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Pollari v. Berryhill

United States District Court, E.D. Wisconsin

January 23, 2019

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



         In 2006, the Social Security Administration found plaintiff Kathryn Pollari disabled due to a seizure disorder. In 2011, the agency terminated her disability benefits due to medical improvement. Plaintiff appealed the termination, but in 2014 an Administrative Law Judge (“ALJ”) issued a decision finding her not disabled as of August 19, 2011. The Appeals Council remanded the matter in 2015, but after a second hearing in 2016 the ALJ again found plaintiff not disabled. (Tr. at 16-41.) This time, the Council denied review. (Tr. at 1.) Plaintiff now seeks judicial review of the termination of her benefits. For the reasons that follow, I remand for further proceedings.


         The court reviews an ALJ's decision to ensure that it applies the correct legal standards and is supported by substantial evidence. Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Substantial evidence review is deferential; the court will not re-weigh the evidence or substitute its judgment for that of the ALJ. Summers v.

         Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). The court also reads the ALJ's decision as a whole and with common sense, rather than nitpicking at it. Rice v. Barnhart, 384 F.3d 363, 369 (7thCir. 2004). Nevertheless, the ALJ is required to build an accurate and logical bridge from the evidence to his conclusion. Spicher v. Berryhill, 898 F.3d 754, 757 (7th Cir. 2018). A decision that lacks evidentiary support or an adequate discussion of the issues will be remanded. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012); Villano v. Astrue, 556 F.3d 558, 562 (7thCir. 2009).


         A. Sit/Stand Option and Time Off Task

         The ALJ determined that plaintiff could perform a range of light work except she “must be allowed to sit or stand alternatively at will provided she is not off task more than 10% of the work period.” (Tr. at 27.) The ALJ then accepted the testimony of a vocational expert (“VE”) that a person with this residual functional capacity (“RFC”) could perform a number of jobs. (Tr. at 40, 110.)[1]

         Under SSR 00-4p, the ALJ has an affirmative responsibility to determine whether a VE's testimony conflicts with information provided in the Dictionary of Occupational Titles (“DOT”) before relying on that evidence to support a determination of non-disability. Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008). If evidence from a VE appears to conflict with the DOT, the ALJ must obtain a reasonable explanation for the conflict. Id. at 463.

         In the present case, the ALJ determined that the VE's testimony was consistent with the DOT.[2] He then noted that “the availability of a sit/stand option is not discussed in the DOT, and therefore the availability of the sit/stand option with the above representative jobs is based on the professional experience of the vocational expert. The undersigned accepts that testimony.” (Tr. at 40.)

         As plaintiff notes, the VE did not testify that she was basing this aspect of her opinion on her experience. However, any error was harmless because there is no apparent conflict between the VE's testimony and the DOT, which does not address the subject of sit/stand options. See Collins v. Berryhill, 743 Fed.Appx. 21, 26 (7th Cir. 2018); Zblewski v. Astrue, 302 Fed.Appx. 488, 494 (7th Cir. 2008). Further, because the VE's testimony regarding sit/stand options merely supplemented (and did not conflict with) the DOT, and plaintiff failed to question the VE about the issue at the administrative hearing, the argument is forfeited. See Brown v. Colvin, 845 F.3d 247, 254 (7th Cir. 2016); see also Barrett v. Barnhart, 355 F.3d 1065, 1067 (7thCir. 2004); Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002).[3]

         While plaintiff's DOT-conflict argument fails to support reversal, her contention that the ALJ did not adequately explain this portion of the RFC gains traction. First, the ALJ's formulation does not appear to be a statement of the most plaintiff can do, see Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (noting that RFC is the most a person she can still do despite her limitations), but rather a cap on off-task time related to the sit/stand option consistent with what employers typically tolerate. See, e.g., Bolssen v. Berryhill, No. 15-cv-824-wmc, 2017 U.S. Dist. LEXIS 157832, at *16 (W.D. Wis. Sept. 21, 2017) (stating that 10% “is the maximum percent off-task one can be and still be employable”). The ALJ made no finding that plaintiff actually had the ability to stay on task 90% of the time.

         Second, to the extent the ALJ impliedly made such a finding, he failed to explain the basis for his conclusion that plaintiff's need to alternate positions (and/or her other limitations) could be accommodated within the 10% time-off task allowance. See Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017) (remanding where ALJ failed to establish a logical connection between the evidence and a 10% time off-task limitation). The Commissioner argues that Lannigan is distinguishable, as the off-task limitation in that case related to a mental impairment, while here it relates to a sit/stand option designed to accommodate plaintiff's obesity. Limitations must be explained, regardless of whether they stem from physical or mental impairments.[4] To the extent the issue of whether a person can stay on task with an at-will sit/stand option raises a vocational question rather than a medical one, the ALJ's questions to the VE did not resolve the issue, leaving a gap in the record.[5]

         The Commissioner notes that “the ALJ appeared to impose the 10% off-task limitation merely to communicate to the vocational expert that, in his view, Plaintiff could work with a sit-stand option yet remain on task 90% or more of the time.” (Def.'s Br. at 9.) As discussed above, it is unclear why the ALJ phrased the RFC in the manner he did. Assuming the Commissioner is correct, however, it is also unclear why the ALJ inserted his belief regarding the effect of the sit/stand option on productivity, rather than letting the VE assess its impact. The Commissioner further argues that the VE implicitly agreed that the sit/stand option was not work-preclusive, but that too is unclear. Finally, the Commissioner suggests that the ALJ was crediting plaintiff's allegations and accommodating her obesity with this restriction. However, the ALJ ...

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