Green v. Commissioner of Social Security

Filing 34

OPINION AND ORDER: the Court REMANDS the ALJ's decision. Signed by Judge Joseph S Van Bokkelen on 3/27/2019. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DANEEN R GREEN,
Plaintiff,
v.

Case No. 4:16-cv-90-JVB-JEM

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security Administration,
Defendant.
OPINION AND ORDER
Plaintiff Daneen R. Green seeks judicial review of the Social Security Commissioner’s
decision denying her disability benefits and asks this Court to remand the case. For the reasons
below, this Court remands the ALJ’s decision.

A.

Overview of the Case
This is Plaintiff’s third appearance before an administrative law judge (“ALJ”) to obtain

disability benefits. Her first attempt ended in failure. (R. at 87.) Rather than seek recourse with
this Court, Plaintiff filed another disability application with an alleged onset date of July 9, 2011,
one day after the unfavorable decision. (R. at 170.) A different ALJ denied the new application.
(R. at 24.) This time, Plaintiff sought review in this Court, but the parties agreed to remand the
case. (R. at 816.) The Appeals Council then sent Plaintiff back to the second ALJ for another
hearing. (R. at 826–28). In the meantime, Plaintiff filed yet another application for benefits,
which the ALJ consolidated. (R. at 828.) At Plaintiff’s new hearing—her third—the ALJ found
that she suffered from several severe physical and mental impairments, notably bipolar disorder

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and generalized anxiety disorder. (R. at 675). But the ALJ again concluded she could perform
jobs that existed in significant numbers. (R. at 683.) Therefore, the ALJ denied her benefits. (R.
at 684.) That decision became final when the Appeals Council denied Plaintiff’s request for
review. (R. at 1.)
B.

Standard of Review
This Court has authority to review the Commissioner’s decision under 42 U.S.C.

§ 405(g). The Court will ensure that the ALJ built an “accurate and logical bridge” from
evidence to conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). This requires the
ALJ to “confront the [plaintiff’s] evidence” and “explain why it was rejected.” Thomas v. Colvin,
826 F.3d 953, 961 (7th Cir. 2016). The Court will uphold decisions that apply the correct legal
standard and are supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). Evidence is substantial if “a reasonable mind might accept [it] as
adequate to support [the ALJ’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

C.

Disability Standard
The Commissioner follows a five-step inquiry in evaluating claims for disability benefits

under the Social Security Act:
(1) whether the claimant is currently employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling; (4) if the claimant does not have
a conclusively disabling impairment, whether he can perform his past relevant
work; and (5) whether the claimant is capable of performing any work in the
national economy.
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012).
The claimant bears the burden of proof at every step except step five. Clifford v. Apfel,
227 F.3d 863, 868 (7th Cir. 2000).
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D.

Analysis
Plaintiff argues the ALJ (1) failed to properly recognize many of her alleged symptoms;

(2) mis-weighed a medical opinion; and (3) improperly translated her concentration, persistence,
and pace issues into skill limitations. While the ALJ’s decision is not as flawed as Plaintiff
asserts, the ALJ left open an entire line of evidence, thus ruining his accurate and logical bridge.
This Court must therefore remand.1

(1)

The ALJ Must Address Plaintiff’s Seasonal Anxiety
Plaintiff mainly faults the ALJ for cherry-picking evidence. In support, Plaintiff cites

several medical findings the ALJ purportedly ignored. (Pl.’s Br. at 22 n.2.) True, the ALJ must
“confront” Plaintiff’s evidence, Thomas, 826 F.3d at 961, but for the most part he did so. For
instance, Plaintiff cites a case summary in which Rachel Johnson, Plaintiff’s social worker, noted
Plaintiff’s complaints of panic attacks in social settings. (R. at 518.) Yet, the ALJ accepted this
and accordingly limited Plaintiff to only “occasional interaction with coworkers and supervisors
and no interaction with the public.” (R. at 676.) The ALJ also found Plaintiff’s “symptoms are
mostly controlled with medications and therapy.” (R. at 682.) And while the ALJ may not have
individually addressed each of Plaintiff’s cited examples, he need not analyze every single piece
of evidence. Sawyer v. Colvin, 512 Fed. Appx. 603, 608 (7th Cir. 2013).
However, a closer look at the examples reveals a pattern: Plaintiff’s depression and
anxiety seem to worsen during Winter. The ALJ needs to address this, because if Plaintiff is
employable for only part of the year, then she might be disabled. Cf. Bauer v. Astrue, 532 F.3d

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Plaintiff also wants a new ALJ to hear her case on remand. This Court leaves that decision to the Appeals Council.
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606, 609 (7th Cir. 2008) (“Suppose that half the time she is well enough that she could work, and
half the time she is not. Then she could not hold down a full-time job.”); but see Schreiber v.
Colvin, 519 Fed. Appx. 951, 960 (7th Cir. 2013) (affirming despite the plaintiff’s “emotional
anxiety caused by the onset of winter”). Here, although the ALJ noted Plaintiff’s “‘seasonal’
anxiety,” he never really discounted it. (R. at 680.) For instance, Plaintiff told Ms. Johnson back
in 2011 about “depression during the winter months.” (R. at 400.) Plaintiff indicated she could
alleviate this depression by doing some projects at home. Id. Yet, this was not feasible because
of “the chaos in the family.” Id. The ALJ did note Plaintiff “was exploring ways to stay active
over the winter months.” (R. at 679.) But Plaintiff’s efforts seemed to be in vain: in February
2015, she reported that, despite “attempting to stay busy,” she had “more frequent panic attacks
that she felt ‘came out of nowhere.’” (R. at 1056.)
To be sure, the ALJ acknowledged Plaintiff’s “flare-ups.” (R.at 679.) Specifically, he
noted Plaintiff lost her Medicaid temporarily and endured the death of her sister. Id. This, the
ALJ found, explained Plaintiff’s intermittent issues. But Plaintiff complained about Winter
anxiety in September 2011, January 2012, and December 2013. (R. at 400, 403, 1062.) These
predate her lapse in Medicaid some time in 2014. (R. at 1059.) Moreover, Plaintiff’s sister,
whose struggles caused Plaintiff so much stress, passed away almost two years before Plaintiff
complained about out-of-nowhere Winter panic attacks. (R. at 1056, 1090.) Lastly, while the
ALJ pointed to several exams indicating good mental health, many of them took place in either
November or March, when Winter either had not started or had already concluded. (R. at 679–
80.) On remand, the ALJ must confront Plaintiff’s seasonal depression head-on.

(2)

The ALJ Must Re-Weigh Ms. Johnson’s Opinion

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Ms. Johnson completed two questionnaires in which she assigned significant social and
concentration limitations to Plaintiff. (R. at 649, 1138.) In both forms, Ms. Johnson opined
Plaintiff would miss “[m]ore than four days per month” of work. (R. at 651, 1140.) Had the ALJ
adopted the opinions, Plaintiff would be unemployable. (R. at 730.) Additionally, although Ms.
Johnson completed the forms, Dr. Zeinab Tobaa, Plaintiff’s treating psychiatrist, counter-signed
them. (R. at 651, 1140.) The ALJ assigned the opinions “little weight” because he found the
opined limitations too extreme compared to what the rest of the record suggested. (R. at 682.)
Other courts have accepted this logic. See e.g. Henke v. Astrue, 498 Fed. Appx. 636, 637 (7th
Cir. 2012) (“This doctor’s sweeping conclusions lack support in the medical record”).
Plaintiff, however, remains unconvinced. She first complains the ALJ misinterpreted
these opinions as coming solely from Ms. Johnson rather than both her and Dr. Tobaa, arguing
Dr. Tobaa’s counter-signatures promoted the opinions to those of treating physicians. (Pl.’s Br.
at 18.) Normally, courts will ignore counter-signatures when the doctor never examined the
patient, see e.g. Cooper v. Barnhart, 2007 U.S. Dist. LEXIS 74527, *9 (S.D. Ind., Sept. 27,
2007) (“[T]here is no evidence that the doctor saw Ms. Cooper or that Ms. Macke consulted with
the doctor in making her assessment.”), or counter-signed the form out of obligation, see e.g.,
Elliot v. Colvin, 2014 U.S. Dist. LEXIS 33981, *9 (S.D. Ind., Mar. 17, 2014) (“[I]t appears to the
Court that the form simply had to be countersigned by either a physician or a psychologist.”).
Here, the ALJ acknowledged that Ms. Johnson and Dr. Tobaa both completed the forms. (R. at
682.) However, the ALJ “[found] it appropriate to note that these forms appeared to be . . .
merely countersigned by the psychiatrist.” Id. The ALJ gave Dr. Tobaa too little credit. Plaintiff
saw Dr. Tobaa multiple times over several years. (R. at 376–404, 1091–1105.) And Dr. Tobaa
took substantial notes during these visits. In one example, the doctor’s notes detailed Plaintiff’s

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sleep issues, alcohol abuse, and medication reactions. (R. at 539.) More importantly, the opinions
themselves state, “Please have a doctor review this form and counter-sign it, if he/she concurs
with the above” (emphasis added). (R. at 651, 1140.) Thus, unlike in Cooper and Elliot, Dr.
Tobaa examined Plaintiff and signed specifically to concur with Ms. Johnson’s judgment. The
ALJ therefore erred in dismissing Dr. Tobaa as a mere counter-signer.
However, the error can be harmless when the ALJ discounts the opinion for reasons that
would stand even if Dr. Tobaa himself wrote it. Cf. Frain v. Comm’r of Soc. Sec., 2014 U.S.
Dist. LEXIS 166700, *21 (N.D. Ind., Nov. 26, 2014) (“[E]ven if Dr. Newman’s countersignature did elevate this opinion to an acceptable medical source opinion . . . that fact alone
would not outweigh the inconsistencies and lack of support.”). Here, the ALJ explains that Ms.
Johnson’s opinions were inconsistent with the treatment notes she and Dr. Tobaa took. (R. at
682). This is certainly a valid reason to discount an opinion, even one from a treating physician.
Cf. Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995) (“Medical evidence may be discounted if
it is internally inconsistent or inconsistent with other evidence.”).
On the other hand, ALJs are required to evaluate medical opinions using a specific set of
factors, of which consistency with the record is only one. See Elder v. Astrue, 529 F.3d 408, 415
(7th Cir. 2008).2 However, an ALJ need not mechanically walk through each factor if the
“decision makes clear that [the ALJ] was aware of and considered many of the factors.”
Schreiber, 519 Fed. Appx. at 959. Here, the ALJ spent nearly two full pages recounting
Plaintiff’s long treatment relationship with Ms. Johnson and Dr. Tobaa. (R. at 678–80.) He
discounted this by finding that their opinions went against the weight of the years of treatment

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The court identified “the length, nature, and extent of the physician and claimant's treatment relationship, whether
the physician supported his or her opinions with sufficient explanations, and whether the physician specializes in the
medical conditions at issue” as some of the factors. Elder, 529 F.3d at 415 (internal citations omitted).
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notes they took. (R. at 682.) Plus, the ALJ noted the opinions were “quite restrictive for someone
who has depression and anxiety, but with symptoms that are mostly controlled by medications
and therapy.” (R. at 682.) This is often enough. Cf. Schreiber, 519 Fed. Appx. at 959 (affirming
where the ALJ discussed the doctor’s “treatment relationship with [the plaintiff], the consistency
of [the doctor’s] opinion with the record as a whole, and the supportability of her opinion”);
Ehrhart v. Secretary of HHS, 969 F.2d 534, 539 (7th Cir. 1992) (“these medicines were
providing relief and controlling his impairments”). Yet, the ALJ did not consider whether the
opined limitations apply during Plaintiff’s seasonal anxiety, and, if so, whether this would render
Plaintiff disabled. Maybe employers will tolerate four absences per month if they are limited to
Winter. Or maybe not. Or maybe the limitations are unwarranted even during Plaintiff’s seasonal
anxiety. That is for the ALJ to find on remand.

(3)

The ALJ Adequately Accounted for Plaintiff’s Concentration Issues
At step 2, the ALJ found Plaintiff had moderate difficulties in concentration, persistence

or pace.3 To account for this, the ALJ limited Plaintiff to “simple, repetitive and routine tasks.”
(R. at 676.) Plaintiff challenges this, arguing the ALJ’s limitation only addresses whether she can
complete the task at all, not whether she can repeat a task at a sustained pace. (Pl.’s Br. at 16–
17.) Plaintiff’s argument has merit. See Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014) (“[T]he
[ALJ] . . . must incorporate . . . any deficiencies . . . in concentration, persistence, or pace.”). This
is because an ALJ is not qualified to translate concentration issues into skill limitations—the two
are not the same. Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015). A doctor, however, can do
this. Accordingly, when a doctor looks at a patient who has concentration issues and concludes

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For the sake of brevity, this Court will refer to such issues solely as concentration issues.
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the patient can still perform, say, unskilled work, courts can allow an ALJ to simply quote the
doctor and include only the unskilled work requirement. Johansen v. Barnhart, 314 F.3d 283,
289 (7th Cir. 2002).
Plaintiff argues Yurt and Varga did away with this concept. (Pl.’s Reply at 4.) But those
cases merely found Johansen inapplicable to the facts before them. Yurt, 758 F.3d at 858
(“Johansen is not as applicable as the Commissioner suggests”); Varga, 794 F.3d at 816
(declining to apply Johansen because “no narrative translation exist[ed]”). On the other hand,
one of our sister courts noted that “the Seventh Circuit has appeared to back of [the Johansen]
approach.” Cloutier v. Colvin, 2015 U.S. Dist. LEXIS 125905, *5 (E.D. Wis., Sept. 21, 2015).
Yet, even that court acknowledged a Johansen scenario could still occur. Id. At *9. Granted, a
day may come when courts distinguish Johansen into oblivion, but it is not this day. However,
even though, for now, Johansen remains good law, whether it applies in this case is another
story. Here, Dr. Kennedy completed a mental residual functional capacity assessment in which
she checked boxes indicating Plaintiff had moderate concentration issues. (R. at 491–92.) In the
form’s narrative section, Dr. Kennedy clarified Plaintiff could nonetheless “understand, carry out
and remember simple instructions . . . make judgments commensurate with functions of unskilled
work . . . [and] deal with changes in a routine work setting,” among other things. (R. at 493.) But
the ALJ never included the unskilled-work requirement Dr. Kennedy found. So even if Dr.
Kennedy provided an adequate translation, the ALJ did not use it.4
In her reply, Plaintiff argues the Commissioner’s entire Dr. Kennedy discussion violates
the Chenery doctrine, which forbids the Commissioner from relying on evidence the ALJ did not

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This may be harmless error. Cf. Baumgartner v. Colvin, 2013 U.S. Dist. LEXIS 156487, *45 (W.D. Wis., Oct. 31,
2013) (“while [the ALJ] may have omitted the further limitation that the work be unskilled, any error in doing so
was harmless since all of the jobs identified . . . were in fact unskilled”). However, because this case is being
remanded anyway, this Court will not address that possibility.
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discuss. See Browning v. Colvin, 766 F.3d 702, 703 (7th Cir. 2014). This Court disagrees. The
ALJ specifically mentioned Dr. Kennedy’s opinion—albeit without mentioning the doctor by
name—and afforded it “great weight.” (R. at 680–81.) However, because courts seem to be less
inclined to follow Johansen, the ALJ, on remand, should expressly determine whether Dr.
Kennedy’s narrative translation adequately captures Plaintiff’s concentration issues.

E.

Conclusion
The ALJ failed to address Plaintiff’s seasonal anxiety and, as a result, failed to consider

whether Ms. Johnson’s opined restrictions are warranted during Winter. Accordingly, this Court
remands the ALJ’s decision.

SO ORDERED on March 27, 2019.

S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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