Smith v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: The Court VACATES the Commissioner's decision and REMANDS this case for further proceedings consistent with this opinion. Signed by Judge Robert L Miller, Jr on 2/15/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
EVELYN MARIE SMITH,
PLAINTIFF
VS.

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

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CAUSE NO. 3:17-CV-22 RLM-MGG

OPINION and ORDER
Evelyn Marie Smith seeks judicial review of a final decision denying her
application for disability insurance benefits and supplemental security income
under Title II of the Social Security Act, 42 U.S.C. §§ 423 and 1383 et seq. 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. Smith’s application for disability insurance benefits and supplemental
security income was denied initially, on reconsideration, and after an
administrative hearing at which she and a vocational expert testified. Based on
the record before her, the ALJ found that Ms. Smith had severe impairments—

Error! Main Document Only.Carolyn W. Colvin, the Acting Commissioner of Social
Security, has been substituted as the named defendant, pursuant to Fed. R. Civ. P.
25(d)(1).

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affective disorder, cannabis abuse disorder, and multilevel degenerative disc
disease—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 Ms. Smith had the residual functional capacity to perform
light work, as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with limitations;2
that she couldn’t perform her past relevant work, but could perform other jobs
available in significant numbers. The ALJ concluded that she wasn’t disabled
within the meaning of the Social Security Act and wasn’t entitled to benefits.
When the Appeals Council denied Ms. Smith’s request for review, the ALJ’s
decision became the Commissioner’s final decision. 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 for the court isn’t whether Ms. Smith is disabled, but whether
substantial evidence supports the ALJ’s decision that she wasn’t disabled. Scott

The ALJ concluded that Ms. Smith couldn’t “kneel or crawl, balance on wet or uneven
surfaces, or climb ladders, ropes, or scaffolds; kneel,” but she could occasionally stoop,
crouch, and climb ramps and stairs. [Doc. No. 10 at 29]. She found Ms. Smith could
tolerate occasional exposure to workplace hazards, including unprotected heights and
dangerous moving machinery, and “occasional exposure to extreme temperatures,
wetness, humidity, and pulmonary irritants such as fumes, odors, dusts, gases, and
areas of poor ventilation.” Id. She also limited Ms. Smith to “occasional interaction with
supervisors and co-workers,” no contact with the public, “simple routine tasks, without
production paces or quotas,” work not requiring “tandem task,” and work involving “only
simple work[-]related decisions.” Id.
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v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Nelms v. Astrue, 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. Smith presents three issues for review: (1) whether the ALJ properly
evaluated the medical and psychological opinion evidence; (2) whether the ALJ
erred in finding that Ms. Smith’s impairments didn’t meet or medically equal a
listing; and (3) whether the ALJ’s residual functional capacity finding is
supported by substantial evidence. Ms. Smith asks the court to either reverse
the Commissioner's decision and award benefits or remand the case for further
proceedings.
Ms. Smith first argues that the ALJ improperly discounted the opinion of
her treating psychologist, Dr. Julia Kocal. The ALJ afforded “little deference” to
Dr. Kocal’s opinion because of a limited treatment history, which isn’t disputed;
it wasn’t consistent with the record; and Ms. Smith’s benign treatment history.
The ALJ didn’t provide a logical bridge between her determination that Dr.
Kocal’s opinion was unsupported and the evidence in the record. See Jones v.
Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). For example, the ALJ criticized Dr.
Kocal’s post-traumatic stress disorder diagnosis, claiming it was “based on the
claimant’s subjective allegations, not the record.” [Doc. No. 10 at 35]. While it is
unremarkable that a psychologist would rely on her patient’s reports regarding
her symptoms to diagnose a mental impairment, see Adaire v. Colvin, 778 F.3d
685, 687 (7th Cir. 2015) (a claimant’s subjective complaints are relevant even if
they aren’t supported by objective medical evidence), the record contains
considerable support for Dr. Kocal’s PTSD diagnosis.
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Consulting psychologist Dr. Frank Choate also diagnosed Ms. Smith with
PTSD and nurse practitioner Deborah Walsh, who appears to have treated Ms.
Smith over an eight-year period, noted PTSD as a “psychological condition
affecting [Ms. Smith’s] physical condition.” [Doc. No. 10 at 471, 492]. Dr. Randell
Coulter noted that Ms. Smith was under the care of a physician for PTSD. Id. at
421. And there appears to be abundant evidence in the record to support a PTSD
diagnosis. Compare AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STATISTICAL MANUAL

OF

MENTAL DISORDERS 271 (5th ed. 2013) (defining the diagnostic criteria for PTSD)
with Doc. No. 10 at 380, 468–469, 562 (describing severe trauma suffered by Ms.
Smith and its clinical consequences).
The ALJ also pointed to Ms. Smith’s “benign treatment record” as a basis
for discounting Dr. Kocal’s opinion regarding her impairments and their severity.
An ALJ can draw a negative inference about a claimant’s credibility from an
uneven treatment record in certain instances, but the Commissioner doesn’t cite
any authority suggesting that a lack of treatment provides grounds for
discounting a medical opinion. And the court of appeals has emphasized that
ALJs shouldn’t draw an adverse inference from an uneven treatment record
when the claimant has a mental impairment because “mental illness . . . may
prevent the sufferer from . . . submitting to treatment.” Kangail v. Barnhart, 454
F.3d 627, 630 (7th Cir. 2006). See also Roddy v. Astrue, 705 F.3d 631, 638 (7th
Cir. 2013); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006).
Ms. Smith also contends that the ALJ erred in evaluating the opinions of
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Dr. Verlin Houck and Dr. Frank Choate because she didn’t fully consider the
regulatory factors before assigning weight to their opinions. The regulations
direct an ALJ to “consider all of the following factors in deciding the weight [to]
give to any medical opinion:” (1) the examining relationship; (2) length and
nature of treatment relationship; (3) the degree to which the opinion is
supported; (4) how consistent the opinion is with the record as a whole; (5) the
specialization of the medical professional; and (6) any other factors. 20 C.F.R. §
416.927(c)(1)–(6); 20 C.F.R. § 404.1527(c)(1)–(6).
The ALJ, who wrote a very thorough opinion in many respects, addressed
some, but not all, of the regulatory factors when assigning weight to the opinions
of Drs. Houck and Choate. The ALJ must address the regulatory factors before
assigning weight to medical and psychological opinions, Campbell v. Astrue, 627
F.3d 299, 308 (7th Cir. 2010), and the failure to do so “is itself a deficiency that
warrants remand.” Evans v. Colvin, No. 12-CV-888-JDP, 2014 WL 2615413, at
*5 (W.D. Wis. June 12, 2014). 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]”).3

With respect to Dr. Choate’s opinion, the ALJ assigned “great weight” to the portion of
his opinion finding that Ms. Smith had the psychological and cognitive ability to manage
her own funds, but didn’t address his opinion that her ability to manage simple daily
activities “appear[ed] to be substantially impaired” or his diagnosis of four Axis I clinical
disorders, which he described as “exceedingly rare.” This was an error; an ALJ can’t
“address mere portions of a doctor's report,” rather she must address all relevant

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And the ALJ was simply wrong as to a fact she cited when weighing
positively the opinions of the state agency consultants, Joseph Pressner, Ph.D.
and J. V. Corcoran, M.D. In 2013, Drs. Pressner and Corcoran opined that Ms.
Smith was moderately limited in her activities of daily living, social functioning,
concentration, persistence, and pace. The ALJ found that these opinions were
entitled to great weight because “there was no new and material evidence to
support greater limitations” and relied on them for her conclusion that Ms. Smith
had only moderate limitations in activities of daily living, social functioning,
concentration, persistence, and pace. [Doc. No. 10 at 26].
But there was new and material evidence to support greater limitations
than those found by Drs. Pressner and Corcoran. In 2015, Dr. Kocal completed
a mental impairment questionnaire, opining that Ms. Smith’s was extremely
limited in activities of daily living, social functioning, concentration, persistence,
and pace. While the ALJ afforded Dr. Kocal’s opinion “little deference,” it was
new and material evidence supporting greater limitations than those found by
the state agency consultants and might have “affect[ed] the state agency
reviewers' assessment of [Ms. Smith's] mental functional capacity.” Campbell v.
Astrue, 627 F.3d 299, 309 (7th Cir. 2010).4

evidence. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009).
Ms. Smith also argues that the ALJ improperly weighed the opinions of Dr. Coulter,
Dr. Walter Fritz, and her therapist at Four County Counseling Center, Sandra Ringer.
The ALJ didn’t err in weighing the opinions of Drs. Coulter and Fritz. She properly found
that Dr. Coulter’s opinion wasn’t supported by clinical findings and Dr. Fritz simply
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Ms. Smith makes two other arguments in her petition for review of the
ALJ’s decision. First, she contends that the ALJ erred in finding that Ms. Smith’s
impairments didn’t meet or equal a listing. Ms. Smith “has the burden of showing
that [her] impairments meet a listing, and [she] must show that [her]
impairments satisfy all of the various criteria specified in the listing.” Ribaudo v.
Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). A listing determination should be
upheld if the ALJ mentions the specific listing under consideration and the
analysis isn’t perfunctory. Id.
The ALJ mentioned the four listings she considered: 1.04 (disorders of the
spine), 12.04 (affective disorders), 12.06 (anxiety-related disorders); and 12.09
(substance addiction disorders). Ms. Smith doesn’t argue that the ALJ should
have considered any other listing. The ALJ’s analysis wasn’t perfunctory; the
discussion of whether Ms. Smith met or medically equals a listing spans three
pages of her decision. Accordingly, Ms. Smith hasn’t shown any error in the ALJ’s
listing determination.5

countersigned the medical source statement completed by nurse practitioner Walsh.
The evidence in the record doesn’t demonstrate that Dr. Fritz ever examined or treated
Ms. Smith and Ms. Smith cites no authority suggesting that the ALJ was required to
consider a report countersigned by a physician as if it were that physician’s opinion. On
remand, the ALJ should reconsider her treatment of Ms. Ringer’s opinions and properly
consider all relevant evidence in assigning weight to her opinions. See Creek v. Village
of Westhaven, 144 F.3d 441, 445 (7th Cir. 1998) (quoting Sprague v. Ticonic Nat'l Bank,
307 U.S. 161, 168, (1939)) (a lower court is free to consider issues even if they weren't
included within the mandate of the reviewing court).
Ms. Smith also contends that the ALJ improperly relied on Social Security Rule 966p, which was binding on her at the time of her decision, arguing that the judgment of
a medical or psychological consultant designated by the Commissioner isn’t required on

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Ms. Smith also contends that the ALJ’s residual functional capacity
determination isn’t supported by substantial evidence. Because the ALJ’s
residual functional capacity determination is based on her evaluation of the
medical evidence in the record, the ALJ should reconsider her residual functional
capacity finding after properly weighing the opinion evidence on remand. See
Creek v. Village of Westhaven, 144 F.3d 441, 445 (7th Cir. 1998) (quoting
Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168, (1939)) (a lower court can
consider issues that weren't included within the mandate of the reviewing court).

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

February 15, 2018
/s/ Robert L. Miller, Jr.
Judge, United States District Court

the issue of listing equivalence because a claimant can also satisfy the listing
requirements showing that her symptoms meet the listing requirements. Ms. Smith is
correct that an ALJ can consider a claimant’s allegations that her symptoms meet a
listing, but the ALJ didn’t err is recognizing that she needed to consider the opinion of
a medical or psychological consultant designated by the Commissioner. See 20 C.F.R.
§§ 404.1526(c), 416.926(c).

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