Mollet v. Commissioner of Social Security

Filing 33

MEMORANDUM AND ORDER, The Commissioner's final decision denying Ronald C. Mollet's 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. Signed by Judge J. Phil Gilbert on 10/11/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD C. MOLLET,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.1

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Case No. 16-cv-1170-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Ronald C. Mollet, represented by counsel,
seeks judicial review of the final agency decision denying his application for Disability Insurance
Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Mr. Mollet applied for DIB in July 2013 alleging disability beginning on March 30, 2013.
After holding an evidentiary hearing, ALJ Stuart T. Janney denied the application on January 14,
2016. (Tr. 28-40.) 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.
In March 2017, the agency found that plaintiff was disabled as of January 12, 2016. This
was apparently a decision on an application filed subsequent to the one at issue here. The
decision does not explain why plaintiff was found to be disabled. See Notice of Award, Doc. 27,
Ex. 1.

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. See https://www.ssa.gov/agency/
commissioner.html (visited Feb. 7, 2017). She is automatically substituted as defendant in this case. See Fed. R.
Civ. P. 25(d); 42 U.S.C. § 405(g).

Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

The ALJ erred in finding that degenerative disc disease in plaintiff’s cervical,
thoracic and lumbar spine was not a severe impairment at Step 2 and failed to
consider the effects of his back pain in combination with his other impairments.

2.

The ALJ erred in erred in assessing plaintiff’s credibility.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. 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 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
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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.
Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008); accord Weatherbee v. Astrue, 649 F.3d 565,
568-69 (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, 512-13
(7th 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
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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 plaintiff 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.” 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); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). 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 Janney followed the five-step analytical framework described above. He determined
that Mr. Mollet had not worked at the level of substantial gainful activity since the alleged onset
date and that he was insured for DIB through December 31, 2018. He found that plaintiff had
severe impairments of obstructive sleep apnea; obesity; epilepsy; cognitive impairment due to a
history of traumatic brain injury; evidence of microangiopathic gliosis; attention deficit
hyperactivity disorder; depression; and recurrent anxiety. These impairments did not meet or
equal a listed impairment. He also found that plaintiff had degenerative disc disease, but it was
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not a severe impairment because it was “mild and stable.”
The ALJ found that plaintiff had the RFC to perform work at the medium exertional level,
with physical limitations consisting of occasional climbing of ramps and stairs; no climbing of
ladders, ropes or scaffolds; no “concentrated exposure” to hazards such as unprotected heights or
moving machinery; and no operation of commercial vehicle equipment. Mentally, he was limited
to work involving “rote or routine instructions that require the exercise of little independent
judgment or decision-making at a consistent pace but not if the work tasks are complex”; and
should work in a stable setting with little change in tools or processes. Based on the testimony of
a vocational expert (VE), the ALJ concluded that plaintiff could not do his past work, but he was
not disabled because he was able to do other jobs which exist in significant numbers in the national
and regional 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.
1.

Agency Forms

Plaintiff was born in 1958 and was 54 years old on the alleged date of onset. (Tr. 193.)
He was 57½ years old on the date of the ALJ’s decision.
Plaintiff said he was unable to work because of memory loss, seizures, learning disabilities,
ADD, depression, high blood pressure, and a back injury. He was 5’8” and weighed 200 pounds.
He had a twelfth-grade education. He had worked as a driver/operator at a rock quarry from 1997
to March 2013. (Tr. 197-98.)
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In May 2014, plaintiff reported that he had a lot of anxiety and had panic attacks. He
could not remember how to do things that he was able to do before his head injury, and he forgot to
do daily tasks. He could not remember what he was supposed to do even though he made notes in
a little notebook. He was easily distracted and could not concentrate. He could only stand for
five minutes because of pain in his back. He had balance problems because of his head injury.
He had difficulty completing tasks. (Tr. 256-60.)
In December 2015, plaintiff reported that he had seen Dr. Du for pain. Dr. Du gave him a
series of steroid injections but told him he would have to wait six months for further treatment.
(Tr. 342.) He was taking hydrocodone and gabapentin for pain. (Tr. 346.)
2.

Evidentiary Hearing

Mr. Mollet was represented by an attorney at the evidentiary hearing in December 2015.
(Tr. 48.)
Plaintiff weighed 247 pounds at the time of the hearing. His weight gain caused him more
trouble breathing and walking. (Tr. 52-53.)
Plaintiff testified that he hurt his back in 2011. He fell off of a riding mower because he
had a seizure, and he broke his back. He wore a back brace for eight months. He had injections
in his back, which helped somewhat, but they had to wait for six months before they could give
him more injections. He took hydrocodone in the past and was taking gabapentin at the time of
the hearing. He had constant back pain. (Tr. 57-59.)
A VE also testified. The ALJ asked him a hypothetical question which corresponded to
the ultimate RFC findings. The VE testified that this person could not do plaintiff’s past work,
but he could do medium exertion jobs such as kitchen helper, hand packer, and laundry laborer.
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(Tr. 75-77.)
3.

Medical Records

Plaintiff had brain surgery following a motorcycle accident around 2010. He had a
compression fracture of a thoracic vertebrae caused by a fall resulting from a seizure in August
2011. (Tr. 1005, 1011.)
In February 2015, an x-ray showed a moderate compression fracture deformity in the mid
thoracic spine. The degree of compression had increased from the previous study done in 2011.
(Tr. 875.) Plaintiff complained to Dr. Schwartz, his primary care provider, of a number of
problems including ongoing mid-thoracic backache in March 2015. (Tr. 864.) An x-ray in April
2015 showed moderate compression fracture of the T7 vertebral body and disc degeneration at
T6-7 and T7-8 with mild disc bulging at those levels. (Tr. 870.)
Dr. Schwartz referred plaintiff to Dr. Du, a pain management specialist, for treatment of his
back pain.

Plaintiff first saw Dr. Du on April 9, 2015.

Dr. Du diagnosed lumbar facet

degenerative joint disease at multiple levels, lumbar facet joint pain syndrome, chronic lower back
pain, lumbar spondylosis and cervical spondylosis. Dr. Du recommended facet joint steroid
injections in the lumbar area, noting that he would treat plaintiff’s cervical pain after his low back
pain was controlled. (Tr. 623-24.)
Dr. Du administered lumbar steroid injections on three visits and cervical steroid injections
on three visits from April through July 2015. (Tr. 653-54, 676-77, 702-03, 723, 748, 784, 814.)
He last saw plaintiff in August 2015. Plaintiff’s back pain was improved, but he complained of
bilateral hand numbness. Dr. Du prescribed gabapentin and instructed plaintiff to return as
needed. (Tr. 837, 842.)
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4.

Medical Records Submitted to Appeals Council

Plaintiff submitted additional records to the Appeals Council, which considered them in
connection with his request for review. (Tr. 5.) The medical records designated by the Appeals
Council as Exhibits 21F, 22F, and 23F (Tr. 1066-96) were not before the ALJ.
The medical records at Tr. 1066-96 cannot be considered by this Court in determining
whether the ALJ’s decision was supported by substantial evidence. Records “submitted for the
first time to the Appeals Council, though technically a part of the administrative record, cannot be
used as a basis for a finding of reversible error.” Luna v. Shalala, 22 F3d 687, 689 (7th Cir.
1994).
Analysis
Plaintiff first takes issue with the ALJ’s handling of his back problems. He argues that the
ALJ should have found that his degenerative disc disease and compression fracture deformity were
severe impairments at Step 2, and that he failed to consider the effects of plaintiff’s back pain in
combination with his other impairments.
The Commissioner responded to the first part of plaintiff’s argument, but did not
specifically respond to the second. The Commissioner correctly points out that the failure to
designate an impairment as “severe” at Step 2 can be harmless. The designation of severe
impairments at Step 2 is a threshold issue. The failure to designate a particular impairment as
“severe” at Step 2 does not matter to the outcome of the case as long as the ALJ finds at least one
severe impairment, continues on with the analysis, and considers the combined effect of all
impairments, severe and non-severe. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (citing
Castile v. Astrue, 617 F.3d 923, 927-28 (7th Cir. 2010)).
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There is more to plaintiff’s first point, however. Although the argument could have been
more eloquently articulated, plaintiff does argue that the ALJ failed to consider the combined
effects of all of his impairments and ignored an entire line of evidence contrary to his conclusion
that plaintiff could do medium exertional work. See, Doc. 27, pp. 7-9.
The totality of the ALJ’s discussion of plaintiff’s back condition is his statement that “The
claimant also has degenerative disc disease, which is mild and stable.” (Tr. 30.) He cites
generally to Ex. 14F, which is Dr. Du’s treatment notes. The decision omits any mention of the
x-rays of plaintiff’s spine and of the presence of the thoracic compression fracture. The ALJ did
not mention the steroid injections administered by Dr. Du, a pain management specialist.
ALJ Janney erred in falling to consider the combined effects of all of plaintiff’s
impairments. Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (emphasizing that “the
combined effects of the applicant’s impairments must be considered, including impairments that
considered one by one are not disabling” (emphasis in original)). In addition, the ALJ is not
permitted to “cherry-pick” the evidence, ignoring the parts that conflict with his conclusion.
Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). While he is not required to mention every
piece of evidence, “he must at least minimally discuss a claimant’s evidence that contradicts the
Commissioner’s position.” Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000).
Here, the ALJ found that plaintiff could do medium work. Medium work requires the
ability to lift up to 50 pounds at a time and to frequently lift or carry objects weighing up to 25
pounds. 20 C.F.R. § 404.1567(c). It is difficult to see how this conclusion could be supported
by substantial evidence where the ALJ ignored the evidence of the spinal x-rays and compression
fracture and offered no analysis of Dr. Du’s treatment records.
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Mr. Mollet was 57 years old and therefore was in the “advanced age” category (age 55 or
older) on the date of the ALJ’s decision. 20 C.F.R. § 404.1563(e). Because of his age and
limitation to unskilled work, plaintiff would be deemed to be disabled even if he were able to do
the full range of light work. Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2,
Table 2, Rules 202.04 & 202.06. Therefore, the issue of whether plaintiff was limited to medium
or light work is crucial here. The failure to consider the evidence regarding plaintiff’s back
condition undermines the ALJ’s finding that he was capable of medium work.
The failure to consider Dr. Du’s records also no doubt affected the analysis of plaintiff’s
credibility.
Because of the ALJ’s errors in determining plaintiff’s RFC, this case must be remanded.
“If a decision ‘lacks evidentiary support or is so poorly articulated as to prevent meaningful
review,’ a remand is required.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (internal
citation omitted); see also Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (“[A] denial of
benefits cannot be sustained where an ALJ failed to articulate the bases of his assessment of a
claimant’s impairment.”)
The Court wishes to stress that this Memorandum and Order should not be construed as an
indication that the Court believes that plaintiff was disabled during the relevant period or that he
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 Ronald C. Mollet’s application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for rehearing
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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: October 11, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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