IAIN D. JOHNSTON, District Judge.
Plaintiff, who is now 45 years old, worked in the auto repair field until December 2004 when he stopped working because of leg and back pain. In 2007, he filed the first of several disability applications. Over the next nine years, his quest for disability benefits proceeded through a lengthy administrative process. Along the way, there have been four administrative hearings, three administrative decisions, and one appeal to this Court. However, in the fall of 2016, plaintiff finally achieved some degree of success when the administrative law judge ("ALJ") ruled that plaintiff was disabled as of November 9, 2015. Plaintiff has filed this appeal because he believes that he should have been found disabled five and a half years earlier, on March 31, 2010, which was his date last insured.
Plaintiff raises one argument for remand. He asserts that the ALJ failed to adequately account for moderate problems in concentration, persistence, and pace, caused by plaintiff's depression, when determining plaintiff's residual functional capacity ("RFC") and when posing hypothetical questions to the vocational expert. This argument is raised fairly often in disability cases, and is undoubtedly appealing to plaintiff's counsel because it rests on a narrow slice of the record and is backed by a well-worn line of Seventh Circuit cases. However, as explained below, the simplicity and narrowness of this argument belies linguistic and conceptual pitfalls lurking underneath the surface.
On May 7, 2013, an administrative hearing was held at which a medical expert (Gilberto Munoz) testified about plaintiff's back problems. Plaintiff also testified about his back problems, but also briefly discussed his obesity (he has weighed up to 410 pounds) and his depression. Plaintiff testified that his general physician, Dr. Woodman, first prescribed antidepressant medication in July 2009. R. 66. Plaintiff testified that his depression affected his self-esteem and made it hard to concentrate. When asked to give an example, plaintiff stated as follows:
R. 67.
On May 31, 2013, the ALJ issued a written decision finding plaintiff not disabled. The decision focused on plaintiff's back problems. However, at Step Three, the ALJ explained as follows why plaintiff's depression caused moderate limitations in concentration, persistence or pace:
R. 82. In the RFC formulation, the ALJ included a limitation that plaintiff could "understand, remember and carry out simple job instructions." R. 82. The ALJ noted that the State agency psychologist found there was "insufficient evidence" to even render an opinion about any alleged mental impairment. R. 89. Despite this fact, the ALJ still included the above limitation because the State agency psychologist "did not have access to additional evidence or listen to the claimant's testimony." Id.
After exhausting his administrative remedies, plaintiff filed an appeal to this Court raising three arguments in his opening brief. (Case No. 14-50241.) The first one was essentially the same one he now raises—that the ALJ "failed to [] incorporat[e] Plaintiff's mental limitations in the hypothetical to the vocational expert." Dkt #10 at 6. Before any further briefing ensued, the parties agreed to a remand. This Court remanded without ruling on the merits. Dkt. #19 at 1.
On September 21, 2015, after receiving this Court's remand order, the Appeals Council issued its own remand order, which instructed the ALJ to "clearly identify the claimant's limitations in concentration, persistence, or pace with reference to the evidence of record and explain how the claimant's mental residual functional capacity accommodates for any concentration, persistence, or pace limitations with reference to the evidence of record." R. 650. The order also stated that any hypothetical questions to the vocational expert should include "specific/capacity limitations." Id. The order also included the observation that the ALJ's 2013 decision failed to "expressly explain" how plaintiff's concentration problems were accounted for. R. 649.
The ALJ held two new hearings. The first hearing, held on March 11, 2016, focused on the "mental health issues" because, as plaintiff's counsel noted, this is the subject they were "obligated" to address according to the remand order. R. 546. Counsel further noted that they were required to "delve into" the issue of how plaintiff's moderate limitations were accommodated by the RFC. R. 547. Next, the medical expert, psychologist Larry Kravitz, testified. He first summarized the evidence, noting that a consultative psychological evaluation in January 2015 showed that plaintiff's mental status was "fairly intact with nothing of significance." R. 548; Ex. 4F.
R. 555. This testimony, particularly the second paragraph, is a key piece of evidence relevant to plaintiff's current argument.
The ALJ then asked plaintiff about his back problems. Plaintiff testified that he just had surgery to alleviate the constant pain. The ALJ, after agreeing that plaintiff's back problems had worsened, suggested that plaintiff's case would be better "if he was seeking an onset date when he applied for supplemental security income on October 16th of 2014 rather than back on March 31st of 2010." R. 559. Plaintiff's counsel then reminded the ALJ of the Appeals Council's remand order. Set forth below is the colloquy that followed, which is quoted at some length because it addresses the same issue now before this Court:
R. 560-62 (emphasis added).
At the end of the hearing, the ALJ re-summarized Dr. Kravitz's earlier testimony in the following question and answer:
R. 568. The ALJ replaced "tasks," the word Dr. Kravitz used, with "instructions," although neither Dr. Kravitz nor plaintiff's counsel noticed (or objected to) the switch.
The second hearing was held on July 20, 2016. Plaintiff answered a few questions about his depression, and talked about working part-time for a few months in 2014 as a babysitter for a five-year old boy who was best friends with plaintiff's son who was about the same age. R. 573-76. However, the bulk of the hearing consisted of testimony from Dr. Jilhewar about plaintiff's back problems. Then a vocational expert was asked hypothetical questions including a limitation that plaintiff was "able to understand, remember, and carry out simple job instructions." R. 620.
On September 22, 2016, the ALJ issued a 13-page decision. The ALJ stated the following about plaintiff's concentration:
R. 534. Here, it is worth noting that the first paragraph refers to simple tasks whereas the second paragraph refers to simple instructions.
Plaintiff's sole argument for remand relies on the O'Connor-Spinner line of cases in the Seventh Circuit. See O'Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010); Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014). These cases typically involve some variant on the following scenario. At Step Three, the ALJ finds, based on an acceptable medical source's opinion, that the claimant has a moderate impairment in the category known as concentration, persistence, or pace. Then, in the later RFC analysis, the ALJ "translates" this more general and abstract finding into a more specific functional or job-related limitation for analysis by the vocational expert. This need for "translation" is partly a by-product of the five-step assembly line process required in disability cases, in which opinions from different types of experts are unified into a complex medical-legal judgment. At its worst moments, this process can feel like the Telephone Game when transmission slip-ups create minor wording differences that multiply into larger errors. Turning to the specific issue here, ALJs have struggled to find acceptable verbal formulations that would adequately translate an earlier finding of moderate concentration problems. In O'Connor-Spinner, the ALJ limited the claimant to "routine, repetitive tasks with simple instructions."
Plaintiff argues that the present case falls squarely within this rule, and even contains the additional wrinkle that the ALJ switched the word "instructions" for "tasks." Specifically, plaintiff argues that his ability to follow job instructions (an intellectual task) is better than his ability to do the same task repeatedly over a full work-day (persistence). This argument is consistent with plaintiff's testimony. In response, the Government argues that this case differs from some others in that Dr. Kravitz was the same person who both opined that plaintiff had moderate problems in concentration and then who subsequently translated that finding into the proposed RFC. In other words, it was not the ALJ, as a layperson, who simply assumed that a limitation to simple tasks (or instructions) automatically would address the persistence problems. Instead, it was Dr. Kravitz's individualized analysis tailored to plaintiff's particular problem. In addition, the Government makes a broader argument criticizing the premise behind the O'Connor-Spinner cases. Although the Court has sympathy with the Government's arguments, the Court finds that a remand is still required because the ALJ could have, and should have, done more work to eliminate the ambiguities that we now must confront.
Perhaps the best approach is to walk through the layers of decisionmaking and offer comments along the way. The first stop in this journey is Dr. Kravitz's testimony. Did he recognize the distinction noted in O'Connor-Spinner? The Court believes that he did. In the first sentence of the paragraph quoted above, Dr. Kravitz stated that he believed that plaintiff had moderate limitations in concentration, persistence, or pace. (As discussed below, it is unclear why he reached this conclusion, but he did.) Dr. Kravitz then, in the following sentences, found that plaintiff had the ability to follow both detailed and simple instructions, but that he had a separate persistence problem, one that could be accounted for by limiting him to "simple, repetitive tasks." The fact that the doctor made two separate findings supports the view that he understood the distinction. Moreover, the doctor's use of the word "so" makes clear that he included the limitation to "simple, repetitive tasks" specifically to address the latter problem of persistence and not to address any alleged intellectual deficiencies.
This leads to principal legal question raised in the briefs. Was Dr. Kravitz permitted under the O'Connor-Spinner cases to account for plaintiff's particular persistence problem by limiting him to simple tasks (or instructions or some combination thereof)? Put differently, do these cases set forth an absolute prohibition against this type of RFC limitation or do they merely set forth a default presumption? The Government argues that there is still a crack open in the door. Specifically, the Government makes the following argument about the differences between learning how to do a job versus actually doing it repeatedly:
Dkt. #19 at 6-7.
Setting aside for a moment that this Court is bound by Seventh Circuit precedent, assessing this argument is tricky. On the one hand, there is some language from the Seventh Circuit cases to support the argument that, in an individualized case, limiting the claimant to simple tasks could be a way to address a persistence problem. As noted above, O'Connor-Spinner includes caveats such as "not necessarily" and "in most cases." See also Walters v. Astrue, 444 Fed. Appx. 913, 918 (7th Cir. 2011) ("Usually, those terms [i.e. routine, repetitive tasks with simple instructions] will not account for poor concentration.") (emphasis added). At the same time, some of the more recent cases state the rule in more absolute terms. See, e.g., Yurt, 758 F.3d at 858-59 ("we have 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"); Warren v. Colvin, 565 F3d. Appx. 540, 544 (7th Cir. 2014) ("We have cautioned that this exact language [i.e. simple, repetitive tasks] does not account for limitations on concentration[.]"). In sum, for the Government to prevail here, this uncertainty is one barrier.
Another obstacle is whether the ALJ's substitution of the word "instructions" for the word "tasks" changes the prior analysis. The parties go back and forth on this question. The Government, again relying mostly on basic logic and common sense, argues that a limitation to simple instructions necessarily means that the tasks themselves must also be simple. See Dkt. #19 at 5 ("Notably, plaintiff does not argue that a job with simple, routine and repetitive instructions can somehow complex tasks."). This appears to be a harmless error argument, characterizing the ALJ's change of wording as something akin to a scrivener's error. There is evidence to suggest that the ALJ's change in wording was inadvertent. As noted in the summary above, the decision itself uses the two different RFC formulations several paragraphs apart without acknowledging the difference. Also, plaintiff's counsel did not object when the ALJ, late in the hearing, switched the wording. However, the Government has not cited to any authority to support its argument. Another unclear issue is whether the vocational expert would have also agreed that the change from "tasks" to "instructions" made no difference in her assessment. Neither side provides a convincing analysis on this question either.
In sum, in light of all the above uncertainties, the Court finds that the prudent and more reasonable course is to remand this case so that these issues can be clarified and analyzed in greater detail. This is a disappointing result given all the time already expended on this case and given that the Government has made a colorable argument that the ALJ's decision should be affirmed. But ultimately, it was the ALJ who was in the best position to eliminate the ambiguities now preventing an affirmance. The ALJ was well aware of the need to be clear, specific, and thorough in analyzing these issues. In addition to the case law, which contains numerous cases being remanded under similar facts, there was the also the remand order from the Appeals Council (instructing the ALJ to "clearly identify," "expressly explain," and be "specific"), as well as the various requests to address this issue made by plaintiff's counsel at the hearing.
Further support for the decision to remand can be found by looking at the mental health evidence from a broader perspective. One recurring frustration in analyzing O'Conner-Spinner arguments is that they tend to bypass the complex medical record and myopically focus on the precise meaning of short linguistic formulations. Lost in this process is the larger explanation— the logical bridge—about how all the mental health evidence fits together. Here, the Court finds that the ALJ, in general, did not provide a detailed analysis of plaintiff's mental health problems. Perhaps there was simply not much evidence to analyze. In any event, the Court makes two observations about the ALJ's analysis.
First, a linchpin of plaintiff's argument is the finding that he had moderate problems in concentration, persistence, or pace. But, throughout this long case, there has been little explanation for why this conclusion was warranted. Both the ALJ and Dr. Kravitz made statements suggesting that they generally viewed plaintiff's depression-related limitations as mild. For example, at the hearing, the ALJ noted that the "mental health evidence" was "not overwhelming." Dr. Kravitz stated that the "there's not very much in the medical record" about plaintiff's depression. Plaintiff testified that he never sought counseling at any time. The consultative examiner, Dr. Peter Thomas, in 2015 found that plaintiff's depression was "mild" and likely related to "lack of financial insecurity." R. 1183. One of the key pieces of evidence about plaintiff's persistence problem was his testimony at the 2013 hearing that he had trouble finishing a car magazine article, but the ALJ found that his testimony lacked credibility, a finding plaintiff does not challenge here. In the 2013 decision, the ALJ noted that State Agency physicians were unable to even render an opinion because there was not enough evidence. Taken together, this evidence suggests that Dr. Kravitz and the ALJ may have simply given plaintiff the benefit of the doubt in finding that his concentration problems were moderate rather than mild.
Second, and pointing in the other direction, Dr. Woodman completed a mental impairment form in April 2013. On this form, he rendered several opinions strongly supporting plaintiff's claim that he was seriously limited by his depression.
For the foregoing reasons, plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further consideration.
