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Permenter v. Berryhill

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

May 2, 2018

Jason L. Permenter Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston United States Magistrate Judge

         Plaintiff, who is now 45 years old, worked in the auto repair field until December 2004 when he stopped working because of leg and back pain. In 2007, he filed the first of several disability applications. Over the next nine years, his quest for disability benefits proceeded through a lengthy administrative process. Along the way, there have been four administrative hearings, three administrative decisions, and one appeal to this Court. However, in the fall of 2016, plaintiff finally achieved some degree of success when the administrative law judge (“ALJ”) ruled that plaintiff was disabled as of November 9, 2015. Plaintiff has filed this appeal because he believes that he should have been found disabled five and a half years earlier, on March 31, 2010, which was his date last insured.

         Plaintiff raises one argument for remand. He asserts that the ALJ failed to adequately account for moderate problems in concentration, persistence, and pace, caused by plaintiff's depression, when determining plaintiff's residual functional capacity (“RFC”) and when posing hypothetical questions to the vocational expert. This argument is raised fairly often in disability cases, and is undoubtedly appealing to plaintiff's counsel because it rests on a narrow slice of the record and is backed by a well-worn line of Seventh Circuit cases. However, as explained below, the simplicity and narrowness of this argument belies linguistic and conceptual pitfalls lurking underneath the surface.


         On May 7, 2013, an administrative hearing was held at which a medical expert (Gilberto Munoz) testified about plaintiff's back problems. Plaintiff also testified about his back problems, but also briefly discussed his obesity (he has weighed up to 410 pounds) and his depression.

         Plaintiff testified that his general physician, Dr. Woodman, first prescribed antidepressant medication in July 2009. R. 66. Plaintiff testified that his depression affected his self-esteem and made it hard to concentrate. When asked to give an example, plaintiff stated as follows:

I love and am passionate for cars, and I have, like, tons of magazine subscriptions. But to get through an article, it's, like, impossible. I mean, I'll start reading it, and it's just, like-I can't focus on it anymore. It almost gets to the point where it's, like-it's blurry because I just can't focus or think and read what I'm trying to do.

R. 67.

         On May 31, 2013, the ALJ issued a written decision finding plaintiff not disabled. The decision focused on plaintiff's back problems. However, at Step Three, the ALJ explained as follows why plaintiff's depression caused moderate limitations in concentration, persistence or pace:

Although the claimant alleged having difficulty concentrating and memory problems because of his depression, he spends a significant amount of time of his day watching television, playing video games or using his computer (Ex. 3E/2). In addition, his doctors reported that the claimant understood their recommendations about treatment and his medical conditions.

R. 82. In the RFC formulation, the ALJ included a limitation that plaintiff could “understand, remember and carry out simple job instructions.” R. 82. The ALJ noted that the State agency psychologist found there was “insufficient evidence” to even render an opinion about any alleged mental impairment. R. 89. Despite this fact, the ALJ still included the above limitation because the State agency psychologist “did not have access to additional evidence or listen to the claimant's testimony.” Id.

         After exhausting his administrative remedies, plaintiff filed an appeal to this Court raising three arguments in his opening brief. (No. 14-50241.) The first one was essentially the same one he now raises-that the ALJ “failed to [] incorporat[e] Plaintiff's mental limitations in the hypothetical to the vocational expert.” Dkt #10 at 6. Before any further briefing ensued, the parties agreed to a remand. This Court remanded without ruling on the merits. Dkt. #19 at 1.

         On September 21, 2015, after receiving this Court's remand order, the Appeals Council issued its own remand order, which instructed the ALJ to “clearly identify the claimant's limitations in concentration, persistence, or pace with reference to the evidence of record and explain how the claimant's mental residual functional capacity accommodates for any concentration, persistence, or pace limitations with reference to the evidence of record.” R. 650. The order also stated that any hypothetical questions to the vocational expert should include “specific/capacity limitations.” Id. The order also included the observation that the ALJ's 2013 decision failed to “expressly explain” how plaintiff's concentration problems were accounted for. R. 649.

         The ALJ held two new hearings. The first hearing, held on March 11, 2016, focused on the “mental health issues” because, as plaintiff's counsel noted, this is the subject they were “obligated” to address according to the remand order. R. 546. Counsel further noted that they were required to “delve into” the issue of how plaintiff's moderate limitations were accommodated by the RFC. R. 547. Next, the medical expert, psychologist Larry Kravitz, testified. He first summarized the evidence, noting that a consultative psychological evaluation in January 2015 showed that plaintiff's mental status was “fairly intact with nothing of significance.” R. 548; Ex. 4F.[2] It was also noted that plaintiff never sought any counseling at any time for his depression.[3] R. 552. Dr. Kravitz then gave the following assessment:

So, Judge, there's not very much in the medical record. We have the consultative evaluation, but based on the fact that Claimant's been taking depressive medication for six years, based on his report that he continues to feel depressed most of the time and that he feels-at a minimum, he feels it exacerbates the limitations caused by the pain, I would, in terms of Part B limitations, I would give Claimant-I give him a mild restriction and maybe some mild restrictions in social functioning.
But I would agree that he's got a moderate restriction in concentration, pace and persistence. And in terms of a residual functional capacity, he's mentally capable of understanding, remembering, carry[ing] out simple and detailed instructions. But I think persistence over extended periods of time is going to be limited. So I would overall restrict him to simple, repetitive tasks.

R. 555. This testimony, particularly the second paragraph, is a key piece of evidence relevant to plaintiff's current argument.

         The ALJ then asked plaintiff about his back problems. Plaintiff testified that he just had surgery to alleviate the constant pain. The ALJ, after agreeing that plaintiff's back problems had worsened, suggested that plaintiff's case would be better “if he was seeking an onset date when he applied for supplemental security income on October 16th of 2014 rather than back on March 31st of 2010.” R. 559. Plaintiff's counsel then reminded the ALJ of the Appeals Council's remand ...

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