Young v. Commissioner of Social Security
Filing
27
MEMORANDUM AND OPINION.The final decision 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 12/17/2015. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KELLY YOUNG,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Case No. 14-cv-1144-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Kelly Young, represented by
counsel, 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
Ms. Young applied for benefits in October 2011, alleging disability beginning
on June 30, 2009. (Tr. 14). After holding an evidentiary hearing, ALJ Michael
Scurry denied the application for benefits in a decision dated August 26, 2013.
(Tr. 14-28).
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.
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 11.
1
Page 1 of 15
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.
The ALJ’s assessment of plaintiff’s residual functional capacity did not
include all mental limitations found by the state agency consultant.
2.
The ALJ erroneously referred to plaintiff’s attorney as a witness.
3.
The ALJ failed to resolve plaintiff’s objection to Dr. Feinerman’s
report.
4.
The ALJ stated that he gave little weight to Dr. Feinerman’s report, but
used the report as a basis to deny plaintiff’s complaints of
manipulative limitations.
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
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.
Page 2 of 15
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
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
Page 3 of 15
Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
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
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. Young 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)). This Court uses
the Supreme Court’s definition of substantial evidence, i.e., “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Page 4 of 15
Richardson v. Perales, 402 U.S. 389, 401 (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, 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 Scurry followed the five-step analytical framework described above. He
determined that Ms. Young had not been engaged in substantial gainful activity
since the date of her application. She was last insured for DIB as of December 31,
2014. 3
The ALJ found that plaintiff had severe impairments of systemic lupus
erythematosus, bulging discs at C4-C7, GERD, hypertension, symptomatic renal
cyst, chronic kidney disease and lupus nephritis, peptic ulcer, migraine, major
depressive disorder, and methamphetamine abuse in remission. 4
He further
determined that these impairments do not meet or equal a listed impairment.
The ALJ found that Ms. Young had the residual functional capacity (RFC) to
perform work at the sedentary exertional level, with a number of physical and
The date last insured is relevant only to the claim for DIB.
“Systemic lupus erythematosus (SLE) is an autoimmune disease in which the body's immune
system mistakenly attacks healthy tissue. It can affect the skin, joints, kidneys, brain, and other
organs.” https://www.nlm.nih.gov/medlineplus/ency/article/000435.htm, visited on December 15,
2015.
3
4
Page 5 of 15
mental limitations.
Based upon the testimony of a vocational expert, the ALJ
found that plaintiff was unable to do her past work. However, he also concluded
that she was not disabled because she was able to do other jobs which exist in
significant numbers in the national economy.
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 and is confined to the relevant time
period.
1.
Agency Forms
Plaintiff was born in 1977 and was almost 32 years old on the alleged onset
date. (Tr. 132). She had worked in the past as a CNA in a nursing home, a
dialysis technician, an emergency room technician and as an EMT. She completed
three years of college in 2005. (Tr. 188-189).
Plaintiff reported that she usually spent about an hour a day doing very light
housework with breaks. She took two naps a day. She made one simple meal for
dinner and watched television.
She alleged that pain, fatigue and neuropathy
limited her ability to sit, stand, walk, reach and use her hands.
Fatigue and
depression limited her memory, concentration and social interaction.
(Tr.
213-217).
3.
Evidentiary Hearing
Ms. Young was represented by an attorney at the evidentiary hearing on June
26, 2013. (Tr. 37).
Page 6 of 15
Plaintiff’s attorney objected to the “credibility” of Dr. Feinerman’s report.
(Tr. 41).
Ms. Young was 36 years old.
She was 5’2” tall and weighed about 105
pounds. (Tr. 43). Plaintiff testified that she was unable to work because she was
tired and in pain all the time. Going out in the sun caused migraine headaches.
She had no strength in her hands and her “legs and bones hurt constantly.” Her
neck hurt and doing any lifting caused shooting pains in her shoulders. She had
gotten sick with acute pancreatitis the previous June, and everything went downhill
from there.
She lost her insurance shortly thereafter and was unable to get
medical treatment. (Tr. 52-53). When she had the pancreatitis attack, her weight
dropped from 123 pound to 84 pounds. (Tr. 59).
She was taking a number of medications. She had side effects of nausea,
dizziness, lightheadedness and sleepiness. (Tr. 61).
A vocational expert also testified.
The ALJ asked him to assume a person
who was able to do sedentary work, limited to occasional climbing of ladders, ropes
and scaffolds, frequent overhead reaching with both arms, and no concentrated
exposure to extreme heat or hazards. For mental limitations, the person was “able
to understand, remember and carry out less than detailed short and simple
instructions and could maintain concentration, persistence and pace for such tasks
with no more than average production standards, and also could tolerate no contact
with the general public.” (Tr. 64-65). The VE testified that this person could not
do plaintiff’s past work, but she could do other jobs such as hand packer and
assembler. (Tr. 65).
Page 7 of 15
On cross examination, the VE testified that, if plaintiff were limited to only
occasional handling and fingering, all sedentary, unskilled jobs would be
precluded. (Tr. 66).
3.
Medical Records
Plaintiff was diagnosed with lupus some time before the alleged date of onset
of disability. In February 2009, Dr. Amar Sawar noted that she had systemic
lupus erythematosus and common migraine, and that her migraines were “well
controlled.” (Tr. 348).
In August 2009, plaintiff told Dr. Sawar that she was having two migraines
per month. Sensory exam was intact and she had no tenderness or swelling of the
joints.
Strength was 5/5 in all extremities.
Sawar in November 2010.
(Tr. 347).
Plaintiff next saw Dr.
She complained of neck pain radiating to both
shoulders and tingling in both hands. She was not taking her medications because
of the cost. On exam, she had full strength in all four extremities and sensation
was intact. She had tenderness and swelling of the joints in her hands. (Tr. 346).
An MRI of the cervical spine done in November 2010 showed herniation of
the discs at C5-6 and C6-7. (Tr. 331).
In January 2011, Dr. Sawar noted decreased sensation to pinprick in both
feet and up the ankles. There was no tenderness or swelling in the joints. He
diagnosed cervical herniation and recommended a nerve conduction study. (Tr.
344).
Nerve conduction studies and EMG were performed on January 31, 2011.
The tests showed mild right peroneal mononeuropathy, no evidence of lumbosacral
Page 8 of 15
radiculopathy, and
no evidence of
carpal tunnel syndrome or cervical
radiculopathy. (Tr. 336).
In June 2011, Dr. Sawar noted full strength in all extremities, intact
sensation and no tenderness or swelling of the joints.
There was no spinal
tenderness. (Tr. 350).
Dr. Adrian Feinerman performed a consultative physical exam on January 9,
2012. The exam was normal. (Tr. 379-389).
Harry J. Deppe, Ph.D., performed a consultative psychological exam on
January 9, 2012. Plaintiff first denied any past drug use, but then stated that she
had used methamphetamine in the past with the most recent use about five years
prior. She was on probation for possession of methamphetamine. She had been
treated for depression in the past, but was not currently in treatment or taking any
psychotropic medication.
Dr. Deppe concluded that her abilities to relate to
others, to understand and follow simple directions, and to maintain attention for
simple, repetitive tasks were intact. She had fair to good ability to withstand the
pressures and stress of day-to-day work activities.
His diagnoses were
methamphetamine abuse, in remission, and major depression, single episode, in
remission. (Tr. 390-395).
Ms. Young went to the emergency room for neck pain radiating to the left
shoulder in January 2012. She said she had been referred to a pain clinic, but was
unable to go “due to insurance problem.” She had not been seen recently by a
doctor. (Tr. 396).
Plaintiff was seen at the Family Healthcare Clinic in May 2012. She said she
Page 9 of 15
had been unable to see Dr. Sawar or a pain management specialist because she had
no insurance and no money. She was out of all medications. (Tr. 446-448). In
October 2012, she was seen for depression. She was unable to afford a referral to
a psychiatrist. She reported anxious/fearful thoughts, depressed mood, excessive
worry, difficulty sleeping, fatigue, loss of appetite and paranoia. (Tr. 459-462).
Dr. Michelle Jenkins prescribed Cymbalta. (Tr. 453).
A physician’s assistant at Cape Spine and Neurosurgery saw plaintiff in May
2013 for neck pain and headache. On exam, the active range of motion of the neck
was limited and plaintiff had pain over the cervical paraspinal muscles. She had
3/5 handgrip on the right and 4/5 handgrip on the left. There was hypoesthesia
(reduced sensation) in the right C6 and C7 distribution. (Tr. 512-513).
In June 2013, an MRI of the cervical spine showed mild bulging of the C4-5
disc with mild encroachment on the thecal sac and central left neural foramina.
There was moderate bulging of the C5-6 and C6-7 discs with mild to moderate
foraminal stenosis. (Tr. 515).
4.
State Agency Consultant’s RFC Assessment
On January 23, 2012, Howard Tin, Psy.D., assessed plaintiff’s mental RFC.
He used an agency form (Form SSA-4734-F4-SUP) that is commonly used for this
purpose in social security cases. (Tr. 418-421). This form is referred to as the
Mental Residual Functional Capacity Assessment, or MRFCA.
Section I of the
form consists of a list of mental activities. The consultant is asked to set forth his
“summary conclusions” by checking a box to rate the severity of limitation as to
each activity. Dr. Tin checked the box for “moderately limited” for the following
Page 10 of 15
activities:
•
Ability to understand and remember detailed instructions;
•
Ability to maintain attention and concentration for extended periods;
•
Ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances;
•
Ability to work in coordination with or proximity to others without being
distracted by them;
•
Ability to interact appropriately with the general public;
•
Ability to get along with coworkers without distracting them or exhibiting
behavioral extremes.
In Section III of the form, the consultant is asked to explain his “summary
conclusions in narrative form. Include any information which clarifies limitation
or function.”
Dr. Tin wrote that plaintiff “has difficulty carrying out detailed
instructions and maintaining attention and concentration for extended periods of
time, however the person is capable of performing simple tasks.” He also noted
that she had “difficulty in interacting appropriately with the general public,” but did
not mention that he had also found her moderately limited in ability to work in
coordination or proximity to others and to get along with coworkers.
A second state agency consultant, Donald Henson, Ph.D., affirmed Dr. Tin’s
assessment in March 2012. (Tr. 430-432).
Analysis
Plaintiff correctly argues that the ALJ erred in failing to adequately consider
all of the limitations found by Dr. Tin in the Mental RFC Assessment Form.
The ALJ stated that he gave the opinions of Drs. Tin and Henson “significant
Page 11 of 15
weight.” He specifically noted that they concluded that plaintiff was moderately
limited in her ability to maintain attention and concentration for extended periods
and to work in coordination or proximity with others. He did not note that they
also found that she was moderately limited in her ability to get along with
coworkers. See, Tr. 26.
“State agency medical and psychological consultants are highly qualified
physicians and psychologists who are experts in the evaluation of the medical
issues in disability claims under the Act.” SSR 96-6p, at *2. The ALJ is required
by 20 C.F.R. §§ 404.1527(f) and 416.927(f) to consider the state agency
consultant’s findings of fact about the nature and severity of the claimant’s
impairment as opinions of non-examining physicians; while the ALJ is not bound
by the opinion, he may not ignore it either, but must consider it and explain the
weight given to the opinion in his decision. See, McKinzey v. Astrue, 641 F.3d
884, 891(7th Cir. 2011). Here, the ALJ gave the state agency consultants’ opinions
“significant weight” and did not state that he rejected any part of their opinion.
Plaintiff argues that the hypothetical posed to the VE is deficient because it
did not account for all of the moderate limitations found by Dr. Tin and affirmed by
Dr. Henson. She points out that the ALJ did not include limitations in working in
proximity to coworkers or in getting along with coworkers. 5
The Commissioner argues that the ALJ was not required to treat Dr. Tin’s
checkmarks in Section I of the MRFC form as an opinion. In support, she cites
Plaintiff has not raised an argument based on O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir.
2010).
5
Page 12 of 15
Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 637 (3d Cir. 2010). Smith is from
the Third Circuit, not the Seventh Circuit. She also cites two cases from district
courts in Wisconsin. However, district court decisions “are not authoritative even
within the rendering district.” Van Straaten v. Shell Oil Products Co. LLC, 678
F.3d 486, 490 (7th Cir. 2012).
The Court finds it disturbing that neither party cited Yurt v. Colvin, 758 F.3d
850 (7th Cir. 2014), which is directly on point and is controlling. In Yurt, the
Seventh Circuit rejected the Commissioner’s position that the ALJ may ignore Part
I of the MRFCA form and consider only the narrative statement in Part III. Yurt,
758 F.3d at 858-859. The Commissioner’s argument is directly contrary to Yurt.
Yurt was decided on July 10, 2014, well before the briefs were filed in this case.
The Seventh circuit again rejected the Commissioner’s present argument in Varga
v. Colvin, 794 F.3d 809 (7th Cir. 2015). Varga was decided on July 24, 2015, one
week before defendant filed her brief in this case.
Further, the Commissioner advanced the identical argument, citing Smith v.
Comm’r of Soc. Sec., 631 F.3d 632, 637 (3d Cir. 2010), in Sharon Johnson v.
Commissioner, Case No. 14-361-CJP. 6
Citing Yurt, this Court rejected the
Commissioner’s argument in a Memorandum and Order dated April 24, 2015.
Yurt and Varga explicitly reject the argument advanced by the Commissioner
here. The Commissioner’s attorneys should not continue to make that argument
without acknowledging that it has been rejected by the Seventh Circuit and
attempting to distinguish Yurt and Varga.
6
Ms. Young’s attorney did not represent the plaintiff in Johnson.
Page 13 of 15
Under the binding precedents of Yurt and Varga, this Court must conclude
that the ALJ failed to build “an ‘accurate and logical bridge’ between the evidence of
mental impairments and the hypothetical and the mental RFC.”
Yurt, 758 F.3d at
858-859. Therefore, this case must be remanded.
Plaintiff’s point regarding the ALJ’s consideration of her alleged limitations
in using her hands is also well-taken.
The ALJ gave “little weight” to Dr.
Feinerman’s opinion, but relied upon that opinion, in part, to conclude that Ms.
Young had no manipulative limitations.
See, Tr. 25.
Tee VE testified that
plaintiff would be unable to perform any unskilled sedentary work if she were
limited to only occasional handling and fingering. (Tr. 66). Therefore, the ALJ’s
determination that she had no manipulative limitations is potentially dispositive.
The ALJ fails to build the requisite logical bridge where he relies on evidence which
“does not support the propositions for which it is cited.” Scott v. Astrue, 647 F.3d
734, 740 (7th Cir. 2011). Logically, a doctor’s report that is given “little weight”
cannot be used to negate other evidence indicating that plaintiff has manipulative
limitations.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Ms. Young is disabled or that
she should be awarded benefits. On the contrary, the Court has not formed any
opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Kelly Young’s application for
Page 14 of 15
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:
December 17, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
Page 15 of 15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?