Melnick v. Commissioner of Social Security

Filing 29

OPINION AND ORDER: The court VACATES the Commissioner's decision and REMANDS this case for further proceeding consistent with this opinion. Signed by Judge Robert L Miller, Jr on 10/10/2017. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAREN L MELNICK,
PLAINTIFF
VS.

NANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT

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CAUSE NO. 3:16-CV-532 RLM-MGG

OPINION AND ORDER
Karen Melnick seeks judicial review of a final decision by the
Commissioner of Social Security denying her application for disability insurance
benefits under the Social Security Act, 42 U.S.C. § 423. The court has
jurisdiction over this action pursuant to 42 U.S.C. § 405(g). For the following
reasons, the court vacates the Commissioner's decision and remands this case
for further proceedings consistent with this opinion.

I. BACKGROUND
Ms. Melnick’s application for Disability Insurance Benefits was denied
initially, on reconsideration, and after an administrative hearing at which she
and a vocational expert testified. Based on the record before him, the ALJ found

Nancy A. Berryhill was automatically substituted as the defendant in this case when
she replaced Carolyn W. Colvin as the Acting Commissioner of Social Security pursuant
to Federal Rule of Civil Procedure 25(d).
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that Ms. Melnick had severe impairments, abdominal pain secondary to a
gastrointestinal disorder and essential hypertension, but concluded that none of
her impairments met or medically equaled any of the impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App’x 1.
The ALJ decided that Ms. Melnick had the residual functional capacity to
perform light work, as defined in 20 C.F.R. §§ 404.1567(b), with limitations;2 but
could perform her past relevant work as a healthcare facility administrator. The
ALJ concluded that Ms. Melnick wasn’t disabled within the meaning of the Social
Security Act and wasn’t entitled to benefits.
When the Appeals Council denied Ms. Melnick’s request for review, the
ALJ’s decision became the final decision of the Commissioner. Sims v. Apfel, 530
U.S. 103, 107 (2000); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). This
appeal followed.

II. STANDARD OF REVIEW
The issue before the court isn’t whether Ms. Melnick is disabled, but
whether substantial evidence supports the ALJ’s decision that she wasn’t
disabled. Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Nelms v. Astrue,

The ALJ concluded that Ms. Melnick couldn’t climb ladders, ropes, or scaffolds; kneel;
or crouch. He determined she could frequently crawl but was limited to only occasionally
climbing ramps or stairs; stooping, balancing or reaching overhead or in any other
direction with her left hand; and handling, fingering, or feeling bilaterally.

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553 F.3d 1093, 1097 (7th Cir. 2009). Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Jones v. Astrue,
623 F.3d 1155, 1160 (7th Cir. 2010). In reviewing the ALJ’s decision, the court
can’t reweigh the evidence, make independent findings of fact, decide credibility,
or substitute its own judgment for that of the Commissioner, Simila v. Astrue,
573 F.3d 503, 513 (7th Cir. 2009); Powers v. Apfel, 207 F.3d 431, 434–435 (7th
Cir. 2000), but instead must conduct “a critical review of the evidence,
considering both the evidence that supports, as well as the evidence that detracts
from, the Commissioner’s decision.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th
Cir. 2005). While the ALJ isn’t required “to address every piece of evidence or
testimony presented, he must provide a ‘logical bridge’ between the evidence and
the conclusions so that [the court] 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). ALJs must “sufficiently articulate their
assessment of the evidence to assure [the court] that they considered the
important evidence and to enable [the court] to trace the path of their reasoning.”
Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002) (internal quotations
omitted).

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III. DISCUSSION
Ms. Melnick argues that the ALJ made several errors requiring remand:
(1) the ALJ didn’t properly weigh the opinions of Dr. Vidya Kora, nurse
practitioner Brittany Hausman, or psychologist Sharon Sacks, Ph.D.; (2) the ALJ
didn’t properly evaluate Ms. Melnick’s depression, anxiety disorder, bacterial
infection, or chronic fatigue syndrome; and (3) the ALJ’s finding that Ms. Melnick
could perform her past relevant work was founded on legal error and wasn’t
supported by substantial evidence. Ms. Melnick asks the court to either reverse
the Commissioner's decision and award benefits or remand the case for further
proceedings.

A. The ALJ’s Weighing of the Medical Opinions
Ms. Melnick first argues that the ALJ didn’t properly weigh the opinions of
Dr. Kora, nurse practitioner Hausman, or Dr. Sacks.

1. Dr. Vidya Kora
The ALJ recognized that Dr. Kora, an internist, was Ms. Melnick’s treating
physician but gave his opinion little weight. A treating physician's opinion is to
get “controlling weight” if it is both “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant's] case record.” 20 C.F.R. §
404.1527(c)(2). “Even if an ALJ gives good reasons for not giving controlling
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weight to a treating physician's opinion, [he] has to decide what weight to give
that opinion” and provide “good reasons” for the weight ultimately afforded to it.
Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010); see also Eakin v. Astrue,
432 Fed. Appx. 607, 612 (7th Cir. 2011). The applicable regulations “guide that
decision by identifying several factors that an ALJ must consider: ‘the length,
nature, and extent of the treatment relationship; frequency of examination; the
physician's specialty; the types of tests performed; and the consistency and
support for the physician's opinion.’” Campbell v. Astrue, 627 F.3d at 308
(quoting Larson v. Astrue, 615 F.3d 744, 751 (7th Cir.2010)).
The ALJ, who wrote a very thorough opinion in many respects, discussed
several of the regulatory factors, including Dr. Kora’s specialty and the types of
tests performed, but his opinion doesn’t demonstrate that he considered length
and frequency of the treating relationship. See Campbell v. Astrue, 627 F.3d 299,
308 (7th Cir. 2010) (holding that the ALJ must “explicitly address the checklist
of factors as applied to the medical opinion evidence”). But see Henke v. Astrue,
498 F. App'x 636, 640 n.3 (7th Cir. 2012) (noting that the ALJ’s discussion of
two of the relevant factors was sufficient even though the ALJ didn’t “explicitly
weigh every factor while discussing her decision to reject [a medical opinion]”).
The larger problem with the ALJ’s treatment of Dr. Kora’s opinion is that
the ALJ concluded it lacked support in the record, and so discounted it, without
acknowledging relevant evidence supporting it. Dr. Kora opined in a medical
source statement that Ms. Melnick couldn’t stand or walk for more than an hour
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during a work day. The ALJ, on the other hand, found that she could perform
light work, which “requires a good deal of walking or standing.” 20 C.F.R. §
404.1567(b). The ALJ discredited Dr. Kora’s opinion, opining that his
“restrictions on standing/walking . . . are not supported by the evidence that
generally shows a stable gait, normal sensation, intact reflexes and no consistent
use of an ambulatory device or boot.” While acknowledging that Ms. Melnick
complained of falling, the ALJ highlighted evidence suggesting that “her strength
and gait have generally been intact.”
The record contains some medical records indicating normal gait and
intact ambulation, but also includes multiple reports of abnormal gait, dizziness,
and falls. During at least five separate treatment visits over a two-year period,
Dr. Kora assessed that Ms. Melnick’s gait was ataxic, abnormal, or disturbed.
On four occasions, his review of her neurological systems indicated dizziness.
Dr. Kora also diagnosed a rib contusion resulting from a fall.
Consultative examiner Ralph Inabnit, D.O. and nurse practitioner Jennifer
Jimenez corroborated Dr. Kora’s findings. Dr. Inabnit concluded that Ms.
Melnick had ataxic gait and incoordination causing falls, while nurse practitioner
Jimenez found that Ms. Melnick exhibited “lightheadedness with collapse,”
dizziness, and vertigo.
“An ALJ may not selectively consider medical reports, especially those of
treating physicians, but must consider all relevant evidence.” Myles v. Astrue,
582 F.3d 672, 678 (7th Cir. 2009). The court’s review of the record indicates that
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the ALJ impermissibly “identified pieces of evidence in the record that supported
[his] conclusion . . . [and] ignored related evidence that undermined [his]
conclusion” that Dr. Kora’s standing and walking restrictions were excessive.
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014). See also Myles v. Astrue,
582 F.3d 672, 678 (7th Cir. 2009); Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.
2009).

2. Nurse Practitioner Hausmann
Ms. Melnick similarly contends that the ALJ didn’t properly weigh the
opinion of nurse practitioner Hausman. Under the regulations in effect at the
time of the Social Security Administration’s final decision denying Ms. Melnick
benefits, Ms. Hausmann was neither a treating source nor an “acceptable
medical source.” See 20 C.F.R. § 404.1502 (“[t]reating source means your own
physician, psychologist, or other acceptable medical source”); 20 C.F.R. §
404.1513(d) (nurse practitioner isn’t an “acceptable medical source”). The Social
Security Administration considered nurse practitioners “medical sources who
are not ‘acceptable medical sources.’” SSR 06-03p (rescinded effective March 27,
2017 but in effect at the time of the ALJ’s decision). “In deciding how much
weight to give to opinions from these ‘other medical sources,’ an ALJ should
apply the same criteria listed in [the regulations],” including the degree to which
it is consistent with the record. Phillips v. Astrue, 413 F. App'x 878, 884 (7th Cir.
2010).
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Ms. Hausmann submitted a medical source statement opining that Ms.
Melnick couldn’t stand or walk for more than an hour during a work day. Like
he did with Dr. Kora, the ALJ discounted Ms. Hausmann’s opinion, stating her
“restrictions on standing/walking . . . are not supported by the evidence that
generally shows a stable gait, normal sensation, intact reflexes and no consistent
use of an ambulatory device or boot.”
As previously discussed, there is a line of evidence in the record that could
support restrictions on standing and walking that the ALJ didn’t address. The
ALJ didn’t properly consider the degree to which Ms. Hausmann’s opinion was
supported by the medical evidence, selectively considered the medical evidence,
and ignored evidence supporting her opinion. See Scrogham v. Colvin, 765 F.3d
685, 698 (7th Cir. 2014); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009);
Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009).

3. Sharon Sacks, Ph.D.
Ms. Melnick contends that the ALJ improperly discounted psychologist
Sharon Sacks’s opinion, specifically the Global Assessment of Functioning score
she assessed. The ALJ thoroughly discussed Dr. Sacks’s report, noting that Dr.
Sacks assessed a GAF score of 60, which suggests moderate symptoms, and
assigned it only some weight, finding that a single GAF score “is not a good
indicator of long-term functioning and tends to be a subjective snapshot in time
of the claimant's functioning level.”
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The ALJ’s decision to assign the GAF score only some weight and his
rationale were permissible because a “single GAF score at a particular point in
time, in particular a score that signals psychological symptoms that are
somewhere between mild and moderate, is not conclusive of a disability . . . and
does not reflect the clinician's opinion of functional capacity.” Perkins v. Colvin,
632 F. App'x 849, 853 (7th Cir. 2015); Voigt v. Colvin, 781 F.3d 871, 875 (7th
Cir. 2015) (recognizing that GAF scores can vary “a great deal” depending on how
a “patient happens to feel the day he's examined”). The ALJ’s opinion shows that
he properly considered Dr. Sacks’s opinion, offered good reasons for the weight
he assigned the GAF score, and didn’t err when he assigned it only some weight.
Based on the foregoing, the record shows the ALJ didn’t err in considering
Dr. Sacks’s opinion, but remand is required so that the ALJ can properly weigh
the opinions of Dr. Kora and Ms. Hausmann based on the record as a whole.

B. The ALJ’s Severe Impairments Determination
Ms. Melnick next asserts that the ALJ erred because he found that her
depression wasn’t severe, allegedly didn’t discuss her anxiety disorder or
consider whether her bacterial infection and its severe consequences resulted in
residual functional limitations, and ignored evidence of chronic fatigue
syndrome.
“[T]he ALJ is required to determine at step two of the sequential analysis
whether the claimant in fact has an impairment or combination of impairments
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that is ‘severe.’” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (citing 20
C.F.R. § 404.1520(a)(4)(ii). Ms. Melnick carries the burden of proof that an
alleged impairment is severe. Id.
The ALJ’s discussion of Ms. Melnick’s mental impairments spans three
pages of his decision. The ALJ thoroughly reviewed her depression, anxiety, and
concentration and memory problems. He noted that her depression began in
2006 and he recognized that she continued working despite her depression. He
also highlighted that she was diagnosed with anxiety disorder, caused in part by
depression. He discussed Dr. Sacks’s consultative examination and a behavioral
assessment, which found depression and an anxiety disorder. He also noted that
after a change in medication late in 2013, “she complained of no anxiety, no
depression, no sleep complaints, no fatigue, no recent weight loss, no memory
lapses” and more recent evidence showed “some waxing and waning of
depressive symptoms.” The ALJ recognized that Ms. Melnick reported memory
and concentration problems, but pointed to medical evidence indicating her
memory and concentration were intact.
Ms. Melnick points to some evidence in the record that the ALJ didn’t cite,
but an “ALJ is not required to address every piece of evidence or testimony
presented.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). The ALJ’s
discussion of the severity of her mental impairments was sufficient to provide
the court “a ‘logical bridge’ between the evidence and the conclusions” allowing
the court to “assess the validity of the agency's ultimate findings and afford the
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claimant meaningful judicial review.” Id.
Ms. Melnick next asserts that the ALJ erred by not considering whether a
severe bacterial infection that resulted in a coma prior to her alleged onset date
required any residual functional limitations. The ALJ’s opinion demonstrates
that he did consider the extent to which her bacterial infection resulted in
limitations. He recognizing that the infection resulted in a coma over a year
before her amended disability onset date and that “she has not had a recurrence
of the bacterial infection nor has she experienced any residual effects noted as
stemming from her history of a bacterial infection.” Based on his review of the
record, he concluded that during the relevant period her bacterial infection was
a non-severe impairment.
Ms. Melnick doesn’t cite any evidence in the record that would support
any additional limitations or develop her argument beyond her conclusory
statement that the ALJ erred, so the court finds no error in the ALJ’s treatment
of this impairment. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016).
Ms. Melnick also contends that the ALJ ignored evidence of chronic fatigue
syndrome and didn’t consider its impact on her ability to engage in full-time
work. The court agrees. Dr. Kora assessed that Ms. Melnick suffered from
chronic fatigue syndrome but the ALJ’s opinion never refers to chronic fatigue
syndrome, citing instead Ms. Melnick’s “complaints of fatigue.” The ALJ
concluded that fatigue didn’t “cause more than minimal limitations in [her]
ability to perform basic mental work activities and [was] therefore nonsevere”
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and, in support, highlighted one medical report from 2014 in which Ms. Melnick
reported that she felt better, had no fatigue, and was sleeping well with
medications.
The ALJ didn’t acknowledge that Dr. Kora—Ms. Melnick’s treating
physician—described chronic fatigue syndrome as an “active problem” in ten of
his reports between 2012 and 2014. This was an error. See Myles v. Astrue, 582
F.3d 672, 678 (7th Cir. 2009) (“[a]n ALJ may not selectively consider medical
reports, especially those of treating physicians, but must consider all relevant
evidence”).
While the ALJ’s decision demonstrates he properly found that Ms.
Melnick’s mental impairments and her bacterial infection were non-severe, the
court can’t conclude that he properly considered the medical evidence related to
chronic fatigue syndrome and, on remand, the ALJ should determine the severity
of her chronic fatigue syndrome and whether it limits her ability to work fulltime.

C. Past Relevant Work
Ms. Melnick contends that the ALJ erred at step four of the sequential
analysis when he determined that she could perform her past work as a
healthcare facility administrator. She asserts that the ALJ didn’t clearly and
explicitly compare the demands of her past work with her residual functional
capacity as required by Social Security Ruling 82-62. See SSR 82-62, 1982 WL
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31386 (1982) (the ALJ must carefully consider “the limiting effects of the person's
impairment(s) and the physical and mental demands of his or her [past relevant
work] to determine whether the individual can still do that work”).
At first glance, the court of appeals decision in Nolen v. Sullivan appears
to support Ms. Melnick’s argument, seeming to require that an ALJ discuss each
of the previous job’s physical and mental requirements and note whether the
claimant’s limitations prohibit her from completing the task. See Nolen v.
Sullivan, 939 F.2d 516, 518 (7th Cir. 1991) (stating that “the ALJ must list the
specific physical requirements of the previous job and assess, in light of the
available evidence, the claimant's ability to perform these tasks”). “But th[e] court
[of appeals] has construed Nolen more narrowly, holding that an ALJ cannot
describe a previous job in a generic way, e.g., “sedentary,” and on that basis
conclude that the claimant is fit to perform all sedentary jobs without inquiring
into any differences in what the job requires while sitting,” and not requiring a
detailed analysis comparing the past job’s requirements to the claimant’s
limitations. Cohen v. Astrue, 258 F. App'x 20, 28 (7th Cir. 2007).
The ALJ didn’t run afoul of the court of appeals’ requirements. At the
hearing, the vocational expert provided a detailed description of the position of
healthcare facility administrator, Ms. Melnick’s past work, including the types of
skills required. The vocational expert testified that a hypothetical individual with
the limitations included in the ALJ’s residual functional capacity finding would
be able to perform the work of a healthcare facility administrator as it is generally
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performed in the national economy. Rather than concluding that she could
perform her past work because it was defined as light, the ALJ “compar[ed] the
claimant’s residual functional capacity with the physical demands of this work,
and [took] into consideration the [vocational expert’s] testimony” regarding the
requirements of the healthcare facility administrator position and concluded that
Ms. Melnick could perform her past work as a healthcare facility administrator.
The court of appeals doesn’t require more. See Cohen v. Astrue, 258 F. App'x 20,
28 (7th Cir. 2007).3

IV. CONCLUSION
The court VACATES the Commissioner’s decision and REMANDS this case
for further proceeding consistent with this opinion.
SO ORDERED.
ENTERED:

October 10, 2017
/s/ Robert L. Miller, Jr.
Judge, United States District Court

Ms. Melnick noted that if she were limited to sedentary work, she would have been
presumptively disabled according to the grids. But she didn’t develop this argument,
stating only: “Ms. Melnick’s testimony in conjunction with the record as a whole is far
more consistent with a sedentary RFC than the light RFC found by the ALJ.” This
undeveloped argument is deemed waived. See Crespo v. Colvin, 824 F.3d 667, 674 (7th
Cir. 2016) (“perfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived”) (quoting United States v. Berkowitz,
927 F.2d 1376, 1384 (7th Cir. 1991)).
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