Frazier v. Commissioner of Social Security

Filing 17

OPINION AND ORDER: The Court REVERSES the Commissioner's decision and REMANDS for further proceedings consistent with this Opinion. Signed by Judge Holly A Brady on 8/23/19. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LESLIE FRAZIER,
Plaintiff,
v.

CAUSE NO.: 4:17-CV-38-HAB

ANDREW SAUL,
Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
Plaintiff Leslie Frazier seeks review of the final decision of the Commissioner of
the Social Security Administration (Commissioner) denying her application for Disability
Insurance Benefits (DIB) under Title II of the Social Security Act. Plaintiff alleges that she
has been disabled since February 10, 2008, due to two spinal fusion surgeries, asthma,
anxiety, and arthritis in her hips, rib cage, and lower back. In addition, Plaintiff asserts
that she suffers from severe, chronic, and debilitating migraines several times a month.
ANALYSIS
A.

Standard of Review
A claimant who is found to be “not disabled” may challenge the Commissioner’s

final decision in federal court. This Court must affirm the ALJ’s decision if it is supported
by substantial evidence and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002). Substantial evidence is “more than a mere scintilla of proof.”
Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001). It means “evidence a reasonable
person would accept as adequate to support the decision.” Murphy v. Astrue, 496 F.3d 630,

633 (7th Cir. 2007); see also Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”) (citation and quotations omitted).
In determining whether there is substantial evidence, the Court reviews the entire
record. Kepple, 268 F.3d at 516. However, review is deferential. Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007). A reviewing court will not “reweigh evidence, resolve conflicts,
decide questions of credibility, or substitute [its] own judgment for that of the
Commissioner.” Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (quoting Clifford v.
Apfel, 227 F.3d 863, 869 (7th Cir. 2000)).
Nonetheless, if, after a “critical review of the evidence,” the ALJ’s decision “lacks
evidentiary support or an adequate discussion of the issues,” this Court will not affirm
it. Lopez, 336 F.3d at 539 (citations omitted). While the ALJ need not discuss every piece
of evidence in the record, he “must build an accurate and logical bridge from the evidence
to [the] conclusion.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Further, the
ALJ “may not select and discuss only that evidence that favors his ultimate conclusion,”
Diaz, 55 F.3d at 308, but “must confront the evidence that does not support his conclusion
and explain why it was rejected,” Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).
Ultimately, the ALJ must “sufficiently articulate his assessment of the evidence to assure”
the court that he “considered the important evidence” and to enable the court “to trace
the path of [his] reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (quoting
Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985) (internal quotation marks omitted)).

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B.

The ALJ’s Decision
A person suffering from a disability that renders her unable to work may apply to

the Social Security Administration for disability benefits. See 42 U.S.C. § 423(d)(1)(A)
(defining disability as the “inability 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”). To be found disabled, a claimant must demonstrate that her
physical or mental limitations prevent her from doing not only her previous work, but
also any other kind of gainful employment that exists in the national economy,
considering her age, education, and work experience. § 423(d)(2)(A).
If a claimant’s application is denied initially and on reconsideration, she may
request a hearing before an ALJ. See 42 U.S.C. § 405(b)(1). An ALJ conducts a five-step
inquiry in deciding whether to grant or deny benefits: (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 has the
residual functional capacity to perform his past relevant work, and (5) whether the
claimant is capable of performing any work in the national economy. See 20 C.F.R. §
404.1520(a); Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).
Here, at step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since February 10, 2008, the alleged onset date. At step two, the ALJ found
that Plaintiff had the severe impairment of degenerative disc disease status post-surgery,
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anxiety, and adjustment disorder. The ALJ determined that Plaintiff’s medically
determinable impairments of asthma, hip pain, migraines, carpal tunnel syndrome, and
obesity were non-severe.
At step three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments.” (R. 18.) At step four, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform work as defined in 20 C.F.R. § 404.1567(b), which
the regulations characterize as light work. However, she was limited to standing for two
hours and sitting for six hours in an eight-hour day, could occasionally climb stairs, stoop
balance, kneel, reach overhead with the bilateral extremities, crouch, and crawl. She could
never climb ladders, and could only have occasional exposure to hazards, including
heights and moving parts. The ALJ found that Plaintiff could “complete simple, rout[in]e
tasks and with only occasional change in a routine work setting and occasional
interaction with the public.” (R. 20.)
Based on the above RFC, the ALJ found that Plaintiff was unable to perform her
past relevant work as a funeral attendant, but that she could, considering her age,
education, and work experience, perform other jobs that existed in significant numbers
in the national economy. Thus, he found that she was not disabled.
C.

Residual Functional Capacity and Limitations in Concentration, Persistence,
and Pace
One of the errors Plaintiff identifies in the ALJ’s decision is that the residual

functional capacity (RFC), and the resulting hypothetical to the vocational expert (VE),

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did not adequately account for her moderate limitations in concentration, persistence,
and pace. Plaintiff argues that it was not adequate to limit her to simple, routine, tasks
with only occasional change in the work setting and occasional interaction with the
public.
Plaintiff’s argument finds support in the Seventh Circuit’s caselaw, which
“emphasizes that both the hypothetical posed to the VE and the ALJ’s RFC assessment
must incorporate all of the claimant’s limitations supported by the medical record,’
including even moderate limitations in concentration, persistence, or pace.” Crump v.
Saul, — F.3d —, No. 18-3491, 2019 WL 3451276, at *3 (7th Cir. July 31, 2019) (quoting Varga
v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015)). Here, the ALJ seemed to recognize Plaintiff’s
difficulty with concentration, persistence, and pace. (R. 19–20.) The ALJ acknowledged
that Plaintiff “tested at low average memory and concentration.” (R. 19.) He concluded,
based on this testing and other evidence in the record, that “her functional abilities are
not severely impaired which is supportive of a moderate level of difficulty with
concentration, persistence or pace.” (R. 20.) Although this was the ALJ’s finding at step
three, which is not intended to be an RFC assessment, SSR 96-8p, the ALJ was still
required to provide a more detailed assessment of Plaintiff’s RFC for use at steps four
and five.
In connection with the step four analysis, the ALJ again referenced Plaintiff’s
memory and concentration as being in the low average range. However, the ALJ did not
further articulate how Plaintiff’s functioning was impacted, such as whether she would
be able to maintain attention and concentration for extended periods, or perform at a
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consistent pace without an unreasonable number and length of rest periods. Instead, in
both the RFC and the hypothetical to the VE, the ALJ limited Plaintiff to simple, routine
tasks, and occasional changes in the work setting. It is not clear whether the ALJ intended
these limitations to be an accommodation for Plaintiff’s low average memory and
concentration.
On appeal, Defendant takes the position that these restrictions adequately
incorporated all the Plaintiff’s limitations because the ALJ cited evidence that suggested
Plaintiff could perform simple tasks for sustained periods. In particular, the ALJ
commented on Plaintiff’s performance of simple daily tasks, her husband’s report that
she could pay attention and follow instructions, and her work as a personal care aid for
a 90-year-old woman. But “observing that a person can perform simple and repetitive
tasks says nothing about whether the individual can do so on a sustained basis, including,
for example, over the course of a standard eight-hour work shift.” Crump, 2019 WL
3451276, at *3. This statement is as true here as it was in Crump. None of the activities the
ALJ cited were performed on a sustained basis, much less over the course of eight hours.
Moreover, describing tasks as “simple, routine, and repetitive” refers to “unskilled
work” that can be learned by demonstration in less than thirty days, 29 C.F.R. § 404.1520,
which is unrelated to whether a person with limitations in concentration, persistence, and
pace “can perform such work.” Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015); see also
O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010) (“The ability to stick with a
given task over a sustained period is not the same as the ability to learn how to do tasks
of a given complexity.”). The ALJ’s decision does not provide a logical bridge between a
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finding that Plaintiff had memory and concentration in the low average range and an
RFC and hypothetical to the VE that addresses only the time it takes to learn a task.
Adding the limitation for occasional changes in a routine work setting does not, as
Defendant argues, distinguish this case from others that the Seventh Circuit has
remanded. See Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018) (finding that
hypothetical to VE for individual who “can understand, remember, and carry out simple
work instructions,” can “exercise simple work place judgments,” is “limited to routine
work,” and can have “no more than occasional changes in the work setting . . . did not
account explicitly for [claimant’s] moderate limitations in concentration, persistence, and
pace”); Varga, 794 F.3d at 815 (“’Few if any work place changes’ with limited ‘interaction
with coworkers or supervisors’ deals largely with workplace adaptation, rather than
concentration, pace, or persistence.”)
D.

Residual Functional Capacity—Migraine Headaches
Plaintiff argues that the ALJ erroneously found, at step two, that her migraine

headaches are a non-severe impairment. Additionally, she submits that it was error not
to include any limitations for her headaches in the RFC.
The Court can proceed directly to the RFC analysis because the step two
requirement of severity is “merely a threshold requirement.” Hickman v. Apfel, 187 F.3d
683, 688 (7th Cir. 1999); see also Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010) (same).
The ALJ identified other impairments that were severe, so the determination about her
migraines at Step 2 was “of no consequence with respect to the outcome of the case.

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Because the ALJ recognized numerous other severe impairments, he was obligated to
proceed with the evaluation process.” Castile, 617 F.3d at 927.
Although the ALJ’s decision contains a lengthy recitation of the medical evidence,
as well as other evidence in the record, it does not reflect any consideration of whether
Plaintiff’s migraines caused functional limitations that required accommodation within
the RFC. Defendant has offered no defense of this exclusion, other than to argue that the
ALJ properly found, at step two, that the migraine headaches were not a severe
impairment. This argument wholly fails to acknowledge that an ALJ must “consider the
limitations imposed by all impairments, severe and non-severe.” Ray v. Berryhill, 915 F.3d
486, 492 (7th Cir. 2019); 20 C.F.R. § 404.1523. The duty to analyze non-severe impairments
in formulating a claimant’s RFC to be used at steps four and five is fundamental to the
disability programs under the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 15051 (1987) (emphasizing duty of Commissioner, when there is at least one severe
impairment, to “consider the combined effect of all of the individual’s impairments
without regard to whether any such impairment, if considered separately, would be of
such severity”) (quoting 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(F) (1982 ed. and Supp. III)).
“A failure to fully consider the impact of non-severe impairments requires
reversal.” Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010) (citing Golembiewski v.
Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)). Thus, it matters not that the ALJ found that
Plaintiff’s migraines, in isolation, were not a severe impairment. Golembiewski, 322 F.3d at
918 (noting that ALJ’s must consider the aggregate effect of impairments). Remand is
required.
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E.

June 6, 2015, Opinion of Pain Management Specialist
It appears that, due to an administrative error, the June 6, 2015, opinion from

Plaintiff’s treating physician was not incorporated into the record when it was received.
Thus, the ALJ did not have access to the opinion and did not consider it. Defendant
asserts that this does not warrant remand because the Appeals Council considered it, and
because the ALJ considered another, less restrictive, opinion from the same doctor.
Defendant argues that the ALJ adequately explained why he assigned the opinion only
some weight, and those same reasons would apply to the later, more restrictive, opinion.
Because the Court is remanding to the Commissioner for further proceedings, it
need not belabor the parties’ arguments with respect to the June 2015 opinion. The ALJ
will have an opportunity to consider the opinion on remand.
CONCLUSION
For the reasons stated above, the Court REVERSES the Commissioner’s decision
and REMANDS for further proceedings consistent with this Opinion.
SO ORDERED on August 23, 2019.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT

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