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Kominique J. v. Commissioner of Social Security

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

May 28, 2019

KOMINIQUE J., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          JONATHAN E. HAWLEY U.S. MAGISTRATE JUDGE

         Now before the Court is the Plaintiff's Motion for Summary Judgment (Doc. 10) and the Commissioner's Motion for Summary Affirmance (Doc. 14). 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]

         I

         On July 9, 2014, Plaintiff Kominique J. filed her application for supplemental security income (SSI). Her SSI claim was denied on September 23, 2014 and upon reconsideration on May 20, 2015. She requested a hearing concerning her application for SSI on July 5, 2015. A hearing was held before the Honorable David W. Thompson (ALJ) on February 24, 2017. At that hearing, Kominique was represented by an attorney and a vocational expert (VE) testified. Following the hearing, the ALJ issued an unfavorable decision on April 28, 2017. Kominique's request for review by the Appeals Council was denied on January 30, 2018, making the ALJ's Decision the final decision of the Commissioner. Kominique filed the instant civil action seeking review of the ALJ's Decision on March 13, 2018.

         II

         At the hearing, Kominique was 37 years old and lived in the same household with her 18-year-old and three-year-old sons, though her 18-year-old was at that time detained in the Juvenile Department of Corrections. She claimed her ability to work was limited by depression, bipolar, anger issues, and anxiety. AR 248. She testified she lived in low income housing. She also testified she received food stamps and had a medical card from the State of Illinois. She obtained her GED in 2001 and began to take classes at Blackhawk College and then withdrew. Kominique believed she last worked in 2011 when she was employed through a “temp agency and my assignment was at a meat packing company called AMERCO.” AR 38. The ALJ and Kominique's attorney agreed that there was not a lot of evidence to support a finding of any past relevant work.

         Kominique then testified she took Seroquel and alprazolam. She said they were effective for what the doctors wanted them to do. She said, “I think they're working out pretty good for me.” AR 39. She said she was previously hospitalized for a psychiatric issue in 2008 at Robert Young. Since 2008, Kominique had been taken to Robert Young for psychiatric issues in 2012 and 2014. She next testified that she saw Stacy Roth, a registered nurse practitioner, and had seen “a couple psychiatrists over the last couple years[.]” AR 41-42. Kominique's attorney commented to the ALJ, however, that there was no psychiatrist on file for Kominique. Kominique stated she had seen Roth “at least six or seven times.” AR 43.

         Kominique next testified that she came from “a pretty dysfunctional home, ” left home when she was 12 years old, and “didn't always make the best choices as a younger child[.]” AR 44. She said she “pretty much got taken advantage of most of [her] life and physically and sexually abused was a big part of my issues that I hindering [sic] me from putting my life in a normal way I guess you could say.” Id. At the time of the hearing, Kominique was able to take care of her personal hygiene needs “some days better than others.” AR 45.

         Kominique's attorney then asked her why she applied for disability. Kominique answered:

I found that I wasn't able to, I don't know how to explain it. I wasn't able to keep up with my every day routines like some people were. I noticed that I was having trouble with that and so I kind of figured I should get some help and see what was going on and why I couldn't stay focused and do things when I needed to do them.

Id. She further explained why she believed she was disabled:

I have a hard time dealing with people, my anger issues have gotten a lot better but I notice that I do a lot better when I work on my own, and there's very few jobs that I'm qualified to do where I can just work by myself. My medication is another issue. I was actually let go of my last job because I was taking my prescribed medicine and I didn't know that they considered them narcotics and I'm not supposed to operate machinery when I'm taking those.

AR 46. Kominique believed her anxiety affected her the most in terms of successfully being able to work. She testified “if [she became] overwhelmed or if [she became] nervous or anxious [she] pretty much just [went] into a panic attack[.]” AR 47. She also testified that she experienced panic attacks “maybe” a couple times a day “but not full-blown panic attacks[.]” Id. She explained her panic attacks were not as frequent as they used to be because she took her medication regularly, but she was unable to make all of her panic attacks stop.

         Kominique's attorney next asked her if she had any problems with attention or concentration when she tried to do something. Kominique answered:

Yeah. There's a lot of times where I have to just stop and regroup and start over again. I can get frustrated very easily. I do have a hard time staying on task like I can't just clean up one room at a time in my house, I have 16 different mental projects going and never really get anything all the way done, but I get a lot of things started though.

AR 48. Her plan for the future included approval to put her younger son in daycare so that she could start going to classes again. Her attorney questioned whether she would be able to focus on whatever tasks she was given in an unskilled work setting eight hours a day with breaks every two hours. Kominique answered, “I don't think I could do that and take my medication because my medication it kind of slows me down . . . My reaction times are not as quick as they should be sometimes after I take my medication.” AR 50. Her attorney lastly mentioned that Kominique's file included the latter's thought that she may have had some head injuries in the past due to severe beating. Kominique thought she had been tested for a traumatic brain injury in the past, she had seizures “at one point, ” and she took Depakote for those seizures for a while.

         The VE was then questioned. The following colloquy between the ALJ and VE occurred:

ALJ: . . . I'd like you to assume we have an individual the same age, education and experience as the claimant. Because of all the individual's mental impairments and symptoms combined the individual may during times of symptom's [sic] exacerbation have moderate limitations in one, concentration, persistence and/or pace on attempting certain detailed tasks. So the individual is limited to jobs that only require up to detailed but involved[2] tasks with few concrete variables, little in the way of change and job process from day to day, jobs that can be learned in 30 days or fewer and the jobs with multistep self-evident tasks easily resumed after momentary distraction. And, two, social functioning so the individual is limited to jobs that do not require more than occasional work-related interaction with the public, coworkers and supervisors. Are there jobs in the economy such an individual can perform?
VE: Yes, Your Honor.

AR 52-53. The VE proceeded to identify jobs at the light, medium, and sedentary levels. The ALJ next asked the VE to assume the individual would miss four or more days of work per month. The VE answered such an individual could not maintain competitive employment. The ALJ then asked the VE to assume the individual would, for whatever reason, need extra rest breaks or would need redirection on the job, “but the bottom line is that they are less than 80% productive while on the job.” AR 54. The VE answered that an individual producing at that level could not maintain competitive employment.

         Kominique's attorney then questioned the VE. He asked:

Mr. Walker, were there any limitations in that first hypothetical that the Judge asked you limiting the hypothetical individual in terms of concentration, persistence and/or pace regarding unskilled tasks? I did hear the language in the ...

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