Jakich v. Commissioner of Social Security
OPINION AND ORDER REMANDING the Commissioner's decision. Signed by Magistrate Judge Michael G Gotsch, Sr on 6/3/2021. (bas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LISA R. J. 1 ,
COMMISSIONER OF SOCIAL
CASE NO. 3:19-CV-843-MGG
OPINION AND ORDER
Plaintiff Lisa J. seeks judicial review of the Social Security Commissioner’s
decision denying Ms. J.’s applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. This Court
may enter a ruling in this matter based on parties’ consent pursuant to
28 U.S.C. § 636(b)(1)(B) and 42 U.S.C. § 405(g). For the reasons discussed below, the
Court REMANDS the decision of the Commissioner of the Social Security
OVERVIEW OF THE CASE
Ms. J. applied for DIB and SSI on May 2, 2016. In her applications, she alleged a
disability onset date of October 1, 2015. Ms. J.’s applications were denied initially on
June 16, 2016, and upon reconsideration on September 12, 2016. Following a hearing on
To protect privacy interests, and consistent with the recommendation of the Judicial Conference, the
Court refers to the plaintiff by first name, middle initial, and last initial only.
May 24, 2018, the Administrative Law Judge (“ALJ”) issued a decision on October 26,
2018, which affirmed the Social Security Administration’s denial of benefits. The ALJ
found that Ms. J. suffers from the following severe impairments: left plantar fasciitis
and heel spur, status post left hamstring rupture, hypothyroid, Hashimoto’s thyroiditis,
hypertension, and obesity. The ALJ found that Ms. J. suffers from the non-severe
impairments of generalized anxiety disorder and right thigh pain. The ALJ also found
that none of Ms. J.’s severe impairments, nor any combination of her impairments, met
or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Further, the ALJ found that Ms. J. had the residual functional
capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 416.967(a) with
certain additional limitations. Ms. J. has past relevant work as a library director. The
ALJ concluded, based on the testimony of the vocational expert, that Ms. J. has the
ability to meet the requirements for employment as a library director as generally
performed, but not as she actually performed the job. Based upon these findings, the
ALJ denied Ms. J.’s claims for DIB and SSI.
In order to qualify for DIB or SSI, a claimant must be “disabled” as defined under
the Act. A person is disabled under the Act if “he or she has an inability to engage in
any substantial gainful activity by reason of a medically determinable physical or
mental impairment which can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner’s five-step inquiry in evaluating claims for DIB and SSI under
the Act includes determinations as to: (1) whether the claimant is doing substantial
gainful activity (“SGA”); (2) whether the claimant’s impairments are severe; (3) whether
any of the claimant’s impairments, alone or in combination, meet or equal one of the
Listings in Appendix 1 to Subpart P of Part 404; (4) whether the claimant can perform
her past relevant work based upon her RFC; and (5) whether the claimant is capable of
performing other work. 20 C.F.R. § 416.920. The claimant bears the burden of proof at
every step except the fifth. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
STANDARD OF REVIEW
This Court has authority to review a disability decision by the Commissioner
pursuant to 42 U.S.C. § 405(g). However, this Court’s role in reviewing Social Security
cases is limited. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The Court must uphold
the ALJ’s decision so long as it is supported by substantial evidence. Thomas v. Colvin,
745 F.3d 802, 806 (7th Cir. 2014) (citing Similia v. Astrue, 573 F.3d 503, 513 (7th Cir.
2009)). The deference for the ALJ’s decision is lessened where the ALJ’s findings contain
errors of fact or logic or fail to apply the correct legal standard. Schomas v. Colvin, 732
F.3d 702, 709 (7th Cir. 2013).
Additionally, an ALJ’s decision cannot stand if it lacks evidentiary support or
inadequately discusses the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). An
ALJ’s decision will lack sufficient evidentiary support and require remand if it is clear
that the ALJ “cherry-picked” the record to support a finding of non-disability. Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010); see also Wilson v. Colvin, 48 F. Supp. 3d 1140,
1147 (N.D. Ill. 2014). At a minimum, an ALJ must articulate his analysis of the record to
allow the reviewing court to trace the path of his reasoning and to be assured the ALJ
has considered the important evidence in the record. Scott v. Barnhart, 297 F.3d 589, 595
(7th Cir. 2002). While the ALJ need not specifically address every piece of evidence in
the record to present the requisite “logical bridge” from the evidence to his conclusions,
the ALJ must at least provide a glimpse into the reasoning behind his analysis and the
decision to deny benefits. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010);
see also Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015).
Thus, the question upon judicial review is not whether the claimant is, in fact,
disabled, but whether the ALJ used “the correct legal standards and the decision [was]
supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).
Ms. J. argues that the ALJ erred by failing to provide for her non-severe
impairment of anxiety in the RFC.
The ALJ found that Ms. J.’s anxiety was a non-severe impairment at step two.
[DE 12 at 22]. The ALJ found that Ms. J. has mild limitations in her ability to
understand, remember, or apply information; in interacting with others; and in
concentrating, persisting, or maintaining pace. [Id.]. The ALJ stated that although Ms. J.
showed anxious mood at times, “she otherwise had a normal mood and affect
throughout the record. She had good memory, no evidence of psychosis, and no
personality abnormalities. She was also pleasant and had normal judgment and
insight.” [Id.]. The ALJ further noted that Ms. J. received minimal treatment for her
anxiety, and that she is not on any medication. [Id.]. Therefore, the ALJ found her
anxiety to be non-severe without only mild limitations in any of the “paragraph B”
areas. [Id.] The ALJ did not provide any mental health limitations in the RFC. [Id. at 24].
In making an RFC determination, an ALJ must “consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not
‘severe.’” SSR 96-8p, 1996 WL 374184, at *5; see also 20 C.F.R. § 404.1523 (“[W]e will
consider the combined effect of all your impairments without regard to whether any
such impairment, if considered separately, would be of sufficient severity.”). An ALJ
must fully consider a claimant’s mental impairments when assessing the RFC, even if
those impairments are non-severe. Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). Even
mild limitations in understanding, recalling. or applying information and in
concentrating, persisting or maintaining pace can impact a claimant’s ability to perform
past skilled work, such as Ms. J.’s past work as a library director. Winfield v. Comm’r of
Soc. Sec., Cause No. 2:11-cv-432-PPS, 2013 WL 692408, at *3 (N.D. Ind. Feb. 25, 2013). “A
failure to fully consider the impact of non-severe impairments requires reversal.”
Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010); accord Golembiewski v. Barnhart, 322
F.3d 912, 918 (7th Cir. 2003).
The ALJ fails to discuss Ms. J.’s mild impairments in the paragraph B criteria.
The ALJ stated that:
The mental residual functional capacity assessment used at steps 4 and 5
of the sequential evaluation process requires a more detailed assessment
by itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p). Therefore, the following residual functional
capacity assessment reflects the degree of limitation the undersigned has
found in the “paragraph B” mental function analysis.”
[DE 12 at 23]. However, there is no paragraph B mental function analysis in this
decision. There is no analysis at step 2, and no analysis in the RFC discussion.
Ms. J. showed symptoms of anxiety throughout the medical record. The record
indicates she appeared nervous and anxious. [DE 12 at 360, 362]. Her physicians noted
her anxiety throughout the record. [Id. at 309, 339, 387, 411, 416, 610]. Medical records
note that Ms. J. struggles with concentration, focus, and being out in crowds. [Id. at 310,
313, 317, 346-47, 387-88]. In July 2017, Ms. J.’s physician noted that she still struggled
with memory, anxiety, and dizziness despite improvement in her thyroid impairment.
[Id. at 418]. At the consultative psychological exam, Ms. J. stated she struggled with
anxiety that she understood to be caused by her endocrine problems, and that therefore
she did not take anti-anxiety medication. [Id. at 330]. She reported being isolated with
only one visiting friend, and that she avoided grocery shopping. [Id. at 331]. She also
had difficulty performing the serial 7 memory and concentration test. [Id. at 329].
Moreover, Ms. J.’s daughter reported that Ms. J. interacted with others primarily
over the phone due to her anxiety. [DE 12 at 253]. Her daughter stated that she had to
do all of Ms. J.’s finances due to “problems with comprehension. [DE 12 at 252]. She also
stated that Ms. J. struggled with concentration, that she did not handles stress well, and
that “she has become very anxious at times and unable to interact with others like she
used to.” [Id. at 255].
The ALJ’s only discussion of Ms. J.’s mental impairments exists at step 2, where
the ALJ lists the findings from the consultative examination and then lists areas of the
record where Ms. J. had “good memory,” “normal mood and affect,” and was “alert
and oriented.” [DE 12 at 22]. However, the ALJ provided no discussion of the areas in
the record where her anxiety and problems with concentration were mentioned.
Considering the evidence of Ms. J.’s anxiety, the ALJ erred by failing to fully consider
and analyze whether Ms. J.’s mild limitations in the paragraph B criteria would require
limitations in the RFC.
The ALJ also states that Ms. J. received minimal treatment and did not take
medication. As an initial matter, the ALJ failed to consider why Ms. J. did not take
medication. Ms. J. told the consultative examiner that she “has been given to
understand that her anxiety problems are driven by her endocrine problems,” and that
she prefers not to take any medication for her anxiety. [DE 12 at 330]. A failure to
pursue treatment that a claimant believes is ineffective does not indicate that the
claimant is not experiencing symptoms. Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir.
2006). Ms. J. pursued treatment for her endocrine impairments, which she believed were
the cause of her anxiety. The ALJ also pointed to minimal treatment in dismissing her
anxiety. However, the rulings require the ALJ to question a claimant about her
treatment decisions before finding she is not as limited as alleged due to a failure to
pursue treatment. See, e.g., Beardsley v. Colvin, 758 F.3d 832, 840 (7th Cir. 2014); Craft v.
Astrue, 539 F.3d 668, 679 (7th Cir. 2008); SSR 16-3p. Here, the ALJ failed to properly
question Ms. J. about her lack of mental health treatment for her anxiety.
This error is compounded by the fact that Ms. J.’s past work as a library director
is skilled work, and it is possible that any changes to the RFC and subsequent
hypothetical may alter whether Ms. J. could perform her past work. [DE 12 at 64]. The
ALJ must provide a full discussion of Ms. J.’s anxiety and the paragraph B limitations.
On this record, the Court cannot be sure that the ALJ fully considered Ms. J.’s
impairments when no discussion of the paragraph B criteria was made either at step 2
or in the RFC narrative.
Ms. J. makes other arguments regarding her RFC and the testimony given by the
VE, but since the Court is remanding based on errors in mental health RFC and
discussing her anxiety, the Court need not consider those arguments at this time. The
ALJ will have the opportunity to fully discuss and reevaluate the rest of Ms. J.’s
allegations on remand. This is not to say that there are no other errors in the ALJ
decision, but the Court need not discuss them when errors are already present in the
ALJ’s analysis and discussion of her mental impairments.
For the reasons stated above, the ALJ erred in analyzing Ms. J.’s anxiety and her
mental RFC. Accordingly, the Commissioner’s decision is REMANDED.
SO ORDERED this 3rd day of June 2021.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
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