Mendenhall v. Colvin
Filing
19
ORDER and Opinion entered by Judge Sue E. Myerscough on 8/10/2016. Plaintiff's Motion for Summary Judgment 12 and Defendant's Motion for Summary Affirmance 15 are DENIED. The decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion pursuant to 42 U.S.C. 405(g), sentence 4 and based upon the new Social Security Ruling (SSR) 16-p, which replaced SSR 96-7p. (MAS, ilcd)
E-FILED
Wednesday, 10 August, 2016 02:41:04 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHERRI L. MENDENHALL,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
3:14-CV-3389
ORDER AND OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiff Sherri L. Mendenhall has appealed from the
Commissioner of Social Security’s decision denying her application
for Title II disability insurance benefits and Title XVI supplemental
security income. Plaintiff’s Motion for Summary Judgment and
Defendant’s Motion for Summary Affirmance are DENIED, and this
case is REMANDED for further proceedings consistent with this
opinion based upon the new Social Security Ruling (SSR) 16-3p,
which replaced SSR 96-7p. SSR 16-3p eliminates “the use of the
term ‘credibility’ from our sub-regulatory policy [to] clarify that
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subjective symptom evaluation is not an examination of an
individual's character.”
I.
Background
On March 22, 2012, Plaintiff applied for disability and
disability insurance benefits under Title II and supplemental
security income under Title XVI of the Social Security Act. Plaintiff
alleged that she was disabled as defined in the Social Security Act.
42 U.S.C. § 1382 et seq. (the Act). The Act defines disability 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 twelve
months.” Id. at § 1382(c). Plaintiff originally claimed that her
disability began in May of 2005, but she amended her application to
allege an onset date of February 15, 2010. (R. 42).
Plaintiff’s claims were initially denied on July 9, 2012. (R. 78).
Upon reconsideration, Plaintiff’s claims were again denied on
December 24, 2012. (R. 86). On December 26, 2012, Plaintiff filed
a written request for a hearing. (R. 94). On October 23, 2013,
Administrative Law Judge (ALJ) David W. Thompson held a video
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hearing on the matter. (R. 30). Plaintiff and an impartial vocational
expert testified at the hearing. Id. On January 2, 2014, the ALJ
found that Plaintiff was not disabled within the meaning of the Act
from February 15, 2010 through the date of the decision. (R. 23).
Plaintiff appealed the ALJ’s decision and filed a Motion for
Summary Judgment on August 17, 2015. (D/e 12). The
Commissioner of Social Security filed a Motion for Summary
Affirmance on December 2, 2015. (D/e 15).
On March 28, 2016, the Social Security Administration (SSA)
issued a new Social Security Ruling interpreting the
Administration’s policy concerning determinations of disability. The
new ruling, SSR 16-3p, eliminates the use of the term “credibility,”
clarifying “that subjective symptom evaluation is not an
examination of an individual's character.” Although the effective
date of the new ruling post-dates the ALJ’s decision in this matter,
the new rule must be applied retroactively requiring remand in this
case.
II.
Duty of the ALJ
In determining whether a claimant is disabled under the
Social Security Act, the ALJ follows a standard five-step analysis.
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20 C.F.R. § 404.1520(a)(4)(i-v). At the second of these five steps,
the ALJ uses a two-step sub-analysis when evaluating a claimant’s
symptoms. SSR 16-3p; see also 81 FR 14166 (“we use a two-step
process for evaluating an individual's symptoms”). At the first step
of the sub-analysis, which has not changed, the ALJ determines
“whether the individual has a medically determinable impairment
that could reasonably be expected to produce the individual's
alleged symptoms.” SSR 16-3p. SSR 16-3p defines “symptoms” as
Plaintiff’s “own description or statement of [] her physical or mental
impairment(s).” See also 20 CFR §§ 404.1529 (guidelines for
symptom evaluation), 416.929 (same).
ALJ Thompson applied the now-superseded SSR 96-7p. After
the ALJ found the medically determinable impairment that
produced Plaintiff’s alleged symptoms at the first step, the ALJ
moved on to the second step. “The adjudicator must [then] evaluate
the intensity, persistence, and limiting effects of the individual’s
symptoms to determine the extent to which the symptoms limit the
individual's ability to do basic work activities.” SSR 96-7p. To do
this, “the adjudicator must make a finding on the credibility of the
individual’s statements based on a consideration of the entire case
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record.” Id. However, when the SSA instituted SSR 16-3p, the SSA
clarified “that subjective symptom evaluation is not an examination
of an individual’s character.” SSR 16-3p.
To support the ALJ’s findings based on the five-step process
set out at 20 C.F.R. § 404.1520 as well as the new two-step subanalysis in SSR 16-3p, the ALJ must “build an accurate and logical
bridge from the evidence to [his] conclusion.” Steele v. Barnhart,
290 F.3d 936, 941 (7th Cir. 2002). The ALJ’s must also “articulate
his reasons and make a bridge between the evidence and the
outcome as to his step five determination.” Rice v. Barnhart, 384
F.3d 363, 371 (7th Cir. 2004). The ALJ must adequately articulate
his findings so that this Court can trace his reasoning and be sure
that he took into account all the important evidence. Rohan v.
Chater, 98 F.3d 966, 971 (7th Cir. 1996). Moreover, “an ALJ
cannot rely only on the evidence that supports [his] opinion. And
while an ALJ need not mention every piece of evidence in [his]
opinion, [he] cannot ignore a line of evidence that suggests a
disability.” Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013)
(internal citations omitted).
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III.
Standard of Review
If the Appeals Council declines to review the decision of an
ALJ, the ALJ’s decision becomes final. 20 C.F.R. § 404.981.
However, a claimant may appeal the decision in the United States
District Court for the claimant’s home district. Id. On appeal, if the
District Court finds that the Commissioner’s factual findings are
supported by substantial evidence, those findings are conclusive.
Id. Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Court, when deciding whether the Commissioner’s
decision was supported by substantial evidence, “must not decide
the facts anew, reweigh the evidence, or substitute [its] own
judgment.” Clark v. Sullivan, 891 F.2d 175, 177 (7th Cir. 1989).
However, if the Court finds that “the ALJ's decision ‘lacks
evidentiary support or is so poorly articulated as to prevent
meaningful review, the case must be remanded.’” Giles v. Astrue,
483 F.3d 483, 486 (7th Cir. 2007) (quoting Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002)). Nevertheless, even if “reasonable
minds could differ concerning whether [Plaintiff] is disabled,” the
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Court must uphold the ALJ’s decision so long as the ALJ’s findings
are supported by substantial evidence. Books v. Chater, 91 F.3d
972, 978 (7th Cir. 1996); Schmidt v. Astrue, 496 F.3d 833 (7th Cir.
2007; 42 U.S.C. § 405(g).
IV.
Retroactive Application of SSR 16-3p is Required
The new rule, SSR 16-3p, clarifies the second step of the sub-
analysis. “We are eliminating the use of the term ‘credibility’ from
our sub-regulatory policy, as our regulations do not use this term.
In doing so, we clarify that subjective symptom evaluation is not an
examination of an individual's character.” SSR 16-3p (effective
March 28, 2016).
The SSA altered the method of subjective symptom evaluation
because of the wide variety of effects experienced by different
patients with the same documented medical conditions. SSR 163p. Under the new rule, the ALJ is to evaluate the claimant’s
symptoms taking into consideration the entire medical record, the
claimant’s expressions concerning the effects of the symptoms, the
medical source’s opinions, and any other relevant evidence. Id.
The ALJ may not evaluate the claimant’s symptoms based only on
the medical evidence. Id.
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This new rule supersedes SSR 96-7p, which itself superseded
SSR 95-5p on July 2, 1996. Although SSR 96-7p was in effect on
the date of ALJ Thompson’s opinion, SSR 16-3p is the rule which
must be applied. “The application of a new social security
regulation to matters on appeal is appropriate where the new
regulation is a clarification of, rather than a change to, existing
law.” Lockwood v. Colvin, 2016 WL 2622325, *3 (N.D. Ill. May 9,
2016) (citing Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir.
1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d
561 (7th Cir. 1999)).
Where a new rule changes existing law, retroactive application
is proper only “if, at the very least, Congress expressly authorized
retroactive rulemaking and the agency clearly intended that the rule
have retroactive effect.” Pope v. Shalala, 998 F.2d 473, 482-483
(7th Cir. 1993), overruled on other grounds by Johnson v. Apfel,
189 F.3d 561 (7th Cir. 1999). However, where new rules merely
clarify unsettled or confusing areas of the law, retroactive
application is proper where the promulgating agency has expressed
the intent that a new rule is a clarification of an existing rule,
though this is not necessarily dispositive. Id. at 483.
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For a new rule that clarifies existing law to be applied
retroactively, the new rule must be sufficiently similar to the prior
rule. Id. at 483. Courts “will defer to an agency’s expressed intent
that a regulation is clarifying unless the prior interpretation of the
regulation or statute in question is patently inconsistent with the
later one.” Id. at 483.
Here, the question of the agency’s intent is settled by the text
of the newly promulgated rule. SSR 16-3p states: “we clarify that
subjective symptom evaluation is not an examination of an
individual's character” (emphasis added). Furthermore, SSR 96-7p
and SSR 16-3p are substantially similar. Rule 16-3p affects only
the second step of the method by which symptoms are evaluated.
The new rule does not alter the remainder of the evaluation,
whether symptoms are evaluated at all, or the ALJ’s obligation to
take into account the entire record. Therefore, SSR 16-3p applies
retroactively.
Some Courts have elected not to apply SSR 16-3p
retroactively. See Hose v. Colvin, No. 1:15CV00662, 2016 U.S. Dist.
LEXIS 53867, at *18 (M.D.N.C. Apr. 22, 2016) (“this
Recommendation will apply SSR 96-7p [. . .] to Plaintiff's credibility
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challenge.”); see also Smith v. Colvin, No. 3:14-cv-1752 (SRU), 2016
U.S. Dist. LEXIS 37578, at *20 (D. Conn. Mar. 23, 2016) (“Smith
also submitted the newly issued SSR 16-3p, which provides
guidance about to how evaluate subjective symptoms, as
supplemental authority. That guidance has not been made
retroactive, and accordingly does not apply to this case.”) (internal
citations omitted); Murphy v. Comm'r of Soc. Sec., No. 1:15-cv-126SKL, 2016 U.S. Dist. LEXIS 65189, at *26 (E.D. Tenn. May 18,
2016) (“SSR 16-3p . . . took effect on March 16, 2016, more than
two years after the ALJ issued his decision on December 23, 2013,
and therefore is not applicable to the ALJ's decision in this case.”).
However, the Seventh Circuit Court of Appeals favors applying
16-3p retroactively. Cole v. Colvin, No. 15-3883, 2016 U.S. App.
LEXIS 13559 (7th Cir. July 26, 2016) (applying SSR 16-3p
retroactively). Courts in the Northern District of Illinois have also
consistently favored retroactive application. See McCammond v.
Colvin, No. 15 C 6589, 2016 U.S. Dist. LEXIS 86438, at *7 (N.D. Ill.
July 5, 2016) (“Though [the issuance of SSR 16-3p] post-dates the
ALJ hearing and decision in this case, the application of a new
Ruling to matters on appeal is appropriate where the new regulation
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or Ruling is a clarification of existing law rather than a change to
it.); see also Turner v. Colvin, No. 14 CV 02237, 2016 U.S. Dist.
LEXIS 72173, at *25 (N.D. Ill. June 2, 2016) (“Therefore, it is
appropriate to evaluate Plaintiff's credibility argument in the
context of the guidance the [Social Security] Administration has
provided in SSR 16-3p.”).
Other District Courts have also favored retroactive application.
See Tarwacki v. Colvin, No. 3:14-cv-1735-JVB-CAN, 2016 U.S. Dist.
LEXIS 42961, at *20 (N.D. Ind. Mar. 30, 2016) (“On remand, the
ALJ shall consider Tarwacki's headaches consistent with SSR 163p”); see also Moody v. Colvin, No. TJS-15-1053, 2016 U.S. Dist.
LEXIS 91285, at *4 (D. Md. July 13, 2016) (“SSR 96-7p [. . .] has,
effective March 28, 2016, been superseded by SSR 16-3p [. . .]
which would seem to apply upon remand.”) (remanding based on
concerns about appropriateness of ALJ’s credibility finding);
Woodmark v. Colvin, No. 6:15-cv-472-SI, 2016 U.S. Dist. LEXIS
70415, at *26 (D. Or. May 31, 2016) (“On remand, the ALJ shall
reconsider Claimant's credibility . . . . If necessary, the ALJ shall
also reconsider those portions of Dr. Prescott's and Ms. Myer's
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opinions that the ALJ afforded only partial weight to due to the
ALJ's finding regarding Claimant's credibility. . . .”).
In light of the above precedent, and because the Court finds
that the SSA intended for SSR 16-3p to be a clarification of an
“unsettled or confusing area[] of the law” rather than an outright
change, retroactive application is appropriate. Pope, 998 F.2d 473,
483 (7th Cir. 1993).
V.
Discussion
In ALJ Thompson’s decision denying Plaintiff’s disability claim,
he found at the first step of the sub-analysis that Plaintiff’s
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms. . . .” (R. 20). The impairments
found were left shoulder injury, hypertension, diabetes, obesity,
depression, and an anxiety disorder. (R. 13). At the second step of
the sub-analysis, the ALJ found that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible,” and that overall, “the claimant
lacks credibility.” (R. 20-21). In finding that Plaintiff was not
entirely credible, ALJ Thompson cited to inconsistent statements
made by Plaintiff in the record as well as her questionable
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compliance with prescribed treatment. (R. 19-21). Based in part on
his determination as to Plaintiff’s credibility, the ALJ gave the
opinions of Plaintiff’s treating physician “little weight,” referring to
“the axiom that no opinion can have greater credibility than the
information upon which it is based.” (R. 21). Similarly, the ALJ
discounted the opinions of the consultative psychological examiner.
Id.
The reasoning employed by ALJ Thompson in this case is
inconsistent with SSR 16-3p. In McCammond v. Colvin, the United
States District Court for the Northern District of Illinois addressed
an ALJ’s similarly inconsistent reasoning. No. 15 C 6589, 2016
U.S. Dist. LEXIS 86438 (N.D. Ill. July 5, 2016). “If Plaintiff lied
about one thing, then he was less reliable in what he said
concerning something else. (R. 28, stating that ‘claimant's
credibility is...an issue in this case’ because he denied alcohol
abuse). That amounts to an attack on McCammond's character,
not a reasoned explanation of why he exaggerated his back pain.
That might have been permissible under SSR 96-7p had the ALJ
drawn some form of logical bridge between the record and her
conclusion. However, SSR 16-3p was issued to eliminate just such
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an attack on a claimant.” Id. at *3. Here, though ALJ Thompson
may have drawn a logical bridge between the record and his
conclusion, his attack on Plaintiff’s character is at odds with SSR
16-3p’s policy interpretation.
Under the new SSR 16-3p’s sub-analysis step two, the ALJ
still evaluates a claimant’s symptoms, but he is not to determine
the claimant’s overall credibility. SSR 16-3p directs that
adjudicators, without taking into account a claimant’s credibility,
are “to consider all of the evidence in an individual's record when
they evaluate the intensity and persistence of symptoms after they
find that the individual has a medically determinable impairment(s)
that could reasonably be expected to produce those symptoms.”
ALJ Thompson, because of his finding as to Plaintiff’s
credibility, discredited Plaintiff’s subjective claims as to her
symptoms as well as the opinions of both Plaintiff’s treating
physician and the consultative psychological examiner. Because
SSR 16-3p was issued to eliminate such reliance on an ALJ’s
impressions as to the credibility of a claimant, Plaintiff’s claimed
disabilities and symptoms, along with the opinions of treating
physicians and psychological examiners, must be re-examined.
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VI.
Conclusion
This Court cannot “decide the facts anew, reweigh the
evidence, or substitute [its] own judgment” in lieu of the ALJ’s.
Clark v. Sullivan, 891 F.2d 175, 177 (7th Cir. 1989). Because ALJ
Thompson’s decision was inconsistent with the policy interpretation
contained in SSR 16-3p, the Court remands this case for
reconsideration. On remand, the ALJ shall consider the intensity
and persistence of Plaintiff’s symptoms consistent with the steps
outlined in SSR 16-3p.
IT IS THEREFORE ORDERED:
(1)
Plaintiff’s Motion for Summary Judgment is DENIED.
(2)
Defendant’s Motion for Summary Affirmance is DENIED.
(3)
The decision of the Commissioner is REVERSED and
REMANDED for further proceedings consistent with this opinion
pursuant to 42 U.S.C. 405(g), sentence 4.
ENTER: August 9, 2016
FOR THE COURT:
s/Sue E. Myerscough
.
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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