Bliss v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: The Court AFFIRMS the decision of the Acting Commissioner of the Social Security Administration. Signed by Chief Judge Theresa L Springmann on 3/7/2018. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SANDRA DARLENE BLISS,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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CAUSE NO.: 1:17-CV-14-TLS

OPINION AND ORDER
The Plaintiff, Sandra Darlene Bliss, seeks review of the final decision of the Acting
Commissioner of the Social Security Administration (Commissioner) denying her application for
disability insurance benefits and for supplemental security income. The Plaintiff puts forth one
basis for remand. For the reasons that follow, the Court affirms the final decision of the Acting
Commissioner.

BACKGROUND
On September 11, 2014, the Plaintiff filed a Title II application for a period of disability
and disability insurance benefits. (R. 18.) She also protectively filed a Title XVI application for
supplemental security income on the same day. (Id.) In both applications, she alleged disability
beginning September 5, 2014. (Id.) Her claims were denied initially on December 8, 2014, and
upon reconsideration on March 6, 2015. (Id.) Thereafter, the Plaintiff filed a written request for a
hearing. (Id.) The request was granted and on July 26, 2016, the Plaintiff appeared with counsel
and testified at a hearing held before an Administrative Law Judge (ALJ). (Id.) The Plaintiff’s

former spouse, Michael Bollinger, also testified at the hearing. (Id.) Amy Kutschbach, a
vocational expert (VE), also appeared and testified at the hearing by telephone. (Id.) On
September 2, 2016, the ALJ denied the Plaintiff’s application, finding she was not disabled
through the date of the decision.1 (R. 15–34.) The ALJ’s decision became the final decision of
the Commissioner on November 16, 2016, when the Appeals Council denied the Plaintiff’s
request for review. (R. 2–4.) On January 15, 2017, the Plaintiff filed this claim [ECF No. 1] in
federal court against the Acting Commissioner of the Social Security Administration.

THE ALJ’S FINDINGS
Disability is defined 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 12 months.” 42 U.S.C.§§ 423(d)(1)(A), 1382c(a)(3)(A). To be found disabled, a claimant
must demonstrate that her physical or mental limitations prevent her from doing not only her
previous work, but also any other kind of gainful employment that exists in the national
economy, considering her age, education, and work experience. §§ 423(d)(2)(A), 1382c(a)(3)(B).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits.
20 C.F.R. §§ 404.1520, 416.920. The first step is to determine whether the claimant no longer
engages in substantial gainful activity. Id. In the case at hand, the ALJ found that the claimant
engaged in substantial gainful activity from July 2015 to September 2015. (R. 20.) However,
there was a continuous 12-month period during which the claimant did not engage in substantial

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All citations to regulations in this Opinion and Order are to the versions of the regulations in effect on
the date of the ALJ’s decision, September 2, 2016.

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activity. (R. 21.) The ALJ’s decision addressed the period during which the Plaintiff did not
engage in substantial gainful activity. (Id.)
In step two, the ALJ determines whether the claimant has a severe impairment limiting
her ability to do basic work activities under §§ 404.1520(c), 416.920(c). In this case, the ALJ
determined that the Plaintiff had multiple severe impairments, including low back pain due to
spondylosis/multilevel degenerative changes, with radiculitis; bilateral trochanteric bursitis;
bilateral knee pain with mild medical tilt/osteoarthritis of the knees; history of urinary stress
incontinence, status post trans-obturator taping in October 2014, with overactive bladder
problems; obesity and hypertension; depressive disorder/bipolar, anxiety disorder, borderline
personality disorder; and suggested borderline intellectual functioning. (R. 21.) The ALJ found
that the medical evidence established that these impairments significantly affected the Plaintiff’s
ability to perform basic work activities and accordingly were severe within the meaning of the
Social Security Act and regulations. (Id.)
Step three requires the ALJ to “consider the medical severity of [the] impairment” to
determine whether the impairment “meets or equals one of the [the] listings in appendix 1 . . . .”
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant’s impairment(s), considered singly or in
combination with other impairments, rise to this level, there is a presumption of disability
“without considering [the claimant’s] age, education, and work experience.” §§ 404.1520(d),
416.920(d). But, if the impairment(s), either singly or in combination, fall short, the ALJ must
proceed to step four and examine the claimant’s “residual functional capacity” (RFC)—the types
of things she can still do, despite her limitations—to determine whether she can perform “past
relevant work” (§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv)), or whether the claimant can “make an

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adjustment to other work” given the claimant’s “age, education, and work experience”
(§§ 404.1520(a)(4)(v), 416.920(a)(4)(v)).
The ALJ determined that the Plaintiff did not have an impairment or combination of
impairments that meets or medically equaled the severity of one of the listed impairs in 20
C.F.R. Part 404, Subpart P, Appendix 1, and that she had the RFC to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), in that she could lift or carry ten pounds, using
both hands, frequently or occasionally, and she could stand or walk up to two hours in an eighthour workday and sit at least six hours in an eight-hour work day. (R. 24.) She did require further
limitations:
[She] also needs a sit/stand option (which allows for alternating between sifting
[sic] and standing up to every 30 minutes, if needed, but the positional change will
not render the individual off task). She is limited to only occasional climbing of
ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, but never
climbing ladders, ropes, or scaffolds. Mentally, the claimant can have no fast-paced
work or work requiring a regimented pace of production and no sudden or
unpredictable workplace changes in terms of use of work tools, work processes, or
work settings, and if there are workplace changes, they are introduced gradually.
She is further limited to only occasional interactions with others, including
supervisors, coworkers, and the general public.
(R. 24–25.)
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled from her
alleged onset date through the date of the ALJ’s decision (August 30, 2016). (R. 34.) The ALJ
found that the Plaintiff’s medically determinable impairments could reasonably be expected to
cause her alleged symptoms, but that the Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of those symptoms were not entirely consistent with the medical
evidence and other evidence in the record. (R. 27.) Finally, although the Plaintiff was unable to
perform any past relevant work, the ALJ found that there were jobs that exist in significant

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numbers in the national economy that the Plaintiff could perform given her age, education, work
experience, and RFC. (R. 32–33.)

STANDARD OF REVIEW
The decision of the ALJ is the final decision of the Commissioner when the Appeals
Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). The
Social Security Act establishes that the Commissioner’s findings as to any fact are conclusive if
supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus,
the Court will affirm the Commissioner’s finding of fact and denial of disability benefits if
substantial evidence supports them. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2009).
Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512
(7th Cir. 1999).
It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make
independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399–
400. The reviewing court examines the entire record; however it does not substitute its judgment
for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 305–06. The Court will
“conduct a critical review of the evidence,” considering both the evidence that supports, as well
as the evidence that detracts from, the Commissioner’s decision, and “the decision cannot stand
if it lacks evidentiary support or an adequate discussion of the issues.” Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (internal quotations omitted).

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When an ALJ recommends the denial of benefits, the ALJ must first “provide a logical
bridge between the evidence and [the ALJ’s] conclusions.” Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009) (internal quotation marks and citation omitted). Though the ALJ is not required
to address every piece of evidence or testimony presented, “as with any well-reasoned decision,
the ALJ must rest its denial of benefits on adequate evidence contained in the record and must
explain why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.
2008). However, if substantial evidence supports the ALJ’s determination, the decision must be
affirmed even if “reasonable minds could differ concerning whether [the claimant] is disabled.”
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

ANALYSIS
The Plaintiff appears to raise a single issue on appeal, which is that the ALJ did not
acknowledge and weigh a treating psychologist’s opinions properly. The Plaintiff reasons that
this error resulted in a defective “paragraph B” criteria analysis, and thus the RFC does not
contain all the mental health and other limitations supported by the evidence. The Defendant
disagrees, and asserts that the ALJ properly evaluated the opinion evidence and that substantial
evidence supports the ALJ’s decision.
The Plaintiff bears the burden to show a mental impairment listing at step three. To do so,
she must show two of the following “paragraph B” criteria: “marked” restriction of activities of
daily living; “marked” difficulties in maintaining social function; “marked” difficulties in
maintaining concentration, persistence, or pace; or, repeated episodes of decompensation, each
of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1 (Listings) § 12.00. At step three, the
ALJ evaluated these four functional areas to determine the extent of the Plaintiff’s alleged mental

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impairment. (See R. 23–24.) The ALJ found the Plaintiff had mild restriction in activities of daily
living; moderate difficulties in social functioning; moderate difficulties with regard to
concentration, persistence, or pace; and one or two episodes of decompensation, each of
extended duration. (Id.) The Plaintiff contends that the ALJ should have found marked or greater
difficulties in these four functional areas, and would have done so if the ALJ had appropriately
considered certain opinions. The case should therefore be remanded for the ALJ to properly
consider these opinions.
The Plaintiff asserts that the opinions of John Musgrave, Psy.D., a treating psychologist,
require reconsideration for a proper “paragraph B” analysis at step there. She highlights several
opinions by Dr. Musgrave which she claims that ALJ did not discuss in its decision. (Pl. Brief at
14–15.) The Plaintiff contends that that “[t]hese opinions singly, in combination with each other,
or in combination with other factors already identified by the ALJ, may support a ‘moderate[,]’ a
‘marked[,]’ or an ‘extreme’ gradation.” (Id. at 15.) The opinions to which she cites, however, are
not opinions attributable to Dr. Musgrave.
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your impairments(s),
including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s),
and your physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a), 416.927(a). The Plaintiff
has put forth opinions which are either provided by a non-medical source rather than Dr.
Musgrave, or which do not appear to involve Dr. Musgrave at all.
According to the Plaintiff, Dr. Musgrave’s opinions can be found in six different pieces
of medical evidence from the Park Center. One opinion stems from an evaluation performed by
Alejandra Gil, M.A., on July 1, 2015. (Pl. Brief 14 n.42.) Gil’s note was not signed by Dr.

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Musgrave until six days later, and then was done so to verify that the diagnosis and plan were
appropriate. (R. 528, 530.) Gil is not a medical source under the Social Security regulations. See
20 C.F.R. §§ 404.1513, 416.913.
Another opinion stems from a note dated September 23, 2015. (Pl. Brief 14 n.44, 16
n.49.) Here, Dr. Musgrave is listed as a member of the Plaintiff’s treatment team. (R. 535–39.)
However, Melissa Collingsworth, M.S.W., prepared the note. (R. 538.) Like Gil, she is not an
acceptable medical source as defined in the Social Security regulations.
A third opinion stems from December 14, 2015. (Pl. Brief 15 n.48.) Ms. Collingsworth
assessed the Plaintiff’s treatment plan (R. 746–52), and Dr. Musgrave did not sign the
document (R. 752).
A fourth opinion arises from February 23, 2016. (Pl. Brief 17 n.53.) Here, Syed Mumtaz,
M.D., wrote inpatient admissions orders for the Plaintiff. (R. 728–29.) Other providers similarly
logged information on the Plaintiff’s treatment plan during the days that followed, including
Maxine Stoner, R.N.; Richard Horstmeyer, M.D.; Viann Ellsworth, R.N., M.S.N., C.N.S.-B.C.;
Teresa Lynch, A.S.N., R.N.; and Jason Burnett, M.S.Ed. (R. 728–34.) Dr. Musgrave did not log
any information regarding the Plaintiff’s treatment in these notes.
On February 24, 2016, Jason Burnett, M.S.E.d., and Maxine Stoner, R.N., detailed the
Plaintiff’s halfway house discharge plan. (R. 722–27.) Neither is an acceptable medical source
under the Social Security regulations. Larry Lambertson, M.D., provided a supervisory signature
two days later. (R. 727.) The report does not name Dr. Musgrave.
Finally, the Plaintiff points to March 11, 2016, for the final opinion from Dr. Musgrave.
(Pl. Brief 15 nn.45–48, 16 nn.50–51, 17 n.52.) Here, Cody Kohn, B.A., reviewed the Plaintiff’s
treatment plan. (R. 809–13.) The treatment team did not include Dr. Musgrave. (See id.)

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The Court does not find that the ALJ erred in considering Dr. Musgrave’s medical
opinions. Further, the opinions that the Plaintiff urges as a basis for remand do not appear to be
Dr. Musgrave’s opinions.
The ALJ discussed the medical evidence and observation notes from Park Center,
including the assessments by Gil and Collinsworth. (R. 30–31.) The ALJ noted that at Park
Center the Plaintiff reported symptoms of mood swings, frustration, and self-blame. (R. 30.) The
ALJ pointed out that her condition improved, until she went through a divorce. (Id.) The ALJ
commented that her mood fluctuated, and she had feelings of paranoia, depression, hopelessness,
and helplessness. (Id.) The ALJ observed that the Plaintiff’s main mental limitation came from
her difficulty getting along with others, and developed the RFC to alleviate this limitation. (R.
31.) The ALJ also included the following psychological limitation in the RFC to accommodate
the Plaintiff:
Mentally, the claimant can have no fast-paced work or work requiring a regimented
pace of production and no sudden or unpredictable workplace changes in term of
use of work tools, work processes, or work settings, and if there are workplace
changes, they are introduced gradually. She is further limited to only occasional
interactions with others, including supervisors, coworkers, and the general public.
(R. 25.)
The Court is satisfied that substantial evidence supports the RFC. The RFC takes into
account the Plaintiff’s “moderate” limitations in both social functioning and with regard to
concentration, persistence, or pace. The Plaintiff finally insists, without citing legal authority,
that the ALJ must tailor an RFC to her limitations with regards to not only pace, but
concentration and persistence as well. The Court, though, is convinced that the RFC adequately
addresses the Plaintiff’s “moderate” limitations in concentration, persistence, or pace—see 20
C.F.R. §§ 404.1520a(c), 416.920a(c)— and is supported by substantial evidence.

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The Plaintiff has not identified an area where the ALJ improperly weighed evidence to
determine that these limitations were “moderate” rather than “marked” or “extreme.” The Court
declines to re-weigh the evidence to draw its own conclusion.

CONCLUSION
Accordingly, the Court AFFIRMS the decision of the Acting Commissioner of the Social
Security Administration.
SO ORDERED on March 7, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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