Filed: Feb. 23, 2015
Latest Update: Feb. 23, 2015
Summary: ORDER SUSAN E. COX, Magistrate Judge. Before us is plaintiff's Motion for Summary Judgment to reverse or remand the decision of the Commissioner of Social Security, denying his benefits, and the Commissioner's Motion for Summary Judgment to affirm the ALJ's opinion. For the reasons provided, we deny the Commissioner's motion [28] and grant plaintiff's motion to remand [19 and 21]. STATEMENT Plaintiff Robert Wilkerson suffers from osteoarthritic hips, knees, and lumbar spine; a history of s
Summary: ORDER SUSAN E. COX, Magistrate Judge. Before us is plaintiff's Motion for Summary Judgment to reverse or remand the decision of the Commissioner of Social Security, denying his benefits, and the Commissioner's Motion for Summary Judgment to affirm the ALJ's opinion. For the reasons provided, we deny the Commissioner's motion [28] and grant plaintiff's motion to remand [19 and 21]. STATEMENT Plaintiff Robert Wilkerson suffers from osteoarthritic hips, knees, and lumbar spine; a history of st..
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ORDER
SUSAN E. COX, Magistrate Judge.
Before us is plaintiff's Motion for Summary Judgment to reverse or remand the decision of the Commissioner of Social Security, denying his benefits, and the Commissioner's Motion for Summary Judgment to affirm the ALJ's opinion. For the reasons provided, we deny the Commissioner's motion [28] and grant plaintiff's motion to remand [19 and 21].
STATEMENT
Plaintiff Robert Wilkerson suffers from osteoarthritic hips, knees, and lumbar spine; a history of stroke; and major depressive disorder with psychotic features. The depressive disorder with psychotic features causes him to voice persecutory themes and feel suicidal.1
In 2011, plaintiff applied for disability insurance benefits under Title II. His application was denied by the Administrative Law Judge ("ALJ"). The Appeals Council declined to review, and the matter is now before this Court to be affirmed, remanded, or reversed.2 For the reasons set forth below, the matter is remanded.
The parties are in dispute over four key matters, but we will discuss only the one necessitating remand: the ALJ's failure to account for the plaintiff's moderate limitations in concentration, persistence, and pace when assessing the plaintiff's Residual Function Capacity ("RFC"). Specifically, plaintiff argues that the ALJ failed to properly articulate these limitations to the vocational expert.3
The Seventh Circuit has established that when an ALJ presents a flawed hypothetical to a vocational expert, the ALJ's opinion must be remanded.4 In the instant case, the ALJ inquired about the availability of jobs limited "to only simple unskilled work."5 The Seventh Circuit has consistently found that ALJs cannot account for moderate limitations of concentration, persistence, or pace by merely restricting a claimant to simple, routine tasks.6 Plaintiff relies on O'Connor-Spinner v. Astrue, wherein a woman with depression (among other physical impairments) sought disability benefits.7 In O'Connor-Spinner, the Seventh Circuit established that an ALJ must use language more specific than "simple or repetitive tasks" to accommodate for her moderate limitations in concentration, persistence, and pace.8
Here, plaintiff also deals with depression with psychotic features, which has left him with difficulties in concentration and task completion.9 However, the Commissioner argues that the instant case can be distinguished from O'Connor-Skinner because there the court used the phrase "concentration, persistence, and pace" whereas the ALJ in the instant case used the phrase "concentration, persistence, or pace." This is not a compelling argument because the Seventh Circuit has often used the word "or" and "and" interchangeably when discussing this particular issue.10
The Commissioner also argues that the ALJ's error is "at most harmless error" and that the evidence on the record indicates that the ALJ's hypothetical would be adequate to accommodate the plaintiff's limitations.11 We acknowledge that there are exceptions, or situations where the ALJ's failure to frame the hypothetical accurately has not resulted in remand.12 However, the exceptions are in the minority and are limited to when the ALJ's alternative phrasing specifically excludes the tasks that cause the moderate limitations on the plaintiff's concentration, persistence, or pace.13 The ALJ did not do so in the instant case. In fact, she used language that the Seventh Circuit has explicitly ruled against.14 An ALJ is required to orient the VE to the totality of an applicant's claims and, without that, the ALJ's RFC assessment was in error and necessitates a remand.15
It is so ordered.