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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.