Nagy v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The ALJ erred in analyzing Plaintiffs subjective symptoms and determining Plaintiffs RFC, particularly with regards to Plaintiffs moderate limitations in concentration, persistence, and pace. For these reasons, the court remands the case for further consideration. Signed by Judge Joseph S Van Bokkelen on 5/28/2019. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BARBRA JEAN NAGY,
Plaintiff,
v.
Case No. 2:18-cv-00026-JVB-JEM
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security Administration,
Defendant.
OPINION AND ORDER
Plaintiff Barbra Jean Nagy seeks judicial review of the Social Security Commissioner’s
decision denying her disability benefits and asks this Court to remand the case. For the reasons
below, this Court remands the Administrative Law Judge’s decision.
A. Overview of the Case
In her application, Plaintiff alleged that she became disabled on October 1, 2008. (R. at
23.) At a hearing before an Administrative Law Judge (“ALJ”) in 2017, Plaintiff amended her
alleged onset date of disability to August 1, 2013. After the hearing, the ALJ found that Plaintiff
suffered from the severe impairments of degenerative disc disease throughout the spine; L3
vertebroplasty and lumbar fusion surgeries; status post spinal cord stimulator implantation
tension headaches/migraines; stress induced seizures; affective disorder; anxiety disorder and
borderline personality disorder. (R. at 25.) The ALJ did, however, find that a number of jobs
existed which Plaintiff could perform. (R. at 33.) Therefore, the ALJ found her to be not disabled
since June 13, 2014, the date the application was filed. (R. at 34.) This decision became final
when the Appeals Council denied Plaintiff’s request for review. (R. at 1.)
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B. Standard of Review
This Court has authority to review the Commissioner’s decision under 42 U.S.C. §
405(g). The Court will ensure that the ALJ built an “accurate and logical bridge” from evidence
to conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). This requires the ALJ to
“confront the [plaintiff’s] evidence” and “explain why it was rejected.” Thomas v. Colvin, 826
F.3d 953, 961 (7th Cir. 2016). The Court will uphold decisions that apply the correct legal
standard and are supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). Evidence is substantial if “a reasonable mind might accept [it] as
adequate to support [the ALJ’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 28 L. Ed. 2d 842 (1971).
C. Disability Standard
The Commissioner follows a five-step inquiry in evaluating claims for disability benefits
under the Social Security Act:
(1) Whether the claimant is currently employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling; (4) if the claimant does not have a
conclusively disabling impairment, whether he can perform his past relevant work;
and (5) whether the claimant is capable of performing any work in the national
economy.
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). The claimant bears the burden of proof at
every step except step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
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D. Analysis
Plaintiff contends that the ALJ committed three reversible errors: the ALJ erred in failing
to consider the combined impact of all Plaintiff’s impairments in the RFC; the ALJ improperly
evaluated Plaintiff’s subjective symptoms; and the ALJ cherry picked evidence that supported
his conclusion while ignoring other relevant evidence.
(1) Subjective Symptoms
Plaintiff asserts that the ALJ erred in the subjective symptom analysis. An ALJ’s
subjective symptom analysis will be afforded “considerable deference” and will be overturned
only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006)
(citations omitted). In addressing Plaintiff’s subjective symptoms, the ALJ must consider all the
evidence in the record. 20 C.F.R. § 404.1529(c)(3). Specifically, the ALJ is directed to consider
the following factors:
(i)
daily activities;
(ii)
the location, duration, frequency, and intensity of the symptoms;
(iii)
precipitating and aggravating factors;
(iv)
the type, dosage, effectiveness, and side effects of any medication taken;
(v)
other treatment received for relief of symptoms;
(vi)
any measures used to alleviate symptoms; and
(vii)
other factors concerning limitations and restrictions due to symptoms
20 C.F.R. §§ 404.1529(c)(3)(i)–(vii). As long as the ALJ’s subjective symptom determinations
have some support in the record and are not patently wrong, they are upheld. See Diaz v. Chater,
55 F.3d 300, 308 (7th Cir. 1995).
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Plaintiff contends that the ALJ does not discuss any limitations alleged by Plaintiff nor
what medical evidence disputed those limitations. In fact, the ALJ does not have any real
subjective symptom analysis or discussion.
The ALJ lists Plaintiff’s reported daily activities and concludes that activities of daily
living “are one factor that is considered when assessing the claimant’s functioning.” However,
the ALJ fails to discuss how Plaintiff’s daily activities contradict her alleged symptoms. The ALJ
provides no analysis, and therefore fails to build a logical bridge from the evidence to the ALJ’s
ultimate conclusion. The ALJ merely lists Plaintiff’s symptoms and evidence in the record. The
ALJ fails to cite to any specific medical evidence that contradicts Plaintiff’s subjective
symptoms. Without specific reasons, the Court is unable to assess how the ALJ evaluated
Plaintiff’s subjective symptoms. Because the ALJ did not substantiate his subjective symptom
analysis with references to specific record evidence, this court cannot assess whether his
subjective symptom analysis was “patently wrong.” Mueller v. Asrue, 493 Fed. Appx. 772, 777
(7th Cir. 2012); see also Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). This lack of
analysis requires remand.
(2) RFC
Plaintiff asserts that the ALJ erred by failing to account for Plaintiff’s limitations in
concentration, persistence, and pace in the RFC. The ALJ found that Plaintiff had moderate
limitations with regard to concentration, persisting, and maintaining pace. (R. at 27.) The ALJ
determined that Plaintiff had the capacity to remember and follow simple but not detailed
instructions and could perform the tasks assigned but not always at a production rate pace;
however, she could meet the end of day work goals. Plaintiff could also have occasional contact
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with co-workers, supervisors, and the general public, and she could occasionally adapt to rapid
changes in the workplace. (R. at 28.) Plaintiff argues that this does not adequately account for
her moderate limitations in concentration, persisting, or maintaining pace.
Where an ALJ does not adequately capture the Plaintiff’s restrictions on concentration,
persistence, and pace, the ALJ’s decision will be subject to remand. Yurt v. Colvin, 758 F.3d 850,
858–59 (7th Cir. 2011) (emphasizing that all of Plaintiff’s restrictions must be present in the
hypothetical to the vocational expert). Plaintiff cites to Yurt v. Colvin, 758 F.3d 850 (7th Cir.
2014), which held that a limitation to “simple, routine tasks and limited interactions with others”
did not adequately capture limitations in concentration, persistence, and pace. 758 F.3d at 859.
The Commissioner does not adequately respond to this argument. Instead, the
Commissioner spends one paragraph discussing other issues related to Plaintiff’s mental
limitations. This response does not directly address Plaintiff’s argument that the RFC does not
account for her moderate limitations in concentration, persistence, and pace. The
Commissioner’s silence suggests that she has no appropriate response to Plaintiff’s
concentration, persistence, and pace argument. The Commissioner has conceded this error. See
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument
… results in waiver.”) (citations omitted); Pino v. Berryhill, 2017 U.S. Dist. LEXIS 149677, at
*11–12, (N.D. In. September 6, 2017).
(3) Other Issues
Plaintiff also raises issues regarding cherry picking evidence. The Court remands this
case due to a failure to analyze Plaintiff’s subjective symptoms and an error in the RFC
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determination. On remand, the ALJ will have the opportunity to reexamine the RFC and all of
the relevant medical evidence.
(E) Conclusion
The ALJ erred in analyzing Plaintiff’s subjective symptoms and determining Plaintiff’s
RFC, particularly with regards to Plaintiff’s moderate limitations in concentration, persistence,
and pace. For these reasons, the court remands the case for further consideration.
SO ORDERED on May 28, 2019.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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