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Ray v. Berryhill

United States Court of Appeals, Seventh Circuit

February 12, 2019

Danny J. Ray, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued January 23, 2019

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. l:17-cv-01322 - Matthew P. Brookman, Magistrate Judge.

          Before Wood, Chief Judge, and Kanne, and St. Eve, Circuit Judges.

          PER CURIAM.

         Danny Ray applied for Supplemental Security Income and Disability Insurance Benefits based on a host of physical disorders and mental conditions. An administrative law judge found that Ray was severely impaired by most of his physical conditions, but she denied benefits after finding that he could perform his past relevant work as a school bus monitor. Ray challenges that finding, arguing that the ALJ erroneously discredited him, failed to treat his prior job as "composite," and improperly assessed his functional abilities compared to the job requirements for a bus monitor in the general economy. The district court affirmed the ALJ's decision. We agree with Ray and vacate the judgment.

         I. Background

         Ray lives with diabetes, hypertension, obesity, kidney disease, degenerative disc disease, anxiety, and depression. When his conditions worsened, he began working gradually easier jobs, from janitor to forklift operator to bus monitor for children with special needs, until eventually he gave up his employment entirely. As a bus monitor, he would lift disabled children into their seats on the bus, strap down wheelchairs, and monitor the children's behavior. He ultimately quit because it was too painful for his hands, feet, and hips.

         Ray receives medical care for his physical impairments but has been noncompliant with some treatments, mostly in relation to his diabetes. He struggles to remember to test his blood-glucose levels, eat healthfully, and take insulin. Doctors who treat Ray's back condition also have noted that he takes more pain medication than the prescribed amount.

         In November 2013, Ray applied for social security benefits. During the review process, two consulting state-agency psychologists and an examining clinical psychologist, Dr. Zera, evaluated his functioning. The consulting psychologists both concluded that Ray is moderately limited in his ability to maintain attention and concentration for extended periods but is not significantly limited in any other aspect of concentration, persistence, or pace. Dr. Zera determined that Ray has an anxiety disorder and learning disorder, noting his "difficulty reading and poor math skills." Ray also met with Dr. Fish, an agency physician, who determined that Ray's major functional impairment is exertional tolerance. Dr. Fish noted a positive result from a supine straight-leg test, which reflects lumbar nerve root compression, though the less-sensitive seated test was negative.[1]

         The agency denied Ray's applications initially and upon reconsideration, and his case proceeded to a hearing with an ALJ. At the hearing, Ray testified -and his mother and girlfriend corroborated with written statements-that his daily activities include taking his medication, making himself three simple meals, watching television, using the dishwasher, and showering (while using a shower seat). Outside of these tasks, he sits and watches television. Ray occasionally does laundry if reminded, and he had the laundry machines moved from the basement to the first floor of his house because the stairs were difficult for him. Once per week, he goes grocery shopping with the assistance of an electric cart. When he did not have family to drive him, the hospital provided him a bus pass because he is physically incapable of walking home.

         In addition to his physical impairments, Ray has limited intellect. He testified that he completed eight grades of special education, but he struggles to read and write. Although he will occasionally purchase a newspaper, it takes time for him to make sense of what he sees. Because of his limitations, his mother or girlfriend must write his checks and complete his paperwork.

         In her decision, the ALJ analyzed Ray's application based on the five-step process set forth in 20 C.F.R. § 404.1520 and found him not disabled. She determined that he is not engaged in substantial gainful employment (step one) and that he has severe impairments of diabetes mellitus, obesity, degenerative disc disease, osteoarthritis of the hip, coronary artery disease, kidney disease, hypertension, and a history of atrial fibrillation (step two). But his impairments, she concluded, do not meet a listing (step three).

         The ALJ determined that Ray has the residual functional capacity ("RFC") to perform light work (lifting ten to twenty pounds) and to stand or walk for six hours. She also found that he is able to "understand, remember, and carry out semiskilled tasks" and "attend to tasks for a sufficient period in order to complete tasks." Regarding Ray's limitations, the ALJ found him only "partially credible," largely based on the notion that, if his symptoms were as severe as alleged, his daily activities would be more restricted and he would be more compliant with his prescribed treatments.

         The ALJ presented Ray's RFC to the vocational expert, who concluded that Ray could work as a school bus monitor-not as he had performed the job, but as it is performed in the national economy. At the hearing, Ray questioned the vocational expert about the required level of language development for that position. The vocational expert confirmed that a requirement of the job, as it is generally performed, is the ability to "write ...


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