Beaver v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The Court hereby GRANTS the relief requested in Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 9/14/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DONNA M. BEAVER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)

CAUSE NO.: 2:17-CV-349-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Donna M. Beaver
on August 30, 2017, and Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner
of Social Security [DE 16], filed on February 12, 2018. Plaintiff requests that the decision of the
Administrative Law Judge be reversed and remanded for further proceedings. On March 15, 2018,
the Commissioner filed a response, and on April 6, 2018, Plaintiff filed a reply.
I.

Background
On July 2, 2010, Plaintiff filed an application for benefits alleging that she became disabled

on July 28, 2018. On March 17, 2015, Administrative Law Judge (“ALJ”) Romona Scales issued
a decision finding that Plaintiff was not disabled, and Plaintiff appealed the decision. On September
26, 2014, this Court issued an opinion and order reversing and remanding the ALJ’s decision, and
the Appeals Council remanded the matter to the ALJ. On April 7, 2015, ALJ William E. Sampson
held a hearing at which Plaintiff, with an attorney representative, and a vocational expert (“VE”)
testified. On March 9, 2016, the ALJ issued a second decision finding that Plaintiff was not disabled.
The ALJ made the following findings under the required five-step analysis:
1.

The claimant meets the insured status requirements of the Social Security Act
through March 31, 2015.

2.

The claimant engaged in substantial gainful activity from November 2013
through September 2014.

3.

As there has been a continuous 12-month period(s) during which the claimant
did not engage in substantial gainful activity, the findings address the
period(s) the claimant did not engage in substantial gainful activity.

4.

The claimant has the following severe impairments: degenerative disc
disease; lupus/Sjogren’s Syndrome, and chronic obstructive pulmonary
disease (COPD).

5.

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.

6.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity (“RFC”) to lift and/or carry 20
pounds occasionally, and 10 pounds frequently; sit for 6 hours in an 8 hour
work day; and stand and/or walk 6 hours in an 8 hour work day. The claimant
should not climb ropes, ladders, or scaffolds; but can occasionally climb
ramps and stairs; and occasionally balance, stoop, kneel, crouch, and crawl.
She should avoid concentrated exposure to extremes of heat and cold, as well
as breathing irritants such as fumes, odors, dusts and gases; and hazards, such
as dangerous moving machinery and unprotected heights.

7.

The claimant is capable of performing past relevant work as a district
manager and clerk. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional capacity.

8.

The claimant has not been under a disability, as defined in the Social Security
Act, from July 28, 2008, through the date of this decision.

The Appeals Councils denied Plaintiff’s request for review, leaving the ALJ’s decision the final
decision of the Commissioner.
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.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
2

II.

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, decide questions of credibility, 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. 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)).

3

At a minimum, an ALJ must articulate his or her analysis of the evidence in order to allow
the reviewing court to trace the path of her 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, as a reviewing
court, we 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 his 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.”).
III.

Analysis
Plaintiff argues that the ALJ failed to incorporate her mental limitations into Plaintiff’s RFC,

failed to properly evaluate Plaintiff’s subjective complaints, and improperly assessed Plaintiff’s
work history. The Commissioner argues that the ALJ’s decision was supported by substantial
evidence.
In this case, the previous opinion and order instructed the ALJ to incorporate Plaintiff’s
mental limitations into her RFC, or explain why those limitations did not warrant additional
accommodations. The ALJ was also instructed to consider Plaintiff’s limitations in combination with
Plaintiff’s other impairments. The law of the case doctrine, applicable to judicial review of
administrative decisions, requires “the administrative agency, on remand from a court, to conform
its further proceedings in the case to the principles set forth in the judicial decision, unless there is

4

a compelling reason to depart.” Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998); see also Key v.
Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991). On remand, the ALJ gave great weight to the
assessment of State agency psychologists, who found that Plaintiff had mild limitations in activities
of daily living and social functioning, as well as limitations in concentration, persistence, or pace.
But the ALJ concluded that “the claimant’s no more than mild mental limitations do not impact on
the claimant’s ability to perform basic work activity,” and did not explain the basis for that
conclusion.
“Although [] impairments may not on their own be disabling, that would only justify
discounting their severity, not ignoring them altogether. Moreover, . . . an ALJ must consider the
combined effects of all of the claimant’s impairments, even those that would not be considered
severe in isolation.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); see also Martinez v. Astrue,
630 F.3d 693, 698 (7th Cir. 2011) (“Even if each problem assessed separately were less serious than
the evidence indicates, the combination of them might be disabling.”); Getch v. Astrue, 539 F.3d
473, 483 (7th Cir. 2008) (“[A]n ALJ is required to consider the aggregate effects of a claimant’s
impairments, including impairments that, in isolation, are not severe.”) (citing 20 C.F.R. §
404.1523); Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)). The ALJ must consider
the combination of impairments, and explain how she incorporated the mental limitations into the
RFC. “In determining an individual’s RFC, the ALJ must evaluate all limitations that arise from
medically determinable impairments, even those that are not severe, and may not dismiss a line of
evidence contrary to the ruling.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
The ALJ pointed to consultative psychological evaluations as apparent justification for
declining to include Plaintiff’s mental limitations in her RFC. While the reports identified many

5

areas in which Plaintiff apparently does not suffer limitations, they do not demonstrate why the
limitations Plaintiff did suffer would not have affected her work. For example, the ALJ stated that
consultative psychologist Patrick McKian reported Plaintiff as demonstrating good memory and
judgment, among other traits. However, the section on “judgment” in Dr. McKian’s report consisted
of two findings: that Plaintiff reported that she would leave if she smelled smoke in a crowded
theater, and that if she found a letter in the street she would mail it. As to “memory,” Plaintiff could
remember what she had for dinner the previous night, remember three words after a five minute
delay, and remember seven digits listed forwards and six digits backwards after two tries. Another
psychologist, Jill Miller, reported that Plaintiff’s judgment and insight “appeared to be fair”: “If she
found a broken water pipe, she would ‘Call water company’”; “If she cut her finger, she would
‘Band Aid on it.’” Neither report assessed judgment (or any other potential limitation) in an
employment context, and both reports suggested mild limitations in persistence and pace and in
activities of daily living, just as the State agency psychologists’ reports did. The ALJ concluded that
Dr. Miller’s report, “consistent with [Dr. McKian’s report], . . . show[ed] . . . that claimant’s mental
impairment no more than minimally interfere [sic] with her ability to perform basic work activity.”
That conclusion does not follow from the reports, leaving the Court without a “logical bridge”
between the evidence and the ALJ’s conclusion that Plaintiff’s mental limitations would not affect
her work. O’Connor-Spinner, 627 F.3d at 618. Despite the Court’s prior instruction to include
mental limitations in the RFC, Plaintiff failed to include them or sufficiently explain why they
should not be included.
In addition, Plaintiff argues that on remand, the ALJ failed to properly assess her subjective
complaints and those of non-medical third parties. Social Security Ruling 96-7p requires that in

6

assessing a claimant’s subjective complaints, the ALJ must consider the individual’s daily activities;
duration, frequency, and intensity of the claimant’s symptoms; medications the claimant has taken
to alleviate pain or other symptoms; and other measures for symptom relief, such as lying down or
sleeping. SSR 96-7p1, 1996 WL 374186, at *2 (July 2, 1996). Although the ALJ mentioned SSR 967p, his reasons for rejecting Plaintiff’s individual complaints were unclear. For example, Plaintiff
testified that she could not walk for more that 15 minutes at a time, or sit for more 20 minutes at a
time. That testimony was supported by statements from Plaintiff’s chiropractor ([Plaintiff is] “unable
to perform . . . duties such as sitting, standing, walking . . . for greater than 10 mins. without
aggravation of her pain”), mother (“She can walk 60 to 80 feet”) and daughter (Plaintiff “cannot
sit in vehicle for short amounts of time”; “she cannot push, stand, bend, kneel”). However, the ALJ
concluded that Plaintiff’s complaints of “pain, other symptoms and functional limitations” were “not
credible in view of the lack of significant clinical findings on repeated exams, the lack of objective
medical findings after extensive diagnostic testing and imaging, positive response to treatment, lack
of follow through with treatment recommendations, conservative treatment recommendations, and
activities.” This conclusory statement makes it unclear which complaints were dismissed for what
reasons, leaving the reviewer without “an accurate and logical bridge” to the ALJ’s conclusion. See
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (remanding where “the ALJ stated, in a
conclusory manner, that [Plaintiff’s] testimony regarding the limitations placed on her daily
activities was unsupported by the medical evidence”).
Finally, Plaintiff argues that the ALJ made improper conclusions about her disability claim

1

Although SSR 96-7p has been superseded by an updated interpretation, SSR 16-3p, 2016 WL 1119029 (March 16,
2016), the Court applies the former interpretation because the latter was not in effect at the time of the ALJ’s
decision. Notices, SSR 16-3p, 2017 WL 4790249 at *1 (“we expect the court to review the final decision using the
rules that were in effect at the time we issued the decision under review”).

7

based on her work history. Plaintiff testified that she returned to work part-time, beginning in
November 2013. The ALJ referenced Plaintiff’s testimony “that the claimant’s part time job allows
her to work from home, working as she pleases and taking breaks as needed,” and appeared to
consider Plaintiff’s employment as evidence that she could work full-time. As the Seventh Circuit
has noted, “even persons who are disabled sometimes cope with their impairments and continue
working long after they might have been entitled to benefits.” Shauger v. Astrue, 675 F.3d 690, 697
(7th Cir. 2012); see also Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014) (“[A] claimant’s
dogged efforts to work beyond her physical capacity would seem to be highly relevant in deciding
her credibility and determining whether she is trying to obtain government benefits by exaggerating
her pain symptoms.”); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“A person can be
totally disabled for purposes of entitlement to social security benefits even if, because of an
indulgent employer or circumstances of desperation, he is in fact working.”).
In this case, Plaintiff’s testimony about her part-time work does not establish that she can
perform full-time work in a normal work environment. Plaintiff testified that she works from home
two to four hours per day, essentially unsupervised, and sets her own schedule. Plaintiff’s work
environment is more suggestive of an “indulgent” employer than a lack of entitlement to disability
benefits. Gentle, 430 F.3d 867.
On remand, the ALJ is reminded of the need to incorporate Plaintiff’s mild mental limitations
into the RFC, and is instructed to draw a logical bridge from the evidence as it actually appears in
the record to his conclusions about Plaintiff’s RFC. O’Connor-Spinner, 627 F.3d at 618. The ALJ
is reminded to consider Plaintiff’s subjective complaints pursuant to the factors discussed in SSR
16-3p, which has superseded SSR 96-7p, and to explain which of Plaintiff’s complaints are accepted

8

and rejected and for what reasons.
IV.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s Brief

in Support of Reversing the Decision of the Commissioner of Social Security [DE 16] and
REMANDS this matter for further proceedings consistent with this opinion.
SO ORDERED this 14th day of September, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

9