United States District Court, E.D. Wisconsin
KATHRYN A. POLLARI Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.
DECISION AND ORDER
ADELMAN, DISTRICT JUDGE
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.
STANDARD OF REVIEW
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.
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).
Sit/Stand Option and Time Off Task
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.)
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.
present case, the ALJ determined that the VE's testimony
was consistent with the DOT. 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.)
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).
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.
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. 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.
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 ...