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Kenneth H. v. Berryhill

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

August 20, 2018

KENNETH H., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff Kenneth H. appeals the Social Security Administration's denial of his application for a period of disability and disability insurance benefits. The Administrative Law Judge found that Plaintiff had several severe impairments, but Plaintiff was nonetheless not disabled. Plaintiff argues that (1) substantial evidence does not support the ALJ's decision because he failed to define “fast-paced production requirements” for the vocational expert and (2) the ALJ did not give legally sufficient reasons for rejecting Plaintiff's statements that looking down precipitated his dizziness. As discussed below, the Court denies Plaintiff's request for remand [Filing No. 17] because substantial evidence supports the ALJ's decision and the ALJ's assessment of Plaintiff's symptoms was not patently erroneous.

         II. Background

         Following the SSA's five-step sequential evaluation process, the ALJ determined that Plaintiff was not disabled. See20 C.F.R. § 404.1520(a) (explaining the five-step evaluation process). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, the ALJ determined that Plaintiff is severely impaired with hypertension; diabetes mellitus; hyperglycemia, NOS; vertigo; chronic dizziness; status post stroke (cerebral vascular accident); and status post heart valve repair. At step three, the ALJ determined that Plaintiff is not presumptively disabled because his impairments do not meet or medically equal the severity of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1.

         Before moving on to step four, the ALJ determined that Plaintiff had the residual functional capacity to perform light work, subject to additional limitations. In particular, the ALJ found that Plaintiff must be allowed to alternate between sitting and standing at will, with some additional motor limitations. Further, the ALJ limited Plaintiff to never working around unprotected heights or hazardous machinery, avoiding concentrated exposure to extreme temperatures, occasionally operating motor vehicles, and to jobs without fast-paced production requirements. Part of the evidence the ALJ considered in making this determination included Plaintiff's testimony that looking down caused dizziness. At step four, the ALJ relied on Plaintiff's RFC and a vocational expert's testimony to determine that Plaintiff would be unable to perform any past relevant work. However, at step five, the ALJ determined that the Plaintiff can perform jobs available in significant numbers in the national economy despite his limitations.

         III. Discussion

         Plaintiff makes two arguments in support of his appeal. Plaintiff's first argument is that substantial evidence does not support the ALJ's decision because he failed to define fast-paced production requirements for the vocational expert. In response, the Deputy Commissioner argues that substantial evidence supports the ALJ's decision because the hypothetical-in its entirety-accurately describes the claimant in all significant relevant aspects. Plaintiff's second argument is that the ALJ did not give legally sufficient reasons for rejecting Plaintiff's statements that looking down caused dizziness. The Deputy Commissioner responds that the ALJ provided specific reasons and an evidentiary basis for evaluating Plaintiff's dizziness as required by the agency's regulations.

         On review, this Court exercises deference and determines whether substantial evidence supports the ALJ's decision. Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1979)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The Court does not “reweigh evidence or substitute [its own] judgment for that of the ALJ.” Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014) (quoting Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013)). However, the Court will remand the ALJ's decision if the reasons given by the ALJ do not “build an accurate and logical bridge” between the evidence and the result. Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017).

         A. Fast-Paced Production Requirements

         Plaintiff argues that substantial evidence does not support the ALJ's decision because he failed to define fast-paced production requirements for the vocational expert. To support this claim, Plaintiff relies on Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015), which noted that it is “problematic that the ALJ failed to define ‘fast[-]paced production.' Without such a definition, it would have been impossible for the [vocational expert] to assess whether a person with Varga's limitations could maintain the pace proposed.” Seeing a parallel between the hypotheticals given by the ALJ in the Plaintiff's case and the ALJ in Varga, Plaintiff requests a remand since no such definition was provided. The Deputy Commissioner responds that substantial evidence supports the ALJ's decision because his hypotheticals accurately described Plaintiff, and the VE identified thousands of jobs in the national economy that Plaintiff could perform.

         All of a claimant's limitations must be incorporated in the hypotheticals presented to the VE and in the ALJ's RFC assessment. See Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir. 2014); O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). For example, if an ALJ finds that a claimant has limitations in concentration, persistence, or pace, and the VE does not know about those limitations, then the ALJ must in some way account for those limitations in the hypotheticals presented to the VE. See, e.g., Varga, 795 F.3d at 813-14. Repeatedly, the Seventh Circuit has stated that ALJs must provide VEs with a full picture of a claimant's RFC. O'Connor-Spinner, 627 F.3d at 619. Hypotheticals presented to the VE must include all limitations found credible by the ALJ so that the expert does not list jobs that are unavailable to the claimant. Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002).

         In this context, Plaintiff's reliance on Varga is misguided. In Varga, the Seventh Circuit found reversible error when the hypothetical did not “incorporate all of the claimant's limitations supported by the medical record-including moderate limitation[s] in concentration, persistence, and pace . . . .”. Varga, 794 F.3d at 814 (emphasis in original). The lack of definition for fast-paced production requirements was only part of the ALJ's failure to incorporate difficulties in concentration, persistence, or pace into the hypothetical. Id.The ALJ's other questions in the hypothetical also failed to account for the claimant's mental limitations. Id. For example, limiting the claimant to “simple, routine, and repetitive tasks” was “unrelated . . . to whether an individual with mental limitations . . . can perform such work.” Id. Limiting the claimant to work “involving only simple work related decisions with few if any work place changes and no more than occasional interaction with coworkers and supervisors, ” as the court explained, “deals largely with workplace adaptation, rather than concentration, persistence, or pace.” Id. Finally, limiting Varga to work “free of fast[-]paced production requirements, ” without defining what that means, did not allow the “VE to assess whether a person with Varga's limitations could maintain the pace proposed.” Id.

         Unlike the hypothetical in Varga, Plaintiff's hypothetical provided the VE with a full picture of Plaintiff's RFC, even though he did not define fast-paced production requirements. “Due to dizziness and vertigo, as well as mild depression, ” the ALJ limited Plaintiff to ...


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