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Kenneth P. v. Saul

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

October 8, 2019

KENNETH P., Plaintiff,
ANDREW MARSHALL SAUL, Commissioner of Social Security, Defendant.


          Sunil R. Harjani, United States Magistrate Judge.

         Plaintiff Kenneth P.[1] seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits and Supplemental Security Income Benefits. Specifically, Kenneth seeks an award of benefits, or in the alternative, a remand to the Commissioner for further proceedings. The Commissioner filed a motion for summary judgment, asking the Court to affirm the ALJ's denial of benefits. For the reasons set forth below, the ALJ's decision is reversed and this case is remanded for further proceedings consistent with this Memorandum Opinion and Order.

         I. BACKGROUND

         Before filing for disability benefits in 2014, Kenneth worked as a mailer and warehouse worker. (R. 302). In 2011, Kenneth was diagnosed with Multiple Sclerosis (MS), after he began experiencing problems with vision, speech, and balance. Id. at 396, 418, 431. Following his diagnosis, Kenneth began taking weekly injections of a medication called Avonex but continued to report issues with balance and vision; he additionally conveyed difficulties with memory, concentration, mood, pain, and weight loss. Id. at 412, 431. At his hearing before the ALJ, Kenneth testified that in 2013 he was fired from his most recent job because his supervisor had to keep reminding him about simple tasks. Id. at 48-49, 68-69. According to Kenneth, his memory “wasn't working like it should.” Id. at 69. After filing for disability benefits, Kenneth was examined and evaluated by several medical professionals.

         Kenneth filed applications for disability benefits and supplemental security income benefits in April of 2014, alleging disability beginning January 26, 2013. (R. 18). Kenneth's claims were initially denied on September 2, 2014, and upon reconsideration on May 22, 2015. Id. Upon Kenneth's written request for a hearing, he appeared and testified at a hearing held on February 1, 2017 before ALJ James D. Wascher. Id. The ALJ also heard testimony from vocational expert Linda Gels. Id. at 36.

         On May 26, 2017, the ALJ issued a decision denying Kenneth's applications for disability benefits and supplemental security income benefits. (R. 29). The opinion followed the required five-step evaluation process. 20 C.F.R. § 404.1520. At step one, the ALJ found that Kenneth had not engaged in substantial gainful activity since January 26, 2013, the alleged onset date. Id. at 20. At step two, the ALJ found that Kenneth had the severe impairments of relapsing and remitting multiple sclerosis, degenerative disc disease of cervical spine, and depressive disorder. Id. At step three, the ALJ determined that Charles did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). Id. at 21.

         The ALJ then concluded that Kenneth retained the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a), except that he:

can never climb ladders, ropes, or scaffolds, occasionally climb ramps and stairs, occasionally stoop, kneel, crouch, and crawl, frequently reach overhead bilaterally, can have only occasional exposure to extreme cold and extreme heat, must avoid all hazards such as machinery with moving mechanical parts and unprotected heights, only occasional bilateral wrist flexion and extension, and is able to perform simple tasks with no interaction with the public.

(R. 22). Based on this RFC, the ALJ determined at step four that Kenneth could not perform his past relevant work as a warehouse worker and machine feeder. Id. at 27. At step five, the ALJ found that there were jobs that exist in significant numbers in the national economy that Kenneth could perform. Id. at 28-29. Specifically, the ALJ found Kenneth could work as a document repairer, table worker, and touch up screener. Id. at 28. Because of this determination, the ALJ found that Kenneth was not disabled. Id. at 28-29. The Appeals Council denied Kenneth's request for review on April 11, 2018, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1; McHenry v. Berryhill, 911 F.3d 866, 871 (7th Cir. 2018).


         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). To determine whether a claimant is disabled, the ALJ conducts a five-step inquiry: (1) whether the claimant is currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals any of the listings found in the regulations, see 20 C.F.R. § 404, Subpt. P, App. 1 (2004); (4) whether the claimant is unable to perform his former occupation; and (5) whether the claimant is unable to perform any other available work in light of his age, education, and work experience. 20 C.F.R. § 404.1520(a)(4); Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). These steps are to be performed sequentially. 20 C.F.R. § 404.1520(a)(4). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled.” Clifford, 227 F.3d at 868 (quoting Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985)).

         Judicial review of the ALJ's decision is limited to determining whether the ALJ's findings are supported by substantial evidence or based upon a legal error. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). “Although this standard is generous, it is not entirely uncritical.” Steele, 290 F.3d at 940. Where the Commissioner's decision “lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded.” Id.

         The ALJ found Kenneth not disabled at step five of the sequential analysis because he retains the RFC to perform other work that exists in significant numbers in the national economy. Kenneth asserts that the ALJ committed several reversible errors. First, Kenneth argues that the ALJ erred in failing to assess his subjective allegations according to SSR 16-3p. Second, Kenneth argues that the ALJ erred in failing to afford great weight to the opinion of Kenneth's treating neurologist, Dr. Afif Hentati. Third, Kenneth asserts that the ALJ's RFC assessment and hypothetical questions to the vocational expert did not reflect Kenneth's difficulty with concentration, persistence, or pace.

         The Court finds that the ALJ erred in the discounting of Dr. Hentati's opinion. The Court also finds that the ALJ's RFC assessment and the relied-upon hypothetical question did not adequately encompass Kenneth's issues with concentration, persistence, or pace.[2] Accordingly, for the reasons discussed below, the ALJ's decision must be reversed.

         A. Treating Physician Dr. Hentati

         Kenneth argues that the ALJ erred when he afforded only “some weight” to Kenneth's treating neurologist, Dr. Hentati. Kenneth further asserts that the reasons the ALJ provided for discounting Dr. Hentati's opinion were “based on legal or factual errors.” (Doc. 18 at 9). The Commissioner responds that the ALJ reasonably adopted the majority of Dr. Hentati's opinion, while discounting “those portions of the opinion that were unsupported by evidence.” (Doc. 29 at 1).

         The opinion of a treating source is entitled to controlling weight if the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2); Kaminski v. Berryhill, 894 F.3d 870, 874, 874 n.1 (7th Cir. 2018) (for claims filed before March 27, 2017, an ALJ “should give controlling weight to the treating physician's opinion as long as it is supported by medical findings and consistent with substantial evidence in the record.”). An ALJ must “offer good reasons for discounting a treating physician's opinion.” Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (citations omitted); see also Walker v. Berryhill, 900 F.3d 479, 485 (7th Cir. 2018). Those reasons must be “supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). "If an ALJ does not give a treating physician's opinion controlling weight, the regulations require the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and the consistency and supportability of the physician's opinion." Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c).

         In Dr. Hentati's medical source statement, he drew opinions about Kenneth's physical and mental limitations. With respect to Kenneth's physical limitations, Dr. Hentati concluded that Kenneth would be "unable to perform jobs ...

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