TAYLOR v. ASTRUE

Filing 28

Decision on Judicial Review: The court owes substantial deference to the Commissioner's evaluation of the evidence. It cannot decide the facts anew, reweigh the evidence, or substitute its judgment for the Commissioner's. Because the Commissioner's decision is based on a reasoned evaluation of the evidence, her decision is AFFIRMED (see Decision for details). Signed by Magistrate Judge Debra McVicker Lynch on 9/27/2013.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL L. TAYLOR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Administration,
Defendant.

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) CASE NO.: 1:12-cv-0979-DML-WTL
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Decision on Judicial Review
Plaintiff Michael L. Taylor, Jr. applied on September 4, 2008, for Disability
Insurance Benefits (DIB) and Supplemental Security Income disability benefits
(SSI), alleging an onset date of July 31, 2007. For DIB, Mr. Taylor met the insured
status requirement through March 31, 2009. Acting for the Commissioner of the
Social Security Administration, an administrative law judge held two hearings, one
on July 29, 2010, and a supplemental hearing on April 12, 2011. The ALJ issued
his decision on May 12, 2011, finding that Mr. Taylor is capable of performing the
work requirements of a packer, an assembler, and a machine tender, and that those
jobs exist in significant numbers in Indiana. Consequently, the ALJ decided that
Mr. Taylor was not disabled. The Appeals Council denied review of the ALJ’s
decision on June 5, 2012, rendering the ALJ’s decision for the Commissioner final.
Mr. Taylor timely filed this civil action for judicial review of the Commissioner’s
decision. The parties have consented to the magistrate judge conducting all

proceedings and ordering the entry of judgment in accordance with 28 U.S.C. 636(c)
and Fed. R. Civ. P. 73.
Mr. Taylor’s asserted disability stems from mental impairments. The ALJ
found that Mr. Taylor suffers from major depressive disorder, generalized anxiety
disorder, personality disorder, intermittent explosive disorder, and borderline
intellectual functioning. But he determined that the mental impairments did not
satisfy one of the listings of impairments for mental disorders, and that
functionally, Mr. Taylor is capable of performing simple and repetitive tasks with
reasonable pace and persistence, but that his work cannot involve interacting with
the general public and can require only brief and superficial interactions with
coworkers.
Mr. Taylor challenges these findings on the grounds that the ALJ (a) did not
have sufficient evidence to determine whether Mr. Taylor’s mental impairments
satisfied a listing and (b) improperly assessed the credibility of Mr. Taylor and his
parents regarding his functioning, which led to a finding of residual functional
capacity that is not supported by substantial evidence.1
For the reasons addressed below, the Commissioner’s decision is AFFIRMED.

Mr. Taylor’s opening brief also states that “the ALJ erroneously failed to give
controlling weight to the opinions of the claimant’s treating physicians that he could
not sustain employment.” (Dkt. 17 at p. 12). Mr. Taylor does not identify the
treating physicians to whom he is referring but he must mean Dr. Tyring, who is
the only medical professional who had more than a passing treating relationship
with him. Dr. Tyring did not (nor did any other mental health professional) opine
that Mr. Taylor cannot sustain employment. Mr. Taylor’s argument appears to be
“copied and pasted” with no application to the facts of this case.
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Standard for Proving Disability
To prove disability, a claimant must show that he 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 twelve months.” 42
U.S.C. § 423(d)(1)(A) (DIB benefits); 42 U.S.C. § 1382c(a)(3)(A) (SSI benefits).2 Mr.
Taylor is disabled if his impairments are of such severity that he is not able to
perform the work he previously engaged in and, if based on his age, education, and
work experience, he cannot engage in any other kind of substantial gainful work
that exists in significant numbers in the national economy. 42 U.S.C.
§ 423(d)(2)(A). The Social Security Administration (“SSA”) has implemented these
statutory standards by, in part, prescribing a five-step sequential evaluation
process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if he is, then he is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then he is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The
Two programs of disability benefits are available under the Social Security
Act: DIB under Title II for persons who have achieved insured status through
employment and withheld premiums, 42 U.S.C. § 423 et seq., and SSI disability
benefits under Title XVI for uninsured individuals who meet income and resources
criteria., 42 U.S.C. § 1381 et seq. The court’s citations to the Social Security Act and
regulations promulgated by the Social Security Administration are those applicable
to DIB benefits. For SSI benefits, material identical provisions appear in Title XVI
and at 20 C.F.R. § 416.901 et seq.
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third step is an analysis of whether the claimant’s impairments, either singly or in
combination, meet or medically equal the criteria of any of the conditions in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments includes medical conditions defined by criteria that the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed
impairment or presents medical findings equal in severity to all the criteria for the
most similar listed impairment, then the claimant is presumptively disabled and
qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).
If the claimant’s impairments do not satisfy a listing, then his residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite his
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform his past relevant work, then he
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on his age, work experience, and education
(which are not considered at step four), and his RFC; if so, then he is not disabled.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, then the Commissioner has the burden at step five to show that work
exists in significant numbers in the national economy that the claimant can
perform, given his age, education, work experience, and functional capacity. 20
C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).

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Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a
scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in his decision, but he cannot ignore a line of evidence that undermines the
conclusions he made, and he must trace the path of his reasoning and connect the
evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
A.

The ALJ’s step three determination is supported by substantial
evidence.
At step three, the ALJ analyzed whether Mr. Taylor’s mental impairments

satisfied listings 12.02 (organic mental disorders), 12.04 (affective disorders), 12.06
(anxiety-related disorders), and 12.08 (personality disorders). Each of these
impairments is described by reference to A, B, and C criteria. The A criteria must
be met or medically equaled and if met, then either the B or C criteria must be met
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or medically equaled. For listing 12.02, which the ALJ used to assess Mr. Taylor’s
borderline intellectual functioning, the ALJ found that the A criteria were not met
and there was no need to further analyze the B or C criteria. For the other listings,
the ALJ assumed the A criteria were met, and then analyzed the B and C criteria.
Mr. Taylor argues that the ALJ’s evaluation of the B criteria was erroneous
because he “arbitrarily rejected the examining psychologists’ consistent GAF
assessments of 50 indicating total disability and instead acted as his own
psychologist-medical expert to determine the severity of the claimant’s
impairments,” without summoning a psychologist to testify at the hearing whether
Mr. Taylor’s mental impairments satisfy a listing. (Dkt. 17 at p. 13).
The court rejects these arguments.
To satisfy the B criteria of the applicable mental impairment listings, Mr.
Taylor’s mental disorders must result in at least two of the following:
Marked restrictions of activities of daily living;
Marked difficulties in maintaining social functioning;
Marked difficulties in maintaining concentration, persistence, or pace;
Repeated episodes of decompensation, each of extended duration.
A claimant is markedly limited in activities of daily living if his mental
impairments cause “serious” difficulty in doing things such as cleaning, shopping,
cooking, maintaining a residence, self-grooming and hygiene “on a consistent,
useful, routine basis, or without undue interruptions and distractions.” Listing
12.00(C)(1). Social functioning examines how the claimant gets along with others,

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including family members, friends, neighbors, co-workers, shopkeepers, and
strangers. Marked impairment may be shown by the claimant’s inability to act
“independently, appropriately, and on a sustained basis” with others, evidenced by
a history of altercations, firings, social isolation, or similar dysfunction, as opposed
to “cooperative” behavior with others and a sense of social maturity. Listing
12.00(C)(2). CPP refers to a claimant’s abilities to focus and concentrate long
enough to complete tasks. Marked impairment may be shown where a claimant
cannot sustain a level of concentration to complete even simple tasks without extra
supervision or assistance. Listing 12.00(C)(3). In general, a “marked limitation
may arise when several activities or functions are impaired, or even when only one
is impaired, as long as the degree of limitation is such as to interfere seriously with
[the claimant’s] ability to function independently, effectively, and on a sustained
basis.” Listing 12.00(C).
The ALJ evaluated each B factor and explained the evidence he considered
and relied upon in reaching his conclusions that Mr. Taylor had (a) no restrictions
in his activities of daily living; (b) moderate difficulties in social functioning; (c)
moderate difficulties in maintaining concentration, persistence, or pace (CPP); and
(d) no episodes of decompensation of extended duration.
In deciding that Mr. Taylor’s mental impairments impose no limitations on
his daily living activities, the ALJ cited disability paperwork completed by Mr.
Taylor which reported that he attends independently to personal grooming, making
simple meals, completing household chores, driving, shopping, and participating in

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leisure activities such as camping, fishing, rock hunting, taking long walks, and
watching television. (R. 15).
With respect to social functioning, the ALJ concluded that Mr. Taylor’s
mental impairments impose moderate difficulties but that he does not suffer
markedly. He considered that an agency psychologist had described Mr. Taylor as
cooperative and willing to assert his best efforts, but with a history of poor social
and coping skills and emotional instability. He acknowledged Mr. Taylor’s mother’s
testimony that her son angers easily around other people, including family
members, and retreats to solitude to calm down. Mr. Taylor similarly testified that
he has had difficulties getting along with co-workers. A licensed mental health
counselor who saw Mr. Taylor once in April 2010 concluded that based on Mr.
Taylor’s descriptions of his history, Mr. Taylor suffers from social anxiety, has
difficulty picking up on and responding appropriately to interpersonal cues, and
thus has “great difficulty” performing tasks around other people. His evaluation
suggested marked impairment in social functioning, but the ALJ noted that Mr.
Taylor saw this counselor one time and did not seek ongoing mental health
treatment. He also stressed that Mr. Taylor had been employed in 2007 at a level of
substantial gainful activity, indicating that his difficulties with social functioning
are managed to a moderate range rather than marked. (R. 19).
With respect to CPP, the evidence was slightly mixed, but it supports the
ALJ’s decision that Mr. Taylor suffers only moderately and not markedly. During a
consultative examination in 2008, agency psychologist Russ Rasmussen stated that

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Mr. Taylor had adequate immediate and remote memory and adequate attention
and focus, though he could become distracted by others. (R. 15). He also opined
that Mr. Taylor had the cognitive abilities and concentration necessary to complete
work tasks. The ALJ considered a report by agency psychologist Floyd Robison who
saw Mr. Taylor once in December 2008 and opined that he had a fair prognosis for
substantial improvement in his mental health with treatment. There was very
little evidence of any actual mental health treatment. The ALJ reviewed Mr.
Taylor’s medication and counseling visits with his doctor (Dr. David Tyring) from
July 2010 to February 2011. These records showed that Mr. Taylor reported
symptoms of depression, fatigue, poor concentration, and sadness tied to situational
stressors such as the breakup with his girlfriend, his parents’ divorce, and at the
anniversary of his brother’s death. (R. 17). Dr. Tyring’s records showed that Mr.
Taylor’s depression and ADHD symptoms resolved when he refilled his medications
and took them. Mr. Taylor reported in December 2010 that he was “doing well,” his
concentration good and his ADHD well-controlled by his Adderal medication. (R.
275). Two months later, when Mr. Taylor was out of his medications for ADHD, he
reported poor concentration. (R. 277).
As to the last B factor, there was no evidence that Mr. Taylor had suffered
any episodes of decompensation of extended duration.
The above findings of the absence of any marked limitations or repeated
episodes of decompensation are supported by the opinion of state agency
psychologist Joelle Larsen, who completed a Psychiatric Review Technique form

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dated October 28, 2008, and reached very similar qualitative conclusions regarding
the B criteria. Dr. Larsen’s opinion was affirmed by psychologist Dr. Donna
Unversaw on December 2, 2008. (Contrary to the ALJ’s finding, Drs. Larsen and
Unversaw decided that Mr. Taylor was mildly restricted in his activities of daily
living, rather than not at all).
Mr. Taylor argues that Dr. Larsen’s opinion was too old to be considered
reliable and that the ALJ should have asked for a new expert opinion. But Mr.
Taylor has not pointed to any medical evidence that post-dates Dr. Larsen’s opinion
and that alters the overall substance of the evidence regarding Mr. Taylor’s mental
functioning. He does not point to any evidence of a deterioration in his mental
functioning. The later records stress difficulties with social functioning (but
improvement in CPP with medication), and Mr. Taylor’s history of poor social
functioning was among the evidence that Dr. Larsen reviewed. Even if the ALJ, or
Dr. Larsen, had determined that Mr. Taylor’s mental impairments imposed marked
difficulties in social functioning instead of moderate, he still would not satisfy the B
factors.
The court may not reweigh the evidence. Mr. Taylor has not shown that the
record was insufficient for rendering a decision, and he cannot point to any line of
evidence that the ALJ failed to consider or that decidedly detracts from his findings.
See Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010) (ALJ is not required to
discuss every piece of evidence but is “prohibited only from ignoring an entire line of
evidence that supports a finding of disability”). On this point and contrary to Mr.

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Taylor’s contentions, the ALJ gave appropriate attention to the two GAF scores of
50 assigned by the agency psychologists who performed consultative examinations
in October and December 2008. (R. 18). GAF scores are intended to assist a
clinician’s formulation and implementation of a mental health treatment plan, but
they have no direct application to deciding “marked” difficulties under the B factors
and are not proxies for deciding presumptive disability at step three. Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010); Wilkins v. Barnhart, 69 Fed. Appx. 775 at
*4 (7th Cir. 2003) (cited by Denton) (stating that ALJ was not required to mention a
GAF score of 40 because is GAF score is designed to influence treatment decisions
and not to measure disability under the Social Security Act).
Dr. Larsen’s opinion, affirmed by Dr. Unversaw, and the ALJ’s analysis of the
evidence pertinent to the four B factors constitute substantial evidence that
supports the ALJ’s decision at step three that Mr. Taylor is not presumptively
disabled by his mental impairments. Filus v. Astrue, 694 F.3d 863, 867 (7th Cir.
2012) (ALJ did not err in accepting opinions from state agency physicians that no
listings were met or medically equaled where “no other physician contradicted these
two opinions”); Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006) (Disability
Determination and Transmittal forms filled out by non-examining agency experts
are all that is required to support a step three decision so long as “there is no
contradictory evidence in the record”).

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B.

Mr. Taylor’s attack on the ALJ’s credibility determination
is conclusory and does not support remand.
Because the ALJ sees and hears the claimant, his assessment of the

claimant’s credibility is entitled to special deference from the court. Craft v. Astrue,
539 F.3d 668, 678 (7th Cir. 2008). The court’s role is “limited to examining whether
the ALJ’s determination was ‘reasoned and supported,’” and the court may not
overturn the ALJ’s finding unless it is “patently wrong.” Elder v. Astrue, 529 F.3d
408, 413-14 (7th Cir. 2008). “It is only when the ALJ’s determination lacks any
explanation or support that [the court] will declare it to be patently wrong and
deserving of reversal.” Id. (internal citations omitted).
Mr. Taylor’s contention that the ALJ’s credibility determination is patently
erroneous rests on two grounds. First, he asserts that the GAF score of 50
“indicated total disability,” but there is no authority that a low GAF score requires
an ALJ to accept a claimant’s testimony that his mental impairments render him
unable to work. Second, Mr. Taylor contends remand is required because of the
ALJ’s inclusion in his decision of the oft-repeated and illogical boilerplate
suggesting that he first decided Mr. Taylor’s RFC and then rejected as not credible
anything inconsistent with that RFC. But because the ALJ gave several logical
reasons why he found Mr. Taylor’s statements regarding his severely limited
mental functioning not credible, the ALJ’s inclusion of the improper boilerplate is
not grounds for remand. Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012) (ALJ’s
use of boilerplate that he found the claimant not credible “to the extent” that his
complaints were not consistent with the RFC is not grounds for remand so long as
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the decision otherwise reflects an appropriate assessment of the claimant’s
credibility).
Mr. Taylor has not shown that the ALJ’s credibility determination is
unreasoned or unsupported, nor could he, because the ALJ provided rational bases
for doubting that Mr. Taylor’s mental impairments impaired him to a degree that
he could not work. The ALJ noted that Mr. Taylor recently had been employed at a
level of substantial gainful activity, even though he and his parents suggested that
he had been debilitated by mental impairments since a motorcycle accident in his
teen-age years. He cited Mr. Taylor’s employment in 2007 as a reason to discount
Mr. Taylor’s and his parents’ statements that he was unable to get along with coworkers. He discussed the relative absence of mental health treatment records,
despite the mother’s statement that her son had been “back and forth” to
counseling. He noted that the counseling records from Dr. Tyring that did exist
found that Mr. Taylor’s mental health symptoms were triggered by situational
stressors and significantly improved (even, “resolved”) when he took his medication,
an observation with which Mr. Taylor’s mother agreed. He described that Mr.
Taylor’s daily living activities were wide-ranging and evidenced abilities to act
independently and appropriately on a sustained basis. The ALJ’s credibility
assessment is not patently erroneous.
C.

The ALJ’s RFC is supported by substantial evidence.
Mr. Taylor argues that the ALJ’s RFC finding “impermissibly failed to

account for [Mr. Taylor’s] deficiencies in social functioning.” (Dkt. 17 at p. 23). The

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RFC, however, includes restrictions to accommodate the moderate difficulties in
social functioning that the ALJ determined were supported by the evidence as a
whole. He found that Mr. Taylor’s poor social skills and emotional instability are
precipitated by interactions with co-workers, and his RFC limited Mr. Taylor to a
work environment that involves no public contact and only brief, superficial
interaction with co-workers. (R. 16). The ALJ included these limitations (and
others related to lower intelligence and concentration issues) in his hypothetical to
the vocational expert, who testified that a significant number of jobs are available
that fit Mr. Taylor’s vocational profile and the RFC. The ALJ is required only to
include in his hypothetical those limitations that he found were credible and
supported by the medical evidence. He did so here. See Schmidt v. Astrue, 496 F.3d
833, 846 (7th Cir. 2007) (ALJ “required only to incorporate into his hypotheticals
those impairments and limitations that he accepts as credible”). Accordingly, the
ALJ’s decision that Mr. Taylor is not disabled—there being a significant number of
jobs that he has the functional capacity to do—is supported by substantial evidence
and must be AFFIRMED.
Conclusion
The court owes substantial deference to the Commissioner’s evaluation of the
evidence. It cannot decide the facts anew, reweigh the evidence, or substitute its
judgment for the Commissioner’s. Because the Commissioner’s decision is based on
a reasoned evaluation of the evidence, her decision is AFFIRMED.

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So ORDERED.
09/27/2013
Date: _____________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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