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Julius v. Colvin

United States District Court, W.D. Wisconsin

October 11, 2016

ROBERT JULIUS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Plaintiff Robert Julius is seeking review of a final decision by defendant Carolyn W. Colvin, Acting Commissioner of Social Security, denying his claim for supplemental security income under the Social Security Act. 42 U.S.C. § 405(g). His claim has a complicated procedural history dating back almost 18 years. Plaintiff was born on November 30, 1990 and was eight years old when he was awarded supplemental security income on February 16, 1999, because his intellectual disability (then referred to as “mild mental retardation”) and attention deficit hyperactivity disorder met the criteria of Listing 112.05(D) (intellectual disability). Following a continuing disability review, the commissioner found plaintiff to be not disabled as of February 2004 and sought termination of his benefits effective April 2004. Plaintiff appealed the decision, but an administrative law judge affirmed the cessation of plaintiff's benefits following an administrative hearing in May 2006. After the Appeals Council denied plaintiff's request for review, plaintiff filed suit in federal court. In January 2008, the United States District Court for the Eastern District of Wisconsin remanded the 2006 administrative decision for further proceedings. Plaintiff turned 18 before a hearing was held on remand.

         In September 2009, an administrative law judge denied plaintiff's claim after evaluating plaintiff's claim under the standards for determining disability benefits for both children and adults, Two months later, on December 23, 2009, plaintiff filed another application for supplemental security income, alleging disability beginning November 1, 1991. The December 2009 claim was denied initially and on reconsideration, and an administrative law judge issued a finding of “not disabled” in April 2012.

         In July 2012, the Appeals Council remanded the September 2009 decision on plaintiff's first application for (1) further consideration of third-party statements and questionnaires; (2) an assessment of plaintiff's maximum residual functional capacity with specific references to the evidence supporting it; and (3) obtaining supplemental vocational expert testimony if needed. In April 2013, the Appeals Council granted plaintiff's request for review of the April 2012 decision on his second application. The Appeals Council determined that plaintiff's two claims should be consolidated and that an administrative law judge should issue a new decision on the consolidated claims.

         Administrative Law Judge Wayne Ritter held an administrative hearing in the consolidated case on April 17, 2014; plaintiff was 23 years old at that time. The administrative law judge issued a written decision on June 6, 2014, finding that (1) plaintiff's intellectual functioning had improved as of April 30, 2004; (2) plaintiff was not disabled under 42 U.S.C. § 1382c(a)(3)(C) before he turned 18 years old on November 30, 2008; and (3) plaintiff did not meet the definition of disability for adults under § 1382c(a)(3)(A). AR 567, 593. Although the administrative law judge concluded that plaintiff continued to suffer from the severe impairments of borderline intellectual functioning and attention deficit hyperactivity disorder after April 30, 2004, AR 569 and 583, he determined that plaintiff had the residual functional capacity to perform work at all exertional levels if it is “limited to performing simple, routine and repetitive tasks; no fast-paced work; and only simple work-related decisions with occasional work place changes and occasional interaction with the public, co-workers and supervisors.” AR 585. In his current appeal of that decision, plaintiff argues that he is entitled to an award of benefits because the administrative law judge erred in two ways: (1) he failed to account for plaintiff's moderate limitations in concentration, persistence and pace in the residual functional capacity assessment and in his hypothetical question to the vocational expert in determining whether plaintiff met the definition for disability as an adult; and (2) he did not give proper consideration to certain functional limitations identified by the medical expert, a consulting physician, a treating physician, plaintiff's guardian and plaintiff's former special education teacher in determining whether plaintiff met the definition for disability as a child.

         For the reasons discussed below, I am remanding this case so the administrative law judge can fully account for plaintiff's moderate limitations in concentration, persistence and pace and more fully explain his reasoning for rejecting the marked limitations assessed by the medical expert. Plaintiff has waived all of his other arguments relating to the third-party opinions by failing to develop them. Finally, I am declining plaintiff's request for a judicial award of benefits because plaintiff has not shown that the record compels a finding of disability under the standards applicable either to children or adults.

         OPINION

         A. Concentration, Persistence and Pace

         At step four of the sequential evaluation process applicable to adults, the administrative law judge found that after plaintiff turned 18, his impairments resulted in moderate limitations in his ability to maintain “concentration, persistence and pace.” AR 588, 591. At other points in his decision, the administrative law judge refers to moderate limitations in “concentration, persistence or pace.” AR 584, 588. He did not identify plaintiff's specific limitations or state whether he believed that plaintiff had problems in one, two or all three of these areas. Varga v. Colvin, 794 F.3d 809, 815-16 (7th Cir. 2015) (finding same deficiency in administrative decision). For example, even though the administrative law judge referred generally to plaintiff's inability to focus, he did not discuss any issues plaintiff faced with persistence or pace even though he seems to agree that plaintiff also had problems in these areas. AR 588 (“[A]lthough the claimant reports having only a 6th-grade reading level and difficulty maintaining focus, the overall record documents that he can focus on tasks fairly well when he wants to” in performing his daily activities.) (emphasis in original). He rejected more severe limitations in concentration, persistence and pace for plaintiff based primarily on the fact that plaintiff hunted and fished on a daily basis, studied for and completed high school equivalency tests, took courses to be an electrician and played video games for 45 minutes at a time. AR 588.

         The state agency physician opinions that the administrative law judge relied upon also fail to shed much light on plaintiff's specific limitations in concentration, persistence and pace, but they do show that the consulting physicians believed that plaintiff was limited in all three areas. On April 19, 2010, Dr. Jack Spear completed a mental residual functional capacity assessment form in which he noted that plaintiff was moderately limited in his ability to carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday and workweek without interruption and perform at a consistent pace. AR 1307-09, 1321. Dr. Roger Rattan affirmed Spear's opinion in June 2010. AR 590. In an April 12, 2010 report, Dr. Stephen Kraweic examined plaintiff and concluded that he had “attention difficulty and broader intellectual limitations” and required a “low-stress environment where rapid pace was not required, ” as well as “some close supervision and guidance.” AR 1304. In the residual functional capacity assessment and the hypothetical question posed to the vocational expert at the hearing, the administrative law judge attempted to account for the unspecified concentration, persistence and pace limitations by restricting plaintiff to simple, routine and repetitive tasks with no fast-paced production and only simple work-related decisions and occasional workplace changes. AR 587-88.

         Plaintiff contends that the administrative law judge erred by failing to translate his moderate limitations in concentration, persistence and pace into adequate residual functional capacity findings for the vocational expert. O'Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (administrative law judge must orient vocational expert to “totality of a claimant's limitations, ” including those involving “concentration, persistence and pace”). Specifically, plaintiff argues that the administrative law judge did not ask the vocational expert to assume a hypothetical person with the specific concentration, persistence and pace limitations alleged by plaintiff and instead focused his questions on what type of tasks and instructions he believed that plaintiff could handle. Perez v. Astrue, 881 F.Supp.2d 916, 940 (N.D. Ill. 2012) (noting similar problems and remanding on this basis). Plaintiff points out correctly that the Court of Appeals for the Seventh Circuit has found repeatedly that remand is required where an administrative law judge adopts “simple” or “routine” tasks or instructions as a substitute for limitations in concentration, persistence and pace. Yurt v. Colvin, 758 F.3d 850, 857-58 (7th Cir. 2014) (“simple” or “repetitive” work does not address general concentration, persistence and pace deficiencies); O'Connor-Spinner, 627 F.3d at 620 (“The ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity.”); Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009) (limiting plaintiff to simple, routine tasks did not account for limited ability to understand instructions); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir. 2004) (“simple, routine” tasks did not adequately account for “impairment in concentration”); Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (“simple, unskilled work” does not account for difficulty with memory, concentration, or mood swings).

         Defendant argues that the administrative law judge did not simply assume that plaintiff could do unskilled work because he also specified that plaintiff could not handle fast-paced work or any more than limited interaction with others. Although these more specific restrictions may address some of plaintiff's limitations related to work pace and adaptation, they do not account for the documented problems that he had with concentration or maintaining persistence. Varga, 794 F.3d at 815 (“‘Few if any work place changes' with limited ‘interaction with coworkers or supervisors' deals largely with workplace adaptation, rather than concentration, pace, or persistence.”); Prestwich v. Colvin, No. 14-CV-815-jdp, 2016 WL 426607, at *1 (W.D. Wis. Feb. 3, 2016) (hypothetical question that limited claimant to “simple, routine, and repetitive tasks in a low-stress job” with only occasional supervision, decision making, changes in work setting and interaction with public and co-workers did not adequately account for moderate limitations in concentration, persistence and pace). Further, the administrative law judge did not define what he meant by “fast-paced production, ” and “[w]ithout such a definition, it would have been impossible for the [vocational expert] to assess whether a person with [claimant's] limitations could maintain the pace proposed.” Varga, 794 F.3d at 815.

         Although it is not necessary for the administrative law judge to use the terms “concentration, ” “persistence” or “pace” in the hypotheticals he poses for the vocational expert, the court “will not assume that a [vocational expert] is apprised of such limitations unless he or she has independently reviewed the medical record.” Varga, 794 F.3d at 814 (citing Yurt, 758 F.3d at 857). See also O'Connor-Spinner, 627 F.3d at 619 (“We sometimes have assumed a [vocational expert's] familiarity with a claimant's limitations, despite any gaps in the hypothetical, when the record shows that the [vocational expert] independently reviewed the medical record or heard testimony directly addressing those limitations.”). Defendant states generally that the vocational expert in this case was made aware of plaintiff's moderate difficulties, but she fails to cite any support for this position. The administrative law judge did not identify at the hearing or in his written decision what he believed were plaintiff's moderate limitations in concentration, persistence and pace. Although the vocational expert testified that he had reviewed the “file” and “exhibits, ” he said he did so to “familiarize” himself with plaintiff's “vocational background.” AR 1594. Nothing in the record suggests that the vocational expert independently reviewed plaintiff's medical records with respect to his limitations in concentration, persistence and pace. In any event, the Court of Appeals for the Seventh Circuit has made it clear that even in cases in which the vocational expert has reviewed the medical record, it will not assume the expert's familiarity with a claimant's limitations if the administrative law judge “poses a series of increasingly restrictive hypotheticals to the [vocational expert], because in such cases we infer that the [vocational expert's] attention is focused on the hypotheticals and not on the record.” O'Connor-Spinner, 627 F.3d at 619 (citing Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Young, 362 F.3d at 1003).

         Finally, relying on this court's decision in Lanigan v. Colvin, 2016 WL 2743547, *6 (W.D. Wis. May 11, 2016), defendant contends that plaintiff waived his challenge to the hypothetical because he did not ask the vocational expert at the hearing how the moderate difficulties in concentration, persistence and pace would affect the occupational base. However, a review of the hearing transcript shows that plaintiff's attorney asked the vocational expert a series of questions that added limitations in these areas to the hypotheticals posed by the administrative law judge, and in each case, the vocational expert testified that there would be no work available to such an individual. AR 1601-02. In addition, the vocational expert testified in response to questions from plaintiff's attorney that the Dictionary ...


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