United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. DOW, JR. UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff Charles Okubo's motion for
summary judgment  and Defendant Nancy Berryhill's
cross-motion for summary judgment  regarding the Social
Security Administration Commissioner's decision to deny
Plaintiff's application for disability insurance
benefits. Plaintiff asks the Court to reverse that decision
and remand the case for further proceedings. For the reasons
set forth below, Plaintiff's motion  is granted in
part, Defendant's cross motion  is denied, and the
Court remands this case for further proceedings consistent
with this opinion.
Charles Okubo applied for disability insurance benefits on
July 2, 2013, alleging that he became disabled on April 23,
2013. [Administrative Record (“AR”), at 21.] His
application was denied initially on October 15, 2013, and
upon reconsideration on April 11, 2014. Id.
Plaintiff then filed a written request for a hearing with an
Administrative Law Judge (“ALJ”) from the Social
Security Administration (“SSA”). Id.
This hearing was held on April 15, 2015. Id.
Plaintiff appeared and testified at this hearing and was
represented by counsel. Id. A vocational expert
(“VE”), Gary Paul Wilhelm, testified as well.
11, 2015, the ALJ issued a written decision denying
Plaintiff's application on the grounds that he was not
disabled. [AR, at 21-29.] Plaintiff appealed the ALJ's
decision to the SSA's Appeals Council, arguing that the
ALJ had failed to weigh the medical opinions of
Plaintiff's treating physicians properly and incorrectly
found that there were other jobs that he could perform.
Id. at 229-231. On May 26, 2016, the Appeals Council
denied Plaintiff's appeal, id. at 1-6, making
the ALJ's decision the final decision of the SSA
Commissioner. 20 C.F.R. § 404.981; Luna v.
Shalala, 22 F.3d 687, 689 (7th Cir. 1994). Following
that decision, Plaintiff filed suit in this Court. [See 1.]
was born on July 30, 1953. [AR, at 225.] He was roughly
fifty-nine years and nine months old on his alleged
disability onset date of April 23, 2013. Id.
Plaintiff has a high school education, id. at 196,
and last worked as an assistant manager for the produce
department in a grocery store, id. at 37. In that
job, Plaintiff was a jack of all trades. He was responsible
for writing schedules, placing orders, hanging sales
information, breaking down loads for the store, and taking
out garbage. Id. at 37-38. Over the course of a day,
the store would unload approximately 10, 000 pounds of
products and trash. Id. at 38. Plaintiff estimated
that each day on average he would spend about 1.5 hours
stooping (bending down and forward at the waist), 7 hours
handling large objects, 8 hours reaching, and 30 minutes
writing, typing, or handling small objects. Id. at
197. In other words, Plaintiff spent the vast majority of his
day undertaking some form of physical exertion and very
little time on clerical tasks. Plaintiff felt he was bending
“almost all the time” during this job.
Id. at 55. One responsibility that Plaintiff did not
have in his job was the authority to hire or fire other
employees. Id. at 37. Plaintiff does not have any
computer skills, which apparently were not a job requirement.
Id. at 51.
April 22, 2013, Plaintiff lifted a garbage can at work that
was filed with cut fruit. [AR, at 38-39.] The next morning,
he woke up with “foggy vision” and a “black
line floating” in his line of vision, and he was
diagnosed with several eye problems. Id. at 244. In
his right eye, he was diagnosed with vitreous floaters
(specks of gel floating in eye fluid), vitreous hemorrhage
(blood leaking into the eye humor), and retinal detachment.
Id. He also had hypertensive retinopathy (retina
damage from high blood pressure) in both eyes. Id.
at 245. The store later found that another garbage can
containing cut fruit weighed 380 pounds. Id. at 39.
saw ophthalmologist Dr. Srilakshmi Maguluri on April 23,
2013, and she instructed Plaintiff to stop working, keep his
head elevated (including while sleeping), not bend at the
waist, and not lift anything greater than 10 to 20 pounds
until instructed further. [AR, at 341.] In May 2013,
Plaintiff had surgery to repair his retinal detachment.
Id. at 240-41. Plaintiff had several follow-up
appointments with Dr. Maguluri through the summer of 2013
(id. at 232-35, 262-63, 318-19) and these
restrictions largely remained in place. Id. at 349.
Plaintiff then had cataract surgery in October 2013, and was
advised by one of Dr. Maguluri's colleagues, Dr. Vandana
Badlani (another ophthalmologist), not to lift, strain, or
bend at all. Id. at 251-52. In January and May 2014,
it was still Dr. Maguluri's opinion that Plaintiff
“could not work due to weight restrictions” and
had to “keep his head elevated, not lift anything
greater than 10 pounds, and not bend at the waist.”
Id. at 256, 321.
January 2014, Plaintiff met with Dr. Badlani to check the
fluid pressure in his eye. [AR, at 249.] She noted that
Plaintiff was still at risk of retinal detachment and he
should immediately notify her or Dr. Maguluri if he noticed
“floaters, flashes, or curtain coming down
vision.” Id. She also noted that Plaintiff
continued to have hypertensive retinopathy. Id. In
addition, Dr. Badlani noted that Plaintiff had good vision in
both eyes following surgery. Id. A consultative
examination in March 2014 with Dr. Krishan Nagpal-Agora found
that Plaintiff's right eye showed scarring due to the
retinal detachment repair, he suffered from diabetes,
hypertension, and poorly controlled glaucoma, and there was a
slightly increased risk of retinal detachment with
“heavy weight lifting, ” which he considered
greater than 50 pounds. Id. at 360.
also met with two medical consultants as part of his
disability evaluation: Dr. Charles Kenney and Dr. David Mack.
On October 3, 2013, Dr. Kenney concurred that Plaintiff had a
rental detachment and vitreous hemorrhage. [AR, at 92.]
However, he concluded that Plaintiff could occasionally (up
to a third of the day) lift 20 pounds, climb ramps or stairs,
stoop, kneel, crouch, and crawl. Id. at 93-94. He
also concluded that Plaintiff could still perform his past
work as a produce clerk. Id. at 96. On April 4,
2014, Dr. Mack reconsidered this evaluation, which also now
reflected the fact that Plaintiff had cataract surgery and
that Plaintiff had been told not to lift anything over ten
pounds. Id. at 100. He concluded that
Plaintiff's statements about the “intensity,
persistence, and functionally limiting effects of the
symptoms [were] substantiated by the objective medical
evidence alone.” Id. at 102. Nevertheless, Dr.
Mack concluded that Plaintiff could occasionally lift 20
pounds, climb ramps or stairs, stoop, kneel, crouch, and
crawl, and could perform his past work as a produce clerk.
Id. at 103, 105.
Hearing Before the ALJ
Plaintiff's application was denied in October 2013 [AR,
at 90], and again upon reconsideration in April 2014
(id. at 98), Plaintiff requested a hearing before an
ALJ (id. at 119), which took place on April 21,
2015. Plaintiff testified at the hearing about his current
medical conditions. Plaintiff indicated that he was recently
diagnosed with glaucoma for the first time in his left eye
and would be returning to the doctor in two weeks.
Id. at 41. He also stated that his vision had become
slightly worse since his last physician visit. Id.
at 41-42. He experiences pain in his right eye when he
watches television and gets a headache from reading after
half an hour. Id. at 50-51. He also experiences pain
“every other day” lasting for no more than twenty
minutes, which he specified he had been having for
“just a couple of months” and was returning to
the doctor for this reason. Id. at 52-53. Plaintiff
testified that he consistently takes his eye, blood pressure,
and diabetes medications. Id. at 51.
testified about his physical activities. He no longer drives
a car. He carried only a “little book bag” on a
recent airplane trip. Id. at 42-48. Regarding
chores, Plaintiff testified that he sorts laundry on his
knees rather than bend over. He stated that bending over
could cause his eye to “pop” and his physician
told him that “if it pops, there's no second
chance.” Id. at 48. The ALJ responded,
“So you can kind of kneel down or bend - you just
can't bend from the waist to put your head lower, but you
can, you know, sit on the floor, bend or kneel.”
Id. at 53. As Plaintiff started to answer, the ALJ
interjected, “Right. The head can't go down but the
legs can go down, ” and Plaintiff agreed. Id.
Otherwise, the only other chore he performs is walking the
dog. Id. at 49-50. Plaintiff testified that his
physician's weightlifting restriction was
“permanent.” Id. at 54. He reiterated
that his physician was concerned that if his retina detached
again, he would lose his eyesight in that eye. Id.
Otherwise, Plaintiff agreed that he could sit or stand for a
“couple of hours” and could walk about a mile.
Id. at 54.
also heard testimony from the VE. The VE opined that
Plaintiff's past work is categorized as a produce
department manager, corresponding to Dictionary of
Occupational Titles (“DOT”) code 299.137-010,
which is a Specific Vocational Preparation
(“SVP”) of 7 and a physical demand of medium.
[AR, at 58.] This position is defined in the DOT as:
Supervises and coordinates activities of workers in
department of retail store: Interviews job applicants and
evaluates worker performance to recommend personnel actions
such as hiring, retention, promotion, transfer or dismissal
of workers. Assigns duties to workers and schedules break
periods, work hours, and vacations. Trains workers in store
policies, department procedures, and job duties. Orders
merchandise, supplies, and equipment. Records delivery of
merchandise, compares record with merchandise ordered, and
reports discrepancies to control costs and maintain correct
inventory levels. Inspects merchandise to ensure it is
correctly priced and displayed. Recommends additions to or
deletions of merchandise to be sold in department. Prepares
sales and inventory reports. Listens to customer complaints,
examines returned merchandise, and resolves problems to
restore and promote good public relations. May assist sales
workers in completing difficult sales. May sell merchandise.
May approve checks written for payment of merchandise
purchased in department. May install and remove department
cash-register-receipt tape and audit cash receipts. May
perform customer service activities and be designated
Customer Service Manager (retail trade). May plan department
layout or merchandise or advertising display * * *.
Manager, Department (retail trade), 299.137-010, available at
(last visited May 9, 2018). The VE also acknowledged that as
Plaintiff actually performed this position, it would impose
“very heavy” physical demands, rather than just
“medium.” [AR, at 58-59.]
cross examination, Plaintiff's attorney asked whether
“most” produce department managers had the power
to hire and fire workers. [AR, at 69.] The VE responded,
“I'm not sure about that. I wouldn't say that
most, I wouldn't say that. Some may.” Id.
When asked why he assigned Plaintiff to the produce
department manager position rather than a produce clerk (the
position assigned by the medical consultants), the VE
explained that Plaintiff's experience “organizing
all of the merchandise, the processing of all the merchandise
that comes into the store, and ordering merchandise for the
store” fit this position. Id. The VE admitted
that he did not know the actual percentage of time that
Plaintiff spent performing this kind of work. Id.
asked the VE about several hypothetical scenarios. First, the
VE was asked to imagine a hypothetical person with a high
school education, age fifty-nine years and six months,
currently approaching retirement age, limited to light work,
with “transferability of skills an issue, ” who
is able to occasionally climb ramps or stairs, cannot climb
ladders, ropes or scaffolds, can occasionally stoop, kneel,
crouch, or crawl, and can only gauge depth perception
occasionally because of limited peripheral vision on the
right eye. [AR, at 59-60.] The VE agreed that this person
could not perform Plaintiff's past work. Id. at
the VE was asked to image this same hypothetical person,
except he was highly skilled. [AR, at 60.] The ALJ asked
whether this person would have transferable skills to another
job. The VE responded that a “light manager's
job” might be possible, but workers in those positions
typically have to be “multifunctional” in a
multi-department store and need “to be able to shift to
other departments and do other kinds of jobs.”
Id. The VE testified that the skills that would
transfer over in this scenario would be “scheduling,
organizing, customer service, operations, ” which were
all skills that the VE opined Plaintiff had acquired in his
past job. Id. at 61. The VE also opined that this
hypothetical individual could do the job of “food
assembler, ” “customer service representative,
” and “production planning and expediting
clerk.” Id. at 62.
defines the “food assembler” position, which is a
light position with a SVP of 3, as follows:
Prepares meal trays in commissary kitchen for inflight
service of airlines, multiunit restaurant chains, industrial
caterers, or educational, and similar institutions,
performing any combination of following duties: Reads charts
to determine amount and kind of foods and supplies to be
packaged. Fills individual serving cartons with portions of
various foods and condiments, such as cream, jams, and
sauces, by hand or using automatic filling machine. Portions
and garnishes hot cooked foods, such as meat and vegetables,
into individual serving dishes. Stores dishes of hot food on
shelves of portable electric warming cabinet or food cart for
stowing aboard airplane or transfer to restaurant or
cafeteria dining unit. Removes pans of portioned salads,
desserts, rolls, cream, and other cold food items from
refrigerator or pantry, and places at appropriate stations of
tray assembly counter to facilitate loading meal trays.
Places food items, silverware, and dishes in depression of
compartmented food tray passing on conveyor belt. Examines
filled tray for completeness and appearance, and stores
completed trays in refrigerated storage cabinets to be
transported to airplane, dining room, or cafeteria.
Food Assembler, Kitchen (Hotel & Rest.), 319.484-010,
(last visited May 9, 2018). The VE opined that there are 100,
000 of these jobs in the national economy. [AR, at 62.]
defines the “customer service representative”
position, which is a sedentary position with an SVP of 5, as
Interviews applicants and records interview information into
computer for water, gas, electric, telephone, or cable
television system service: Talks with customers by phone or
in person and receives orders for installation, turn-on,
discontinuance, or change in service. Fills out contract
forms, determines charges for service requested, collects
deposits, prepares change of address records, and issues
discontinuance orders, using computer. May solicit sale of
new or additional services. May adjust complaints concerning
billing or service rendered, referring complaints of service
failures, such as low voltage or low pressure, to designated
departments for investigation. May visit customers at their
place of residence to investigate conditions preventing
completion of service-connection orders and to obtain