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Laster v. Berryhill

United States District Court, N.D. Illinois, Western Division

April 19, 2018

Steve Laster Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston, United States Magistrate Judge

         In this Social Security disability appeal, plaintiff raises two arguments. One is that the administrative law judge (“ALJ”) failed to include alleged postural limitations, caused by plaintiff's back problems, into the residual functional capacity assessment. The other argument, which is plaintiff's first and primary argument, is that the ALJ failed to consider all the relevant evidence about plaintiff's work as a telemarketer a decade earlier. Although the latter argument focuses on a smaller portion of the ALJ's ruling, the Court finds that it warrants a remand.

         Plaintiff, who is now 61 years old, applied for disability benefits in 2013. In the ALJ's 2015 ruling, she found that plaintiff could only do sedentary work. Under Social Security rules, given plaintiff's age, he would qualify as disabled unless one of his past relevant jobs involved sedentary work. Among plaintiff's many jobs over the last decade, the telemarketing job was the only one that was sedentary.

         But there were several factual discrepancies about the nature of this job. On a Work History Report (Ex. B4E), which plaintiff completed several years before the hearing, he wrote that he worked from July 2003 to December 2004 (a period of 17 to 18 months), and that he worked seven hours per day, five days a week, and made $8.00 per hour. R. 194, 197. The answers on this form were handwritten, and it is not known whether plaintiff consulted any documents or simply relied on his memory.

         In a pre-hearing brief, submitted shortly before the 2015 hearing, plaintiff's attorney discussed this particular job in the following paragraph:

For a very short period of time, my client unsuccessfully was a tele marketer. He could not do that job because of his radicular pain. He is only able to sit for thirty minutes and then must stand for fifteen minutes. He can sit/stand for about two hours before he has to lie down to relieve his pain. My client spends most of his day lying down to relieve pain. He can walk approximately half a block before the pain stops him. The pain is in both legs and he has a toe that hurts him all the time. He previously had a left broken arm which he has not treated for, but it still gives him a quite a bit of [a] problem.

Ex. B11E.

         At the hearing, the ALJ began by asking about the telemarketing job referred to in the above paragraph, saying that the job “confused [her] a little bit.” R. 26. She apparently initially thought that this job was after the alleged onset date. Plaintiff then testified with his counsel asking questions first. Counsel did not raise the telemarketing job. The ALJ then asked questions, focusing mostly on details about plaintiff's earlier jobs. At several points, plaintiff was unsure about the details of these jobs. See R. 36 (“I think I must have my dates-my years- maybe I have my years wrong.”); R. 37 (“Somehow I got my yearly dates mixed up.”). The ALJ then asked specifically about the telemarketing job “back in 2003, 2004.” Id. (The telemarketing job was for Hammer Marketing.) Plaintiff testified that he only worked as a telemarketer for two months because he “couldn't make the sales, ” but that he was able to stay on with the company for a longer period by working as a handyman rather than a telemarketer. Id.[2] The ALJ did not ask plaintiff how long he worked in total at Hammer Marketing, nor did the ALJ ask plaintiff any details about his pay and hours worked. The only other reference during the hearing to the telemarketing job was at the end when the ALJ questioned the vocational expert. The ALJ then observed that there was a “conflict in the evidence” about whether plaintiff did the telemarketing work the whole time or instead switched to handyman work after two months. R. 40.

         In the ALJ's decision, she discussed this issue in the following three paragraphs at the end of the decision:

The claimant originally reported that between July 2003 and December 2004, he worked 5 days per week for 7 hours per day as a telemarketer, which involved sitting, writing, and talking on the telephone, and was paid $8 per hour (Exhibit B4E). The claimant also did more strenuous work before, after, and in overlapping periods, and sat for 6 1/2 hours during the telemarketing job; which contradicts the claimant's representative's assertion that the work as a telemarketer was unsuccessful because the claimant could only sit for thirty minutes and stand for 15 minutes due to radicular pain (Exhibits B4E and B11E).
With leading questions by his representative, the claimant made an allegation that his work as a telemarketer was also a maintenance job and then that his brother performed the job for him. The undersigned does not accept these allegations as they are contradicted by the claimant's own statements earlier in his claim for benefits. This attempt at deflection of the quality of past relevant work as well as the claimant's obvious minimizing of the handyman work he has done [at] odd jobs for in kind remuneration detracted from the overall credibility of the claimant's allegations.
The vocational expert testified that it takes 30 to 45 days to learn an SVP 3 job and the telemarketer position would also require only 30 to 45 days to learn. Therefore, the undersigned finds that the totality of the evidence shows the claimant performed the telemarketing job for 7 hours per day 5 days per week earning $8 per hour for 17 months, and earning above substantial gainful activity levels which meets the criteria for being considered past relevant work.

R. 17. The last paragraph refers to plaintiff's earnings at Hammer Marketing being “above substantial gainful activity levels.” Although the ALJ did not total up the amounts, this information would mean that plaintiff earned about $7, 000 in 2003 and $14, 000 in 2004.

         Plaintiff believes that the telemarketing job did not qualify as substantial gainful activity because plaintiff was unsuccessful at that job and stopped after only two months. However, even accepting the ALJ's rejection of this assertion, plaintiff argues that the ALJ's ...


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