Bulla v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court GRANTS Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security [DE 17] and REMANDS this matter for further proceedings consistent with this opinion. Because the ALJ assigned to this case has twice failed to craft an opinion that withstands review, the Court RECOMMENDS that a new ALJ be appointed. Signed by Magistrate Judge John E Martin on 3/12/19. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHAEL BULLA,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.
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CAUSE NO.: 2:17-CV-461-JEM
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Michael Bulla on
December 14, 2017, and Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner
of Social Security [DE 17], filed June 20, 2018. Plaintiff requests that the decision of the
Administrative Law Judge be reversed for an award of benefits, or alternatively, reversed and
remanded for further proceedings. On August 27, 2018, the Commissioner filed a response, and on
October 2, 2018, Plaintiff filed a reply. For the following reasons, the Court grants Plaintiff’s request
for reversal, with remand for further proceedings.
I.
Background
On November 16, 2011, Plaintiff filed an application for benefits alleging that he became
disabled on December 30, 2008. Plaintiff’s application was denied initially and upon
reconsideration. On February 12, 2014, Administrative Law Judge (“ALJ”) Patricia Witkowski
Supergan issued a decision finding that Plaintiff was not disabled, and Plaintiff appealed the
decision. On September 14, 2016, 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 September 20,
2016, ALJ Supergan held a video hearing at which Plaintiff, with an attorney representative, a
medical expert, and a vocational expert testified. On September 13, 2017, 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 met the insured status requirements of the Social Security Act
through December 31, 2008.
2.
The claimant has not engaged in substantial gainful activity since the alleged
onset date.
3.
The claimant has had the following severe impairments: obesity,
degenerative joint disease of the left shoulder, arthritis, osteoarthritis of the
lumbar spine, and depression.
4.
The claimant has not had an impairment or combination of impairments that
meets or medically equals the severity of one the listed impairments in 20
CFR 404, Subpart P, Appendix 1.
5.
The claimant has the residual functional capacity (“RFC”) to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant
can never climb ladders, ropes, or scaffolds; occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; frequently reach in all
directions but not reach overhead with both upper extremities; and frequently
handle, finger, and feel with both upper extremities. He can tolerate
occasional exposure to and/or occasionally work around extreme cold and
heat, wetness, vibration, and hazards such as moving machinery or
unprotected heights. He is limited to performing simple routine tasks
requiring no more than short simple instructions and simple work-related
decision making with few workplace changes.
6.
The claimant has no past relevant work.
7.
Prior to the established disability onset date, the claimant was an individual
closely approaching advanced age. On August 16, 2016, the claimant’s age
category changed to an individual of advanced age.
8.
The claimant has a limited education and is able to communicate in English.
9.
Transferability of job skills is not an issue in this case because the claimant
does not have past relevant work.
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10.
Prior to August 16, 2016, the date the claimant’s age category changed,
considering the claimant’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the
national economy that the claimant could have performed.
11.
Beginning on August 16, 2016, the date the claimant’s age category changed,
considering the claimant’s age, education, work experience, and residual
functional capacity, there are no jobs that exist in significant numbers in the
national economy that the claimant could perform.
12.
The claimant was not disabled prior to August 16, 2016, but became disabled
on that date and has continued to be disabled through the date of this
decision.
13.
The claimant was not under a disability within the meaning of the Social
Security Act at any time through December 31, 2008, the date last insured.
The Appeals Council 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).
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
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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)).
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
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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 properly analyze the opinion of his treating physician,
failed to properly assess his RFC, and improperly evaluated his subjective complaints. The
Commissioner argues that the ALJ’s decision was supported by substantial evidence.
The ALJ afforded “no weight” to a July 12, 2017 statement from Dr. Ken Oetter, Plaintiff’s
treating physician. “[A] judge should give controlling weight to the treating physician’s opinion as
long as it is supported by medical findings and consistent with substantial evidence in the record.”
Kaminski v. Berryhill, 894 F.3d 870, 874 (7th Cir. 2018) (citing 20 C.F.R. § 404.1527(c)(2);
Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018)); see also Gudgel, 345 F.3d at 470; Schmidt
v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). If the ALJ declines to give a treating source’s opinion
controlling weight, she must still determine what weight to give it according to the following factors:
the length, nature, and extent of the physician’s treatment relationship with the claimant; whether
the physician’s opinions were sufficiently supported; how consistent the opinion is with the record
as a whole; whether the physician specializes in the medical conditions at issue; and other factors,
such as the amount of understanding of the disability programs and their evidentiary requirements
or the extent to which an acceptable medical source is familiar with other information in the
claimant’s case. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (c)(3)-(6). Furthermore, “whenever an ALJ does
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reject a treating source’s opinion, a sound explanation must be given for that decision.” Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
Dr. Oetter opined that Plaintiff could only walk for one block at a time, stand or sit for ten
minutes at a time and less than two hours in a day, that he had “significant” limitations in reaching
and handling, and that he would be incapable of even low stress work, among other restrictions. The
ALJ gave Dr. Oetter’s “extreme” limitations no weight because they were “inconsistent with the
objective findings and longitudinal treatment history.” Although the ALJ cited to evidence that
would be consistent with looser restrictions, that evidence did not show that Dr. Oetter’s opinions
were “inconsistent” with the record. For example, addressing Dr. Oetter’s opinion on Plaintiff’s
reaching and handling, the ALJ found: “X-rays of the left shoulder and left hand [taken in January
2012] were unremarkable with no evidence of fracture or dislocations . . . no other imaging of the
shoulders was obtained to support such extreme [limitations].” The ALJ cited no evidence for the
proposition that Plaintiff’s limitations would be visible on an x-ray, as a fracture or dislocation or
otherwise. The record does support limitations on reaching and handling, including Plaintiff’s
complaints and testimony and the records of two consultative examiners: Dr. Mutena Korman, who
found decreased strength and range of motion in the shoulders and a “frozen” left shoulder, and Dr.
Robert Bond, who opined that Plaintiff should not reach overhead. The ALJ should not have
weighed Dr. Oetter’s recommendations against a single exam, but rather against the entire record.
See Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“[T]he ALJ identified pieces of
evidence in the record that supported her conclusion that [the plaintiff] was not disabled, but she
ignored related evidence that undermined her conclusion. This ‘sound-bite’ approach to record
evaluation is an impermissible methodology for evaluating the evidence.”); Denton v. Astrue, 596
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F.3d 419, 425 (7th Cir. 2010) (“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.”).
Plaintiff also argues that the ALJ erred in assessing his mental RFC. The ALJ considered a
psychological consultative examination by Dr. Gary Durak indicating that Plaintiff was cooperative
and alert, with concentration “intact,” low-average intellectual functioning, and that he could do
simple cooking, cleaning, and shopping, and associate with a few friends. Dr. Durak also noted that
Plaintiff could manage his own money, which the ALJ specifically afforded “great weight.” The ALJ
afforded “some weight” to State agency psychological consultant Dr. Stacia Hill, who opined that
Plaintiff could perform simple, repetitive tasks “with special considerations to [Plaintiff’s] ability
to maintain concentration, persistence and pace.” The ALJ found:
Giving some deference to the claimant’s allegations, as well as the combined nature
of the impairments, while also noting the limited mental health treatment and clinical
findings . . . [Plaintiff’s] limitations are more accurately reflected in the limitations
to performing simple routine tasks requiring no more than short simple instructions
and simple work-related decision making with few workplace changes.
AR 458.
The Seventh Circuit Court of Appeals has consistently held that a limitation to unskilled
work does not, by itself, account for a claimant’s difficulties in focus and concentration, or his
ability to perform those tasks consistently in a work environment. See Stewart v. Astrue, 561 F.3d
679, 684-85 (7th Cir. 2009) (rejecting the contention “that the ALJ accounted for [the plaintiff]’s
limitations of concentration, persistence, and pace by restricting the inquiry to simple, routine tasks
that do not require constant interactions with coworkers or the general public”); Craft v. Astrue, 539
F.3d 668, 677-78 (7th Cir. 2008) (holding that a limitation to unskilled work did not account for
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limitations in concentration, pace, and mood swings). The ALJ rejected Dr. Hill’s opinion that
Plaintiff required “special considerations” beyond limitation to simple and routine tasks, but did not
cite to any evidence demonstrating why she did so. Although the ALJ summarized Dr. Durak’s
findings at length, she did not explained how they supported Plaintiff’s ability to perform in a work
environment. See 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.”).
In setting aside Dr. Hill’s opinion and instead crafting her own limitations, the ALJ effectively
substituted her own judgment for that of the medical professional. The Seventh Circuit has warned
that ALJs should not “succumb to the temptation to play doctor” because “lay intuitions about
medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (citing
cases); see also, e.g., Myles v. Astrue, 582 F.3d 672, 677-78 (7th Cir. 2009) (warning that an ALJ
may not “play[] doctor and reach[] his own independent medical conclusion”); Blakes v. Barnhart,
331 F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
Plaintiff also argues that the ALJ failed to properly evaluate his subjective complaints, and
overemphasized his activities of daily living in assessing his capabilities in a work context. The
Seventh Circuit has repeatedly emphasized that a person’s ability to perform daily activities does
not indicate an ability to work outside of the home. See, e.g., Bjornson v. Astrue, 671 F.3d 640, 647
(7th Cir. 2012) (“The critical differences between activities of daily living and activities in a
full-time job are that a person has more flexibility in scheduling the former than the latter, can get
help from other persons . . . and is not held to a minimum standard of performance, as she would
be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature
of opinions by administrative law judges in social security disability cases.”); Punzio, 630 F.3d at
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712 (“[The Plaintiff’s] ability to struggle through the activities of daily living does not mean that she
can manage the requirements of a modern workplace.”); Mendez v. Barnhart, 439 F.3d 360, 362 (7th
Cir. 2006) (“We have cautioned the Social Security Administration against placing undue weight
on a claimant’s household activities in assessing the claimant’s ability to hold a job outside the home
. . . The pressures, the nature of the work, flexibility in the use of time, and other aspects of the
working environment . . . often differ dramatically between home and office or factory or other place
of paid work.”).
The ALJ discounted Plaintiff’s allegations of diminished memory and concentration in part
because he was driving. Plaintiff testified that he drove to the store and back three times (“a couple
of miles”) in the two weeks before the hearing. The ALJ provided a lengthy description of the
challenges of driving: “The operation of a vehicle is a very dynamic task . . . [that] requires the
making of continuous decisions/judgment calls. It also requires social interaction, and the ability to
multitask while dealing with external and internal stimuli. Driving . . . is therefore made up of
strategic decisions . . . maneuvering decisions . . . and control decisions . . .”. Ultimately, the ALJ
found: “While the claimant contends that his functional abilities are severely limited, it is difficult
to reconcile the fact that . . . he continued to operate a motor vehicle.” The ALJ cited to no evidence
or opinion for her assessment of Plaintiff’s capabilities as a driver or her conclusion that the ability
to drive “a couple of miles” was incompatible with diminished memory or concentration. Voigt v.
Colvin, 781 F.3d 871, 876 (7th Cir. 2015) (remanding where ALJ went “far outside the record” to
make “medical conjecture that [she] was not competent to make”).
Similarly, the ALJ made much of Plaintiff’s ability to manage money. Dr. Durak concluded,
without elaboration, that Plaintiff was “capable of managing his funds,” and Plaintiff confirmed in
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a function report that he could handle a savings account and use a checkbook. The ALJ found that
Dr. Durak’s conclusion that Plaintiff could manage money “reflects an opinion that the claimant
retains a measure of functional ability, despite the allegations of depression. The ability to manage
one’s own funds effectively, particularly in cases that may involve granting a relatively large sum
of money to an individual at one time, requires significant cognitive facilities . . . . In addition,
[managing money] requires a level of psychological stability that indicates that an individual will
make decisions in their own best interests . . . ”. The ALJ explicitly gave Dr. Durak’s conclusion on
this topic “great weight,” but provided no basis for the inferences about Plaintiff’s depression, or
how any of it translates to Plaintiff’s performance in a work context.
The ALJ gave several of Plaintiff’s other household activities outsized importance. The ALJ
noted that Plaintiff could wash dishes, laundry, vacuum, shop for food “for short periods,” and that
he needed reminders to go places but did not need someone to accompany him. The ALJ cited to
Plaintiff’s function reports for those findings, but omitted the limitations he referenced in those
reports, such as that he only did household activities in fifteen minute intervals, “cannot lift the
vacuum all the time,” and sometimes drops the dishes. See Moss v. Astrue, 555 F.3d 556, 562 (7th
Cir. 2009) (“An ALJ cannot disregard a claimant’s limitations in performing household activities.”)
(citing Craft, 539 F.3d at 680; Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006)); Denton, 596
F.3d at 425 (“An ALJ . . . cannot simply cherry-pick facts that support a finding of non-disability
while ignoring evidence that points to a disability finding.”). Although the ALJ did state that
Plaintiff’s daily activities were not “conclusive evidence” that he could sustain full-time work, she
concluded that “viewed in combination with the objective evidence and the claimant’s course of
treatment . . . they demonstrate an ability to stand or walk for six hours total in an eight-hour day,
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sit for six hours total in an eight-hour day, perform postural and manipulative activities, and
concentrate on a regular and continuing basis.” The ALJ did not explain the connection between
limited housework done fifteen minutes at a time and a day’s work of standing or walking and
maintaining concentration “on a regular and continuing basis,” again leaving the Court without a
“logical bridge” between the evidence and her conclusion. O’Connor-Spinner, 627 F.3d at 618.
Plaintiff requests reversal with remand for an award of benefits. An award of benefits is
appropriate only if all factual issues have been resolved and the record supports a finding of
disability. Briscoe, 425 F.3d at 356. This record does not conclusively resolve the question of
disability: in particular, the treating physician of 27 years has opined that Plaintiff cannot work, but
a medical expert reviewing the record has testified that he can. Although the ALJ’s analysis was
flawed, remand for benefits is not appropriate. See Allord v. Astrue, 631 F.3d 411, 417 (7th Cir.
2011) (affirming reversal for re-hearing, rather than an award of benefits, where “contradictory
inferences could be drawn from the physicians’ testimony”); Campbell v. Shalala, 988 F.2d 741, 744
(7th Cir. 1993) (“the record is not so clear that we can award or deny benefits on appeal”).
On remand, the ALJ is instructed to consider the treating physician’s opinion in the manner
described in 20 C.F.R. §§ 404.1527(c), and to provide a “sound explanation” if he or she rejects that
opinion. Punzio, 630 F.3d at 710. The ALJ must draw a logical bridge from the evidence as it
appears in the record to his or her conclusions about Plaintiff’s RFC, including the evidence that
does not support his or her conclusions, and must not “play doctor” to craft functional limitations
unsupported by medical opinion.
IV.
Conclusion
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For the foregoing reasons, the Court hereby GRANTS Plaintiff’s Brief in Support of
Reversing the Decision of the Commissioner of Social Security [DE 17] and REMANDS this matter
for further proceedings consistent with this opinion. Because the ALJ assigned to this case has twice
failed to craft an opinion that withstands review, the Court RECOMMENDS that a new ALJ be
appointed.
SO ORDERED this 12th day of March, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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