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Mark W. v. Commissioner of Social Security

United States District Court, C.D. Illinois, Rock Island Division

April 29, 2019

MARK W., Plaintiff,



         Now before the Court is the Plaintiff's Motion for Summary Judgment (Doc. 13), the Commissioner's Motion for Summary Affirmance (Doc. 14), and the Plaintiff's Reply (Doc. 16). This matter has been referred for a Report and Recommendation. The Motions are fully briefed, and for the reasons stated herein, the Court recommends the Plaintiff's Motion for Summary Judgment be granted, the Defendant's Motion for Summary Affirmance be denied, and the matter be remanded.[1]


         Mark W. filed his applications for disability insurance benefits (DIB) and supplemental security income (SSI) on March 23, 2012 and alleged disability beginning on August 8, 2011. His claims were denied initially and upon reconsideration, and on February 11, 2014, the Honorable Susan Sarsfield (ALJ) issued an unfavorable decision. The Appeals Council (AC) denied review and Mark subsequently filed an appeal in the United States District Court for the Central District of Illinois on January 12, 2016. This Court remanded Mark's claims for a second hearing. On September 26, 2017, ALJ Zapf (née Sarsfield) held a hearing at which Mark was represented by an attorney and a Vocational Expert (VE) testified. On November 27, 2017, the ALJ issued a partially favorable Decision, finding that Mark became disabled as of April 18, 2017. Because Mark did not file exceptions with the AC, the ALJ's November 27, 2017 Decision[2] became the final decision in this case. Mark timely filed the instant civil action seeking review of the ALJ's Decision on March 22, 2018.


         At the September 2017 hearing, Mark was 50 years old and lived alone in an apartment in Rock Island, Illinois. In his October 2011 Form SSA-3368, Mark claimed the following physical conditions limited his ability to work: diabetes; heart problems; and kidney problems. AR 264. At the hearing, Mark testified he was 6'4”, 285 pounds, and had a twelfth grade education. In terms of his physical conditions, Mark testified that he previously almost died when his blood sugar dropped, and he awoke in the emergency room. At the time of that event, it was discovered that his “heart was bad.” AR 696. He saw a cardiologist and a kidney specialist. His kidney doctor told him he was 50 years old with a 100-year-old man's body. Nurse practitioner Brett Josie managed Mark's diabetes. Mark testified he had gout “real bad.” AR 702.

         Mark sometimes used a cane due to loss of balance. His symptoms included black outs, chest pains, and aching kidneys, and Mark went to the emergency room for his conditions “[a]ll the time.” AR 698. He took heart medicine, kidney medicine, high blood pressure medicine, and neuropathy medicine. He also took medicine for depression. With regard to depression, Mark testified he avoided people, and he was angry and always sad. His friend, however, did come over and help him take care of household activities and went grocery shopping with him. Mark engaged in self-care. He had not been sleeping because “[i]t seem like I got a lot on my mind.” AR 704. Mark was told loss of sleep was a side effect of his depression medicine.

         Upon questioning by his attorney, Mark testified that the main thing that would prevent him from doing a job with simple tasks was his depression and anxiety. Those things would cause him to “lash out” in a job. AR 706. If he had to sit for an hour or two, Mark's legs and back would start to hurt “a lot.” AR 707. He again testified that the pain he felt was like “fiberglass all over my body.” Id. Mark testified he had not seen someone specifically for his depression and anxiety because he was on a waiting list. “Paranoia” about his heart and legs would prevent Mark from walking more than half a mile. AR 709.

         After the ALJ and Mark's attorney questioned him about his physical and mental issues, the VE was questioned. The ALJ first asked the VE to consider a hypothetical individual:

Of the same age, education, and having the same past work as this Claimant limited to a range of light work with occasional climbing ramps and stairs, no climbing ladders, ropes, or scaffolds, occasional stooping, crouching, crawling, balancing, avoid concentrated exposure to extremes and cold and heat, fumes, odors, dusts, gases, and poor ventilation, limited to simple, routine, repetitive tasks of unskilled work that can be easily resumed if the Claimant has momentary deficits in concentration and attention, only occasional interaction with coworkers, the public, and supervisors of a brief and superficial nature. No. more than occasional changes in work processes and procedures.

AR 711. The VE responded that there was past work Mark could perform and the VE identified other light and sedentary jobs that the hypothetical individual could perform. The ALJ asked, “How about if we go, move to sedentary work, are there jobs that could be performed within that hypothetical at the sedentary level?” AR 713. The VE responded:

Looking at, on production inspection related jobs we're looking at about 12, 000 in the U.S. An example there would be a shadowgraph scale operator, 737.687-126. Production workers, that's going to be right around 30, 000. And there an example would be a stone setter, 735.687-034. And then in hand packaging activity approximately 21, 000. And an example would be an ampoule sealer, 559.687-014. And that'd be about it.

Id. The ALJ then questioned the VE about off-task behavior. The VE confirmed his responses were consistent with the DOT and his own professional experience. AR 714.

         Mark's attorney proceeded to question the VE about the basis for the VE's sedentary job numbers. The ALJ then asked if the sedentary jobs cited could still be performed if the individual had to stand at his workstation after 30 minutes “for, look for after an hour for up to two minutes just to adjust position.” AR 717. The VE responded in the affirmative and explained that “wouldn't be enough to even reduce the numbers.” Id. Mark's attorney asked the VE whether the individual limited to sedentary work who was also required to elevate his legs at various time throughout the day would still be able to work the cited jobs. The VE responded in the negative. The VE also answered that there would be no reason that the individual could not elevate his feet on breaks and at lunchtime.


         In her Decision, the ALJ determined since the alleged onset date of disability (August 8, 2011), Mark had the following severe impairments: diabetes; hypertension; cardiomyopathy; chronic kidney disease; obesity; affective disorder; and anxiety disorder. AR 642. The ALJ determined Mark had the following residual functional capacity (RFC) prior to April 18, 2017 (the date Mark became disabled):

[C]laimant had the [RFC] to perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) except no more than occasional climbing of ramps and stairs, balancing, stooping, crouching, and crawling; no climbing of ladders, ropes, or scaffolds; no concentrated exposure to extreme temperatures or respiratory irritants; performance of simple, routine, repetitive tasks of unskilled work that can be easily resumed if the claimant has momentary deficits in concentration and attention; occasional interaction with coworkers, supervisors and the public that is brief and superficial in nature; and no more than occasional changes in work processes and procedures.

AR 648-49. In support of that RFC finding, the ALJ discussed Mark's October 2011 Disability Report, an October 2011 ADL questionnaire completed by Mark's girlfriend, Mark's May 2012 Disability Report, Mark's June 2012 physical impairments questionnaire, his June 2012 ADL questionnaire, his September 2012 Disability Report, his daughter's November 2013 letter stating Mark deserved disability benefits, Mark's November 2013 testimony, and his September 2017 testimony. The ALJ also addressed Mark's medical records which documented diabetes, obesity, chronic kidney disease, left ventricular dysfunction, hyperlipidemia, and hypertension. The ALJ recited results of an April 2011 myocardial perfusion scan which was abnormal, a normal EKG response to stress, and Mark's assessed chronic kidney disease, stage 3. In September 2011, Mark was evaluated for his cardiomyopathy. At that time he denied chest discomfort and stated he had not experienced any palpitations, tachycardia, syncope, or pre-syncope. The ALJ noted the times when Mark had high blood pressure. The ALJ also detailed the evidence pertaining to Mark's diabetes and his complaints of depression.

         In January 2017, Mark complained of an irregular heartbeat/palpitations and an episode that seemed like a panic attack. At that time he again had elevated blood pressure. At that time, an EKG revealed sinus bradychardia, borderline left axis deviation, and nonspecific T abnormalities. He was advised to follow up with a cardiologist. On January 11, 2017, Mark complained of intermittent shortness of breath. His last cardiac test had been in 2011. A January 25, 2017 myocardial perfusion scan revealed decreased perfusion in the inferior wall of the heart indicating either scarring from a previous infarct or artifact. AR 665. A 48-hour Holter monitor in early February 2017 revealed a baseline normal sinus rhythm. The ALJ next addressed the medical source opinions dated between November 2011 and April 2013. The ALJ determined the “available evidence [did] not substantiate the alleged severity of [Mark's] impairments” where there was a 2011 cardiac workup ...

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