MARK J. DINSMORE, Magistrate Judge.
Claimant Phillip B. requests judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"). See 42 U.S.C. §423(d).
On January 23, 2014, Claimant applied for DIB, alleging the onset of disability as of June 1, 2006. [Dkt. 8-5 at 2.] Claimant's date last insured was September 30, 2012. Claimant's application was initially denied on February 12, 2014, and again upon reconsideration on May 28, 2014. [Dkt. 8-4 at 11.] Administrative Law Judge Albert J. Velazquez ("ALJ") held a hearing on Claimant's application in October, 2015. [Dkt. 8-2 at 33.] On November 25, 2015, the ALJ issued his determination that Claimant was not disabled. [Id. at 20.] The Appeals Council then denied Claimant's request for review on January 13, 2017. [Dkt. 8-25 at 18.] Claimant timely filed a complaint with the United States District Court for the Southern District of Indiana on February 27, 2017. [Dkt. 8-25 at 28.] Pursuant to an agreed motion, the court entered judgment in favor of Claimant on November 3, 2017, and directed the Commissioner on remand to redetermine Claimant's RFC and to reconsider Claimant's limitations in concentration, persistence, or pace. [Dkt 8-25 at 34.] On October 24, 2018, the ALJ held a second hearing, [Dkt. 8-23 at 36], and again denied Claimant's application on January 2, 2019. [Dkt. 8-23 at 15.] The Appeals Council failed to timely act upon Claimant's request for review, making the ALJ's decision the final decision of the Commissioner. Claimant then timely filed his complaint in this Court seeking judicial review of the Commissioner's decision. [Dkt. 1.]
To be eligible for DIB, a claimant must have a disability pursuant to 42 U.S.C. § 423. Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is disabled, the Commissioner, as represented by the ALJ, employs a sequential, five-step analysis: (1) if the claimant is engaged in substantial gainful activity, he is not disabled; (2) if the claimant does not have a "severe" impairment, one that significantly limits his ability to perform basic work activities, he is not disabled; (3) if the claimant's impairment or combination of impairments meets or medically equals any impairment appearing in the Listing of Impairments, 20 C.F.R. pt. 404, subpart P, App. 1, the claimant is disabled; (4) if the claimant is not found to be disabled at step three, and is able to perform his past relevant work, he is not disabled; and (5) if the claimant is not found to be disabled at step three, cannot perform his past relevant work, but can perform certain other available work, he is not disabled. 20 C.F.R. § 404.1520 (2012). Before continuing to step four, the ALJ must assess the claimant's residual functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable impairments, even those that are not severe." Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
The ALJ's findings of fact are conclusive and this Court must uphold them "so long as substantial evidence supports them and no error of law occurred." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2007). This Court may not reweigh the evidence or substitute its own judgment for that of the ALJ, but may determine only whether substantial evidence supports the ALJ's conclusion. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008) (citing Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000)); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). When an applicant appeals an adverse benefits decision, this Court's role is limited to ensuring that the ALJ applied the correct legal standards and that there was substantial evidence supporting the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). For the purpose of judicial review, "[s]ubstantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citing Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)) (internal quotation marks omitted). Because the ALJ "is in the best position to determine the credibility of witnesses," Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008), this Court must accord the ALJ's credibility determination "considerable deference," overturning it only if it is "patently wrong." Prochsaka v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (citing Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004)). While the ALJ must base his decision on all of the relevant evidence, Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), and must "provide some glimpse into [his] reasoning" to "build an accurate and logical bridge from the evidence to [his] conclusion," he need not "address every piece of evidence or testimony." Dixon, 270 F.3d at 1176.
The ALJ first determined that Claimant had not engaged in substantial gainful activity since the alleged onset date of June 1, 2006, through his last insured date of September 30, 2012. [Dkt. 8-23 at 7.] At step two, the ALJ determined that Claimant had the following severe impairments: degenerative disc disease, obstructive sleep apnea, depressive disorder, post-traumatic stress disorder, and history of drug and alcohol abuse. [Id. at 8.] At step three, however, the ALJ found that Claimant "did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments." [Id.] In making this determination, the ALJ considered Listings 1.04 (Disorders of the Spine), 12.04 (Depressive, bipolar and related disorders), and 12.06 (Anxiety and obsessive-compulsive disorders). [Id.]
The ALJ then analyzed Claimant's RFC and concluded that he had the RFC through the date last insured to perform light work, except:
[Id. at 9.] In determining the RFC, the ALJ concluded that Claimant's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." [Id. at 10.]
At step four, the ALJ found that Claimant had no past relevant work. [Id. at 13.] The ALJ proceeded to step five, considering testimony from a vocational expert ("VE"), who indicated that an individual with Claimant's age, education, work experience, and RFC would be able to perform several jobs that exist in significant numbers in the national economy, such as final assembler, document preparer, and weight tester. [Id. at 14.] Based on these findings, the ALJ concluded that Claimant was not disabled. [Id. at 15.]
The central issue in this case is whether substantial evidence supports the ALJ's determination that Claimant is not disabled. Claimant advances two arguments for reversing the ALJ's decision: (1) the ALJ erred by failing to account for his own findings of moderate limitations in concentration, persistence, or maintaining pace in his RFC determination and in the hypothetical question he posed to the VE; and (2) the ALJ erred by failing to adequately consider whether Claimant's mental impairments met or equaled Listing 12.15. These arguments are addressed, in turn, below.
Claimant contends that the ALJ did not appropriately address his limitations in maintaining concentration, persistence, or pace in both the ALJ's RFC determination and in the hypothetical question he posed to the VE. [Dkt. 11 at 31.] Specifically, Claimant asserts that the ALJ's RFC determination is "even more deficient than the simple, repetitive work limitation in Vargas." [Dkt. 11 at 32.] In response, the Commissioner argues that, unlike Vargas, the ALJ's RFC determination does take into account all of Claimant's mental limitations, because the ALJ determined that Claimant could perform "a range of light work" subject to the additional limitations, including his limited capacity for work that could be learned within 30 days (i.e., simple and routine tasks) and work that provided only some occasional interaction with the public, coworkers, and supervisors. [Dkt. 12 at 14.]
In step three, with regard to concentration, persistence, or maintaining pace, the ALJ found:
[Dkt. 8-23 at 9.] The ALJ then analyzed Claimant's mental impairments in the RFC determination by limiting Claimant to a range of light work that could be "learned in 30 days or less by demonstration, i.e., limited to simple and repetitive tasks," and limiting Claimant to work that required "no more than occasional interaction with the public, coworkers or supervisors." [Id.] The ALJ's hypothetical question to the VE was consistent with this RFC:
[Dkt. 8-23 at 84-85.] The VE testified that Claimant could perform work as a final assembler, document preparer, or weight tester. [Id. at 85]
Claimant correctly notes that the Seventh Circuit has "repeatedly rejected the notion that a hypothetical like the one here `confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace.'" [Dkt. 11 at 32.] (internal quotations marks omitted). See Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008); see also DeCamp v. Berryhill, 916 F.3d 671, 676 (7th Cir. 2019); Vargas v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015); See, e.g., Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019) ("When it comes to [the ALJ's] RFC finding, [the court] [has] likewise underscored that the ALJ generally may not rely merely on catch-all terms like `simple, repetitive tasks' because there is no basis to conclude that they account for problems of concentration, persistence or pace.") (quoting Winsted v. Berryhill, 923 F.3d 477 (7th Cir. 2019)) (internal quotation marks omitted).
In Vargas, the Seventh Circuit reversed the District Court's decision affirming an ALJ's decision because the ALJ did not address the claimant's moderate difficulties in regard to concentration, persistence, or pace in the hypothetical question posed to the VE. 794 F.3d at 814. There, at steps two and three, the ALJ determined that the claimant had "moderate difficulties" with regard to concentration, persistence, or pace. Id. However, in the RFC determination, the ALJ concluded that the claimant could perform "light work" and was limited to "simple, routine, and repetitive tasks in a work environment free of fast paced production requirements, involving only simple, work-related decisions." Id. at 812-13. The court noted that the "hypothetical posed to a VE must incorporate all of the claimant's limitations supported by the medical record—including moderate limitation in concentration, persistence, and pace." Id. at 814 (emphasis in original). Further, the court stated that limiting a claimant to "simple, routine, and repetitive tasks" is "unrelated" to the question of whether a claimant with difficulties maintaining concentration, persistence, or pace can perform such work. Id. at 816. Therefore, the ALJ committed reversible error. Id. at 814.
Here, as in Vargas, by limiting Claimant to simple and repetitive tasks in the RFC, the ALJ relied on boilerplate language and failed to provide an "accurate and logical bridge" between his recitation of medical evidence and the decision to account for all of Claimant's difficulties in maintaining concentration, persistence, or pace. Therefore, on remand, the ALJ must articulate the effects of Claimant's moderate limitations in maintaining concentration, persistence, or pace on Claimant's RFC and fully account for those limitations in the RFC assessment and in any hypothetical questions posed to the VE.
Claimant argues that the ALJ erred by ignoring relevant medical evidence and testimony that supported a finding that Claimant satisfied Listing 12.15. [Dkt. 11 at 25.]
In considering whether a claimant's condition meets or equals a listed impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis of it. See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2003). For example, in Minnick v. Colvin, 775 F.3d 929, 935-36 (7th Cir. 2015), the Seventh Circuit found the ALJ's perfunctory analysis to warrant remand when coupled with significant record evidence that arguably supported the listing. See Kastner v. Astrue, 697 F.3d 642, 647-48 (7th Cir. 2012) (remand required where the ALJ's cursory listing analysis failed to articulate a rationale for denying benefits when the record supported finding in the claimant's favor).
To meet Listing 12.15 "trauma- and stressor-related disorders," a claimant's impairments must satisfy the "paragraph A" criteria, as well as satisfy either "paragraph B" or "paragraph C" criteria. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.15. In evaluating mental disorders, the "paragraph B" of each of the listings "represent[s] the areas of mental functioning a person uses in a work setting." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(A)(2)(b). A claimant can satisfy the "paragraph B" criteria by showing "[e]xtreme limitation of one, or marked limitation of two," of the following abilities:
See id. §§ 12.04(B), 12.06(B), 12.08(B), 12.15(B) (citations omitted). "Marked" restrictions or difficulties are serious limitations of the ability to function "independently, appropriately, effectively, and on a sustained basis" in a given area, representing a four on a five-point scale, with one being no limitation and five being "extreme limitation" (essentially not functioning at all) in a given area. Id. § 12.00(F)(2). The "paragraph C" criteria are used "to evaluate mental disorders that are `serious and persistent,'" recognizing that "mental health interventions may control the more obvious symptoms and signs of [a claimant's] mental disorder." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(G)(1) (internal quotation marks omitted). A mental disorder meets the paragraph C criteria if there is:
See id. §§ 12.04(C), 12.06(C), 12.15(C) (citations and emphasis omitted).
Claimant asserts that the ALJ failed to "mention, let alone provide even a perfunctory analysis of Listing 12.15." [Dkt. 11 at 26.] In response, the Commissioner argues that even though the ALJ failed to mention Listing 12.15 by name, he nonetheless gave ample consideration to the issues relevant to that Listing. Even though ALJ should name and address each relevant Listing, "failure to explicitly refer to the relevant listing" does not necessitate reversal. Rice v. Barnhart, 384 F.3d 363, 369-70 (7th Cir. 2004). Although the ALJ did not specifically name or analyze Listing 12.15, the paragraph B and paragraph C criteria of Listing 12.15 are the same as the paragraph B and paragraph C criteria of the listings he did specifically analyze: Listings 12.04 ("depressive, bipolar, and related disorders") and 12.06 ("anxiety and obsessive-compulsive disorders"). In determining whether Claimant satisfied Listings 12.04 and 12.06, the ALJ considered the paragraph B criteria and whether Claimant suffered from a marked limitation, finding:
[Dkt. 8-23 at 8.] The ALJ concluded that because Claimant's "mental impairments did not cause at least two `marked' limitations or one `extreme' limitation, the `paragraph B' criteria were not satisfied." [Id. at 9.] (internal quotation marks omitted). When evaluating the paragraph C criteria, the ALJ concluded:
[Id.] (internal quotation marks omitted). Accordingly, the Court notes that, while the ALJ failed to explicitly mention Listing 12.15, the ALJ's above analysis would have dictated a similar finding that Claimant's impairments neither met nor equaled that Listing, since the ALJ concluded that Claimant's limitations satisfied neither the paragraph B nor the paragraph C criteria, which are equally applicable to Listing 12.15.
Claimant further asserts that the ALJ failed to build a logical and accurate bridge between the record evidence and his conclusion that Claimant did not meet or equal Listing 12.15. [Dkt. 11 at 28.] In response, the Commissioner asserts that Claimant bears the burden of establishing that he met or equaled a listing, and that Claimant could not meet this burden because no medical evidence indicated that Claimant met or equaled Listing 12.15 by the date last insured.
As noted above, the ALJ found at the step three disability determination that Claimant had severe impairments consisting of degenerative disc disease, obstructive sleep apnea, depressive disorder, post-traumatic stress disorder, and a history of drug and alcohol abuse. [Dkt. 8-23 at 8.] The ALJ evaluated Claimant's mental impairments under Listings 12.04 and 12.06, and at step five, the ALJ's findings were as follows:
[Dkt. 8-23 at 12.]
The third step in determining whether a listing is met or equaled is an "ultimate legal question" for the ALJ. S.S.R. 96-6P, 1996 WL 374180; Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004). Social Security Ruling 18-1p
Although the Court must give deference to the ALJ's factual determination underlying his listing assessment, the ALJ must consider all of the evidence, particularly the evidence contrary to the determination. See Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) (quoting Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999). To demonstrate that an ALJ's listing conclusion was not supported by substantial evidence, the claimant must identify record evidence that was misstated or ignored, and which could support a finding that claimant met or equaled the criteria. See, e.g.,Sims v. Barnhart, 309 F.3d 424, 429-30 (7th Cir. 2002). The Seventh Circuit has stated that post-date last insured evidence may be probative of the claimant's condition within the relevant period. See Bjornson v. Astrue, 671 F.3d 640, 642 (7th Cir. 2012) (rejecting government's argument that ALJ could not consider evidence after the date last insured); Halvorsen v. Heckler, 743 F.2d 1221, 1225 (7th Cir. 1984) ("There can be no doubt that medical evidence from a time subsequent to a certain period is relevant to a determination of claimant's condition during that period."). Thus, in Barnett, the Seventh Circuit noted that even though the record did "not establish an average of one seizure per week over the entire course of the treatment," it did "establish an upward trend in the frequency and severity of Barnett's seizures," and thus the ALJ was wrong to disregard the substantial evidence that demonstrated Barnett's impairments met or equaled the listing. Barnett, 381 F.3d at 669.
In this case, as in Barnett, the ALJ overlooked pertinent evidence and testimony demonstrating the ongoing and increased severity level of Claimant's symptoms of PTSD before the date last insured. See [Dkt. 8-9 at 43] (noting that Claimant underwent six sessions of group therapy to address his symptoms of PTSD from August 2012 through October 2012); [Dkt. 8-8 at 3-4] (letter by Dr. Valerie Smith-Gamble, Director of VA's Older Adult Mental Health Clinic discussing Claimant's severe PTSD symptoms since his military service
For the reasons stated above, the Commissioner's decision is
SO ORDERED.
