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Okubo v. Berryhill

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

May 9, 2018

CHARLES OKUBO, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff Charles Okubo's motion for summary judgment [10] and Defendant Nancy Berryhill's cross-motion for summary judgment [17] 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 [10] is granted in part, Defendant's cross motion [17] is denied, and the Court remands this case for further proceedings consistent with this opinion.

         I. Background

         A. Procedural History

         Plaintiff 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. Id.

         On May 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.]

         B. Factual Background

         Plaintiff 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.

         On 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.

         Plaintiff 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.[1]

         In 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.

         Plaintiff 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.

         C. Hearing Before the ALJ

         After 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.

         Plaintiff 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.

         The ALJ 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 * * *.

         DOT, Manager, Department (retail trade), 299.137-010, available at https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT02D.HTM (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.]

         On 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.

         The ALJ 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 60.

         Second, 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.

         The DOT 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.

         DOT, Food Assembler, Kitchen (Hotel & Rest.), 319.484-010, available at https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT03A.HTM (last visited May 9, 2018). The VE opined that there are 100, 000 of these jobs in the national economy. [AR, at 62.]

         The DOT defines the “customer service representative” position, which is a sedentary position with an SVP of 5, as follows:

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 ...

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