Moore v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The Court hereby GRANTS the Opening Memorandum [DE 19], REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this opinion. The Court DENIES Plaintiff's request to award benefits. Signed by Magistrate Judge John E Martin on 2/7/19. (ksp)

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

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CAUSE NO.: 2:18-CV-48-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Carrie Anne Moore
on February 2, 2018, and Plaintiff’s Brief in Support of Her Motion to Reverse the Decision of the
Commissioner of Social Security [DE 16], filed August 16, 2018. Plaintiff requests that the decision
of the Administrative Law Judge be reversed and remanded for an award of benefits or, in the
alternative, for further proceedings. On September 6, 2018, the Commissioner filed a response, and
on October 12, 2018, Plaintiff filed a reply.
I.

Background
On October 23, 2014, Plaintiff filed applications for benefits alleging that she became

disabled on October 2, 2014. Plaintiff’s applications were denied initially and upon reconsideration.
On February 6, 2017, Administrative Law Judge (“ALJ”) Kevin Vodak held a hearing at which
Plaintiff and a vocational expert (“VE”) testified. Plaintiff was represented by an attorney at the
hearing. On April 28, 2017, the ALJ issued a 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 December 31, 2019.

2.

The claimant has not engaged in substantial gainful activity since October 2,
2014, the alleged onset date.

3.

The claimant has the following severe impairments: borderline personality
disorder, bipolar I disorder, post-traumatic stress disorder (PTSD), and
gambling disorder.

4.

The claimant does not have 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 to perform a full range of
work at all exertional levels but with the following nonexertional limitations:
the claimant is limited to understanding, remembering, and carrying out
simple, routine, and repetitive tasks, She can frequently interact with
supervisors and coworkers, and occasionally interact with the public. The
claimant is able to engage in no more than occasional decision-making and
be exposed to no more than occasional changes in her job setting.

6.

The claimant is unable to perform any past relevant work.

7.

The claimant was 45 years old, which is defined as a younger individual age
18-49, on the alleged disability onset date.

8.

The claimant has at least a high school education and is able to communicate
in English.

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills.

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.

11.

The claimant has not been under a disability, as defined in the Social Security
Act, from October 2, 2014, through the date of this decision.

The Appeals Council did not take jurisdiction of the claim, leaving the ALJ’s decision the final
decision of the Commissioner.

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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
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

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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 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, 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’s decision should be remanded because the ALJ erred in

determining Plaintiff’s residual functional capacity (“RFC”), evaluating the opinion evidence, and
analyzing Plaintiff’s subjective symptoms.
The RFC is an assessment of what work-related activities the claimant can perform despite
her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R.
§§ 404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into

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consideration all of the relevant evidence, including both medical and non-medical evidence. See
20 C.F.R. §§ 404.1545(a)(3); 416.945(a)(3). According to SSA regulations:
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). In assessing
RFC, the adjudicator must discuss the individual’s ability to perform sustained work
activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours
a day, for 5 days a week, or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual can perform based on
the evidence available in the case record. The adjudicator must also explain how any
material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
SSR 96-8p,1996 WL 374184, at *7(July 2, 1996). Although an ALJ is not required to discuss every
piece of evidence, he must consider all of the evidence that is relevant to the disability determination
and provide enough analysis in his decision to permit meaningful judicial review. Clifford, 227 F.3d
at 870; Young, 362 F.3d at 1002. In other words, the ALJ must build an “accurate and logical bridge
from the evidence to [the] conclusion.” Scott, 297 F.3d at 595 (quoting Steele v. Barnhart, 290 F.3d
936, 941 (7th Cir. 2002)).
Plaintiff argues that the ALJ did not account for her moderate limitation in concentration,
persistence, and pace in her RFC. In support of finding that Plaintiff has a moderate limitation in
concentration, persistence, and pace, the ALJ cites evidence that Plaintiff has reported a short
attention span, difficulty following spoken instructions, little energy, and inability to concentrate.
AR 15. The ALJ also noted that Plaintiff was able to follow and answer questions at the hearing. Id.
Plaintiff’s argument is well-taken. Regarding this limitation, the ALJ only found that
Plaintiff's RFC is limited to understanding, remembering, and carrying out simple, routine, and
repetitive tasks. However, the Seventh Circuit Court of Appeals has “repeatedly rejected the notion
that a hypothetical like the one here confining the claimant to simple, routine tasks and limited
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interactions with others adequately captures temperamental deficiencies and limitations in
concentration, persistence, and pace.” Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018), as
amended on reh’g (Apr. 13, 2018) (quoting Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014))
(citing Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009)). Limiting the complexity of tasks
Plaintiff performs does not fully accommodate her limitations in the ability to maintain pace,
concentrate, and persist.
The opinions of state agency consulting doctors Dr. Garcia and Dr. Larsen, which were given
great weight by the ALJ, further support finding error on this basis. Dr. Garcia and Dr. Larsen both
found that Plaintiff was limited in her ability to maintain attention and concentration for extended
periods of time and in her ability to perform at a consistent pace in addition to a limitation in the
ability to carry out detailed instructions. AR 82, 107.
Because the RFC does not account for the moderate limitation in concentration, persistence,
and pace found by the ALJ, this matter must be remanded to the agency for further proceedings. On
remand, if the ALJ again finds that Plaintiff can have occasional or greater interaction with the
general public, the ALJ is also directed to provide a more robust discussion of the evidence
regarding Plaintiff's limitation in social interation and how the ALJ reached the finding.
Plaintiff also asserts that the ALJ erred in weighing her treating doctor’s opinion. “[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, he must

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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); 416.927(c)(2)(i)-(ii), (c)(3)-(6). Furthermore, “whenever an ALJ
does 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).
Plaintiff maintains that the ALJ erred in evaluating the June 15, 2015 opinion of treating
physician Dr. Stepansky. To discredit this opinion, the ALJ cited to treatment records from October
and November 2016. Essentially, the ALJ determined that the opinion was outdated due to the later
treatment records. See AR 19 (“Although Dr. Stepansky’s opinion is consistent with the evidence
in terms of the claimant’s symptoms at the time of the letter, more recent treatment notes provide
that the claimant’s condition has improved. For example, October 2016 psychiatric notes state that
the claimant[’s] depression and manic symptoms are under control.”). The ALJ similarly discounted
the opinions of Drs. Bucur, Karr, and Kristevski due to the October 2016 notes. However, the ALJ
gave great weight to the opinions of Drs. Garcia and Larsen. Both of these opinions were given in
2015 before Dr. Stepansky’s opinion. It is inconsistent to discount Dr. Stepansky’s opinion in light
of the more recent evidence and to not discount Dr. Garcia’s and Dr. Larsen’s earlier opinions for
the same reason.

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It also appears that the ALJ overemphasized the fact of improvement without considering
the degree of improvement. A person’s impairments can improve and still not be improved to a level
that permits competitive full-time work. Murphy v. Colvin, 759 F.3d 811, 819 (7th Cir. 2014), as
amended (Aug. 20, 2014). In addition, bipolar is episodic, so the fact that Plaintiff experienced some
good days does not in and of itself mean that she will not have bad days in the future, Jelinek v.
Astrue, 662 F.3d 805, 814 (7th Cir. 2011); Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006).
Combined, these issues show reversible error in the ALJ’s evaluation of Dr. Stepansky’s
opinion. A new evaluation consistent with 20 C.F.R. §§ 404.1527(c) and 416.927(c) is needed.
Plaintiff further maintains that the ALJ did not properly evaluate non-medical source
opinions. The ALJ is required to properly consider evidence from non-medical sources. See 20
C.F.R. §§ 404.1527(f)(2), 416.927(f)(2) (“The adjudicator generally should explain the weight given
to opinions from [non-medical] sources or otherwise ensure that the discussion of the evidence in
the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case”). The ALJ rejected
the non-medical source opinions of a Mr. Douglas and a Ms. Hosmer. The ALJ gave them only some
weight because they are lay opinions and because they do not “outweigh the accumulated medical
evidence regarding the extent to which the claimant’s limitations can reasonably be considered
severe.” AR 20. The ALJ did not address how these opinions supported or were inconsistent with
other evidence in the record. SSR 06-03P, 2006 WL 2329939, *4 (Aug. 9, 2006) (requiring the ALJ
to address factors such as: “How long the source has known and how frequently the source has seen
the individual; How consistent the opinion is with other evidence; The degree to which the source
presents relevant evidence to support an opinion; How well the source explains the opinion; [and]

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Whether the source has a specialty or area of expertise related to the individual's impairment(s)”).
By failing to connect evidence to any of the opinions made by Mr. Douglas and Ms. Hosmer, the
ALJ has not created a logical bridge by which the Court can trace the ALJ’s reasoning. On remand,
the ALJ shall evaluate these opinions in a manner compliant with 20 C.F.R. §§ 404.1527(f)(2),
416.927(f)(2).
Plaintiff points to purported errors in the ALJ’s determination regarding Plaintiff’s subjective
symptoms. In considering a claimant’s statements about her subjective symptoms, an ALJ is not
required to give full credit to every statement made by the claimant or to find a disability each time
a claimant states she is unable to work, but he “must ‘consider the entire case record and give
specific reasons for the weight given to the individual’s statements.’” Shideler v. Astrue , 688 F.3d
306, 311 (7th Cir. 2012) (quoting Simila v. Astrue , 573 F.3d 503, 517 (7th Cir.2009)).
Plaintiff correctly identifies errors in the ALJ’s determination of Plaintiff’s subjective
symptoms. First, the ALJ found that Plaintiff’s ability to “prepare her own meals, occasionally
perform housework, go shopping in stores, pay bills, and count change . . . suggests that the claimant
is not limited to the extent alleged.” AR 17 (citing Ex. 8E 2-4). The ALJ does not identify what
allegations are negated by these abilities. Further, these minimal daily activities are not sufficient
to show that Plaintiff can engage in full-time competitive work. See Bjornson v. Astrue, 671 F.3d
640, 647 (7th Cir. 2012). Additionally, the ALJ improperly discredited Plaintiff for being
non-compliant with treatment for her gambling addiction without inquiring into the reasons for
noncompliance. See SSR 16-3p, 2017 WL 5180304 *9 (Oct. 25, 2017).
Plaintiff requests that the Court reverse the Commissioner’s decision and remand for an
award of benefits. However, an award of benefits is not proper when there remain outstanding

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factual issues, Briscoe, 425 F.3d at 356, and the record does not yet support a finding that Plaintiff
is disabled. Allord v. Asture, 631 F.3d 411, 417 (7th Cir. 2011). Therefore, remand for further
proceedings, and not for an award of benefits, is proper.
IV.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the Opening Memorandum [DE 19],

REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter
for further proceedings consistent with this opinion. The Court DENIES Plaintiff’s request to award
benefits.
SO ORDERED this 7th day of February, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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