Young v. Commissioner of Social Security
Filing
19
MEMORANDUM AND OPINION. The Commissioner's final decision denying Plaintiff's application for social security disability benefits 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 9/19/2018. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HEATHER M. Y. 1
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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Case No. 17-cv-01037-CJP 2
MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), Heather M. Y. (“Plaintiff”) seeks
judicial review of the final agency decision denying her application for
Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for SSI on October 4, 2013, alleging a disability onset date
of October 5, 2012. (Tr. 198). Her application was denied at the initial level (Tr.
104) and again upon reconsideration (Tr. 125). Plaintiff requested an evidentiary
hearing (Tr. 138), which Administrative Law Judge (“ALJ”) Stuart Janney
conducted on June 22, 2016 (Tr. 40-88). ALJ Janney reached an unfavorable
decision on September 1, 2016.
(Tr. 15-33).
The Appeals Council denied
Plaintiff’s request for review (Tr. 1-3), rendering the ALJ’s decision the final
agency decision, Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). Plaintiff
The Court will not use plaintiff’s full name in this Memorandum and Order in order to protect
her privacy. See FED. R. CIV. P. 5.2(c) and the Advisory Committee Notes thereto.
2
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. 18.
1
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exhausted all of her administrative remedies and filed a timely Complaint in this
Court. (Doc. 1).
Issues Raised by Plaintiff
Plaintiff argues the ALJ failed to consider all of her limitations when
constructing the RFC and erroneously assessed her subjective complaints.
Applicable Legal Standards
To qualify for SSI, a claimant must be disabled within the meaning of the
applicable statutes. 3
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
3
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.
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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); 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
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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 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
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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 ALJ’s Decision
ALJ Janney followed the five-step analytical framework set forth above. He
determined Plaintiff had not engaged in substantial gainful activity since
September 18, 2013, the application date, and had severe impairments of history
of motor vehicle accident resulting in polytrauma involving the right lower
extremity; cervical spine degenerative disc disease with left-sided radiculopathy
treated surgically; mood disorder; depression; anxiety; post-traumatic stress
disorder; and chronic pain syndrome. (Tr. 17). Plaintiff’s impairments did not
meet or equal a listing. (Tr. 19). She had the RFC to perform sedentary work,
with several additional limitations. (Tr. 21). She could perform jobs that existed
in significant numbers in the national economy and, therefore, was not disabled
(Tr. 32-33).
The Evidentiary Record
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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. The Evidentiary Hearing
Plaintiff appeared at an evidentiary hearing before ALJ Janney in June
2016. (Tr. 40-88). She testified she was involved in a motor vehicle accident in
2006, where an intoxicated driver collided with her vehicle, head on, travelling at
100 miles-per-hour. Plaintiff’s foot was crushed into 75 pieces and she sustained
other injuries to her hand, knee, and neck. (Tr. 50-51). Aside from physical
ailments, Plaintiff attributes several psychological problems to the accident. She
suffers from bipolar depression, post-traumatic stress disorder, and anxiety. Her
mental health issues negatively affect her concentration, decision-making,
“behavior,” and ability to complete tasks. (Tr. 59). She experiences outbursts of
anger about four times each month, daily panic attacks, and thoughts of selfharm. (Tr. 60-64).
2. The Medical Record
State-agency consultant Dr. Lionel Hudspeth conducted a psychiatric review
technique of Plaintiff on December 22, 2013. (Tr. 94-95). He concluded Plaintiff
suffered from affective and anxiety-related disorders that resulted in mild
difficulties in maintaining concentration, persistence, or pace. (Tr. 95).
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Dr. Joseph Mehr, another state-agency consultant, conducted a psychiatric
review technique of Plaintiff on November 19, 2014. (Tr. 113-14). He opined
Plaintiff suffered from affective and anxiety-related disorders, which caused
Plaintiff mild restrictions in completing activities of daily living, moderate
difficulties in maintaining social functioning, and mild difficulties maintaining
concentration, persistence, or pace.
(Tr. 113).
Dr. Mehr’s mental RFC
assessment of Plaintiff concluded Plaintiff was moderately limited in maintaining
attention and concentration for extended periods but was not significantly limited
in her ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods. (Tr. 120). Dr. Mehr later
explained Plaintiff retained “sufficient attention and concentration to persist at
and complete work activities for the usual periods of time required in the general
work force” and had “the capacity to complete a normal work day and work week
on a regular basis.” In addition, Plaintiff “has the capacity to understand and
remember instructions for simple work of a routine and repetitive type.” (Tr.
121).
Analysis
Plaintiff asserts ALJ Janney failed to construct an RFC that accommodates
all of her psychological impairments. “The RFC is an assessment of what workrelated activities the claimant can perform despite her limitations.”
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Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
The RFC must take into
consideration all of the relevant evidence in the record. Id.
ALJ Janney determined Plaintiff has moderate difficulties in concentration,
persistence, or pace (“CPP”). He attempted to accommodate these limitations by
restricting Plaintiff to simple, repetitive tasks, (Tr. 21), but the Seventh Circuit
has repeatedly rejected that this restriction sufficiently accounts for difficulties in
CPP. Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014); Varga v. Colvin, 794
F.3d 809, 814-15 (7th Cir. 2015); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th
Cir. 2009); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir. 2004); Craft v.
Astrue, 539 F.3d 668, 677 (7th Cir. 2008); Ramirez v. Barnhart, 372 F.3d 546,
554 (7th Cir. 2004).
Without acknowledging any of this authority, the Commissioner argues the
ALJ was entitled to rely on the opinions of Dr. Mehr, who opined Plaintiff could
perform simple, repetitive work and was otherwise not restricted by her
limitations in CPP. (Tr. 121). Dr. Mehr’s opinions, however, are contradictory
and contrary to Seventh Circuit precedent.
Dr.
Mehr
first
opined
Plaintiff
had
mild
difficulties
maintaining
concentration, persistence, or pace, (Tr. 113), and in the same review, opined
Plaintiff was moderately limited in maintaining attention and concentration, (Tr.
120). Despite finding Plaintiff had difficulties in these aspects of functioning, Dr.
Mehr stated Plaintiff had “sufficient attention and concentration to persist at and
complete work activities for the usual periods of time required in the general
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work force” and “the capacity for adequate pace and perseverance to maintain a
schedule . . . and . . . complete a normal work day and work week on a regular
basis.
(Tr. 121).
In other words, it appears Dr. Mehr found Plaintiff had
limitations (either mild or moderate) in CPP while also finding that limitations in
CPP would not affect her functioning.
Although Dr. Mehr limited Plaintiff to
simple, repetitive tasks and limited interaction with the public, the Seventh
Circuit, as stated above, consistently rejects that those restrictions are sufficient
to account for difficulties in CPP.
In sum, the ALJ failed to accommodate Plaintiff’s moderate limitations in
CPP. The RFC assessment was clearly erroneous and this error, alone, warrants
remand.
The Court stresses that this Memorandum and Order should not be
construed as an indication that the Court believes Plaintiff was disabled during
the relevant period, 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 Plaintiff’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.
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IT IS SO ORDERED.
DATE: September 19, 2018.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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