Duncan v. Comissioner of Social Security

Filing 20

OPINION AND ORDER: The final decision of the Commissioner of Social Security is REVERSED and this case is REMANDED to the ALJ for further consideration consistent with this Opinion and Order. Signed by Judge Philip P Simon on 8/2/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN L. DUNCAN,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Administration,
Defendant.

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) CAUSE NO. 3:17-cv-485-PPS-MGG
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OPINION AND ORDER
Kevin L. Duncan appeals the denial of his application for Social Security
supplemental income. An administrative law judge found that Duncan was not
disabled within the meaning of the Social Security Act. Duncan raises three arguments
which he contends requires a reversal of the ALJ’s decision. Because I agree with
Duncan that the ALJ’s written decision rejected the opinion of Duncan’s case manager
out of hand without explanation, I must reverse the ALJ’s decision and order a remand
so that his application may be further considered.
Background
Duncan filed his application for benefits on February 19, 2014 when he was 45
years old.1 [A.R. 12.] Duncan alleged disability based upon his diagnosed

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The Administrative Record (A.R.) in this case is found at Docket Entry #5.
Citations in this opinion will be to the page number in the lower right hand corner of
the A.R.

schizoaffective disorder; major depressive disorder; emphysema; brain atrophy; and
epilepsy. [A.R. 19.] His application was denied. Duncan then requested a hearing before
an ALJ which was held on February 23, 2016. [A.R. 33-60.]
In the written decision denying Duncan’s application, the ALJ followed the
familiar five-step process used to evaluate claims for disability. At step one, the ALJ
determined that Duncan had not engaged in substantial gainful activity since February
19, 2014. [A.R. 14.] At step two, the ALJ found the following severe impairments:
“epilepsy with brain atrophy; schizoaffective disorder; major depressive disorder; and
alcohol dependence, in remission[.]” [Id.] At step three, however, the ALJ determined
that these impairments, whether separate or taken together, did not satisfy any of the
applicable Society Security listings. [A.R. 16-18.]
At step four, the ALJ assessed a residual functional capacity (“RFC”) and found
that Duncan could not perform any of his past relevant work. [A.R. 18, 22-23.] The RFC
determination was that Duncan could perform light work, subject to several additional
limitations. [A.R. 18.] At step five, the ALJ determined that considering Duncan’s age,
education, work experience, and RFC, sufficient jobs existed in the national economy
that he could perform and consequently, he was not disabled. [A.R. 23.] The ALJ thus
denied Duncan’s application for benefits and the Appeals Council affirmed. [A.R. 12.]
Discussion
My review of the ALJ’s decision, including his factual findings, is generally
deferential and it will be upheld unless it is not supported by substantial evidence. 42

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U.S.C. § 405(g); Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). My review is guided by
the fact that “[a]n ALJ need not address every piece of evidence but must build a
‘logical bridge’ between the evidence and his findings and adequately discuss the issues
so that [I] can evaluate the validity of the agency’s findings.” Jones v. Astrue, 623 F.3d
1155, 1160 (7th Cir.2010).
Duncan raises three distinct challenges to the ALJ’s opinion. First, he challenges
the ALJ’s RFC determination and the attendant hypothetical posed to the vocational
expert as insufficient in that it did not take into account the moderate limitations in
concentration, persistence, or pace that the ALJ found Duncan had. Second, Duncan
asserts that the ALJ’s RFC determination was also deficient for failing to account for any
meaningful limitation stemming from Duncan’s epilepsy. Third, Duncan claims that the
ALJ rejected the opinion of his counselor Ms. Christeen Shepard out-of-hand and
without conducting a sufficient analysis as to whether her opinion was supported by
sufficient record evidence. It is on this last argument that I will spend most of my time.
The parties agree that Ms. Shepard’s opinion should be categorized as an “other
medical source” as opposed to an “acceptable medical source” such as a treating
physician. [DE 15 at 22; DE 19 at 8-9]. Under the governing regulations, the opinions of
such other medical sources cannot “establish the existence of a medically determinable
impairment.” SSR 06-03P. Instead, they are to be considered “when evaluating ‘key
issues such as impairment severity and functional effects.’” Phillips v. Astrue, 413 F.
App’x 878, 884 (7th Cir. 2010) (citation omitted). “In deciding how much weight to give
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to opinions from other medical sources, an ALJ should apply the same criteria listed in
§ 404.1527(d)(2)” i.e., the same framework used to evaluate acceptable medical source
opinions on issues of disability and impairment. Id.
“Specifically, the ALJ should consider how long the source has known the
claimant and how often they have seen the claimant; how consistent the opinion is with
other evidence; the degree to which the source presents evidence to support an opinion;
how well the source explains the opinion; and, whether the source has a specialty
related to the claimant's impairments.” Newton v. Colvin, No. 3:12-CV-776 JD, 2014 WL
772659, at *8 (N.D. Ind. Feb. 25, 2014); SSR 06-03P (stating that “opinions from sources
such as teachers, counselors, and social workers who are not medical sources” should
be evaluated under the same criteria even if their opinions cannot in and of themselves
establish an impairment).
The Seventh Circuit has ruled that an ALJ commits reversible error when he or
she rejects an “other medical source” opinion for being contradicted by the objective
medical record but fails to identify what specific evidence contradicts the opinion.
Phillips, 413 F. App’x at 884 (the other medical source’s “findings, said the ALJ, are
inconsistent with the rest of the medical evidence and are unexplained and
unsupported by documentation or treatment notes. But the ALJ never identified what
evidence contradicts Elsamahi’s findings[.]”). This is precisely our case, and therefore
Phillips compels the result here.
In rejecting Ms. Shepard’s opinion, here’s what the ALJ had to say:
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The opinion of Cristeen Shepard is not given particular weight
because she is a case manager and is not an ‘acceptable medical
source’ as defined in 20 CFR 404.1513(a)(1) and 416.913(a)(1).
Rather she is within the definition of ‘other’ medical source
under this regulation, and her opinion is not entitled to the
weight given to physicians, psychologists, or other acceptable
medical sources. Furthermore, her opinion is not supported by
the claimant’s other treatment records.
[A.R. 22.] Thus, the ALJ rejected Ms. Shepard’s opinion without any substantive
analysis as to why it was being rejected. Instead, the ALJ’s rejection of Ms. Shepard’s
opinion was based on nothing more than the fact that she was not an “acceptable
medical source.” That merely states the obvious. She’s not an “acceptable medical
source.” But that is beside the point. What is left is the entirely conclusory statement
that Ms. Shepard’s “opinion is not supported by the claimant’s other treatment
records.” [A.R. at 22.] It is impossible for me to give any meaningful review to this
cursory analysis. While it is true that the ALJ is not required to discuss every piece of
evidence, it is likewise true that he “must build a logical bridge from evidence to
conclusion.” Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Such a “logical bridge” is
entirely missing here where the ALJ does not engage in any analysis — much less the
multi-factor analysis which must be utilized when weighing the opinions of medical
sources. Newton, 2014 WL 772659, at *8.
While this error may in the end be inconsequential as there could be a sufficient
basis to reject Ms. Shepard’s opinion, as it stands now, the ALJ’s brevity has prevented
me from “conducting a meaningful review of the decision.” Newton, 2014 WL 772659, at

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*9; Frame v. Astrue, No. 1:11–cv–1062–WTL–MJD, 2012 WL 3637583, at *9 (S.D. Ind.
Aug.21, 2012) (“[G]iven the importance and relevance of the information reflected in
records authored by other medical sources, the ALJ must articulate a reasonable basis
for rejecting other medical source opinions, which basis is grounded in substantive
evidence in the record.”). “[W]hile the ALJ was free to give [Shepard’s] opinions less
weight because she was not an “acceptable medical source,” the ALJ was still required
to evaluate [Shepard’s] opinions. . . . Upon remand, the ALJ should articulate the
weight given to [Shepard’s] opinions, considering the factors set out in 20 C.F.R. §
404.1527(c).” Wyatt v. Astrue, No. 1:11-CV-00874-MJD, 2012 WL 2358149, at *6-7 (S.D.
Ind. June 20, 2012).
Finally, although not necessary, it is worth making a passing assessment of
Duncan’s remaining arguments. Concerning the RFC determination, it does not appear
that the ALJ did in fact incorporate all of his findings into the RFC. In particular, at one
point in his opinion the ALJ found that Duncan’s “mental impairments are indeed
severe and cause limitations in the claimant’s ability to fully function.” [A.R. 22.] And
earlier in the written decision, the ALJ found Duncan had moderate difficulties in
concentration, persistence or pace and appeared to credit Duncan’s testimony that he
“can pay attention for [only] five minutes and that he is unable to complete tasks that he
begins.” [A.R. 17.] But there were no such limitations reflected in the RFC determination
(or the hypothetical) which specifically dealt with Duncan’s ability to maintain
concentration throughout the workday. [A.R. 18 (accounting for mental impairments in
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RFC by limiting work to “be such that it can be learned in 30 days or less or by short
demonstration” but not otherwise limited based on concentration).]
Likewise, I agree with Duncan that simply because his epileptic seizures have
occurred with less frequency following the implantation of a vagal nerve stimulator,
Duncan does continue to experience seizures and such a limitation should be included
within the RFC which reflects their reduced, but persistent, frequency. O’Connor-Spinner
v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (“Our cases generally have required the ALJ
to orient the VE to the totality of a claimant's limitations.”). But the ALJ determined that
because Duncan had received treatment (the aforementioned vagal nerve stimulator)
which “has been generally successful in controlling those symptoms,” Duncan’s
epileptic seizures and their limitations where not included in the RFC. [A.R. 20.] On
remand, the ALJ should ensure that the RFC and attendant hypothetical addresses
Duncan’s moderate difficulties in concentration, persistence or pace, as well as
Duncan’s epilepsy or provide a sufficient basis as to why they are being excluded.
Conclusion
The final decision of the Commissioner of Social Security denying plaintiff Kevin
L. Duncan’s application for Social Security Supplemental Income is REVERSED. The
case is REMANDED to the ALJ for further consideration consistent with this opinion.
SO ORDERED on August 2, 2018.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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