Rohr v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: The Court REVERSES the Commissioner's decision and REMANDS this matter to the Commissioner for further proceedings consistent with this opinion. Signed by Judge Jon E DeGuilio on 7/10/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANNA DENIECE ROHR,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 3:17-CV-484 JD

OPINION AND ORDER
Plaintiff Anna Deniece Rohr appeals the denial of her claim for Social Security Disability
Insurance Benefits. For the following reasons, the Court remands this matter to the
Commissioner for further proceedings consistent with this opinion.
BACKGROUND
Ms. Rohr filed her initial application for benefits on August 19, 2014, alleging disability
beginning April 21, 2014. Her application was denied initially, on reconsideration, and following
a video administrative hearing in March 2016 at which she was represented by counsel. At that
hearing, the ALJ heard testimony from Ms. Rohr and vocational expert Marie Kieffer. The ALJ
found that Ms. Rohr had some severe impairments but could still perform certain jobs available
in the national and regional economy, and she was therefore not disabled within the meaning of
the Act. See 20 C.F.R. § 416.920(g). The Appeals Council denied review of the ALJ decision,
making the ALJ’s decision the final determination of the Commissioner.

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STANDARD OF REVIEW
Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as
the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013). The Court will affirm the Commissioner’s denial of disability benefits if it is
supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It must be
“more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about the disability status of
the claimant, the Court will affirm the Commissioner’s decision as long as it is adequately
supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In this substantial-evidence determination, the Court does not reweigh evidence, resolve
conflicts, decide questions of credibility or substitute the Court’s own judgment for that of the
Commissioner. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Court does, however,
critically review the record to ensure that the ALJ’s decision is supported by the evidence and
contains an adequate discussion of the issues. Id. The ALJ must evaluate both the evidence
favoring the claimant as well as the evidence favoring the claim’s rejection; she may not ignore
an entire line of evidence that is contrary to her findings. Zurawski v. Halter, 245 F.3d 881, 887
(7th Cir. 2001). The ALJ must also “articulate at some minimal level [her] analysis of the
evidence” to permit informed review. Id. Ultimately, while the ALJ is not required to address
every piece of evidence or testimony presented, she must provide a “logical bridge” between the
evidence and her conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).

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DISCUSSION
Disability benefits are available only to individuals who are disabled under the terms of
the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). A claimant is disabled
if he or she is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The Social Security regulations contain a five-step test to ascertain
whether the claimant has established a disability. 20 C.F.R. § 404.1520(a)(4). These steps
require the Court to sequentially determine:
1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant’s impairment meets or equals one listed in the regulations;
4. Whether the claimant can still perform relevant past work; and
5. Whether the claimant can perform other work in the community.
20 C.F.R. § 404.1520(a)(4); Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At step
three, if the ALJ determines that the claimant’s impairment or combination of impairments meets
or equals an impairment listed in the regulations, the Commissioner acknowledges disability. 20
C.F.R. § 404.1520(a)(4)(iii). However, if a listing is not met or equaled, the ALJ must assess the
claimant’s residual functional capacity (“RFC”) between steps three and four. The RFC is then
used to determine whether the claimant can perform past work under step four and whether the
claimant can perform other work in society at step five. 20 C.F.R. § 404.1520(e). The claimant
has the burden of proof in steps one through four, while the burden shifts to the Commissioner at

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step five to show that there are a significant number of jobs in the national economy that the
claimant is capable of performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Ms. Rohr presents several arguments for remand. First, she contends that the ALJ failed
to support her RFC with substantial evidence, particularly because the ALJ assigned RFC
limitations based on new medical records without the input of any reviewing physicians. Second,
Ms. Rohr argues that the ALJ improperly omitted mental health accommodations from the RFC.
And third, Ms. Rohr maintains that the ALJ did not properly assess her subjective complaints.
A.

New Medical Records
Ms. Rohr first argues that the RFC’s limitations do not account for a significant amount

of medical records that post-date the last reviewing physicians’ opinions. The agency reviewing
physicians’ reports were rendered in October 2014 and January 2015, and the later of these two
opinions relied on medical records received up until December 15, 2014. (R. 91, 95, 105). The
ALJ gave these opinions “some weight” and concluded that the physical limitations contained in
those reports “are also generally supported by the objective medical evidence ….” (R. 31).
Ms. Rohr underwent lower back surgery in September 2014 (R. 326) and cervical surgery
(spinal surgery of the neck region) in December 2014 (R. 623), and the reviewing physicians
consulted those surgical records. However, the consultants did not review Ms. Rohr’s medical
history that accumulated after those surgeries, in 2015. According to the ALJ, those new medical
records indicated that Ms. Rohr “continued to improve,” and that she had “benign” and “normal”
post-operative observations. (R. 29). In addition, the new records indicated that Ms. Rohr was
diagnosed with bilateral carpal tunnel syndrome and median nerve root entrapment at the wrist in
early 2015. (R. 729). But again, the ALJ determined that the subsequent therapy notes showed
that Ms. Rohr’s strength was improving after a September 2015 hand/wrist operation. (R. 30).

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Following her own review of the updated medical record, the ALJ “added manipulative
limitations based on the most recent evidence regarding the claimant’s residual neck and hand
limitations that [the] consultants did not review.” (R. 31). In particular, the ALJ concluded that
Ms. Rohr could perform light work, except that she can occasionally handle and finger, and
should avoid work activity requiring a forceful turning grip or torque with either upper
extremity. (R. 28). The ALJ further found Ms. Rohr able to occasionally climb ramps and stairs,
that she can never climb ladders, ropes, and scaffolds, and that she can occasionally balance,
stoop, kneel, crouch, and crawl. Id.
In drawing these conclusions, the ALJ critically erred by offering no explanation as to
how the RFC accommodated Ms. Rohr’s updated medical status. See Purvis v. Berryhill, No. 15CV-11580, 2017 WL 1022014, at *13 (N.D. Ill. Mar. 16, 2017) (remanding where “the ALJ
imposed an additional restriction on the Plaintiff but offered no explanation as to how he
decided” on that restriction). No doctor gave an opinion as to how or whether the information
contained in Ms. Rohr’s medical file from 2015 rendered her capable of performing the work
described in the RFC. “The Seventh Circuit has explained that when significant new or
potentially decisive medical evidence … is submitted after the last agency review, this evidence
should be evaluated by a medical expert prior to the ALJ making a determination.” Evans v.
Colvin, No. 16 C 4962, 2017 WL 2720431, at *2 (N.D. Ill. June 21, 2017) (citing Goins v.
Colvin, 764 F.3d 677, 680 (7th Cir. 2014)). Here, nearly 300 pages of medical history
representing over a year’s worth of observations were submitted after the final agency review.
But by substituting her own knowledge for that of the trained physicians and medical staff, the
ALJ improperly “played doctor” and supplanted their medical opinions with her own. See Suide
v. Astrue, 371 F. App’x 684, 690 (7th Cir. 2010) (The ALJ may not “play doctor” by using her

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own lay opinions to fill evidentiary gaps in the record.). For example, the ALJ merely
regurgitated the new medical records in her written decision but did not explain how the
observations therein translate into the RFC she prescribed; she therefore failed to provide the
requisite “logical bridge” connecting her conclusions with the actual evidence of record,
including those clinical findings and observations rendered by medical professionals. Terry, 580
F.3d at 475. This requires remand.
B.

Mental Health Accommodations
Ms. Rohr also asserts that the ALJ erred by excluding mental limitations from her RFC,

and the Court agrees. The ALJ stated that the objective medical evidence supported a finding that
Ms. Rohr has mild limitations in the functional area of concentration, persistence, and pace. (R.
25). Referring to the results of the consultative examination, the ALJ further noted that Ms.
Rohr’s attention deficits and poor concentration stem from stress, chronic pain, anxiety, and
depression. (R. 26).1 Indeed, the consultative examiner diagnosed Ms. Rohr with generalized
anxiety and depressive symptoms. (R. 532). Ms. Rohr testified at the hearing that she suffered
from anxiety (R. 47), and elsewhere in the record, she presented to medical professionals with a
mood disorder due to a known physiological condition with depressive features, anxiety, and
insomnia. (R. 864, 869, 891, 917, 996).

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The ALJ also stated that “most of the claimant’s mental limitations” are attributable “to her pain rather
than to a medically determinable mental impairment.” (R. 26) (emphasis added). The Commissioner
points to this language to support her position that the ALJ properly evaluated Ms. Rohr’s limitations in
concentration, persistence, and pace [DE 19 at 12], but both the ALJ and the Commissioner
mischaracterize the medical record. The consultative examiner did not conclude that Ms. Rohr’s
concentration deficits were due to chronic pain “rather than” to a medically determinable mental
impairment. Instead, the examiner clearly stated that Ms. Rohr’s poor concentration is likely due not only
to pain and stress, but also to anxiety and depression – both of which are medically determinable mental
impairments. (R. 532). Nor did the examiner opine that “most of” Ms. Rohr’s mental impairments were
attributable to her chronic pain, only that they are exacerbated by it. Id.

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Yet despite this evidence and the ALJ’s conclusion that Ms. Rohr has some mental
limitations, the ALJ did not include any accommodations in the RFC that account for these
deficits in concentration, persistence, and pace. (R. 28). Even worse, the ALJ provided no
explanation whatsoever as to this exclusion. This failure provides an independent basis for
remand, despite the ALJ’s finding that Ms. Rohr’s mental impairments are not severe. See Miller
v. Commissioner of Social Security, Cause No. 1:15-cv-00343, 2017 WL 1421271, at **7-8
(N.D. Ind. Apr. 21, 2017) (remanding where ALJ found that the claimant had mild mental
limitations but erred in omitting them from the RFC at step four without sufficient explanation);
Dross-Swart v. Astrue, 872 F. Supp. 2d 780, 795 (N.D. Ind. 2012) (remanding where ALJ found
mild limitations in activities of daily living, social functioning, and concentration, persistence, or
pace, but failed to incorporate them into the RFC analysis); Simon-Leveque v. Colvin, No. 15 C
10049, 2017 WL 168182, at **5-6 (N.D. Ill. Jan. 17, 2017) (collecting cases holding the same).
“If the ALJ believed that the mild limitations in these functional areas did not merit a nonexertional limitation in the RFC, [she] was obligated to explain that conclusion so that [the
Court] can follow the basis of [her] reasoning.” Muzzarelli v. Astrue, No. 10 C 7570, 2011 WL
5873793, at *23 (N.D. Ill. Nov. 18, 2011) (citing Haynes v. Barnhart, 416 F.3d 621, 626 (7th
Cir. 2005)).2
C.

Considerations On Remand – Subjective Complaints
The ALJ determined that Ms. Rohr’s impairments could reasonably be expected to cause

some of her alleged symptoms, but that her statements concerning the intensity, persistence, and

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Ms. Rohr also claims that the ALJ erred in stating that the reviewing physicians opined that she had no
severe mental impairments. Ms. Rohr believes that the reviewers labeled her mental conditions as severe,
but that is not so. At both the initial level and upon reconsideration, the reviewing consultants found that
Ms. Rohr’s anxiety disorders qualified as medically determinable, but that they were nonetheless not
severe. (R. 85-86, 100-101).

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limiting effects of these symptoms were not consistent with the record. (R. 28). On remand, the
Court invites the ALJ to reconsider her assessment of Ms. Rohr’s subjective complaints in light
of the record. For example, the ALJ discounted Ms. Rohr’s claimed inability to work based in
part on the fact that Ms. Rohr received unemployment benefits after her termination and
continued to look for work. (R. 30). However, the ALJ did so without exploring the
circumstances of Ms. Rohr’s situation. The Seventh Circuit has cautioned that “attributing a lack
of credibility to [a claimant’s application for and receipt of unemployment benefits] is a step that
must be taken with significant care and circumspection. All of the surrounding facts must be
carefully considered.” Scrogham v. Colvin, 765 F.3d 685, 699 (7th Cir. 2014) (remanding where
the ALJ did not discuss any circumstantial considerations surrounding claimant’s unemployment
benefits). The ALJ in this case made no effort to explain her consideration of Ms. Rohr’s
unemployment benefits with the “care and circumspection” required by Scrogham; the ALJ
neither questioned Ms. Rohr about her benefits at the hearing, nor explored any potential
connection between Ms. Rohr’s condition and her need for benefits. Courts in this Circuit have
remanded for similar shortcomings. See, e.g., Schickel v. Colvin, No. 14 C 5763, 2015 WL
8481964, at *14 (N.D. Ill. Dec. 10, 2015) (remanding where ALJ singled out claimant’s
application for unemployment benefits without exploring said application at the hearing).
In addition, on remand, the ALJ should not neglect to discuss the side effects of Ms.
Rohr’s medications. At the hearing, Ms. Rohr testified that her medications make her feel
drowsy during the day, such that she needs to rest. (R. 65). Side effects of medication are to be
considered when evaluating the intensity, persistence, and limiting effects of a claimant’s
symptoms, SSR 16-3p, yet the ALJ made no mention of the impact Ms. Rohr’s medications had

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on her ability to work.3 Courts in this Circuit have remanded for such an omission. See, e.g.,
Cosby v. Berryhill, No. 16 C 11504, 2017 WL 4237048, at *4 (N.D. Ill. Sept. 25, 2017)
(remanding where ALJ was required to – but did not – consider the reported side effects of
claimant’s medications).
CONCLUSION
The remedy for the ALJ’s shortcomings is further consideration, not the immediate award
of benefits. And so, for the reasons stated herein, the Court REVERSES the Commissioner’s
decision and REMANDS this matter to the Commissioner for further proceedings consistent
with this opinion.
SO ORDERED.
ENTERED: July 10, 2018
/s/ JON E. DEGUILIO
Judge
United States District Court

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The Commissioner counters by pointing to medical records indicating that Ms. Rohr in fact had no side
effects. [DE 19 at 14 (citing R. 529)] The ALJ, however, included no such comparison in her opinion, and
so the Court will not consider this argument. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)
(noting that SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943), “forbids an agency’s lawyers to defend the
agency’s decision on grounds that the agency itself has not embraced”).

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