Buehner v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The decision of the ALJ denying Buehner's application for Social Security disability benefits is REVERSED and REMANDED for further proceedings consistent with this opinion. Signed by Judge Philip P Simon on 11/18/2022. (rmf)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JONAH A. BUEHNER,

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Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of
Social Security,
Defendant.

Cause No. 1:22-cv-045-PPS

OPINION AND ORDER
Jonah Buehner has appealed the denial of his application for Social Security
disability insurance benefits, and in doing so, he claims that the ALJ committed three
errors which require a reversal of her decision. I will limit my discussion to one:
whether the ALJ erred in her determination of Buehner’s residual functional capacity
(RFC) by cherry-picking evidence and failing to support her decision with substantial
evidence. Because I find that the ALJ erred in determining the RFC, I will reverse the
ALJ’s decision and remand on this issue.
Background
Jonah Buehner applied for disability insurance benefits on June 13, 2019,
claiming that he was disabled as of July 1, 2009. [AR 17.] 1 His claims were denied

Error! Main Document Only. The administrative record [AR] is found in the court record at docket
entry 12 and consists of 639 Bates-stamped pages. I will cite to its pages according to the Social Security
Administration’s Bates stamp numbers in the bottom right-hand corner of each page, rather than the
court’s Electronic Case Filing page number.

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initially and denied again upon reconsideration. After that, he requested and had a
hearing before an Administrative Law Judge via telephone due to concerns over
COVID-19. [AR 613–39.] A couple months later, the ALJ issued her written decision
once again denying benefits. [AR 17–29.] Buehner then took his case to the Social
Security Appeals Council which denied his request for review. [AR 3.] Buehner now
seeks review of that decision. [DE 1.]
In the written decision, the ALJ determined that Buehner has the severe
impairments of asthma; autism spectrum disorder; major depressive disorder single
episode (severe without psychotic features); and generalized anxiety disorder. [AR 20.]
The ALJ then determined that Buehner did not meet any of the applicable listings for
disability. Specifically, the ALJ examined listings 3.03 (asthma), 12.04 (depressive,
bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and
12.10 (autism spectrum disorder). [AR 20–21.]
At the next step, the ALJ determined Buehner’s residual functional capacity. She
determined that Buehner is capable of performing work at the light level as defined in
20 CFR § 416.967(b), with some exceptions: he can occasionally work with concentrated
exposure to fumes, dusts, odors, gases, and poor ventilation; he can perform work that
can be learned in 30 days or less, with simple routine tasks, simple work-related
decisions, routine workplace changes, and with no production pace work; he can
occasionally interact with coworkers and supervisors; and he can have no interaction
with the general public. [AR 22.] For present purposes, I won’t repeat the ALJ’s detailed
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description of the medical evidence included in her written decision. [See AR 22–27.]
The ALJ then posed the RFC and some additional hypothetical questions to a
vocational expert, who testified that a hypothetical individual with Buehner’s RFC
would be able to perform a range of unskilled light occupations that exist in significant
numbers in the national economy. Those jobs included a routing clerk, photocopy
machine operator, or collator operator. [AR 28–29.] Accordingly, the ALJ found that
Buehner is not disabled within the meaning of the Social Security Act.
Discussion
I’ll start, as is customary, with the standards that govern my decision-making in
this appeal. In a Social Security disability appeal, my role as district court judge is
limited. My job is not to determine from scratch whether Buehner is disabled. Instead, I
review the ALJ’s written decision to determine whether the ALJ applied the correct
legal standards and whether the decision’s factual determinations are supported by
substantial evidence. 42 U.S.C. § 405(g); Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir.
2012); Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010). If substantial evidence supports
the ALJ’s factual findings, they are conclusive. 42 U.S.C. §405(g); Shideler, 688 F.3d at
310. The Supreme Court has said that “substantial evidence” means more than a
“scintilla” of evidence, but less than a preponderance of the evidence. Richardson v.
Perales, 402 U.S. 389, 401 (1971). “Evidence is substantial if a reasonable person would
accept it as adequate to support the conclusion.” Young v. Barnhart, 362 F.3d 995, 1001
(7th Cir. 2004). Given this modest standard, the review is a light one. But, of course, I
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cannot “simply rubber-stamp the Commissioner’s decision without a critical review of
the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Finally, my review is
also guided by the principle that while “[t]he ALJ is not required to address every piece
of evidence or testimony presented,” she “must provide a ‘logical bridge’ between the
evidence and the conclusions so that [I] can assess the validity of the agency's ultimate
findings and afford the claimant meaningful judicial review.” Jones v. Astrue, 623 F.3d
1155, 1160 (7th Cir. 2010).
Buehner argues that the ALJ erred in evaluating the applicable Social Security
listings, the medical opinion evidence, and the formulation of his RFC. [DE 15 at 12–26.]
I will focus on the latter of those claims — that the ALJ cherry-picked evidence bearing
on her determination of his RFC. See id. at 19–26.
Social Security Ruling 96-8p proscribes an ALJ’s duties in assessing a residual
functional capacity:
The RFC assessment must include a narrative discussion describing how
the evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,
observations). . . . The RFC assessment must include a discussion of why
reported symptom-related functional limitations and restrictions can or
cannot reasonably be accepted as consistent with the medical and other
evidence.
SSR 96-8p, 1996 SSR LEXIS 5, at *20 (July 2, 1996) (“Narrative Discussion
Requirements”). An omission of this discussion is enough to warrant reversal of the
ALJ’s decision. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). In
addition, an ALJ may not point to evidence that supports her conclusion while ignoring
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evidence to the contrary. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (citing Myles
v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (“An ALJ has the obligation to consider all
relevant medical evidence and cannot simply cherry-pick facts that support a finding of
non-disability while ignoring evidence that points to a disability finding.”).
Buehner argues that the ALJ did just that: cherry-picked evidence that supported
her conclusion that he was not disabled while ignoring substantial evidence to the
contrary. In support, Buehner points me to the July 2021 statement from Ms. Candy
Pease, Buehner’s behavioral consultant. [AR 612.] Recall that Buehner suffers from
autism. As a consequence, Ms. Pease stated that Buehner’s goals include “fundamental
social communication,” and task and time management. Id. She stated that Buehner “is
a good student but he refuses to speak with his professors, avoiding all superficial or
casual interactions with other people. He prefers to isolate to his room.” Id. She opined
that Buehner would need “significant coaching and encouragement to speak at an
interview and would likely fail an interview process.” Id. She further opined that
Buehner would need significant job support and job coaching to secure and maintain
employment; and, to do so, he would also require a “job coach” to communicate with
his supervisors and advocate on his behalf. Id. Ms. Pease stated that Buehner refuses to
do tasks, even if those tasks are integral to perform a specific job. Id. She stated that he is
very concrete in his thinking and will frequently decide not to complete at ask, and
“[n]o amount of encouragement or reasoning will change his decision.” [AR 612.]
Finally, she opined that Buehner “is not capable of competitive employment but may
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benefit from accommodated work,” provided he receives significant job coaching, along
with support from his supervisors. Id. Importantly, Ms. Pease was not opining based on
a snapshot. The opinions came instead from her three-year relationship with Buehner.
And during those three years, they met every week for at least two hours. Id.
Evidently, the ALJ did not find Ms. Pease’s statement to be persuasive. She
pointed out that statements separately contained in Ms. Pease’s service notes do not
support such a level of impairment, “as improvement in communication and task
completion is noted” in those records. [AR 27 (citing AR 488–538).] The ALJ noted that
Ms. Pease has treated Buehner but is not a psychologist or psychiatrist, and she has not
provided him any job coaching. [AR 27.] The ALJ further observed that Buehner’s goals
are not pertinent to determining disability, Ms. Pease’s statement appears “largely
based on the claimant’s subjective reports and do not include supporting clinical
findings or observations,” and that other evidence reflects that Buehner is able to
“interact sufficiently to [sell] his artwork, albeit under substantial gainful activity
levels.” Id. Ultimately, the ALJ concluded that Ms. Pease’s statement did not address
Buehner’s specific functional limitations, that Ms. Pease is not a vocational expert, and
that her statement lacks substantial support in view of other evidence in the record. Id.
As prefaced, Buehner asserts that the ALJ erred by cherry-picking evidence from
Ms. Pease’s treatment notes, improperly relied on minor improvements in his
conditions, and failed to consider the supportability of his subjective complaints.
Buehner argues that Ms. Pease’s statement should be evaluated under 20 CFR
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§ 404.1520c as a medical opinion. [DE 15 at 17–18.] However, medical opinions, as
defined by the regulations, require that the opinion identify specific functional
limitations. 20 CFR § 416.913(a)(2). Ms. Pease’s statement did not include any functional
limitations; thus, the ALJ correctly found her statement was not a medical opinion.
However, the ALJ did evaluate her statement, and that evaluation included
impermissible cherry-picking.
The underlying treatment notes that the ALJ cited reflect Buehner’s continued
struggles with social interaction and task-avoiding behaviors. On January 9, 2020, Ms.
Pease indicated that Buehner “does not grasp the concept of social interactions with
peers.” [AR 501.] On January 20, Ms. Pease stated that Buehner “struggles with
empathy and other people[’s] perception of him.” Id. In a summary of his behavioral
progress, Ms. Pease observed that Buehner is “getting better at completing projects but
not things around the house.” [AR 502.] One year later, on January 5 and 7, 2021, Ms.
Pease stated that Buehner “continues to struggle without a schedule and structure,” and
that he “struggles with his social communication and giving a good explanation of what
he is thinking. He also struggles with communicating his wants and needs effectively.”
[AR 503.] On January 12, Ms. Pease noted that Buehner struggles with social
communication, asking for help, and understanding the need to communicate with
others. Id. The end of the note mirrored verbatim her note from a year earlier. [AR 504.]
In fact, all of Buehner’s treatment notes from Ms. Pease, dated December 2020
through January 2021, end with that exact statement: “Jonah is getting better at
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completing projects but not things around the house.” [AR 502, 504, 506, 507, 509, 512,
514, 516, 518, 520, 522, 524, 526.] Peeling back a layer, however, Ms. Pease’s more
detailed narratives from Buehner’s individual treatment sessions reflect that he
consistently reported struggles with communication and task completion throughout
this period. [See, e.g., AR 511 (“Jonah needs to be pushed or have someone help with
accountability to meet any tasks or make any completions with his work.”) (5/26/2020);
id. (“Jonah struggles without a schedule and structure. Jonah struggles with his social
communication.”) (5/28/2020); AR 521 (same) (10/15/2020); DE 525 (same)
(12/10/2020); id. (same) 12/12/2020).] The only progress note indicating any
improvement in communication is from December 3, 2020, when Ms. Pease stated that
Buehner “is doing better with communication and task completion.” [AR 525.] That
said, the remainder of the notes from that month repeatedly indicate that he continues
to struggle with social communication, understanding the need to communicate with
others, and completing tasks without close supervision. Id. Consideration of the full
narrative treatment notes thus suggests that, while some improvement in Buehner’s
communication and task completion was noted, those observations were outliers. The
lion’s share of Ms. Pease’s observations reflect Buehner’s continued struggles with
communication, social interaction, and task completion, suggesting that the ALJ cited
only to instances where Ms. Pease suggested Buehner’s conditions were “improving,”
without any explanation of her evaluation of the full narrative treatment notes.
Ms. Pease’s statements and underlying treatment notes are supported by
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testimony from Buehner’s father, Noah Buehner, which indicates that his son has great
difficulty advocating for himself or effectively communicating his needs. [AR 630–31.]
Buehner’s father testified that he regularly had to advocate on Buehner’s behalf, as he
was incapable of doing so himself. Id. He also testified that Buehner does not ask for
help or communicate his needs to others, and that he requires someone monitoring him
to advocate on his behalf. Id.
Moreover, while the ALJ found that the consultative examiner’s opinion did not
provide functional limitations, it appears that opinion also supported Ms. Pease’s
statements regarding Buehner’s continued struggles with social communication and
task completion. The consultative examiner, Dr. Amanda L. Mayle, noted that Buehner
presented with “difficulty with nonverbal behaviors and social interactions.” [AR 472.]
Dr. Mayle observed that he presented with “significant mood and behavioral instability
that do appear to be affecting his functioning.” [AR 475.] She also found that his mood
was depressed, his affect was shy and withdrawn, and his thought content included
overvalued ideas, obsessions, phobias, and preoccupation. [AR 472–76.]
The ALJ found that Buehner has a “moderate limitation” in interacting with
others but failed to acknowledge or discuss Ms. Pease’s treatment notes and statement
reflecting the significant difficulty he has with social communication, asking for help,
and understanding the need to communicate with others. [AR 21.] The ALJ found that
although treatment records “show some anger issues and struggles with social norms,”
he was able to ride the school bus by himself and was able to converse when the topic
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discussed interested him. Id. The ALJ also noted that he was cooperative with the
consultative examiner. Id. However, there is no meaningful discussion of Ms. Pease’s
progress reports, which indicate continued struggles with social interaction. Id. The ALJ
also failed to explain how Buehner’s ability to ride the school bus by himself in high
school contradicts the level of social limitations he now alleges, or how his cooperation
with a consultative examiner contradicts his alleged social limitations. This is
particularly important considering that Buehner’s social limitations appear to stem
predominately from his difficulties initiating social interaction and responding to
unplanned social interactions. [See AR 500–26.] As noted above, while the consultative
examiner found Buehner to be cooperative, she still noted that he was shy and
withdrawn with significant mood and behavioral instability and difficulties in social
interaction. [AR 472–76.]
The ALJ also relied on educational notes that indicated Buehner is “bright and
creative,” and “an excellent writer and artist” with superior reading and written
language skills. [AR 25.] The ALJ noted that he was able to attend four college classes in
person on campus, and again reiterated that his conversational skills increased when
the topics interested him. [AR 26.] Buehner similarly testified that when he attends
classes on campus, he avoids people and does not interact with anyone. [AR 626–27.]
Indeed, Ms. Pease met with Buehner on campus multiple times in the months prior to
the start of classes to walk the campus and find his classes, as well as to find quiet
places for him to go when he gets anxious. [AR 430, 432, 434.] Thus, considering the
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multiple treatment notes and statements from examining and treating sources reflecting
Buehner’s continued struggles with social communication, the ALJ failed to adequately
explain how an ability to attend four classes on campus and navigate campus after
multiple trips with his behavioral consultant contradicts his social difficulties with
communication.
The ALJ further erred in finding that Buehner is “able to interact sufficiently to
[sell] his artwork, albeit under substantial gainful activity levels,” as part of her
determination that he is less limited than he alleges in social interactions. [AR 27.]
Buehner testified that he has sold fewer than ten digital art pieces. [AR 622.] There is no
evidence that Buehner had to interact socially with anyone to sell his digital art, as
digital art is frequently sold online and would require little, if any, social interaction. In
other words, the ALJ has failed to adequately explain how selling a few pieces of art
online amounts to social communication skills less limiting than Buehner alleges.
The ALJ also failed to build a logical bridge from the evidence to her conclusion.
The ALJ repeatedly stated that Buehner’s subjective symptoms related to task
completion and social interaction are contradicted by his ability to attend college
classes, his high grades, his ability to successfully perform serial sevens, and the fact
that he was described as “intelligent.” With all due respect to the ALJ, these examples
miss the point. Autism is not defined by intellectual disability. In fact, the DSM-V does
not include intellectual impairments as a symptom of autism. 2 Instead, signs of autism

2

See Autism Research Institute, What is Autism?, AUTISM.ORG, https://www.autism.org/what-is-autism

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include deficits in social communication and interaction, as well as closely focused
interests. Buehner’s ability to obtain good grades in classes that he is passionate about
does not speak to his ability to interact socially with others or his ability to complete
tasks on his own. Buehner’s father testified to it being “a lot of work” to keep him
organized with his classes and assignments and ensuring Buehner finished
assignments. [AR 630.] To that point, his father testified to having to remind Buehner
which classes are on which days, what assignments are due, and when assignments are
due. [AR 631.] He also testified that Buehner does not advocate himself and does not
have a phone, so his father frequently communicates with his professors and assists
Buehner by making phone calls to facilitate what he needs for his education. Id. Yet the
ALJ ignored all this, providing no discussion of Buehner’s need for extra support to
obtain his grades and complete tasks, nor did the ALJ provide any explanation as to
how his intellect or grades translated to improved social communication.
The ALJ also confusingly seems to correlate being cooperative with an examiner
and having the ability to relate to others with being able to concentrate and having
adequate memory and judgment. But the former has little to do with the latter.
Buehner’s social communication deficits are repeatedly described in the medical record
as stemming from an inability to express his needs to others, as well as issues with
authority or any situations that he sees as a threat to his control — all of which are
markers of someone suffering with autism. In short, I fail to see how being cooperative

(last visited Nov. 18, 2022).

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with an examiner on one occasion disproves a record that is replete with references to
Buehner having substantial limitations with social interactions.
Finally, the ALJ appears to conclude that Buehner’s social deficits are less
limiting than he alleges because there is “no indication he required accommodations
because of social issues” as a college student. [AR 26.] As repeatedly noted in the
record, Buehner’s social communication limitations relate to his inability to advocate for
himself or express his wants and needs effectively. [See, e.g., AR 503.] It is unclear what
accommodations a college campus could provide for such limitations. The ALJ has
failed to adequately explain how a lack of social accommodations indicates Buehner is
not limited in his ability to communicate socially.
In sum, the ALJ erred by failing to support the RFC determination with
substantial evidence, by failing to build a logical bridge from the evidence to her
conclusions, and by impermissibly cherry-picking evidence to support her decision. On
remand, the ALJ should properly analyze all the evidence in the decision and support
her analysis with evidence in the record. Because I am remanding this case for the
reasons stated above, I need not discuss the remaining issues raised by Buehner. He can
raise those issues directly with the ALJ on remand.
Conclusion
For the foregoing reasons, the decision of the ALJ denying Buehner’s application
for Social Security disability benefits is REVERSED and REMANDED for further
proceedings consistent with this opinion.
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SO ORDERED.
ENTERED: November 18, 2022.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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