Samuels v. Colvin
Filing
24
MEMORANDUM AND OPINION. The final order of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 7/28/2014. (jmt).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENISE SAMUELS,
)
)
)
)
)
)
)
)
)
)
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 13-cv-155-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Denise Samuels seeks
judicial review of the final agency decision denying her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits
pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in May, 2009, alleging disability beginning on
April 2, 2009. (Tr. 13). After holding an evidentiary hearing, ALJ Paul F. Kelly
denied the application on August 25, 2011. (Tr. 13-25). The Appeals Council
denied review, and the decision of the ALJ became the final agency decision. (Tr.
1). Administrative remedies have been exhausted and a timely complaint was filed
in this Court.
Issues Raised by Plaintiff
1
This case was referred to the undersigned for final disposition on consent of the parties, pursuant
to 28 U.S.C. §636(c). See, Doc. 12.
1
Plaintiff raises the following interrelated points:
1.
The ALJ erred failing to incorporate all limitations found by Dr. Klug
into his RFC assessment.
2.
The ALJ failed to explain why he rejected part of the opinion of Dr.
Klug, a consultative examiner.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes. 2 For these purposes, “disabled” means 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).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).
“Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
2
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case, the
DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.
2
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513
(7th Cir. 2009.
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three, and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at
3
step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter,
245 F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Ms. Samuels was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th
Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)).
The Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 91 S. Ct. 1420, 1427 (1971).
In reviewing for
“substantial evidence,” the entire administrative record is taken into consideration,
but this Court does not reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater,
4
103 F.3d 1384, 1390 (7th Cir. 1997).
However, while judicial review is
deferential, it is not abject; this Court does not act as a rubber stamp for the
Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and
cases cited therein.
The Decision of the ALJ
ALJ Kelly followed the five-step analytical framework described above. He
determined that plaintiff had not worked at the level of substantial gainful activity
since the alleged onset date.
He found that she had severe impairments of
substance abuse, dysthymic disorder, hypertension, and decreased vision, and that
these impairments do not meet or equal a listed impairment.
The ALJ found that Ms. Samuels had the residual functional capacity (RFC)
to perform work at the light exertional level, with a number of physical and mental
limitations. Based on the testimony of a vocational expert, the ALJ found that
plaintiff was not able to do her past relevant work. She was, however, not disabled
because she was able to do other jobs which exist in significant numbers in the local
and national economies.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff. As plaintiff has not challenged the
ALJ’s findings as to her physical impairments, the Court will not summarize that
evidence in any detail.
1.
Agency Forms
5
Plaintiff was born in 1960, and was 49 years old on the alleged onset date.
(Tr. 243). She was 5 feet tall and weighed 150 pounds. (Tr. 247). She stopped
working in April 2, 2009. She described this as a “no call no show termination.”
(Tr. 248).
Plaintiff worked in the past as a food preparer in the health care industry, a
self-employed babysitter, and a welder for a steel company.
(Tr. 249).
She
completed the 10th grade. (Tr. 252).
2.
Evidentiary Hearing
Ms. Samuels was represented by an attorney at the evidentiary hearing on
June 16, 2011. (Tr. 47).
Plaintiff testified that she could not work because she did not like people and
did not get along with them. (Tr. 52). She also said she had been trying to find a
job, but “they act like they don’t hire black people.” She believed she could work
as a cook.
(Tr. 53).
McDonalds. (Tr. 57).
She had applied at nursing homes, a hospital and
She was fired from her last job as a dietary aide in a
hospital because she woke up late and called in late. (Tr. 57-58).
She was recently hospitalized after a suicide attempt. She had been seeing a
psychiatrist, Dr. Habib, since January. He prescribed medication for her. She
was not better, and she still cried every day. The medications did help some. (Tr.
60-63). She found it hard to get along with people because she had “that mouth
that nobody likes to be around.” She got in a lot of fights with people. (Tr. 67).
She had been fired from two jobs for fighting. (Tr. 72). She heard voices at night
and saw “shadows.” (Tr. 73).
6
Ms. Samuels used marijuana about a week before the hearing. She testified
that she did not “really smoke it, because I can’t afford to.” She smoked marijuana
about four times in the past year. She drank about a six-pack of beer a day on the
weekends. (Tr. 83-85). She later testified that, up until April of 2011, she was
smoking marijuana every day. She cut down on the amount of beer that she drank
beginning in May, 2011, because of lack of money. (Tr. 93-95).
Dr. Reid, a clinical psychologist, testified as an independent medical expert
based on a review of the records. (Tr. 77-78). He testified that plaintiff had been
diagnosed with major depression, recurrent, severe, without psychosis, and
cannabis abuse.
Her impairments did not meet or equal a Listing. He testified
that the objective medical evidence did not establish a major depressive disorder.
Rather, he felt she had an adjustment reaction secondary to job loss in January,
2011. He opined that her present diagnosis was low-level dysthymic disorder
which was “probably substance-induced.” (Tr. 90-95).
A vocational expert (VE) also testified. The ALJ asked the VE a series of
hypothetical questions. The transcript is somewhat difficult to follow because of
the manner in which the ALJ switched back and forth between the assumptions of
the hypothetical questions. (Tr. 100-106). One of the questions comported with
the ultimate RFC assessment, that is, a person of plaintiff’s age and work history
who was able to do work at the light exertional level, with some physical and mental
limitations. The mental limitations were as follows:
•
Only simple, routine, repetitive tasks;
•
No fast-paced production requirements;
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•
Only simple work-related decisions;
•
Few, if any, workplace changes;
•
Only occasional interaction with the public; and
•
Only occasional interaction with co-workers. (Tr. 102).
The VE testified that this person could not do any of plaintiff’s past work, but
there were other jobs in the economy which she could do. Examples of such jobs
are garment or clothing bagger and wrapper.
(Tr. 104-106).
Plaintiff’s counsel then questioned the VE regarding a limitation in ability to
respond appropriately to usual work situations.
The VE testified that, at the
unskilled level, a worker is given very little leeway in responding appropriately to
work situations. He said that a worker who responded inappropriately to work
situations once a month would not be able to maintain employment.
(Tr.
106-109).
3.
Mental Health Treatment
Ms. Samuels called her primary care physician’s office on January 12, 2011,
seeking a referral to a psychiatrist.
She said that she felt depressed and
sometimes she wanted to kill herself. She was told to go to the emergency room
immediately. (Tr. 552).
She went to the emergency room on the same day.
She said she had
suicidal thoughts. She had lost her job a few months earlier, and had feelings of
hopelessness, worthlessness, anger and agitation.
She was hospitalized at
Gateway Regional Medical Center from January 13 to January 19, 2011. It was
noted that she had psychiatric treatment in the past and had taken Paxil and Zoloft.
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A drug screen was positive for marijuana, but she denied regular use. During this
hospitalization, Ms. Samuels came under the care of Dr. Arif Habib, a psychiatrist.
The diagnoses were (1) major depressive disorder, recurrent, severe, without
psychosis, and (2) cannabis abuse.
At discharge, she was alert and oriented,
cooperative, and denied any suicidal or homicidal ideation.
She had no
hallucinations and no symptoms of mania. (Tr. 372-375).
Following her discharge from the hospital, plaintiff saw Dr. Habib four times
through the date of the hearing. He noted that Ms. Samuels reported hearing
voices or noises at times. He reported basically normal findings on mental exams,
except that Ms. Samuels was depressed and crying in February, 2011.
Her
medications were adjusted on the first three visits. (Tr. 699-717). On the last
visit, in June, 2011, Ms. Samuels reported that she was doing “fair.” Mental status
exam was normal. Her medications were not changed at that visit. (Tr. 720-722).
Dr. Habib’s records do not include an assessment of plaintiff’s functional capacity.
4.
Examination by Dr. Klug
Fred D. Klug, Ph.D., performed a consultative examination of plaintiff and
prepared a report at the request of the agency on April 26, 2011. She had mental
health treatment in 1994 which included psychiatric hospitalizations, outpatient
therapy and psychotropic medications.
molested as a child.
She reported “flashbacks” to being
She admitted drinking alcohol on weekends and using
marijuana. She last used marijuana about a week earlier. On exam, Dr. Klug
found that her immediate and short term memory was impaired, but long term
memory was intact. Reasoning and abstract thinking were poor. Ability to do
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simple calculations was fair. Judgment and insight were poor. It appeared that
her intellectual functioning was borderline.
Her thought processes were
goal-directed and relevant. She had no delusions, obsessions or compulsions.
She
reported
feeling
ideation/behavior.
depressed
and
having
suicidal
and
homicidal
Dr. Klug observed that her affect was “labile (tearful) and
consistent with her thought content.” Dr. Klug’s Axis I diagnosis was dysthymic
disorder – late onset. (Tr. 691-694).
Dr. Klug also completed a form furnished to him by the agency entitled
“Medical Source Statement of Ability to Do Work-Related Activities (Mental).” This
form asked the doctor to rate Ms. Samuels’ abilities in a number of areas using a
five-point scale. The points on the rating scale are none, mild, moderate, marked
and extreme. Mild is defined as “There is a slight limitation in this area, but the
individual can generally function well.” Moderate is defined as “There is more than
a slight limitation in this area but the individual is still able to function
satisfactorily.”
Dr. Klug indicated that she had moderate limitations in ability to interact
appropriately with the public, supervisors and co-workers, and ability to respond
appropriately to “usual work situations and to changes in a routine work setting.”
As support for these ratings, he wrote “low tolerance for stress + emotional lability
is apt to interfere with social interactions.” (Tr. 695-697).
Analysis
ALJ Kelly gave Dr. Klug’s opinion “great weight as he examined the claimant
and his opinion is consistent with the medical evidence as a whole.” See, Tr. 22.
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Plaintiff argues that the ALJ erred in failing to either account for all limitations
found by Dr. Klug or give a good reason for omitting some limitations.
The ALJ noted that Dr. Klug found that Ms. Samuels had a moderate
impairment in her ability to interact appropriately with the public, co-workers and
supervisors, and in her ability to respond appropriately to usual work situations
and to changes in a routine work setting.
See, Tr. 22.
His RFC assessment
limited plaintiff to simple, routine, repetitive tasks with no fast paced production
requirements; only simple work-related decisions; few, if any, work place changes;
and only occasional interactions with the general public and co-workers. Plaintiff
argues that the RFC assessment did not account for her moderate limitations in
interacting with supervisors and in responding appropriately to usual work
situations.
RFC is “the most you can still do despite your limitations.”
20 C.F.R.
§1545(a). In assessing RFC, the ALJ is required to consider all of the claimant’s
“medically determinable impairments and all relevant evidence in the record.”
Ibid. Further, where the ALJ relies upon the testimony of a VE at step five of the
sequential analysis, he must “orient the VE to the totality of a claimant's
limitations.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
The “most effective way” to do that is to include all of plaintiff’s limitations in the
hypothetical question posed to the VE. Ibid.
The RFC assessment did not include any limitation regarding interaction
with supervisors, as opposed to co-workers and the general public.
Such a
limitation was not mentioned to the VE. However, in the back-and-forth between
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the ALJ and the VE, the VE sought clarification.
He asked, “We have limited
contact with people, right?” The ALJ replied, “Yes. Occasional, yes.” (Tr. 104).
The Commissioner argues that the RFC and hypothetical question were
sufficient because “co-workers” should be understood to include “supervisors.”
She offers no authority for this position, and does not argue that it was a position
specifically espoused by the ALJ. The language used by the agency in regulations
and other publications does not support it. Rather, the agency generally identifies
responding appropriately to supervisors/supervision as an element distinct from
responding appropriately to co-workers. For instance, 20 C.F.R. §404.1521(b)
gives examples of “basic work activities.” Among the examples are ”[r]esponding
appropriately to supervision, co-workers and usual work situations.”
In SSR
85-15, the agency describes the basic mental demands of unskilled work as “the
abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.” SSR 85-15, 1985
WL 56857, at *4. Perhaps most tellingly, even the agency form furnished to Dr.
Klug distinguished between supervisors and co-workers.
The form asked the
doctor to rate ability to interact appropriately with supervisors separately from
ability to interact appropriately with co-workers. See, Tr. 696. Thus, the Court
sees no reason to assume that the ALJ intended the term “co-workers” to include
“supervisors.”
The Commissioner argues that, if the ALJ did not intend “co-workers” to
include “supervisors,” any error was harmless because the VE understood that the
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examining psychologist found that plaintiff had limitations with both supervisors
and co-workers, and the VE understood that the hypothetical question limited
contact with “people.” The Court is not persuaded. The hypothetical question
explicitly asked about co-workers and the general public. It is too large a leap to
assume that the VE understood that the ALJ meant that plaintiff had a limitation
with regard to interacting with supervisors when the ALJ never mentioned such a
limitation. Further, the record contains no indication that the VE would have
testified in the same way had he known that plaintiff was limited to only occasional
interaction with supervisors as well as with co-workers and the general public.
The second aspect of plaintiff’s argument is that the ALJ failed to account for
her moderate limitation in ability to respond appropriately to usual work
situations. While the RFC assessment and the hypothetical question included a
limitation to few, if any, work places changes, neither contained an explicit
limitation with regard to responding appropriately to usual work situations.
The Commissioner argues that the ALJ translated the moderate limitation in
responding to usual work situations into restrictions on the “nature of the usual
work situations that Samuels could experience, as well as a limitation on the
frequency of workplace changes she could tolerate.”
Thus, according to the
Commissioner, the ALJ intended the other mental limitations he specified to cover
the limitation on responding to usual work situations, which he did not specify.
This ingenious argument fails for two reasons.
First, the ALJ did not say that he intended the articulated mental limitations
to account for plaintiff’s moderate limitations in responding to usual work
13
situations. In advancing a reason not relied upon by the ALJ, the Commissioner
violates the Chenery doctrine. See, SEC v. Chenery Corporation, 318 U.S. 80
(1943). “Under the Chenery doctrine, the Commissioner's lawyers cannot defend
the agency's decision on grounds that the agency itself did not embrace.” Kastner
v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
The second problem with the Commissioner’s argument is that it does not
logically follow from the record. The mental limitations assigned by the ALJ in his
RFC and in the hypothetical question logically account for Dr. Klug’s findings that
Ms. Samuels had moderate limitations with regard to complex instructions and
decisions,
interacting
with
the
public
and
co-workers,
and
responding
appropriately to changes in a routine work setting, as well as her low tolerance for
stress.
However, there is no limitation assigned by the ALJ which logically
accounts for a restricted ability in dealing with usual work situations.
The Commissioner’s argument is, in effect, that the ALJ sufficiently
accounted for her limitation in dealing with usual work situations by accounting for
her other mental limitations. This argument reduces the limitation in responding
appropriately to usual work situations to mere surplus. Again, however, the form
provided to Dr. Klug by the agency as well as 20 C.F.R. §404.1521(b) and SSR
85-15 list dealing with usual work situations as an item separate and distinct from
the other mental work-related activities.
There is no reason, based on the
language used by the agency or on the ALJ’s own words, to assume that limitations
designed to account for restrictions in other areas of mental functioning also serve
to account for the limitation in responding to usual work situations.
14
The VE testified that an unskilled worker would be given very little leeway in
responding appropriately to usual work situations. Plaintiff’s counsel asked him
whether a person who failed to respond appropriately to a usual work situation “on
even a once-a-month level” could maintain employment. The VE answered in the
negative. (Tr. 109). Thus, the VE’s testimony established that a limitation in
ability to respond appropriately to usual work situations is potentially dispositive
on the question of disability. The ALJ was required to either account for plaintiff’s
limitation in this area in his RFC assessment and hypothetical question, or explain
why he rejected Dr. Klug’s opinion on this issue. See, Beardsley v. Colvin, ___
F.3d ___, 2014 WL 3361073, *4 (7th Cir. 2014)(“[R]ejecting or discounting the
opinion of the agency's own examining physician that the claimant is disabled . . .
can be expected to cause a reviewing court to take notice and await a good
explanation for this unusual step.”)
Lastly, the Court notes the Commissioner’s argument that a moderate
limitation, as defined by the agency’s form, means that the person can still function
satisfactorily in the area. It is true that the form defines moderate as “more than a
slight limitation in this area but the individual is still able to function satisfactorily.”
(Tr. 695). Again, the Court must point out that ALJ Kelly did not say that he
omitted any reference to a limitation in responding appropriately to usual work
situations because a moderate limitation means that plaintiff can still function
satisfactorily in that area. He saw fit to specify limitations in other areas where Dr.
Klug found moderate limitations, but did not explain why he failed to include
limitations in interacting with supervisors and dealing with usual work situations.
15
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Ms. Samuels is entitled to
social security disability benefits. On the contrary, the Court has not formed any
opinions in that regard, and leaves that issue to be determined by the
Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Denise Samuels’ application for
social security disability benefits is REVERSED and REMANDED to the
Commissioner for rehearing and reconsideration of the evidence, pursuant to
sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE:
July 28, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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