Jackson v. Commissioner of Social Security
Filing
26
OPINION AND ORDER GRANTING the relief sought in the Opening Brief of Plaintiff in Social Security Appeal (DE 19); REVERSING the final decision of the Commissioner of Social Security, and REMANDING this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 8/15/18. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROBERT A. JACKSON,
Plaintiff,
)
)
)
)
)
)
)
)
)
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.
CAUSE NO.: 1:17-CV-296-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Robert A. Jackson
on July 14, 2017, and an Opening Brief of Plaintiff in Social Security Appeal Pursuant to L.R. 7.3
[DE 19], filed by Plaintiff on January 23, 2018. Plaintiff requests that the January 29, 2016 decision
of the Administrative Law Judge denying his claim for supplemental security income be reversed
and remanded for further proceedings. On April 3, 2018, the Deputy Commissioner filed a response,
and Plaintiff filed a reply on May 15, 2018. For the following reasons, the Court grants Plaintiff’s
request for remand.
BACKGROUND
Plaintiff filed an application for supplemental security income on January 31, 2014. His
claim was denied initially and upon reconsideration. Plaintiff timely requested a hearing, which was
held on November 18, 2015, and presided over by Administrative Law Judge (ALJ) Daniel Balutis.
Present at the hearing were Plaintiff, his attorney, and an impartial vocational expert.
The ALJ issued a written decision on January 29, 2016, concluding that Plaintiff was not
disabled based on the following findings:
1.
The claimant has not engaged in substantial gainful activity since January 31,
2014, the application date.
2.
The claimant has the following severe impairments: spondylosis of the
lumbar spine, degenerative disc disease of the thoracic spine, obesity,
obstructive sleep apnea (OSA), chronic obstructive pulmonary disease
(COPD), asthma, depression, generalized anxiety disorder (GAD), a bipolar
disorder and an alcohol use disorder.
3.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.
4.
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
416.967(b) except the claimant can never climb ladders, ropes and scaffolds,
but can occasionally climb ramps and stairs, balance, stoop, kneel, crouch
and crawl. The claimant can have frequent exposure to unprotected heights,
moving mechanical parts, operating a motor vehicle, weather,
humidity/wetness, gas, odors, fumes and pulmonary irritants, extreme cold,
extreme heat, and vibration. The claimant is further limited to performing
simple routine tasks, making simple work-related decisions, and frequent
contact with supervisors, co-workers and the public.
5.
The claimant is capable of performing past relevant work as a Product
Assembler. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity.
...
In the alternative (Step 5), considering the claimant’s age, education, work
experience, and residual functional capacity, there are other jobs that exist in
significant numbers in the national economy that the claimant also can
perform.
6.
The claimant has not been under a disability, as defined in the Social Security
Act, since May 28, 2013, the date the application was filed.
(AR 13-22). Plaintiff then sought review before the Agency’s Appeals Council, which denied his
request, leaving the ALJ’s decision as the final decision of the Commissioner. See 20 C.F.R. §
416.1481. On July 14, 2017, Plaintiff filed this civil action pursuant to 42 U.S.C. § 1383(c)(3) for
review of the Agency’s decision.
2
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case. This
Court thus has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. §
1383(c)(3).
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000);
Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an
ALJ’s finding that a claimant is not disabled within the meaning of the Social Security Act is not
whether the claimant is, in fact, disabled, but whether the ALJ “uses the correct legal standards and
the decision is supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v.
Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
3
2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse the decision
“without regard to the volume of evidence in support of the factual findings.” White v. Apfel, 167
F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing
court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and [her] conclusions.”);
Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some
glimpse into the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A).
To be found disabled, the claimant’s impairment must not only prevent him from doing his previous
work, but considering his age, education, and work experience, it must also prevent him from
4
engaging in any other type of substantial gainful activity that exists in significant numbers in the
economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. § 416.920(a)(4). The steps are: (1)
Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled, and the
claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have an impairment
or combination of impairments that are severe? If no, the claimant is not disabled, and the claim is
denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet or equal a listed
impairment in the appendix to the regulations? If yes, the claimant is automatically considered
disabled; if no, then the inquiry proceeds to step four; (4) Can the claimant do the claimant’s past
relevant work? If yes, the claimant is not disabled, and the claim is denied; if no, then the inquiry
proceeds to step five; (5) Can the claimant perform other work given the claimant’s residual
functional capacity (RFC), age, education, and experience? If yes, then the claimant is not disabled,
and the claim is denied; if no, the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(i)-(v); see also
Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The RFC
“is an administrative assessment of what work-related activities an individual can perform despite
[his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be
based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R.
§ 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the
burden at step five is on the ALJ. Zurawski, 245 F.3d at 885-86; see also Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
5
ANALYSIS
Plaintiff seeks reversal of the ALJ’s decision and remand for further proceedings. In support
of the requested relief, Plaintiff argues that the ALJ erred in weighing the medical opinions and in
determining Plaintiff’s mental RFC.
A. Weight to Medical Opinions
In determining whether a claimant is disabled, the ALJ “will always consider the medical
opinions in [the] case record together with the rest of the relevant evidence . . . received.” 20 C.F.R.
§ 416.927(b). The ALJ evaluates every medical opinion received. Id. § 416.927(c). This includes
the opinions of nonexamining sources such as state agency medical and psychological consultants
as well as outside medical experts consulted by the ALJ. Id. § 416.927(e)(2).
When an ALJ is assigning weight to a non-treating physician’s opinion, the ALJ considers
several factors and must explain in the decision the weight given to each opinion. 20 C.F.R. §§
404.1527(c), (f), 416.927(c), (f); Scrogham v. Colvin, 765 F.3d 685, 697-98 (7th Cir. 2014); Bauer
v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). Social Security Ruling (“SSR”) 96-5p clarifies that
“medical source statements may actually comprise separate medical opinions regarding diverse
physical and mental functions, such as walking, lifting, seeing, and remembering instructions, and
that it may be necessary to decide whether to adopt or not adopt each one.” 1996 WL 374183, at *4
(July 2, 1996).
1.
Consultative Examiner Dr. Roy
Consultative psychological examiner Dr. Roy opined that Plaintiff was severely impaired
in his ability to understand, remember, and carry out simple instructions; would most likely be
6
incapable of managing money; and was severely impaired in his ability to interact in a reasonably
effective and stable manner with the public, co-workers, and supervisors. (AR 820).
The ALJ assigned “only partial weight” to Dr. Roy’s opinions, stating that “they are not
consistent with a range of evidence from office visit notes noting largely mild to moderate
problems.” (AR 20). The ALJ also faulted Dr. Roy for “[appearing] to take the claimant’s poor effort
during the exam as demonstrative of his true ability.”Id.
Plaintiff argues that the ALJ cherry-picked from the record in finding that Plaintiff’s
impairments were “largely mild to moderate.” This argument is well taken. The ALJ does not cite
any particular office visit notes in his discussion of Dr. Roy’s opinion. Previously in the decision,
though, the ALJ noted medical records reporting “moderate” or “mild to moderate” problems with
social functioning and decision making, which are located at pages 740, 782, and 900 of the
Administrative Record.
However, the ALJ ignored the evidence that supports Dr. Roy’s opinion regarding social
interaction. January 29, 2014 office notes indicate “[a] severe degree of work problems including
aggressive behavior toward peers or superiors or severe attendance problems is evidenced.” (AR
736). An assessment signed January 8, 2015, found dangerous or disabling needs in regard to career
aspirations, job time, job attendance, job performance, job relations, and job skills. (AR 1177). Other
records show poor judgment, (AR 873), and mood fluctuation (AR 889, 896), among other findings.
Further, the opinions of state agency reviewing psychologists, given great weight by the ALJ, also
support Dr. Roy’s opinion regarding social functioning. The state physicians opined that, as a result
of limitations in the ability to interact appropriately with the general public, accept instructions,
respond appropriately to a supervisor’s criticism, and maintain socially appropriate behavior,
7
Plaintiff “could not work with the general public or in jobs which require intensive, interpersonal
contact with others,” and “could work with a supervisor who was normally considerate and positive,
but would have problems with a supervisor who was often negative, critical, or quarrelsome.” (AR
174).
The Deputy Commissioner asserts that Plaintiff has failed to indicate how these records
correspond to work-related limitations or how the ALJ’s assignment of partial weight is undermined,
but the ALJ found that Plaintiff could have “frequent contact with supervisors, co-workers and the
public.” (AR 15). Regulations provide that an activity occurring “frequently” occurs up to two-thirds
of a work day. SSR 83-10, 1983 WL 312151, *6 (Jan. 1, 1983). The ALJ erred in determining that
evidentiary support does not exist for Dr. Roy’s opinion regarding Plaintiff’s social interaction
limitations, and if the opinion were accepted, the RFC finding of frequent contact with others would
need to be reconciled with this opinion. Remand is required on this basis.
Plaintiff further objects to the ALJ’s characterization of Plaintiff’s effort at the consultative
examination as “poor.” Plaintiff states that Dr. Roy never noted that Plaintiff had “poor” effort.
Instead, she noted that he made “limited effort” on proverb interpretation and had “inconsistent”
performance regarding concentration and attention. Notably, these statements were about specific
categories of the mental status examination, whereas the ALJ implies that Plaintiff exhibited poor
effort throughout the entirety of the examination.
The Deputy Commissioner responds that Dr. Roy’s observations of limited effort regarding
proverb interpretation and inconsistent performance regarding concentration and attention show that
the ALJ properly concluded that Dr. Roy relied too heavily on Plaintiff’s subjective complaints.
8
The ALJ is given the responsibility to evaluate Plaintiff’s subjective symptoms, a
determination which Plaintiff does not contest in this litigation. However, on remand, if the ALJ
makes the same finding regarding Plaintiff’s effort, the ALJ should clarify how he determined that
“limited effort” and “inconsistent performance” in specific areas of the mental status exam show that
the entirety of Dr. Roy’s opinion is due less weight and not just matters opined to in those specific
areas.
Plaintiff also argues that his GAF scores do not support a finding of mild to moderate
problems and are evidence that support Dr. Roy’s opinion. The ALJ gave the GAF scores little
weight, as they are one-time measures of function and the scores in the record fell in a broad range,
from 30 to 70. The ALJ also noted that Plaintiff improved with medication and therapy. The GAF
scoring system was phased out in the American Psychiatric Association’s 2013 release of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Despite its removal from DSM-5,
the Social Security Administration still considers GAF scores to be opinion evidence. See Soc. Sec.
Admin., Global Assessment of Functioning (GAF) Evidence in Disability Adjudication, AM-13066
(July 22, 2013) (hereinafter “AM-13066”). The Seventh Circuit Court of Appeals has recognized
that a GAF score is “useful for planning treatment” but does not necessarily reflect a patient’s
functional level, Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010), and the Social Security
Administration instructs that “[b]y itself, the GAF cannot be used to ‘raise’ or ‘lower’ someone’s
level of function,” and “[a] GAF score is never dispositive of impairment severity,” AM-13066.
Due to remand being required on other grounds, the Court need not resolve the issue of GAF scores
here.
2.
State Agency Reviewers Dr. Levko and Dr. Larsen
9
Plaintiff argues that the “great weight” given to State Agency Psychologists Levko and
Larsen is in error because the opinions are internally inconsistent and are contrary to Social Security
rules and regulations.
First, Plaintiff asserts that statements that Plaintiff is moderately limited in (1) his ability to
perform within a schedule, maintain regular attendance, and be punctual within accepted tolerances
and (2) his ability to complete normal workdays and workweeks without interruptions from his
psychological symptoms and to perform work at a consistent pace with a reasonable number and
length of breaks are inconsistent with the narrative discussion that Plaintiff’s pace would be within
normal limits, is capable of maintaining a schedule, and tardiness or absenteeism would be a matter
of choice rather than effects of a mental disorder. The form on which the opinion is given clarifies
that the mental RFC is the narrative discussion and not the statements of moderate limitation. Still,
the apparent inconsistency in the opinion is troubling. On remand, the ALJ should discuss this
apparent inconsistency and how it was taken into account in assigning weight to these opinions.
Plaintiff next faults the opinions for offering an opinion as to whether Plaintiff can perform
unskilled work. The Deputy Commissioner concedes that the Program Operations Manual System
(POMS) states that such an opinion should not have been given. See POMS Section DI 24510.065.
The Court agrees with the Deputy Commissioner, however, that Plaintiff has not shown harm from
this error. The error should be addressed on remand, but Plaintiff has not provided a basis for
remand on this issue.
In the final, short paragraph of argument of Plaintiff’s opening brief, Plaintiff asserts error
in the psychologists’ finding that Plaintiff could manage the stress of unskilled work. Plaintiff argues
that, per Social Security Administration Ruling 85-15, stress is subjective and not dependent on a
10
job’s skill level. Plaintiff does not identify any specific passage of the ruling in support. Because
remand is required on another basis and because this argument is not well developed, the Court
declines to address the matter in greater detail.
B. Mental RFC
The residual functional capacity (“RFC”) is a measure of what an individual can do despite
the limitations imposed by his impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004);
20 C.F.R. § 416.945(a). The determination of a claimant’s RFC is a legal decision rather than a
medical one. 20 C.F.R. § 416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four
and five of the sequential evaluation process and must be supported by substantial evidence. SSR
96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.
“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.
“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence
includes medical history; medical signs and laboratory findings; the effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts
to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In
arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.” Id. The “ALJ must also consider the combined effects of all the claimant’s
11
impairments, even those that would not be considered severe in isolation.” Terry, 580 F.3d at 477;
see also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
Plaintiff challenges only the ALJ’s determination of Plaintiff’s mental RFC and not his
physical RFC. Specifically, Plaintiff argues that the ALJ failed to incorporate Plaintiff’s moderate
degree of limitation in concentration, persistence, and pace into the RFC. The ALJ found that
Plaintiff’s RFC included simple routine tasks and simple work-related decisions.
Dr. Levko and Dr. Larsen, whose opinions were given great weight, found that Plaintiff is
moderately limited in his “ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances” and “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.” (AR 173, 187). The
narrative discussion clarifies, however, that Plaintiff’s pace would be within normal limits, that he
can attend to a task for two hours at a time, and that he can perform unskilled tasks. (AR 174, 189).
Here, where the experts opined that Plaintiff’s pace and persistence were within accepted tolerances,
the limitations found by the ALJ appear to correspond with Plaintiff’s concentration abilities as
opined by the accepted medical opinions.
C. Other Matters
Though not raised by Plaintiff, the Court notes that consultative examiner Dr. Bacchus
opined that Plaintiff could work in a temperature stable and safety sensitive work environment. The
ALJ gave great weight to this opinion. However, without explanation, the ALJ found that Plaintiff
could work in conditions including frequent exposure to unprotected heights, moving mechanical
12
parts, extreme cold, and extreme heat. If pertinent to the outcome on remand, this matter should be
resolved through explanation or a change in findings.
CONCLUSION
For these reasons, the Court GRANTS the relief sought in the Opening Brief of Plaintiff in
Social Security Appeal Pursuant to L.R. 7.3 [DE 19], REVERSES the final decision of the
Commissioner of Social Security, and REMANDS this matter for further proceedings consistent
with this Opinion and Order.
SO ORDERED this 15th day of August, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
13
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?