See Thomas v. Colvin, 826 F.3d 953, 960 (7th
Cir. 2016); Murphy v. Colvin, 759 F.3d 811, 816 (7th
Cir. 2014); Shauger v. Astrue, 675 F.3d 690, 696
(7th Cir. 2012). For example, the record indicates that
plaintiff's insurance did not cover some of her
prescriptions. (R. 37). See Goins, 764 F.3d at 679.
The ALJ also stated that plaintiff resisted seeking treatment
for her ailment until 2015. But the immense record - well
over 800 pages - suggests otherwise. Even the ALJ recounted
regularly trips to doctors with complaints of pain prior to
2015. (R. 29-35).
resources are scarce. See Chicago Observer, Inc. v. City
of Chicago,929 F.2d 325, 329 (7th Cir. 1991)
(Litigation is costly not only for the litigants but also for
parties in other cases waiting in the queue for judicial
attention.); see also West v. West,694 F.3d 904,
906 (7th Cir. 2012); Gomez v. St. Vincent Health,
Inc.,649 F.3d 583, 592 (7th Cir. 2011). Rather than
continuing through the exercise of the parties briefing this
case and the court issuing a ruling -- an exercise that
proved to be a waste of judicial resources and the
parties' lawyers' time and efforts in Triplett
- only to have the Commissioner review its actions
months later and move for remand under Rules 60(b) and 62.1,
the Commissioner is ordered to review the matter now, with an
eye toward its motion in Triplett. If the
Commissioner determines to proceed with this litigation then,
within 14 days of this order, the Commissioner must file a