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Wilson v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

August 27, 2014

DONNA L. WILSON, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of the Social Security Administration, Defendant.

ENTRY ON DEFENDANT'S OBJECTION TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. YOUNG, District Judge.

Plaintiff suffers from a myriad of disorders, most notably obesity, chronic asthma, allergies, fibromyalgia, depression, high blood pressure, and vocal cord dysfunction. Plaintiff previously worked at Community East Hospital in Indianapolis, Indiana, as a medical transcriptionist. She filed an application for Social Security Disability Benefits under Title II of the Social Security Act, on July 29, 2010, alleging an onset of disability of May 1, 2005. Her application was denied initially and on reconsideration. Upon Plaintiff's request, a hearing was held on December 22, 2011, before the Administrative Law Judge ("ALJ"). The ALJ denied Plaintiff's applications on March 26, 2012. The Appeals Council denied her request for review on May 17, 2013, making the ALJ's decision the final decision for purposes of review. Plaintiff filed her Complaint for judicial review pursuant to 42 U.S.C. § 405(g) on July 16, 2013.

On July 17, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that the court reverse the final decision of the defendant, Carolyn W. Colvin, Acting Commissioner of Social Security, because the ALJ failed to account for the Plaintiff's mild deficiencies in concentration, persistence, or pace in his hypothetical questions to the vocation expert ("VE"). The Commissioner objects. For the reasons explained below, the court OVERRULES the objections and ADOPTS the Report and Recommendation as the Order of the court.

I. The ALJ's Decision

In determining whether Plaintiff was disabled, the ALJ engaged in a five-step analysis as set forth under 20 C.F.R. § 404.1520(a). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the period of her alleged onset date of May 1, 2005, through her date last insured of December 31, 2009. At step two, the ALJ found that through the date last insured, Plaintiff had the following severe impairments: obesity, asthma, and fibromyalgia. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals any impairment in the Listing of Impairments through the date last insured.

Before considering step four, the ALJ considers the claimant's residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e)). The ALJ found that, through the date last insured, Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the following limitations:

She can walk continuously for 10 minutes at a time and can stand continuously for 15 minutes at one time. She must avoid all exposure to extreme cold and extreme heat, must avoid concentrated exposure to humidity, and must avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation, etc.

(Filing No. 11-2 at 26-27). Finally, at step four, the ALJ determined that, through the date last insured, Plaintiff was capable of performing her past relevant work as a medical transcriptionist as it is generally performed. The ALJ therefore found that Plaintiff was not disabled.

II. Standard of Review

The court reviews the Commissioner's denial of benefits to determine whether it was supported by substantial evidence or is the result of an error of law. Rice v. Barnhart, 384 F.3d 363, 368-69 (7th Cir. 2004) (citing Lopez v. Barnhart, 336 F.3d. 535, 539 (7th Cir. 2003)). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citation omitted). The scope of the court's review is confined to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011).

When a party raises specific objections to a magistrate judge's report and recommendation, the district court reviews each objection de novo; in other words, the district court determines anew whether the Commissioner's decision as to those issues is supported by substantial evidence or was the result of an error of law. FED. R. CIV. PRO. 72(b). Upon review of the record and the parties' submissions, the district court makes the ultimate decision to adopt, reject, or modify the report and recommendation. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009).

III. Discussion

The present objection concerns the Magistrate Judge's recommendation to reverse the ALJ because he failed to account for her mild limitations in concentration, persistence or pace in the hypotheticals he posed to the VE. The Commissioner argues "the Magistrate Judge concedes that Plaintiff did not cite to any medical evidence to support a limitation in concentration, persistence, or pace, ' and he does not find that any such evidence exists." Thus, the Commissioner argues, the Magistrate Judge's recommendation to reverse the ALJ is in error.

Seventh Circuit precedent requires an "ALJ to orient the VE to the totality of a claimant's limitations" that are supported by medical evidence in the record, including limitations in concentration, persistence, or pace. O-Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009). "[T]he most effective way to ensure that the VE is apprised fully of the claimant's limitations is to include all of them directly in the hypothetical." O'Connor-Spinner, 627 F.3d at 619. There are two exceptions to this rule. First, an ALJ is not independently required to account for limitations in concentration in his hypothetical when the record indicates that the VE "independently learned of the limitations (through other questioning at the hearing or outside review of the medical records, for example) and presumably accounted for them.'" Similia v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009) (quoting Steele v. Barnhart, ...


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