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Collins v. Berryhill

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

July 10, 2018

JERRY COLLINS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. DAVID WEISMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jerry Collins appeals the Commissioner's decision denying his application for Title XVI supplemental security income. For the reasons set forth below, the Court reverses the Commissioner's decision and remands this case for further proceedings.

         Background

         Plaintiff filed an application for supplemental security income on December 5, 2012, alleging a disability onset date of August 10, 2009 due to sarcoidosis, [1] depression, Hepatitis C, liver issues, anxiety, and blurred vision in the left eye. (R. 90-91.) His application was denied initially on May 2, 2013, and upon reconsideration on December 5, 2013. (R. 103, 120.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on September 15, 2015. (R. 38.) On December 28, 2015, the ALJ issued a decision denying Plaintiff's application. (R. 16-32.) The Appeals Council denied review (R. 1-3), leaving the ALJ's decision as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

         Discussion

         The Court reviews the ALJ's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). While generous, this standard “is not entirely uncritical, ” and the case must be remanded if the “decision lacks evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002) (citation omitted).

         Under the Social Security Act, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520(a). The Commissioner must consider whether: (1) the claimant has performed any substantial gainful activity during the period for which he claims disability; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any listed impairment; (4) the claimant retains the residual functional capacity (“RFC”) to perform his past relevant work; and (5) the claimant is able to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden is met, at step five, the burden shifts to the Commissioner to establish that the claimant is capable of performing work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date of December 5, 2012. (R. 18.) At step two, the ALJ determined that Plaintiff had the severe impairments of “[s]arcoidosis, liver disease, visual impairment in the left eye, degenerative joint disease of the left knee, status-post internal fixation, depression and substance abuse.” (Id.) At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (R. 19.) At step four, the ALJ found that Plaintiff had the RFC to perform light work with additional restrictions. (R. 21.) At step five, the ALJ determined that although Plaintiff could not perform any past relevant work, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (R. 30-31.) Accordingly, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. (R. 31-32.)

         A. RFC Assessment

         Plaintiff contests the ALJ's RFC assessment, which states in relevant part that Plaintiff:

. . . [I]s limited to performing simple, routine, repetitive unskilled work. He is able to understand remember and carry out short simple instructions, and is able to maintain attention and concentration for extended periods for that type of work. [Plaintiff] can sustain an ordinary routine without special supervision. He can make simple work-related decisions and use judgment. He is able to briefly and occasionally interact with the general public. [Plaintiff] can accept instructions and respond appropriately to criticism from supervisors occasionally and could occasionally get along with co-workers and interact with them. [Plaintiff] has the ability to respond appropriately to routine changes that occur no more than occasionally in the performance of this short and simple type of instructions and tasks.

(R. 21.) Plaintiff argues that this RFC does not account for the restrictions imposed by the agency medical reviewers, whose opinions the ALJ gave great weight. (See R. 29.) The Court disagrees. The agency reviewers noted that Plaintiff has the “capacity to understand, remember, carry out and sustain performance of 1-3 step tasks, complete a normal workday, interact briefly/superficially with coworkers/supervisors and adapt to changes/stressors associated with simple routine competitive work activities.” (R. 100, 117.) Though the ALJ's RFC does not repeat verbatim the agency reviewers' RFC, the former sufficiently incorporates the limitations of the latter to withstand Plaintiff's challenge. (R. 21.)

         Plaintiff also argues that the ALJ's RFC does not account for the “moderate” limitation the ALJ found in Plaintiff's concentration, persistence and pace. (See R. 20.) The Court agrees. As the Seventh Circuit has stated, “‘simple, repetitive tasks'” may include “positions that present significant problems of concentration, persistence and pace” because “[t]he ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity.” O‘Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010). As a result, the court held, the ALJ's failure to include a moderate limitation in concentration, persistence and pace in the hypothetical presented to the vocational expert (“VE”) was not cured by the ALJ's instruction that the claimant was limited to simple, repetitive tasks. Id. at 620-21. As in O'Connor-Spinner, limiting the RFC in this case to simple, repetitive tasks does not adequately account for Plaintiff's limitation in concentration, persistence and pace.

         Plaintiff further contends that the record does not support the ALJ's conclusion about Plaintiff's ability ...


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