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Amber L. v. Commissioner of Social Security

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

July 19, 2019

AMBER L., 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 Defendant's Motion for Summary Affirmance (Doc. 12). 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

         Amber L. filed her applications for disability insurance benefits (DIB) and supplemental security income (SSI) on December 3, 2013 and alleged disability beginning on December 1, 2012. Her claims were denied initially on March 19, 2014 and upon reconsideration on November 19, 2014. Amber filed a request for hearing which was held before the Honorable Susan F. Zapf (ALJ) on May 3, 2016. Following that hearing, Amber's claims were denied and she requested review by the Appeals Council (AC). The AC remanded Amber's claims in August 2017. On December 5, 2017, ALJ Zapf held another hearing at which Amber was represented by counsel, and Amber and a Vocational Expert (VE) testified. Following that second hearing, Amber's claims were denied on February 14, 2018, and her subsequent request for review by the AC was denied. The ALJ's February 2018 became the final decision of the Commissioner and Amber filed the instant civil action seeking review of that Decision on July 6, 2018.

         II

         At the December 2017 hearing, Amber was 34 years old, had a 13-year-old daughter, and they lived in an apartment in Port Byron, Illinois. When she applied for disability in December 2013, Amber claimed the following conditions limited her ability to work: fibromyalgia; stomach ulcers; GERD; anemia; spastic colon; ovarian cysts; migraines; seasonal allergies; hypertension; anxiety; depression; TMJ; constipation; and pancreatitis. AR 381.

         At that second hearing, Amber testified about her daughter, her physical and mental symptoms, her past trauma (she was previously raped), her medical providers, her boyfriend of over a year, her daily activities, and her medications. The VE was also questioned. The ALJ asked the VE to consider whether the and supervisors of a brief and superficial nature and no interaction with the public. following hypothetical individual could perform any of Amber's past work:

[An individual] of the same age, education, and having the same past work as this claimant, limited to a range of light work with only occasional climbing ramps and stairs, no climbing ladders, ropes, or scaffolds, occasional stooping, no concentrated exposure to fumes, odors, dust, gases, poor ventilation, and temperature extremes, limited to frequent but not constant bilateral handling and fingering, limited to simple, routine, repetitive tasks that can be learned in 30 days or less. The task must be easily resumed if the claimant has momentary deficits in concentration and attention. She could not perform fast-paced work. Production must be measured on a daily basis. And no more than occasional changes in work processes and procedures. She can have only occasional interaction with coworkers

         AR 77-78. The VE responded Amber's past work could not be done. The VE proceeded to cite three light jobs and two sedentary jobs the hypothetical individual could perform. The ALJ added to the hypothetical that the individual would have to stand at her workstation every 30 minutes for up to two minutes at a time to address problems with pain. When asked if the sedentary jobs cited remained, the VE responded those jobs could still be done. Lastly, the ALJ asked whether the cited jobs required independent judgment in terms of making decisions on how to perform a work task. The VE answered, “The office helper might have some judgment involved, but the other two are pretty routine and repetitive of the same thing.” AR 79. Amber's attorney then asked the VE questions and presented the VE with another hypothetical in which the attorney specified the percentage of time the individual would be off task. Amber's attorney also asked about the “brevity or the superficiality” of contact between coworkers and a supervisor and whether an employee could choose to limit that contact. The VE explained contact was “usually” initiated by the supervisor or by the employee to the supervisor if that person needed help. The ALJ then asked whether the cited jobs required tandem functions (no) and sought confirmation that some jobs, by their nature, did not involve a lot of interaction with coworkers and supervisors once the individual learned the job tasks (confirmed in the affirmative). The VE explained the cited job of office helper “may not fit it as well, because they do a variety of tasks, and some tasks might be around other people, and some, they might be doing their own thing.” AR 82.

         III

         In her Decision, at Step Two, the ALJ determined Amber had the following severe impairments: degenerative disc disease; myalgias; obesity; asthma; affective disorder; and anxiety disorder. AR 18. At Step Three, the ALJ determined the severity of Amber's mental impairments did not meet or medically equal the criteria of Listings 12.04 (Depressive, bipolar and related disorders) and 12.06 (Anxiety and obsessive-compulsive disorders). She explained the “paragraph B” criteria of those listings was satisfied where:

the mental impairments [resulted] in at least one extreme or two marked limitations in a broad area of functioning which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves.

         AR 19. The ALJ found Amber had mild limitations in three of the four functional areas. As for the fourth functional area - concentration, persistence, or pace - the ALJ found Amber had moderate limitation. The ALJ lastly explained at Step Three that the limitations identified in the “paragraph B” criteria were not a residual functional capacity assessment but were instead used to rate the severity of Amber's mental impairments at steps two and three of the sequential evaluation process. She further explained that the mental residual functional capacity assessment used at steps four and five required a more detailed assessment, and thus, “The following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the ‘paragraph B' mental functional analysis.” Id.

         The ALJ made the following residual functional capacity finding (RFC):

[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she cannot climb ladders, ropes or scaffolds, she can only occasionally climb ramps or stairs and occasionally stoop. She cannot work in concentrated exposure to fumes, odors, dust, gases, poor ventilation or temperature extremes. She can do frequent but not constant bilateral handling and fingering. She is limited to simple, routine, repetitive tasks that can be learned in 30 days or less. The tasks must be easily resumed if the claimant has momentary deficits in concentration and attention. She can ...

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