MCGRADY v. COLVIN

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 28 -The Court finds that there is no error in the Magistrate Judge's Report and Recommendation and therefore OVERRULES McGrady's objections. The Court hereby ADOPTS the Magistrate Judge's Report and Recommendation, AFFIRMING the Commissioner's decision. Signed by Judge Tanya Walton Pratt on 3/9/2016.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANNA MCGRADY,
Plaintiff,
v.
CAROLYN COLVIN,
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 1:14-cv-01572-TWP-TAB

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Plaintiff Anna McGrady (“McGrady”), appeals the Administrative Law Judge’s decision
denying her applications for Social Security Disability Insurance Benefits (“DIB”) under Title II
of the Social Security Act (“the Act”) and Supplemental Security Income (“SSI”) under Title XVI
of the Act. Pursuant to 28 U.S.C § 636, the Court referred the matter to the Magistrate Judge (Filing
No. 20), who submitted his Report and Recommendation on February 4, 2016, recommending that
the decision of the Commissioner be affirmed (Filing No. 28). McGrady timely filed objections to
the Magistrate Judge’s Report and Recommendation (Filing No. 29). For the reasons set forth
below, the Court OVERRULES McGrady’s objections and ADOPTS the Magistrate Judge’s
Report and Recommendation, AFFIRMING the decision of the Commissioner.
I.

BACKGROUND

McGrady alleges that she suffers from several impairments, including obesity, residuals of
lumpectomy and radiation for right breast cancer, and coronary artery disease, and depression.
McGrady was born in 1958. Her last employment was as a cashier at a liquor store in July 2009.
McGrady was fifty-one years old on her July 13, 2009 alleged onset date. On January 10, 2012,

McGrady applied for DIB and SSI, stating that she had been disabled since July 31, 2009. After her
applications were denied initially and on reconsideration, she requested a hearing by an
Administrative Law Judge (“ALJ”). On August 2, 2013, McGrady appeared with counsel and testified
at the administrative hearing before ALJ Blanca B. de la Torre. On August 28, 2013, the ALJ found
that McGrady was not disabled and denied her applications for DIB and SSI. On August 13, 2014, the
Social Security Administration’s Appeals Council denied McGrady’s request for review of the ALJ’s
decision. McGrady filed her Complaint seeking judicial review on September 26, 2014. On October
13, 2015, this Court issued an order referring the matter to Magistrate Judge Tim A. Baker for a Report
and Recommendation. The Magistrate Judge filed his Report and Recommendation adopting the
decision of the ALJ and Commissioner on February 4, 2016. Thereafter, on February 19, 2016,
McGrady filed her Objection to the Report and Recommendation of the Magistrate Judge, objecting
only to the recommendation to affirm the ALJ’s denial of her claim for SSI. McGrady does not object
to the Magistrate Judge’s recommendation to affirm the denial of her claim for DIB.
II.

LEGAL STANDARD

When the Court reviews the Commissioner’s decision, the ALJ’s findings of fact are
conclusive and must be upheld by this Court “so long as substantial evidence supports them and
no error of law occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Id. The Court may not reweigh the evidence or substitute its judgment for that of
the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ “need not evaluate in
writing every piece of testimony and evidence submitted.” Carlson v. Shalala, 999 F.2d 180, 181
(7th Cir. 1993). However, the “ALJ’s decision must be based upon consideration of all the relevant
evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). To be affirmed, the ALJ must

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articulate her analysis of the evidence in her decision, and while she “is not required to address
every piece of evidence or testimony,” she must “provide some glimpse into her reasoning . . .
[and] build an accurate and logical bridge from the evidence to her conclusion.” Dixon, 270 F.3d
at 1176. The Court “must be able to trace the ALJ’s path of reasoning” from the evidence to her
conclusion. Clifford v. Apfel, 227 F.3d 863, 874 (7th Cir. 2000).
When a party raises specific objections to elements of a magistrate judge’s report and
recommendation, the district court reviews those elements de novo, determining for itself whether
the Commissioner’s decision as to those issues is supported by substantial evidence or was the
result of an error of law. See Fed. R. Civ. Pro. 72(b). The district court “makes the ultimate decision
to adopt, reject, or modify the report and recommendation, and it need not accept any portion as
binding; the court may, however, defer to those conclusions . . . to which timely objections have
not been raised by a party.” Sweet v. Colvin, No. 1:12-cv-439-SEB-TAB, 2013 U.S. Dist. LEXIS
141893, at *3 (S.D. Ind. Sept. 30, 2013) (citing Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 759–61 (7th Cir. 2009)).
III.

DISCUSSION

In her objections to the Report and Recommendation, McGrady repeats many of the
arguments asserted in her Brief in Support of Complaint and additionally alleges that the
Magistrate Judge impermissibly conducted a de novo review of a medical expert’s opinion and
also engaged in post hoc rationalization. However, McGrady fails to point to evidence that the
ALJ’s determinations were not supported by substantial evidence, and she continues to ignore the
standard that she was able to perform any of her past relevant work, not that she was able to
perform every one of her past jobs. McGrady’s objections to the Magistrate Judge’s Report and
Recommendation are (1) the ALJ failed to provide legally sufficient reasons for not including one

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of the points from Dr. McGovern’s opinion in the RFC assessment; and (2) the Magistrate Judge
overlooked the role and instructions provided to Agency examining psychologists during his de
novo review of Dr. McGovern’s findings, and he engaged in post hoc rationalization. The Court
finds no reversible error on the basis of McGrady’s objections.
A. The ALJ Provided Sufficient Reasons for the RFC Assessment
McGrady first argues that the ALJ failed to provide legally sufficient reasons for failing to
take the opinions of Dr. McGovern into account when determining her residual function capacity
(“RFC”). McGrady asserts that the ALJ gave Dr. McGovern’s opinion “great weight” but failed
to explain why she did not include the restrictive findings in her RFC assessment. McGrady
believes that this omission of evidence from the RFC assessment resulted in the denial of disability
benefits. As a result of the omission, the vocational expert and the subsequent determination of an
ability to perform past relevant work would be affected by an instruction limiting her work ability
to “unskilled” work or “repetitive, simple tasks.”
Upon review, the Court finds that the ALJ provided sufficient explanations for the amount
of weight she gave to Dr. McGovern’s opinion. The ALJ explained that she was giving “great
weight to Dr. McGovern’s opinion that the claimant has mild symptoms and is able to concentrate
sufficiently to perform work for two hours at a time.” (Filing No. 11-2 at 33-34.) The ALJ
explained that Dr. McGovern’s opinion was supported by her evaluation results and there were no
contradictory reports from treating mental health providers. The ALJ also noted that McGrady’s
family doctor barely described her symptoms of depression in his records. McGrady selects one
phrase from Dr. McGovern’s assessment and then asserts that, because the ALJ gave “great
weight” to Dr. McGovern’s opinion, the selected phrase should have been included in the
determination of her RFC. However, the ALJ is permitted to give great weight to portions of a

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medical expert’s opinion while not affording that same weight to other portions of the medical
opinion.
McGrady’s view on the importance of the selected phrase—that claimant is likely to be
able to do a simple, repetitive task continuously for a two-hour period—is misplaced because the
ALJ’s decision considered Dr. McGovern’s opinion in its entirety. While Dr. McGovern opined
that McGrady may be a little slow in one area of testing, she also explained that McGrady’s basic
attention was within normal limits and her memory was good (Filing No. 11-2 at 25). Based on
Dr. McGovern’s entire opinion, the ALJ determined that McGrady only suffered from at most a
mild limitation in concentration, persistence, or pace. (Id.)
McGrady has provided no evidence that a mild limitation in concentration, persistence, or
pace would interfere with her ability to perform tasks at the semi-skilled level. Dr. McGovern also
noted that McGrady had “the necessary mathematical and planning skills to create and manage a
budget.” (Filing No. 11-2 at 33.) This assertion by Dr. McGovern suggests that McGrady had the
ability to perform her past relevant work and weighs against a more restrictive limitation. McGrady
failed to establish that any limitations in concentration, persistence, or pace would prevent her
from performing semi-skilled work or that Dr. McGovern’s opinion was a determination of her
maximum ability. The Court concurs with the Magistrate Judge that the ALJ provided legally
sufficient bases for determining McGrady’s RFC, and there was no error in not including the
cherry-picked phrase from Dr. McGovern’s opinion in the RFC.
Further, McGrady’s argument that the ALJ completely ignored Dr. McGovern’s opinion
regarding simple tasks by not including it in the RFC is incorrect because Dr. McGovern’s opinion
did not state McGrady’s maximum ability. Dr. McGovern responded as follows to a question in
the examination report dated February 23, 2012:

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Q. Can this person attend to a simple, repetitive task continuously for a two-hour
period? A. The claimant is likely to be able to do a simple, repetitive task
continuously for a two-hour period.
The opinion was an acknowledgement in response to one specific question of whether she could
perform simple, repetitive tasks. The question did not ask what her maximum capability was or
the most she could perform. Not including the one phrase from Dr. McGovern’s opinion caused
no harm in the RFC determination because the ALJ considered the opinion in its entirety and
determined that the opinion of Dr. McGovern was consistent with a mild limitation.
B. The Magistrate Judge Did Not Engaged in Post Hoc Rationalization
The focus of McGrady’s objection to the Magistrate Judge’s Report and Recommendation
is that the Magistrate Judge engaged in post hoc rationalization and ignored the instructions and
requirements for Agency examiners. McGrady cites to SEC v. Chenery Corp., 318 U.S. 80, 87
(1943), invoking the Chenery doctrine. The Chenery doctrine prohibits a reviewing court from
making post hoc rationalizations regarding the justifications for the decision of an ALJ.
Specifically, the Supreme Court explained, “[t]he grounds upon which an administrative order
must be judged are those upon which the record discloses that its action was based.” Id.; see also
Michigan v. EPA, 135 S. Ct. 2699, 2710 (U.S. 2015) (“a court may uphold agency action only on
the grounds that the agency invoked when it took the action”). McGrady alleges that the Magistrate
Judge made post hoc rationalizations regarding the ALJ’s treatment of Dr. McGovern’s opinions.
In particular, McGrady argues that the Magistrate Judge incorrectly inferred that the opinion of
Dr. McGovern did not restrict McGrady’s ability to performing only simple, repetitive tasks
continuously for a two-hour period.
McGrady also alleges that the Magistrate Judge ignored Dr. McGovern’s role as the
Agency’s own examining psychologist and the instructions provided to Agency examining

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psychologists. McGrady argues that the RFC is characterized as the most a claimant can do, and
when the Agency solicits a medical opinion, it seeks to establish the most a claimant can do.
McGrady’s position is that this failure resulted in the Magistrate Judge making a post hoc
rationalization for the logic of the ALJ in not including Dr. McGovern’s opinion in the RFC
determination.
The ALJ determined that Dr. McGovern’s opinion established that McGrady had, at most,
a mild limitation in concentration, persistence, and pace. The ALJ based this determination on the
abilities of McGrady to complete tasks and remember certain things. For example, Dr.
McGovern’s psychological examination revealed that McGrady performed housework, does the
grocery shopping and cooking, was able to make and remember appointments, and had the skills
to handle her financing. (Filing No. 11-11 at 147). The ALJ noted that based on these abilities
McGrady had only a mild limitation in regards to her concentration, persistence, and pace. The
ALJ also based her determination on McGrady’s Global Assessment of Functioning score of 65
(Filing No. 11-11 at 148). “Such a GAF indicates some mild symptoms . . . but shows the
individual generally functions pretty well and has some meaningful interpersonal relationships.”
(Filing No. 11-2 at 33.) The ALJ used this information to determine that McGrady’s RFC allowed
her to perform a limited range of work.
To establish that the Magistrate Judge engaged in impermissible post hoc rationalizations,
the Report and Recommendation must be devoid of the rationale of the ALJ’s decision and include
rationale that was not considered and used by the ALJ, thereby showing a lack of a connection or
logical bridge between the Report and Recommendation and the decision of the ALJ. The
Magistrate Judge agreed with the determination of the ALJ because a review of Dr. McGovern’s
examination revealed that McGrady had mild limitations in concentration, persistence, and pace.

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The Magistrate Judge referenced the same aspects of the examination to determine that McGrady’s
limitations were, at most, mild. McGrady argues that the Magistrate Judge is making post hoc
rationalizations by ignoring the Agency’s instructions regarding examining psychologists
employed by the Agency. McGrady asserts that it is the responsibility of the Agency employed
examiners to provide an RFC of the claimant. Although Dr. McGovern is employed by the Agency,
she is not the final decision maker of McGrady’s RFC, which is left to the ALJ alone. Dr.
McGovern did not present a determination on the RFC of McGrady; rather, she completed a
psychological evaluation, reported her findings in various evaluations, and noted McGrady’s GAF
of 65.
McGrady ignores the remainder of Dr. McGovern’s opinion and argues that the question
and answer—Can this person attend to a simple, repetitive task continuously for a two-hour
period? The claimant is likely to be able to do a simple, repetitive task continuously for a two-hour
period.—represents an RFC determination. This argument misses the mark. The Court concurs
with the Magistrates Judge’s analysis that the question and answer did not provide the maximum
ability of McGrady. Instead, it identified McGrady’s ability to complete such work in that specific
area. The format of the question suggested that it merely determined if the claimant can perform
at that level, not to determine the maximum ability of the claimant. As the Commissioner states in
her supporting brief, and the Magistrate Judge agrees, if the Court accepts McGrady’s logic “if the
question asked whether McGrady could concentrate for 1 minute, and Dr. McGovern answered
‘yes,’ then Dr. McGovern’s opinion was that McGrady could concentrate for 1 minute but not any
longer than that.” (Filing No. 18 at 10.) The Court does not agree with McGrady’s logic. The
question did not ask for an opinion on her limitations.

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The Magistrate Judge did not engage in post hoc rationalization here because he reviewed
the same evidence and based his recommendation on the same analysis, rationale, and conclusions
as the ALJ. He did not present a new basis or justification for affirming the ALJ’s decision.
McGrady alleges that the Magistrate Judge engaged in post hoc rationalization when he explained
that Dr. McGovern’s question and answer was not a determination of the maximum ability of
McGrady. However, this was consistent with the ALJ’s decision and analysis and with the
Commissioner’s position during judicial review. The Magistrate Judge did not devise a new
argument for the ALJ or the Commissioner. Therefore, the Court rejects McGrady’s argument that
the Magistrate Judge engaged in impermissible post hoc rationalizations.
IV.

CONCLUSION

For the reasons set forth above, the Court finds that there is no error in the Magistrate
Judge’s Report and Recommendation and therefore OVERRULES McGrady’s objections (Filing
No. 29). The Court herby ADOPTS the Magistrate Judge’s Report and Recommendation,
AFFIRMING the Commissioner’s decision (Filing No. 28).
SO ORDERED.

Date: 3/9/2016

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Distribution:
Eric E. Schnaufer
[e-mail]
J. Frank Hanley, II
[e-mail]
Eric Truett
OFFICE OF GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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