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Jaxson v. Saul, Case Nos. 19-3011 and 19-3125, 2020 U.S. App. LEXIS 25585 (7th Cir. June 5, 2020), Attys at Wilmer Cutler Pickering Hale & Dorr, Washington DC and Stephanie Renee Seibold, Rockford, IL

Underlying this case is a scheme between an attorney (Eric Conn) and an ALJ (David Daugherty) to “buy” awards of benefits; this scheme was eventually discovered, and the Agency determined that the eligibility for benefits of nearly 1,800 claimants needed to be redetermined, including Plaintiff’s claim. The Agency advised Plaintiff that it “must disregard evidence from one of the medical providers [identified] when submitted by [Attorney Conn or one of his associates].” Based on this letter, the Agency disregarded the medical report of Dr. Huffnagle, who was involved in the scheme. At the hearing level, the ALJ also rejected this evidence based on the same rationale. Id. at *4-5. On appeal, Plaintiff argued that this was error, and that the ALJ erred in summarily excluding this evidence in violation of his Fifth Amendment due process rights (citing Hicks v. Commissioner, 909 F.3d 786 (6th Cir. 2018)). Id. at *5. The Court agreed, finding that in order to determine if this report by Dr. Huffnagle was produced fraudulently, the ALJ needed to hear from Plaintiff to decide whether “there is reason to believe that fraud or similar fault was involved in the providing of [Huffnagle’s] evidence.” Id. at *9. The Court noted that “[Plaintiff] may have a hard time persuading an ALJ that there is not even ‘reason to believe’ that Huffnagle’s report is fraudulent. But he is entitled to try…” Id. Remand

Martin v. Saul, 950 F.3d 369 (7th Cir. 2020), Atty Randal S. Forbes and Jason Scott Rodman, Angola, IN

Plaintiff filed for benefits based on both physical and mental impairments. The first ALJ to hear her claim limited her to sedentary work; that decision, however, was vacated and remanded by the district court for further consideration of her mental impairments. The second ALJ found Plaintiff to have no physical impairments (based on a lack of ongoing treatment for her back impairment), and based solely on her mental impairments, limited her to jobs involving only simple tasks with low stress, occasional changes, a flexible pace, and superficial interactions with others. Based on this RFC, the ALJ found that she could not perform her past work, but could perform other jobs in the economy. Id. at 372-73. Plaintiff made three arguments on appeal: (1) the second ALJ did not incorporate her full mental limitations into the RFC determination; (2) the law of the case doctrine required the second ALJ to adopt the first ALJ’s finding that she could perform only a restricted range of sedentary work; and (3) the second ALJ’s conclusion hat she had no physical limitations was not supported by substantial evidence.

Beginning with Plaintiff’s first argument, which is that the ALJ’s RFC does not fully account for her deficits in CPP, the Court disagreed. The Court stated: “The law does not require ALJs to use certain words, or to refrain from using others, to describe the pace at which a claimant is able to work. See, e.g., Crump [v. Saul, 932 F.3d 567, 570 (7th Cir. 2019)] (“As a matter of form, the ALJ need not put the questions to the [vocational expert] in specific terms—there is no magic words requirement.”). We decline to provide a glossary of adjectives for use in RFC determinations. What we do require—and our recent precedent makes plain—is that the ALJ must account for the ‘totality of a claimant’s limitations’ in determining the proper RFC. See Moreno [v. Berryhill], 882 F.3d at 730 (internal citation omitted).” Id. at 374. The Court found that the second ALJ’s RFC accounted for her concentration, persistence and pace limitations, and therefore found the ALJ’s RFC supported by substantial evidence. Id.

Turning to her “law of the case” argument, the Court found that the application of this doctrine to previous findings not reviewed on appeal has not been addressed by the Seventh Circuit, but was an issue that could be left for another day, as the Court found the second ALJ’s finding that Plaintiff could perform physical work “at all exertional levels” is not supported by substantial evidence. Id. at 375. In reaching this conclusion, the Court noted that the ALJ gave little weight to every medical opinion regarding physical impairments except for the one SA medical consultant who never examined Plaintiff and never reviewed the prior case file and concluded she has no physical impairments, including the Agency’s own examining physician. Id. (citing Kaminski v. Berryhill, 894 F.3d 870, 875 (7th Cir. 2018) (finding error in overlooking consulting physician report and relying instead on non-consultative opinions); see also 20 C.F.R. § 404.1520c(c)(3)(v) (explaining that, in evaluating evidence, an ALJ must consider that an examining doctor may have more insights than a doctor reviewing evidence in a folder). Moreover, in crediting certain findings made by one physician, the ALJ ignored findings of that same physician “making plain that [Plaintiff] had serious neck and back problems”, which struck the Court as “impermissible cherry-picking – highlighting facts that support a finding of non-disability while ignoring evidence to the contrary.” Id. (citing Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).

The Court then discussed the vast differences between the two ALJ’s decisions – the first ALJ limited Plaintiff to sedentary work (lifting no more than 10 pounds at a time), whereas the second ALJ found she had the physical capacity to perform any job, which “would mean – literally – that [she] could perform what the Commissioner considers ‘very heavy work’, which requires ‘lifting objects more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.’ § 404.1567(e). On this view, [Plaintiff] would be able to work full-time as a construction worker or a home builder. But the record evidence point in the opposite direction. If [she] can barely perform simple household tasks, it defies reality to conclude that she is able to perform physical labor at any level of exertion.” Id. Because the evidence does not support the ALJ’s finding, the Court stated that is must reverse. It also observed that the second ALJ did not even grapple with the first ALJ’s findings that she could only perform sedentary work, noting it “would have expected the second ALJ to explain the basis for reaching such a vastly different conclusion about whether [Plaintiff’s] physical condition affected the jobs she could perform.” Id. at 376.

The Court noted that Plaintiff requested remand with instructions to grant benefits, a remedy that is “a marked departure from our typical practice of remanding to the agency for further proceedings.” Id. (citation omitted). However, the Court agreed with Plaintiff that “extraordinary circumstances weigh in favor of an outright award of benefits here because the record ‘can yield but one supportable conclusion.’ Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993).” Id. Indeed, the Court found that remand would be futile because the Grid Rules for both light and sedentary work direct a finding of disabled based on her other vocational factors (advanced age, high school education, and limited to unskilled work). Id. at 376-77. As a result, the Court found that Plaintiff was entitled to benefits as of March 9, 2010. Id. at 377. Reverse and remand with instruction to award benefits.

Reinaas v. Saul, 953 F.3d 461 (7th Cir. 2020), Atty Dana Wayne Duncan, Nekoosa, WI

Plaintiff filed for disability benefits based on neck and shoulder pain; the ALJ denied his claim, finding that he could still perform light work with some restrictions. Plaintiff argued the ALJ erred in evaluating the treating opinion evidence and his subjective complaints. The Court agreed.

Beginning with the treating opinion evidence, which the ALJ declined to give controlling weight, the Court found the ALJ erred in failing to specify what weight the opinion did deserve, and further failed to explain why this opinion was “inconsistent” with the record. Id. at 465-66. Noting the treating provider’s four year history with Plaintiff, the Court found he “reasonably knew [Plaintiff’s] medical history and previous complaints and, thus, could evaluate [his] newly reported symptoms. The ALJ instead relied on the opinion of two non-examining state-retained physicians who did not have firsthand knowledge of how his symptoms could have worsened over time. See Gudgel v. Barnhart, 345 F.3d 467. 470 (7th Cir. 2003).” Id. at 466. The Court the ALJ erred in finding this opinion was based solely on subjective complaints, as the record showed there were contemporaneous abnormal examination findings. Id. The Court found the ALJ’s analysis amounted to “cherry-picking” of the record, which he cannot do. Id. (citing Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Finally, the Court stated the mere fact that a medical opinion has been solicited to support a disability application is not a sufficient reason to ignore it. See Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011).

Turning to his subjective complaints, the Court found the ALJ improperly assessed these symptoms; first, he ignored the connection between his migraines and his substantial history of spine problems and surgeries. Id. at 467. Second, the ALJ cited his ability to use a chainsaw, mow the lawn, and care for his child while ignoring his testimony about the pain and fatigue caused by these activities. Id. The Court stated: “ALJs need not address every piece of evidence in the record, see Villano, 556 F.3d at 562, but an ALJ may not ignore an entire line of evidence contrary to her ruling. Meuser, 838 F.3d at 912. Here, the ALJ discussed Reinaas’s ability to perform some heavy activities on his few “good” days every month but failed to address his contentions that he could only do twenty minutes of activity at a time before he needed rest and that he had 10 to 15 bad days in a month. Again, the problem is not that the ALJ weighed the evidence in a certain way; it is that she cited only evidence favorable to her decision without discussing any contrary evidence.” Id. Finally, the Court acknowledged that Plaintiff lived on a farm and that his wife worked away from the farm, which meant many of his activities were routine acts of daily living on a small farm; “[w]e have previously cautioned ALJs that there are critical differences between keeping up with activities of daily living and holding down a full-time job. See Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014); Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). And here, Reinaas’s ability to do limited work to maintain his small farm does not adequately support the ALJ’s conclusion that he would be able to work full time.” Id. Remand.

Brown v. Saul, 799 Fed. Appx. 915 (7th Cir. Jan. 10, 2020), Atty John Edward Horn, Tinley Park, IL

Plaintiff filed for disability benefits based in part on hand tremors; the ALJ awarded a closed period of disability benefits, finding that Plaintiff was disabled but then achieved medical improvement. The district court upheld the ALJ’s decision.

Plaintiff began experiencing tremors in 2014, and filed for disability shortly thereafter. He treated with both a family physician and an neurologist for his tremors, although their records revealed varying demonstration of tremors during their office visits. In July 2015, he underwent a consultative examination, during which no tremors were demonstrated. Thereafter, due to a change in insurance, Plaintiff was required to change medical providers, as they did not take his new insurance; he had a neurology appointment scheduled for 1 week after the hearing. He later submitted this evidence, which demonstrated ongoing tremors. The ALJ concluded Plaintiff was only disabled from his AOD to the date of the CE in July 2015, as the record did not reveal ongoing and persistent tremors after that date.

The Court, however, found that the evidence does not support the ALJ’s view of the record for several reasons. First, the testing performed by the CE did not produce the tremors, but the Court found “it is an overstatement of the medical record to conclude it definitively shows that [Plaintiff’s] tremors disappeared.” Id. at 919. Second, the Court found the ALJ’s conclusion that Plaintiff’s lack of tremor complaints for several months showed the absence of tremors during that time was not supported, as the exams that were performed (by a family physician and a cardiologist) did not include the tests that elicited tremors. Id. Third, when Plaintiff did see a neurologist (after the hearing), he refilled Plaintiff’s prescription for topiramate, which his previous neurologist prescribed for tremors, and the ALJ’s analysis did not account for this evidence. Id.

The Court acknowledged that Plaintiff’s tremors might have been well-controlled after July 2015, as he remained on topiramate until early 2016. “Whether [Plaintiff’s tremors were well-controlled is relevant to whether he achieved medical improvement, because conditions that can be controlled with medication are not disabling. See Prochaska v. Barnhart, 454 F.3d 731, 737 (7th Cir. 2006). But the ALJ did not base her decision on an inference that Brown’s tremors were well-controlled by medication, and we can review only the reasons an ALJ uses to support her conclusions. Shauger v. Astrue, 675 F.3d 690, 695-96 (7th Cir. 2012).” Id. at 919.

The Court also found that the record did not support the ALJ’s observation that Plaintiff had no “good explanation for the delay” between neurology visits, as Plaintiff testified that he changed insurance, which required a change in medical providers, and his new insurance required him to get a referral from a primary care physician to see a specialist. Id. The Court stated the ALJ’s observation that “‘if his tremors were of such a severe nature, it would not have taken more than a year to see a neurologist after getting Medicaid” was speculative, as nothing in the record contradicted Plaintiff’s testimony regarding the sequence of events. Id. at 919-20.

Also, after receiving the post-hearing neurologist office visit during which tremors were observed, the Court stated the ALJ was required to obtain an updated medical review assessing the significance of his findings; the ALJ erred in relying on his own assessment of this office visit to determine that it was not evidence of an ongoing medical condition. Id. at 920. The Court explained: “Without medical input, the ALJ could not reliably make the inference that [these] treatment notes reflect a reemergence, rather than a continuation, of the tremors.” Id.

Finally, the Court found that after accepting the limitation to occasional handling/fingering assessed by the former neurologist (which served as support for the closed period award of benefits), the subsequent gap in neurologist treatment was not inconsistent with these manipulative limitations, and the ALJ erred in concluding that these limitations did not extend past July 2015. Id. 920-21. For these reasons, the district court judgment was vacated and remanded.

Gibbons v. Saul, 801 Fed. Appx. 411 (7th Cir. Jan. 23, 2020), Atty David W. Sutterfield, Effingham, IL

Plaintiff filed for disability benefits based on physical impairments affecting his neck and shoulder; the ALJ denied his claim, finding that he could perform light work with limitations. The ALJ gave “great weight” to the opinion of the Agency’s non-examining consultant (Dr. Bilinsky), which giving less weigh to every physician who had actually treated him. On appeal, the Appeals Council found the ALJ erred in crediting Dr. Bilinsky’s opinion without including all of the assessed limitations, and so it altered the RFC to include the occasional handling with the left (dominant) hand limitation, and adopted the remaining findings. On appeal, Plaintiff argued the ALJ erred in evaluating the medical opinion evidence.

The Court found that the ALJ did not err in weighing his treating physician’s opinion. Id. at 415-16. However, the Court stated that after rejecting this opinion, “the ALJ needed to point to other evidence supporting her decision.” Id. at 416 (citing logical bridge language from Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018)). Here, the ALJ did not rely on one of “many” opinions from a treating physician, rather relied on the opinion of a non-examining consultant, “and there are several aspects of his opinion that suggest he did not undertake a careful review of the medical records.” Id. For example, he referred to Plaintiff as a “she” even though he is male, he “incorporated into his opinion a disability examiner’s conclusion that [Plaintiff] was not entitled to benefits – suggesting Dr. Bilinsky already had this conclusion in mind when he wrote the opinion”, he misread an examination as “no atrophy” when there was atrophy in the left arm, just not the hands, and then misstated which hand had reduced grip strength. Id. The Court found these latter errors were significant because that examination “marked a turning point in [his] treatment. It was the examination at which, after repeatedly opining that [Plaintiff] was on the cusp of returning to work with only minor limitations, Dr. Riew ultimately decided [he] could not work for at least another three to six months. And Dr. Bilinsky’s misunderstanding of Dr. Riew’s noes relates directly to his assessment of [Plaintiff’s] ability to lift, carry, and reach with his dominant left arm. An ALJ must consider whether a medical opinion is consistent with the record before assigning it weight. 20 C.F.R. § 404.1527(c)(4). Yet the ALJ did not address these inconsistencies; she merely stated the opinion was ‘consistent with the record as a whole’ and more restrictive than Dr. Riew’s older, 40-pound lifting restriction.” Id. at 416.

The Court also found the ALJ impermissibly “played doctor” when she failed to include an overhead reaching limitation on the left arm, finding that: “Without relying on any medical evidence, the ALJ assumed a thoracic nerve injury was required for an overhead-reaching restriction, contrary to the well-established rule that ALJs should not attempt to analyze the significance of medical findings without input from an expert. See McHenry v. Berryhill, 911 F.3d 866, 871 (7th Cir. 2018).” Id. at 417. Remand.

Marquardt v. Saul, 798 Fed. Appx. 34 (7th Cir. Mar. 17, 2020), pro se claimant

Plaintiff was diagnosed with systemic lupus erythematosus in 2012; his date last insured was July 2013. In 2015 and 2016, his neurologist prepared two reports in which he was diagnosed with a mild cognitive impairment and limited him to work that minimized distractions, allowed for breaks, and minimized multitasking. However, as these opinions came after the DLI, the ALJ did not consider them. The ALJ found that he was capable of performing unskilled, light work and denied benefits. Plaintiff was pro se before the ALJ and this Court.

The Court found the ALJ erred in failing to address these neurological opinions, stating that an ALJ “need not mention every piece of evidence in the record, Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010), but she ‘must confront the evidence that does not support her conclusion and explain why that evidence was rejected.’ Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).” Id. at 37. The Court noted that these opinions stated that Plaintiff’s fatigue/concentration symptoms pre-dated his DLI, and were consistent with a 2013 brain scan (shortly after the DLI) that showed white-matter hyperintensities, which are consistent with cognitive deficits. As the evidence met the standard set forth in the cited cases, the ALJ was required to address this evidence. Id. Remand

Prater v. Saul, 947 F.3d 479 (7th Cir. 2020), Attys Randal S. Forbes and Jason Scott Rodman, Angola, IN

Plaintiff, who is morbidly obese, was found to be limited to sedentary work; the RFC also stated she “would need to change positions in the course of the day” but “could remain in place for at least thirty minutes”, “whether it’s sitting or standing.” Id. at 480. Plaintiff argued the ALJ’s sit/stand limitation was impermissibly vague, as it is unclear “whether she needs to be able to alternate between siting and standing at will or whether she requires the option to switch positions only every thirty minutes.” Id. at 481. The Court found that Plaintiff was “strain[ing] to read into the RFC formulation ambiguity that is not there.” Id. The Court explained:

She primarily relies on Arnett v. Astrue, 676 F.3d 586, 593 (7th Cir. 2012), in which the ALJ stated simply that the claimant needed to alternate between sitting and standing “throughout the workday.” This restriction was too imprecise because it failed to “specify a particular frequency, and [did] not require that Arnett be able to choose to sit or stand when she feels it is necessary.” Id. By contrast, [Plaintiff’s] RFC assessment provides that she must be permitted to alternate between sitting and standing “as needed,” which, as [she] concedes, means “at the will or control of the employee. Appellant’s Br. 20. Accordingly, the RFC assessment “pass[es] muster.” Id.; see Arnett, 676 F.3d at 593.

Id. at 481-82. Moreover, the Court stated that “layering a frequency limitation onto the ‘as needed’ position-change requirement does not make the ‘hybrid’ restriction ambiguous. As the ALJ’s colloquy with the VE illustrates, the thirty-minute constraint conveys that the claimant will not be off-task too frequently throughout the day to preclude competitive employment. See Ketelboeter v. Astrue, 550 F.3d 620, 626 (7th Cir. 2008; Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cit. 2007)). Essentially, it places an outer limit on [Plaintiff’s] need to change positions and expresses her ability to do work-related activities on a sustained basis despite her impairments. See SSR 96-8p. The time limit does not introduce ambiguity.” Id. at 482. Affirmed.

Gebauer v. Saul, 801 Fed. Appx. 404 (7th Cir. Jan. 17, 2020), Atty David W. Sutterfield, Effingham, IL

Plaintiff appealed the denial of his deceased wife’s disability claims. Plaintiff argued that the ALJ should not have obtained a medical expert, but rather should have followed up with the treating physician if he had any questions. The Court disagreed, finding:

An ALJ may obtain a medical expert’s opinion for several reasons including, in relevant part, “to clarify and explain the evidence or help resolve a conflict because the medical evidence is contradictory, inconsistent, or confusing” and to determine the claimant’s residual functioning capacity. See HALLEX I-2-5-34(A)(2) (2016). Further, the ALJ’s retention of an expert was not only discretionary but prudent in this case. The use of a medical expert can help ALJs resist the temptation to “play doctor,” a label that usually produces a remand on judicial review, by evaluating medical evidence on his or her own. E.g., McHenry v. Berryhill, 911 F.3d 866, 871 (7th Cir. 2018) (reversing denial of benefits based on ALJ’s own assessment of medical evidence, without testimony from medical expert); Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009); Kurth v. Astrue, 568 F. Supp. 2d 1020, 1031 (W.D. Wis. 2008) (remanding where ALJ failed to seek evidence from qualified medical expert about severity of claimant’s fibromyalgia). A medical expert may be especially helpful when evaluating the severity of a condition—like fibromyalgia—marked by subjective and fluctuating symptoms. See, e.g., Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010) (affirming denial of benefits based in part on medical expert’s opinion that claimant’s chronic fatigue syndrome did not render her disabled).

Id. at 408-09. The Court then found the ALJ did not err in giving less weight to the treating physician opinions. Id. at 409-10. Affirmed.

Simons v. Saul, Case No. 19-2332, 2020 U.S. App. LEXIS 18582 (7th Cir. June 12, 2020), Atty David W. Sutterfield, Effingham, IL

Plaintiff filed for supplemental security income based on a combination of physical and mental impairments; she represented herself during the administrative hearing. She appealed the ALJ’s denial of her claim, arguing the ALJ failed to account for her concentration deficits in the RFC. The Court, however, rejected this argument, finding that consultative and reviewing psychologists attributed her concentration deficits to a too-high dosage of Xanax, and as Plaintiff admitted that she was no longer taking that medication, “it was reasonable for the ALJ to place reduced weight on [her] previous, drug-cased concentration impairment in making his disability determination.” Id. at 8. Affirmed.

Baldwin v. Berryhill, No. 17-2785, 2018 U.S. App. LEXIS 23430 (7th Cir. Aug. 21, 2018)

Plaintiff applied for disability insurance benefits based on pain caused by his rheumatoid arthritis. An ALJ found him disabled through May 15, 2014, at which time the judge determined that his residual functional capacity had improved enough to enable him to work. The district court upheld the agency’s determination. Plaintiff appealed arguing that that the ALJ committed several errors in assessing his residual functional capacity after May 15, 2014. He contended that the ALJ cherry-picked from the medical records to spotlight apparent improvements in his condition and to exaggerate the degree to which he was obtaining relief from his pain.

The court agreed. The court noted that while “we must uphold the Commissioner’s decision if it is supported by substantial evidence, that standard calls for more than a rubber-stamp.” The court concluded that the ALJ had “cherry-picked the evidence” to concluded Plaintiff’s condition improved. The court observed the ALJ seized on an oncologist’s observation of May 16, 2014, to the effect that Plaintiff’s pain was “minimal” as evidence that his condition had improved. Yet two days later, he complained to his treating physician of pain in his joints, neck, and shoulder. And that was not an isolated incident: he continued thereafter regularly to complain of pain to his providers. See Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014) (ALJ impermissibly cherry-picked evaluation based on highest functioning score when claimant had lower scores two weeks later). The court also found that the ALJ highlighted Plaintiff’s intermittent relief with the use of electrotherapy and hypnosis, beginning in June 2014, but that intermittent relief does not show that Plaintiff could manage full-time work. See 20 C.F.R. § 404.1594(c)(3)(iv); Attmore v. Colvin, 827 F.3d 872, 878 (9th Cir. 2016). The court reversed and remanded for further proceedings.

Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018)

Plaintiff appealed the ALJ’s denial of her application for disability benefits to district court. The district court affirmed. Plaintiff appealed arguing that the ALJ’s decision was not supported by substantial evidence because the ALJ failed to ensure that the vocational expert’s job estimates were reliable. Specifically, Plaintiff argued that the vocational expert testified drawing upon the Dictionary of Occupational Titles that she could perform “unskilled work” as a “bench assembler,” “domestic laundry worker,” or “hand packager.” He testified that across the country there were 108,000 bench assembler jobs, 306,000 domestic laundry worker jobs, and 57,000 hand packager jobs. These estimates prompted objections from Plaintiff’s counsel, who asked the VE how he had arrived at the job figures. The VE stated that he applied what is known as the equal distribution method. The ALJ then asked the VE to explain how he arrived at his projections. The VE responded by stating that he applied the equal distribution method because he prefers it over the occupational density method, which approximates job numbers utilizing a software program known as JobBrowser Pro. The VE then observed that the two methods can produce substantially different estimates, and he used the bench assembler position as an illustration. Under the occupational density method, the VE explained, the JobBrowser Pro software estimated that 800 bench assembler positions existed in the national economy, while the equal distribution method put the number at 108,000. When asked by the ALJ why he adopted the higher estimate, the VE answered only by offering that, “I find the information on occupation density information produce[d] in JobBrowser Pro, a SkillTRAN product, to the estimated numbers of jobs significant[ly] lower than I believe would be the numbers in the national economy.” The ALJ repeatedly questioned the VE trying to find out the basis of the job number. The colloquy concluded with the VE stating that his confidence in estimates generated from the equal distribution method was not rooted in surveys or job data, but rather more generally based on [his] experience as well as consultation with other experts throughout the country.”

The ALJ adopted the VE’s testimony over Plaintiff’s objection. The ALJ explained that “[t]he vocational expert’s opinion is accepted as it is not contradicted and in light of [the VE’s] professional qualifications and familiarity with the rules governing the vocational aspects of the Social Security disability evaluation.”

The court agreed with Plaintiff that the ALJ erred in accepting the VE’s arbitrary and unreliable opinion. As a preliminary matter, the court noted that the DOT was published in 1977 and last revised in 1991. The court also noted that the Social Security Administration has been working (since 2008) on a new resource that better reflects the jobs that exist in today’s economy. The agency has announced that it anticipates replacing the DOT with the Occupational Information System in 2020. Soc. Sec. Admin., Occupational Information System Project. The court also noted, “[b]eyond being outdated, the DOT’s other significant limitation is that it describes only job duties and requirements, without also reporting an estimate of how many of those positions exist in the national economy. To determine the number of jobs, a VE must consult another resource. One commonly used is the Department of Labor’s compilation of Occupational Employment Statistics. That publication does not use the DOT job grouping system, but instead relies upon another classification system, the Standard Occupational Classification (SOC).” The court observed that VE’s must translate the one classification into the other which had been recognized as “highly inaccurate and thus are advised not to perform this analysis in other areas of their practice (when they are not testifying in a disability hearing)”. The court also took note that the equal distribution method relied upon by the VE in this case “operates on the illogical assumption that all job titles within a particular DOT job group exist in equal numbers in the national economy.” The court noted, “[w]e have seen the method applied in other Social Security cases and—for the exact reason its application here troubles us—have questioned its use in at least four opinions. See, e.g., Alaura v. Colvin, 797 F.3d 503, 507-08 (7th Cir. 2015); Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015); Browning, 766 F.3d at 709; Herrmann v. Colvin, 772 F.3d 1110, 1112-14 (7th Cir. 2014). Other courts have sounded similar concern, if not specifically about the equal distribution method, then about the many layers of uncertainty in the available data on job numbers. See, e.g., Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447 n.4 (2d Cir. 2012) (noting the “information loss” that results from the “many-to-one mapping,” between the DOT titles and SOC codes, which results in an estimate of existing jobs that “may deviate significantly from the actual number of existing positions”). What most concerns us is that the method rests on an assumption about the relative distribution of jobs within a broader grouping that lacks any empirical footing. To return to a previous example, we seriously doubt the reliability of a method that assumes that the totality of all cashier and teller positions in today’s economy exist in equal numbers at racetracks as they do in banks and retail stores.”

The court concluded that the VE did not explain why his estimates, or the methods used to produce them, were reliable. “In the context of job-number estimates, we have observed that the substantial evidence standard requires the ALJ to ensure that the approximation is the product of a reliable method. See Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).” Here, the VE simply reached his conclusion through the process of elimination. The court explained that the substantial evidence standard requires the ALJ to ensure that the approximation is the product of a reliable method. In discussing the estimation methodology used by the VE, the court explained that “[w]hat is entirely lacking is any testimony from the VE explaining why he had a reasonable degree of confidence in his estimates . . . .” The court also explained that the VE was required to give “[a]n affirmative explanation for the estimate he produced . . . for without one there was no evidentiary foundation on which the ALJ could rest a finding of reliability.” The court did not find this to “require meeting an overly exacting standard.” The court reversed and remanded for the ALJ to reconsider the vocational expert’s testimony at step five of the benefits determination process.

Davenport v. Berryhill, 721 F. App’x 524 (7th Cir. May 4, 2018)

A pro se claimant appealed the denial of her applications for Supplemental Security Income and disability insurance benefits, arguing that the ALJ incorrectly calculated the adjudication periods for her applications and improperly assessed the severity and physical limitations of her impairments.

The court rejected these arguments. First, the court found the ALJ made no error in calculating the adjudication periods for benefits. Second, the court found that Plaintiff’s refusal to submit to a medical examination was, as the ALJ noted, reason enough to deny her application. The court also noted that a review of the record did not support her allegations. Despite faulting the ALJ for not developing the record the court observed that “he did everything short of physically dragging her to an examination” in order to develop the record. The court affirmed the district court’s judgment.

Roberts v. Berryhill, 721 F. App’x 507 (7th Cir. Jan. 22, 2018)

A pro se claimant (having been previously granted Supplemental Security Income) appealed a district court affirmation of an ALJ’s denial of his application for disability insurance benefits. Plaintiff applied for benefits in March 2002 alleging that he became disabled in 1981 from coronary artery disease and post-traumatic stress disorder. His application for benefits had been winding its way through the Social Security Administration and the courts for over a decade. He had been both granted and denied benefits in administrative decisions that, but for the most recent one, have all been vacated and remanded for further proceedings. The most recent decision—the one at issue in this appeal—was entered in 2014 after a hearing. The ALJ found that while Plaintiff showed symptoms of PTSD and anxiety before his date last insured of September 30, 1982, neither condition was severe before that date. Plaintiff had served from 1968 to 1971 in the United States Navy, the basis of his claim of PTSD is an incident that he told doctors he witnessed in 1969. Besides his sporadic treatment for anxiety while in the Navy, the record contains no significant medical or psychiatric treatment notes from before that date. The only other record from before his date last insured is a treatment note from February 1982 not relevant now.

Plaintiff argued upon appeal that the ALJ impermissibly to the opinions of his treating sources. The court disagreed. The only opinion he refered to was from a psychologist who examined him for purposes of helping him obtain benefits, making him a “nontreating” source. More important to the court’s consideration was a review of the record revealing that the judge thoroughly evaluated all the opinions from treating and nontreating sources alike and carefully explained his reasons for accepting or rejecting them. It found he ALJ did not clearly err in evaluating the medical opinions, none of which describe functional limitations earlier than September 1982 anyway. Likewise, the court rejected Plaintiff’s contention that the ALJ should have consulted a medical expert about the PTSD diagnosis. The court found no reason that consulting a new expert would evaluate a cold record more than 30 years after the date last insured would yield any new information not already contemplated by the other clinicians who had reviewed the medical record. Plaintiff further contended that the ALJ should have followed earlier administrative decisions that were favorable to them both from the Veterans Affairs and the Social Security administration. However, while ALJs must consider the decisions of other agencies they are not bound by them. Bird v. Berryhill, 847 F.3d 911, 913 (7th Cir. 2017). Here the court found the ALJ had done just that. Additionally, the court noted that earlier decisions from the social security administration that were properly vacated and remanded are not binding at a later point in the case. See Aguiniga v. Colvin, 833 F.3d 896, 900-01 (8th Cir. 2016) (vacated administrative decisions have no binding effect on later decisions). The court affirmed the district court’s judgment.

DeCamp v. Berryhill, 2019 U.S. App. LEXIS 5587, __ F.3d __ (7th Cir. Feb. 26, 2019)

Plaintiff filed for disability based on alleged physical and mental impairments, including depression with a history of suicidal thoughts and “cutting”; the ALJ found Plaintiff to have severe mental impairments and “moderate” restrictions in social functioning and concentration, persistence or pace under paragraph B. The ALJ’s RFC included the following mental limitations: unskilled work with a SVP of 2 or less; no fast-paced production line or tandem tasks; few if any changes in the work setting (meaning the work place and tasks change no more than occasionally and no more than one or two times per month at most); occasional interaction with coworkers, supervisors and the public; and off task or off pace up to 10% of the workday in addition to regular breaks. The ALJ denied benefits, which was upheld by the district court.

On appeal, Plaintiff argued that the ALJ’s RFC did not include all of her limitations in concentration, persistence or pace; the court agreed. The court noted that “[t]he ALJ must explicitly account for all a claimant’s limitations in her hypothetical, including limitations in concentration, persistence or pace, unless the vocational expert has independently reviewed the medical record.” Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018); Lanigan v. Berryhill, 865 F.3d 558, 563, 565 (7th Cir. 2017). The court noted that the ALJ cited Dr. Pape’s opinion in support of her finding that Plaintiff has moderate limitations in concentration, persistence or pace, but did include any limitations related to the four areas identified by Dr. Pape (namely, maintaining attention and concentration for extended periods; performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances; working in coordination or proximity to others without being distracted; and completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace) in her hypothetical to the VE. The court noted it had previously rejected limitations to “unskilled work” with “no fast-paced production line or tandem tasks” because “there is no basis to suggest that eliminating jobs with strict production quotas or a fast pace may serve as a proxy for including a moderate limitation on concentration, persistence, and pace.” Moreno, 882 F.3d at 730; O’Connor-Spinner v. Colvin, 832 F.3d 690, 698 (7th Cir. 2016). The court also found the ALJ’s analysis of the examining psychologist’s opinion, which found mild limitations in understanding, remembering and carrying out simple instructions and moderate limitations in concentration, attention and work pace to be similarly flawed. The court stated “[a]n ALJ need not use “specific terminology,” but we have “repeatedly rejected the notion that a hypothetical … confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace.” Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014).

In response to the Commissioner’s argument that the ALJ adequately accounted for Plaintiff’s limitations by relying on the narrative portions of the psychologists’ opinions, rather than the “check box” sections, the court acknowledged that an ALJ “may rely on those descriptions… [but] the ALJ still must adequately account for limitations identified elsewhere in the record, including specific questions raised in check-box sections of standardized forms such as the PRT and MRFC forms. Yurt, 758 F.3d at 859. The court noted in Yurt that there was a narrative explanation translating the limitations identified by doctors in the check-box sections of the forms, yet the court still reversed because “the ALJ did not adequately account for the limitations identified by the doctor in the check-box section of the forms. Thus, the court concluded that the ALJ erred in “focus[ing] her analysis on the doctors’ bottom-line conclusion that [Plaintiff] was not precluded from working without giving the vocational expert any basis to evaluate all [of Plaintiff’s] impairments, including those in concentration, persistence, and pace.” Vacated and remanded.

Winsted v. Berryhill, 2019 U.S. App. LEXIS 3995 (7th Cir. Feb. 8, 2019)

Plaintiff filed for disability benefits alleging both physical and mental impairments; the RFC included the following mental limitations: simple, routine, repetitive tasks with few workplace changes, no team work, and no interaction with the public. The ALJ denied Plaintiff’s claim at step 5; the district court affirmed the denial of benefits.

On appeal, Plaintiff argued that the ALJ’s RFC did not properly account for his finding of “moderate” difficulties with concentration, persistence and pace; the court agreed. The court noted that it had said “when an ALJ finds there are documented limitations of concentration, persistence and pace, the hypothetical question presented to the VE must account for these limitations.” In addition, “[w]e have made clear that in most cases ‘employing terms like ‘simple, repetitive tasks’ on their own will not necessarily exclude from the VE’s consideration those positions that present significant problems of concentration, persistence and pace,’ and thus, along, are insufficient to present the claimant’s limitations in this area.”

The ALJ had found that Plaintiff’s moderate difficulties with concentration, persistence and pace could cause problems with concentration and following written instructions, as well as stress with changes in his routine, but the ALJ’s hypothetical (which became the RFC) “did not direct the [VE] to consider problems with concentration, persistence and pace.” While those words are not required, the court stated it “cannot look at the absence of the phrase ‘moderate difficulties with concentration and pace’ and feel confident this limitation was properly incorporated in the RFC and in the hypothetical question. The court stated that while the ALJ might have thought he addressed Plaintiff’s concentration difficulties by including limitations that would minimize social interaction, as suggested by the Commissioner, it is also likely that the social interaction limitation was meant to account for Plaintiff’s moderate difficulty being around people. In addition, the RFC does not account for the ALJ’s discussion of Plaintiff’s low GAF scores that “reflect serious mental health symptoms” or his mention that Plaintiff often “appeared tense, anxious and/or restless” without interacting with other people. The court also stated that “where a claimant’s limitations are stress-related… the hypothetical question should account for the level of stress a claimant can handle…. But there was no restriction related to stress in the RFC or hypothetical question.” The ALJ also disregarded the VE’s testimony that being off task 20% of the workday or missing 2 days of work per month which “presumably assum[e] someone with ‘moderate difficulties with concentration, persistence and pace’ and the court concluded the ALJ’s decision cannot stand.

The ALJ rejected Plaintiff’s 1527 argument. Reversed and remanded.

Fisher v. Berryhill, 2019 U.S. App. LEXIS 4597, __ Fed. Appx. __ (7th Cir. Feb. 15, 2019)

Plaintiff applied for disability insurance benefits based on multiple chronic conditions, including sarcoidosis; the ALJ found that she had the RFC to perform medium work with limited use of her left hand and found that she could perform her past relevant work (with alternative step 5 findings). She appealed the ALJ’s denial of her claim, which was affirmed by the district court. On appeal, she argued that the ALJ erred in rejecting her treating physicians’ opinions and her testimony.

Regarding Plaintiff’s first argument that the ALJ erred in rejecting her treating physicians’ opinions, the court started with “[w]e must uphold an ALJ’s ruling if it is supported by substantial evidence, but that support is missing when the ALJ either fails to build a logical and accurate bridge between the evidence and conclusion or fails to follow the agency’s own regulations in a way that likely bears on the outcome.” The court found the ALJ’s reasons for rejecting her treating physician as “unpersuasive”, as the ALJ asserted that she presented for “routine visits”, yet the record shows that she “saw multiple doctors in an ongoing quest to treat her chronic abdominal, leg, and arm pain. . . If anything, what was ‘routine’ is that [Plaintiff’s] doctors consistently detected flare-ups in her conditions.”

The court also found that the ALJ’s rejection of the treating physician’s opinion because she worked “without restrictions” throughout the period addressed in his opinion was “based on a mischaracterization of the record” – she took up to 8 hours of FMLA leave per week for doctor appointments, was off work for 5 months due to sarcoidosis symptoms, and then worked for 8 months before stopping work and alleging onset of disability. Because of the mischaracterization of the record, the court “cannot say that [the ALJ] articulated a logical link between the evidence and his conclusion.”

The court found the ALJ was “cherry picking the medical record” when he cited to improved leg pain and “clinically stable” sarcoidosis in the treatment notes but ignored other notes from the same period that demonstrated she was nonetheless experiencing ongoing leg pain. The court also found that ALJ failed to assign weight based on the 20 C.F.R. § 404.1527(c) factors.

Regarding the ALJ’s credibility determination, the court noted “we may disturb the ALJ’s credibility finding only if it is ‘patently wrong.’” Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015). The court found that this “demanding standard” is met in this case because the record lacks support for two of the ALJ’s main reasons for discrediting Plaintiff’s testimony. First, “the ALJ’s reliance on the fact that [Plaintiff’s] pain abated for some time after her alleged onset date fails to appreciate the well documented fluctuating nature of her sarcoidosis.” Citing SSR 96-7p and 16-3p, the court noted that “the Agency has directed ALJs to review the record to identify possible explanations for a claimant’s seemingly inconsistent experience of her symptoms.” In this case, the ALJ exclusively focus on Plaintiff’s good days despite her treating physicians’ opinions that she will likely experience good days and bad days; the court concluded that the ALJ’s “failure to address these fluctuations [in symptoms] was a serious flaw.”

Second, the ALJ found Plaintiff’s acceptance of unemployment benefits after her alleged onset date to be “‘strongly indicative’ that she was ‘able and willing to work during the adjudicative period,’ and that it ‘b[ore] greatly on her credibility’ as to her physical limitations.” The court found this rationale to be “suspect”, noting that “we have recognized that seeking work is not the same as actually working or being demonstrably able to work. Raw economic need can lead honest people to seek both types of benefits. In addition, the applicant may be genuinely unsure whether the agency in question will regard her as able to work, and so she may not know which type of benefit may be available to her, until she applies and learns what the agency thinks.” Cole v. Colvin, 831 F.3d 411, 415 (7th Cir. 2016); Lambert v. Berryhill, 896 F.3d 768, 778-79 (7th Cir. 2018). The court found that the ALJ “needed to address the plausible reasons why [Plaintiff’s] representations in her different applications were or were not mutually consistent and honest.”

The court noted that other inconsistencies noted by the ALJ, such as she only sleeps 12 to 16 hours per day on “some days” or her desire to care for her grandchild, were “questionable, but standing alone would not have merited reversal.” Vacated and remanded.

Ray v. Berryhill, 2019 U.S. App. LEXIS 4161 (7th Cir. Feb. 12, 2019)

Plaintiff has a combination of physical and mental impairments; he has been noncompliant with some treatment and further has limited intellect. The RFC limited Plaintiff to light exertion work with limitations to understanding, remembering and carrying out semiskilled tasks and attending to tasks for a sufficient period in order to complete tasks. Plaintiff’s claim was denied at step 4 of the sequential evaluation; the ALJ found that Plaintiff could perform his past relevant work as a bus monitor for children with special needs as generally performed (as actually performed it required him to lift disabled children into their seats on the bus, strap down wheelchairs, and monitor the children’s behavior). The ALJ rejected Plaintiff’s argument that his job was a composite of school bus monitor and child care attendant.

On appeal, Plaintiff argued the ALJ erred in her credibility determination, specifically erring in evaluating his daily activities and medical reports. The court agreed, finding that “[w]ith respect to the adverse credibility determination, this is the rare case in which the claimant can overcome the ‘considerable deference’ we afford such findings unless they are ‘patently wrong.’ Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). The court found that in finding Plaintiff’s impairments were “not as limiting as he alleged”, the ALJ erred in citing irrelevant records from treatment for a staph infection and that his extremities were not fractured, tender or swollen with explaining “[t]he connection between those characteristics and [Plaintiff’s] alleged pain and restricted mobility.” The ALJ mischaracterized a medical report, stating that a physician had a negative straight-leg raise test when the opposite was true. The ALJ also erred in assuming he did not attend a spine appointment because his symptoms were not serious without asking him why he did not attend; “an ALJ must not draw inferences about a claimant’s lack of treatment without exploring the reasons for the inaction.” Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir. 2014). While Plaintiff was noncompliant with his diabetes medication, he took his pain medication “too frequently”; the court found this evidence supports his credibility rather than supporting the ALJ’s inference that he exaggerated his pain. The ALJ further erred in overemphasizing Plaintiff’s daily activities; the testimony showed the sum of Plaintiff’s activities were showering while seated, fixing simple meals, and using the dishwasher, and in between these activities he sat and watched tv. The court found that “[t]hese minimal daily activities do not support the ALJ’s finding that Ray exaggerated his symptoms, nor do they support the ultimate RFC.

Plaintiff also argued that the ALJ erred in concluding his past work as a bus monitor was not a composite job, and further erred in finding at step 4 that he could perform this job as generally performed. While both parties attempted to cite the VE’s testimony, key parts of the testimony was marked “inaudible.” The court noted the DOT’s description of a school child-care attendant included “secures children in equipment, such as chairs” and “helps children to walk, board buses”, whereas school bus monitor did not include these duties. As Plaintiff’s testimony (the only evidence of his job duties) demonstrated he performed significant elements of the childcare-attendant job that are not in the DOT’s description of the bus monitor job, and the VE’s testimony was ambiguous, the court found that substantial evidence did not support the ALJ’s conclusion that Plaintiff’s job was not a composite job.

Relatedly, Plaintiff argued the bus monitor job required a language development level of 2, which includes being able to write compound and complex sentences, use cursive style, proper end punctuation, and employ adjectives and adverbs and that he does not possess these skills; in contrast, Plaintiff testified that he does not fill out his own checks or paperwork because he misspells words and can barely read a newspaper article. The court found that the ALJ erred in failing to resolve the conflict between the VE’s testimony that Plaintiff can perform a job and Plaintiff’s ability to meet the job’s listed requirements in the DOT pursuant to SSR 00-4p. In light of this error coupled with the other step 4 errors, the court found that remand was required. Vacated and remanded.

Paul v. Berryhill, 2019 U.S. App. LEXIS 4608, __ Fed. Appx. __ (7th Cir. Feb. 15, 2019)

Plaintiff’s appeal focused on the ALJ’s evaluation of her mental impairments; she argued that the ALJ erred in rejecting the opinion of the examining psychologist. The court agreed, finding that the ALJ’s assignment of little weight was “perplexing” because the consultative examiner’s notes are consistent with Plaintiff’s treatment notes; the court found the ALJ failed to support his decision to accord this opinion little weight. The court noted the ALJ erred in rejecting the opinion for being based on an “one-time examination” when he credited the non-examining physician’s opinion, which was “based on a one-time review of [Plaintiff’s] mental health records.” Further, an examining physician’s opinion is generally entitled to more weight than a non-examining physician, and so “[a] conclusion to the contrary requires a ‘good explanation for this unusual step’”, which the ALJ did not supply. The ALJ erred by failing to substantiate his finding that the examining physician’s opinion was “vague and not specific in terms of functioning”; the 6 page opinion included a mental status examination, the doctor’s observations, symptoms, and explicit findings regarding her memory issues and ability to perform work-related activities. The court then stated “if the ALJ believed [the consultative psychologist’s] opinion was deficient, the ALJ should have sought additional clarification from [the doctor] before discounting it outright. 20 C.F.R. § 416.919p; Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009). The court found that the ALJ did not explain why Plaintiff’s inconsistent attendance at therapy sessions provides a reasonable basis for discounting the examining physician’s opinion. The court also stated “ALJs assessing mental illness and bipolar disorder must consider possible alternative explanations before racing to conclusions about noncompliance with medical directives.” Jelinek v. Astrue, 662 F.3d 805, 814 (7th Cir. 2011). The court further stated that Plaintiff’s ability to maintain her household, by performing simple chores, does not indicate a capacity to work full-time, particularly when the record shows her husband and children perform some of the household chores. Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013).

Plaintiff also argued the ALJ failed to account for his own findings of moderate limitations in concentration, persistence or pace; the court agreed, finding that Plaintiff’s “ability to learn routine, unskilled tasks does not address whether she can also maintain the concentration and focus needed to sustain her performance of that task for an extended period” and the ALJ’s reference to “flexible pace” is “insufficient to account for [Plaintiff’s] difficulties maintaining focus and performing activities within a schedule, because the reference excludes only production-pace employment. Without more, the VE cannot determine whether someone with [Plaintiff’s] limitations could maintain the proposed pace or what the proposed pace even is.” Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015). Vacated and remanded.

Radosevich v. Berryhill, 2019 U.S. App. LEXIS 1984, __ Fed. Appx. __ (7th Cir. Jan. 22, 2019)

Plaintiff applied for disability benefits due to a combination of physical and mental impairments; the RFC limited Plaintiff to light work with simple routine and repetitive tasks, performed in a work environment involving only simple, work-related decisions, and with few, if any, workplace changes. The ALJ denied benefits at step 5; this denial was affirmed by the district court.

On appeal, Plaintiff argued the ALJ erred in defining her RFC as light work consisting of simple, routine, repetitive tasks without mentioning her difficulty staying on task and on a schedule. She also argued the ALJ ignored Dr. Krawiec’s assessment that she would have difficulties with persistence, pace, and focus, even though the ALJ gave Dr. Krawiec’s opinion “significant weight.” The court noted that “[t]he vocational expert must understand the claimant’s limitations, including limitations in concentration, persistence, and pace” and that it had “‘repeatedly rejected the notion’ that a hypothetical confining the claimant to simple, routine tasks adequately captures limitations in concentration, persistence, and pace.” The court found that the ALJ’s hypothetical to the VE was incomplete because it did not include any restriction in concentration, persistence or pace and therefore “we are left with a disconnect between the limitations identified by the doctors and the ALJ’s hypothetical to the [VE].”. Reversed and remanded.

Derry v. Berryhill, 2019 U.S. App. LEXIS 187, __ Fed. Appx. __ (7th Cir. Jan. 4, 2019)

Plaintiff is a veteran with migraines, major depressive disorder, PTSD, and military sexual trauma; the VA found that she was disabled and unable to engage in substantial gainful employment. The ALJ denied benefits, which the district court affirmed.

On appeal, Plaintiff argued the ALJ erred in rejecting her treating physicians’ opinions; the court agreed. The court found “confusing” the ALJ’s treatment regarding treating physician Dr. Sunn; the ALJ stated Dr. Sunn’s opinion was a “snapshot” of Plaintiff’s functioning, which was not supported by the record, as Dr. Sunn had treated Plaintiff for 20 months and consistently reported that Plaintiff’s mental status exams were unchanged. The court found that “[t]he ALJ did not account for objective observations confirming the severity and persistence of [Plaintiff’s] depression, PTSD, and military sexual trauma” nor did the ALJ explain how Dr. Sunn’s assessment was not consistent with the objective medical evidence or why Dr. Sunn’s opinion was entitled to less weigh than the one-time consultative examiners (who the ALJ assigned great weight).

The court also found that the ALJ failed to cite to any of the purportedly “normal” findings supporting her assessment that the VA rating was inconsistent with the “primarily normal objective physical and mental findings,” and thus “there is no way to know what medical records she believed conflicted with the VA rating.” The court found “troubling [] some leaps of logic the ALJ made that are difficult to justify”, such as discounting an opinion about migraines affecting her ability to work because “her station and gait were normal.”

The court found further ALJ errors, such as the ALJ stating Plaintiff only had “moderate” difficulties in social functioning because she had no history of being fired for not getting along with others and had no history of multiple arrests or incarcerations (“[w]here that standard came from is a mystery”), and the record demonstrated that Plaintiff did have conflicts with her supervisors and self-isolated due to her childhood and military sexual trauma. The court also found that the ALJ did not discuss the treating providers’ repeated notations of concentration problems and distorted thinking; “[t]he ALJ was required properly to reconcile this evidence with her own thinly supported conclusions about [Plaintiff’s] residual functional capacity.” The court further found that Plaintiff’s “mere ‘desire to work’ – or attend school – ‘is not inconsistent with her inability to work because of a disability.’” Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015). Vacated and remanded.

Slabon v. Berryhill, 2019 U.S. App. LEXIS 3948, __ Fed. Appx. __ (7th Cir. Feb. 8, 2019)

Plaintiff, a pro se claimant, argued that the SSA violated his right to due process when it suspended and then terminated his SSI benefits while he was incarcerated. Plaintiff applied for SSI benefits in 2009, which was awarded a year later. In January 2014, he was arrested and later convicted of aggravated battery. One month after his arrest, the Agency suspended his SSI benefits under 42 U.S.C. § 402(x) and 20 C.F.R. § 416.1325; however, the Agency sent the notice of suspension to his home address rather than his place of incarceration. As he was incarcerated, he did not receive the letter. In February 2015, the Agency terminated his benefits because they had been suspended for 12 consecutive months. 42 U.S.C. § 1383(j); 20 C.F.R. § 416.1335. Plaintiff sued the Agency for constitutional violations, arguing that he was deprived of property without due process when the Agency sent the notice of suspension to his home address rather than jail, depriving him of the opportunity to challenge the suspension and eventual termination of benefits. He says that if he had received the notice, he could have accepted a plea agreement that would have assured his immediate release, and thus avoided termination of benefits. The district court granted summary judgment in the Agency’s favor, finding that any error on the Agency’s part (in sending the notice to the wrong address) was harmless because Plaintiff had no right to benefits while he was incarcerated.

The court noted that Plaintiff’s incarceration between January 2014 and February 2016 disqualified him from receiving benefits for that period, which means that “whether [Plaintiff] received the notice or not, he would not be entitled to benefits beyond those he already has received.” The court rejected his argument “attempt[ing] to blame the lack of notice for his decision not to plead guilty, which in turn resulted in incarceration for more than one year and to the termination of his SSI benefits, [as] stretch[ing] the legal concepts of duty and causation beyond recognition.” Finally, the court stated that “maintaining administrative efficiency” justifies the Agency’s policy of terminating suspended benefits after 12 months. The court affirmed the district court’s judgment.

McDonald v. Berryhill, 2019 U.S. App. LEXIS 5900, __ Fed. Appx. __ (7th Cir. Feb. 27, 2019)

Plaintiff is a pro se claimant; her claims have a complex procedural history. She applied for disability insurance benefits and supplemental security income in 2008; after her claims were denied initially and upon reconsideration, a hearing was held in September 2010. A supplemental hearing was scheduled for March 2011, but prior to that hearing, she filed a complaint in federal court, alleging the 3-year delay in deciding her claims was unlawful. This suit was dismissed for lack of subject matter jurisdiction because the Agency had not yet issued a “final” decision. Meanwhile, Plaintiff did not attend the March 2011 hearing due to the pending lawsuit, and so the ALJ dismissed her hearing request, leaving the denial of benefits intact. After the Appeals Council denied Plaintiff’s request to review the ALJ’s decision to not rule on her application, she filed a second federal lawsuit, which resulted in a remand of her case back to the agency to make a merits determination on her claims of disability, as she had not “refused” to attend the hearing, but rather skipped it for misguided reasons.

On remand, a new hearing was scheduled, but on the day of the hearing, the security officer refused to allow her into the building. As she missed the hearing, the ALJ again refused to review the denial of benefits. The Appeals Council instructed the ALJ to issue a decision on the merits, and another hearing was scheduled for January 2018. However, prior to receiving the notice of the 2018 hearing, Plaintiff filed a motion in district court requesting an order to show cause why the Agency failed to issue a decision on her claim in violation of the 2014 remand order. Before the court addressed the motion, the 2018 hearing came and went (she did not attend), and the ALJ issued an unfavorable merits decision, which she did not appeal to the Appeals Council. Thereafter, the district court denied Plaintiff’s motion because a decision had, in fact, been issued by the ALJ and refused to “reconsider” the ALJ’s decision because the proper avenue of relief was to seek review in the Appeals Council and later in district court.

The court agreed with the district court that Plaintiff’s motion was “moot” once the ALJ issued the unfavorable decision. Moreover, the court found that Plaintiff needs to exhaust her administrative remedies before filing a complaint in federal district court; the court found that it did not have jurisdiction to consider the district court’s denial of her motion for reconsideration (which was her request to have the court review the ALJ’s decision).

Hammerslough v. Berryhill, 2019 U.S. App. LEXIS 643, __ Fed. Appx. __ (7th Cir. Jan. 9, 2019)

Plaintiff applied for disability insurance benefits and supplemental security income due to benign brain tumor, atrial fibrillation, sleep apnea, a history of seizures, and a history of superficial vein thrombosis; the ALJ found Plaintiff’s alleged headaches were not substantiated by the record. The ALJ found that Plaintiff has the RFC to perform sedentary exertion work, and denied benefits at step 5; the district court affirmed the ALJ’s denial. On appeal, Plaintiff argued that the ALJ failed to consider the severity of his headaches as part of the RFC analysis and failed to explain how he could satisfy the sitting requirements of sedentary work.

The court found Plaintiff’s argument that the ALJ did not consider his headaches to be “meritless” because the ALJ summarized over 30 relevant medical reports and then addressed and evaluated his headache complaints alongside his most recent neurological appointments. The court rejected Plaintiff’s argument that the ALJ did not justify his finding that he can sit for 6 hours per day, finding that “[t]he ALJ discussed the effects and treatment of [Plaintiff’s] superficial venous thrombosis – the only impairment that [Plaintiff] identified as limiting his ability to sit. . . [and Plaintiff] never complained that he could not sit for long periods of time prior to his hearing, nor are there physicians’ notes (let alone diagnoses) to that effect.” The court further found that the ALJ addressed Plaintiff’s impairments both “singly” and “in combination”; the court noted that “[t]he ALJ could have said more, but what he said is sufficient, given the impression left by the medical record that [Plaintiff’s] impairments are generally well controlled.” The court further found that the ALJ “identif[ied] and explain[ed] all of his credibility findings and grounded each of them in the record” and thus declined to overturn his credibility findings. The court affirmed the district court’s judgment.