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Kimela L. G. v. Saul

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

July 12, 2019

KIMELA L. G., Plaintiff,
v.
ANDREW M. SAUL Commissioner of the Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL

          TIM A. BAKER UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         The Seventh Circuit has repeatedly held that Administrative Law Judges must account for claimants' limitations in concentration, persistence, and pace (“CPP”) both in their residual functional capacity assessments and in their hypotheticals to the vocational expert. The Seventh Circuit has likewise repeatedly held that hypotheticals that merely limit claimants to simple, routine, and repetitive tasks without fully informing the VE of claimants' CPP limitations are insufficient. In this case, it seems the ALJ attempted to sidestep the Seventh Circuit's clear directive. The ALJ found that Plaintiff had moderate limitations in CPP with respect to “all situations [Plaintiff] might encounter, ” but within the parameters of simple, routine, and repetitive tasks, “Plaintiff [was] able to sustain the attention, concentration, and persistence needed to perform on a regular and continuing basis.” [Filing No. 11-2, at ECF p. 24.] In other words, the ALJ did not include Plaintiff's CPP limitations in her RFC because the limitations supposedly did not affect Plaintiff's ability to do simple, routine, and repetitive tasks at work. With this carveout, the ALJ's hypotheticals merely limited Plaintiff to simple, routine tasks and simple work-related decisions. However, the Court is not convinced that this approach complies with Seventh Circuit precedent. Further, given that the Seventh Circuit has given ALJ's a safe harbor-include “moderate limitations in concentration, persistence, and pace” in a hypothetical-this attempt to sidestep the Seventh Circuit's case law is unwarranted. Therefore, the Court grants Plaintiff's request for remand. [Filing No. 15.]

         II. Background

         Plaintiff applied for disability insurance benefits in July 2014, claiming disability beginning in March 2013. Her claim was denied initially and upon review. Plaintiff then had a hearing before an Administrative Law Judge, who found Plaintiff's impairments did not prevent her from working. The Appeals Council denied Plaintiff's request for review, and Plaintiff appealed to this Court.

         The ALJ followed the Social Security Administration's five-step sequential evaluation process, 20 C.F.R. § 404.1520(a), and determined Plaintiff was not disabled. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity in the relevant period. Plaintiff worked part-time during this period, and the ALJ considered this when analyzing Plaintiff's RFC, but the ALJ found the earnings did not constitute substantial gainful activity that would disqualify Plaintiff. At step two, the ALJ found Plaintiff had three severe impairments: below-the-knee amputation of the right leg, back pain with radiation down the leg, and depression. The ALJ further found Plaintiff's remote history of cervical cancer was a non-severe impairment. At step three, the ALJ found that Plaintiff did not have an impairment that met, or a combination of impairments that medically equaled, any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, the ALJ looked to listings 1.05B (amputation of lower extremity), 1.04 (disorders of the spine), and 12.04 (depressive, bipolar, and related disorders). Regarding listing 1.05B, the ALJ considered whether stump complications made Plaintiff medically unable to use a prosthetic device to ambulate effectively.

         Before moving on to step four, the ALJ determined Plaintiff's RFC. Specifically, the ALJ found Plaintiff had the RFC to perform sedentary work, except:

[S]he can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; never climb ladders, ropes or scaffolds; never be required to work around unprotected heights, moving mechanical parts, or be required to operate a motor vehicle; and never be required to work around slippery, uneven surfaces. [Plaintiff] is further limited to simple, routine tasks and simple work-related decisions.

[Filing No. 11-2, at ECF pp. 18-19.] Using this determination, along with Plaintiff's age, education, and work experience, as well as testimony from the VE, the ALJ found at step four that Plaintiff was unable to perform any of her past relevant work. At step five, the ALJ again considered that information but concluded that there were other jobs in significant numbers that Plaintiff could perform. Thus, the ALJ found Plaintiff was not disabled. Plaintiff argues that this finding is not supported by substantial evidence and must be remanded for reconsideration.

         III. Discussion

         Plaintiff presents three arguments that the ALJ's decision is not supported by substantial evidence, all of which concern whether the ALJ accounted for her own findings. See L.D.R. by Wagner v. Berryhill, 920 F.3d 1146, 1151 (7th Cir. 2019) (ALJs' decisions must be supported by substantial evidence). The Court first addresses Plaintiff's position that the ALJ failed to account for the ALJ's step three finding that Plaintiff had moderate limitations in CPP. Plaintiff contends the ALJ failed to account for Plaintiff's CPP limitations in both the RFC finding and the ALJ's hypotheticals to the VE. Defendant responds that the ALJ in fact accounted for Plaintiff's CPP limitations in her express finding that, while Plaintiff generally has CPP limitations in her life as a whole, Plaintiff was not limited when she was in an appropriate work environment. As discussed below, the ALJ's decision runs afoul of Seventh Circuit precedent and requires remand.

         Plaintiff's two remaining arguments concern, at least in part, whether the ALJ ignored her own findings concerning other limitations. According to Plaintiff, the ALJ's step three consideration of listing 1.05B was perfunctory and failed to create a logical bridge from the evidence to the ALJ's conclusion. Plaintiff next argues the ALJ failed to include in Plaintiff's RFC the ALJ's finding that Plaintiff needed to remove her prosthesis several times a day for 30 to 60 minutes. However, either in part or in whole, both arguments rely on the faulty assumption that the ALJ found Plaintiff's testimony was credible and adopted it. The remaining support for Plaintiff's positions is unpersuasive.

         a. Concentration, Persistence, and Pace

         Plaintiff argues that the ALJ failed to account for her own step three finding that Plaintiff suffered from a moderate CPP limitation. Plaintiff contends the ALJ failed to include this limitation in her hypotheticals to the VE and failed to include an appropriate limitation in Plaintiff's RFC. Defendant responds that the ALJ's hypotheticals to the VE sufficiently encapsulated Plaintiff's RFC because the ALJ expressly found that, though Plaintiff had CPP limitations in general, Plaintiff's CPP limitations did not affect her when she was in an appropriate work environment with appropriate tasks. The problem is the ...


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