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Bennett v. Berryhill

United States District Court, W.D. Wisconsin

July 16, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff James Bennett is seeking review of a final decision by defendant Nancy Berryhill, Acting Commissioner of Social Security, denying his claim for disability insurance benefits (SSDI) under the Social Security Act. 42 U.S.C. § 405(g). Bennett argues that the administrative law judge (ALJ) who denied his claim did not account adequately for his moderate limitations in concentration, persistence or pace or properly consider the Veteran's Administration (VA) finding that he was 100% disabled.

         For the reasons explained below, I am remanding this case so the ALJ can account properly for Bennett's cognitive difficulties in his residual functional capacity assessment and hypothetical to the vocational expert. Although it is unnecessary to determine whether the ALJ committed reversible error in considering the VA's finding, he should take care on remand to consider the finding and how much weight to give it.

         The following facts are drawn from the Administrative Record (AR), filed with the Commissioner's answer in this case:


         Bennett applied for SSDI benefits on February 20, 2015, alleging that he had been disabled since January 30, 2015 as a result of post traumatic stress disorder (PTSD). AR 14, 81. Bennett is a veteran of the United States Air Force who was released from service as a combat medic in 2005. In 2015, the Veteran's Administration (VA) determined that Bennett was 70% disabled and unemployable due to his service-connected disability. Id. at 79. He worked as a correctional officer in a federal prison from 2002 to February 2015, when he was hospitalized for worsening anxiety that was brought on in part by his divorce. Id. at 21, 83.

         I. Medical Evidence

         Critical to Bennett's appeal are the opinions of two state agency psychologists who reviewed his medical record and completed mental residual functional capacity assessments for him. During the initial review of Bennett's application for benefits, Dr. Roger Rattan concluded on June 29, 2015 that Bennett had moderate limitations in his ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychological-based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; and respond appropriately to changes in the work setting. AR 87-89. In response to a question asking him to “explain in narrative form the sustained concentration and persistence capacities, ” Rattan wrote that Bennett “has [symptoms] that limit him to unskilled work.” Id. at 88.

         On October 14, 2015, at the reconsideration level of review, Dr. Jack Spear agreed with all of Dr. Rattan's specific findings regarding memory, understanding, attention, and concentration. Id. at 99, 101-02. In the narrative sections of the form, Dr. Spear wrote that Bennett “is able to focus & attend to simple 2-3 step instructions, but may have increasing difficulty w/ more complex tasks” and “would be able to perform at least unskilled work.” Id. at 102-03.

         II. Administrative Proceedings

         After the local disability agency denied his claim initially and upon reconsideration, on March 10, 2017, Bennett had a hearing before ALJ John Martin. AR 14. Bennett was represented by counsel at the hearing at which he and a vocational expert testified. Id.

         On May 30, 2017, the ALJ issued his decision denying Bennett's application. AR 14-26. Applying the familiar five-step sequential evaluation process, the ALJ determined that Bennett was severely impaired by PTSD, bilateral knee degenerative joint disease, and obesity. Id. at 16. In considering whether Bennett's mental impairments satisfied the criteria of “paragraph B” at step three, the ALJ determined that “[w]ith regard to concentrating, persisting, or maintaining pace, the claimant has moderate limitations.” Id. at 20. The ALJ did not explain the basis of this finding but noted that he could not “completely rely” on the paragraph B assessments of the state psychological consultants because “the agency significantly revised this criteria effective January 2017.” Id. at 18. However, the ALJ noted that “the decrease in ‘paragraph B' severity from the initial to the reconsideration level [of review] was consistent with the clinical records, which demonstrated that claimant was responding well to therapy and had begun on focusing on improving his functioning.” Id.

         The ALJ determined that despite Bennett's severe impairments, he retained the RFC to perform light work limited to simple, routine, and repetitive tasks; no production rate pace such as that associated with assembly line work; simple work-related decisions; and occasionally responding appropriately to the public. AR 20-21. The ALJ stated that he accounted for Bennett's self-reports of trouble completing tasks, remembering things, understanding, concentrating, and following instructions by limiting Bennett to simple, routine, and repetitive tasks and precluding him from production rate work. Id. at 23.

         In reaching his decision, the ALJ acknowledged that the VA had assessed Bennett with a 70% disability rating in 2015 and was paying him benefits at the 100% rate because the agency found him to be unemployable. Id. at 22. The ALJ stated that he considered the VA rating as one of many factors relevant to his decision but that ...

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