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Wilson v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

January 5, 2018

NANCY A. BERRYHILL Acting Commissioner of the Social Security Administration, Defendant.


          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Introductory and background information aside, Plaintiff Loeta Gayle Wilson's opening brief has only two paragraphs of argument and is supplemented by a mere page and a half reply. Though arguments can be successfully made in few pages, in this instance Wilson's motion [Filing No. 17] fails to persuade the Court that the Administrative Law Judge's decision is not supported by substantial evidence.

         Wilson argues the ALJ failed to supply the vocational expert with an adequate hypothetical in light of Varga v. Colvin, 794 F.3d 809 (7th Cir. 2015), and Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014). Wilson contends that the ALJ's hypothetical failed to apprise the VE of her difficulties with concentration, persistence, and pace, as required by Varga and Yurt. However, as discussed below, Varga and Yurt merely required the ALJ to inform the VE of the moderate limitations in Wilson's mental residual functional capacity assessment. The ALJ's hypothetical was satisfactory under Varga and Yurt, and Wilson fails to show additional limitations that should have been included. Therefore, the Court denies Wilson's request for remand. [Filing No. 17.]

         II. Background

         Wilson applied for supplemental security income, claiming total disability due to a combination of physical and mental limitations. The Social Security Administration denied Wilson's application both initially and upon reconsideration. The ALJ held a video hearing and issued a decision finding that Wilson was not disabled.[1]

         The ALJ found Wilson had multiple severe impairments: “degenerative disc disease of the lumbar spine, chronic pain syndrome, osteoarthritis of the bilateral knees, borderline intellectual functioning, anxiety and affective disorders, obesity, and migraine headaches.” [Filing No. 14-2, at ECF p. 18; R. at 17.] Despite these impairments, the ALJ concluded that Wilson could perform a limited range of light exertional jobs, such as inspector/hand packager, garment sorter, or small products assembler.

         III. Discussion

         The Court reviews the ALJ's decision to determine whether it is supported by substantial evidence. Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Wilson argues the hypothetical the ALJ posed to the VE failed to account for her limitations such that the ALJ's decision is not supported by substantial evidence and must be remanded. Specifically, Wilson argues that the ALJ erred by failing to supply the VE with a hypothetical that apprised her of Wilson's difficulties with concentration, persistence, and pace. The Commissioner argues that Wilson's failure to show any limitations beyond what the ALJ included in his RFC assessment is fatal to her argument.

         At step three, the ALJ determines whether the claimant's severe impairments meet or medically equal one of the listings under 20 C.F.R. § Pt. 404, Subpt. P, App. 1. ALJs typically rely on a medical expert's opinion in their step three analyses. If the ALJ adopts the expert's opinion that the claimant met or equaled the listing, then the claimant is presumptively disabled. 20 C.F.R § 404.1525; 20 C.F.R. § 404.1526. If the ALJ finds the claimant does not meet or equal the listing, the ALJ continues his or her analysis to steps four and five.

         In steps four and five, the ALJ must determine whether the claimant can work either in a previous role or a new one. 20 C.F.R. § 404.1520(e). Before making these findings, the ALJ determines the claimant's residual functional capacity, i.e. the abilities the claimant still has despite her severe and non-severe limitations. Id.The RFC sometimes includes a mental residual functional capacity assessment (MRFCA), which is done by an expert using a standard form. Varga v. Colvin, 794 F.3d 809, 811 n.1 (7th Cir. 2015). If the ALJ uses a vocational expert, the ALJ poses hypotheticals to the VE that convey the limitations in the claimant's RFC. See 20 C.F.R. § 416.960(b)(2). The VE then compares the hypotheticals to job descriptions and openings so the ALJ can determine what kinds of jobs the claimant can perform and whether those jobs are available. Id.

         Providing the VE a faulty hypothetical can render an ALJ's decision unsupported by substantial evidence. See, e.g. Varga, 794 F.3d at 813-14. The Seventh Circuit has expressed concern that VEs were not being adequately apprised of the full scope of claimants' limitations. Id. at 814; Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014); O'Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010). In general, a hypothetical that limits the claimant to simple, routine tasks and limited interactions with others does not adequately capture the temperamental nature of deficiencies in concentration, persistence or pace. Id. However, there is no requirement for the ALJ to use “magic language” in her hypothetical to the VE. Renly v. Colvin, No. 13-cv-242-bbc, 2014 WL 896615, at *2 (W.D. Wis. Mar. 6, 2014) (citing O'Connor-Spinner, 627 F.3d at 619).

         In both Varga and Yurt, the Seventh Circuit used the same quote to sum up what the ALJ must provide to the VE: “Thus, we would expect an adequate hypothetical to include the limitations identified by [the doctor who completed the MRFCA].” Varga, 794 F.3d at 814; Yurt, 758 F.3d at 858. It is error for the ALJ to ignore “any moderate difficulties in mental functioning found in . . . the MRFCA form.” Varga, 794 F.3d at 816.

         At step three, the ALJ found that Wilson had moderate difficulties in concentration, persistence or pace. For some of the listings the ALJ analyzed, one criterion was whether Wilson had a “marked” limitation in her ability to “concentrate, persist, or maintain pace.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (12.04(B), 12.05(D), 12.06(B)); Filing No. 14-2, at ECF p. 19; ...

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