MANIFOLD v. COLVIN

Filing 19

ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the final decision of the Commissioner is AFFIRMED. Manifold's appeal is DISMISSED. ** See order **. Signed by Judge Tanya Walton Pratt on 7/7/2016.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HEATHER N. JORDAN MANIFOLD,

)
)
Plaintiff,
)
)
v.
) Case No. 1:15-cv-00672-TWP-MPB
)
CAROLYN W. COLVIN, Acting Commissioner of )
the Social Security Administration,
)
)
Defendant.
)
ENTRY ON JUDICIAL REVIEW
Plaintiff, Heather N. Jordan Manifold (“Manifold”), requests judicial review of the final
decision of the Commissioner of the Social Security Administration (the “Commissioner”),
denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act (the “Act”). For the following reasons, the Court AFFIRMS the decision of the
Commissioner.
I.
A.

BACKGROUND

Procedural History
On May 18, 2012, Heather Manifold protectively filed an application for SSI, alleging a

disability on-set date of August 1, 2010, due to mood disorder, anxiety disorder, borderline
personality disorder, post-traumatic stress disorder (“PTSD”), and mental incapacity. Her claim
was initially denied on June 28, 2012, and again on reconsideration on September 6, 2012.
Manifold filed a written request for hearing on October 18, 2012. On October 10, 2013, a hearing
was held before Administrative Law Judge James R. Norris (“ALJ”). Manifold was present and
represented by counsel. A medical expert, James M. Brooks, Ph.D. (“Dr. Brooks”), a licensed
clinical psychologist, and a vocational expert, Constance Brown, certified rehabilitation counselor,

appeared and testified at the hearing. On November 27, 2013, the ALJ denied Manifold’s
application for SSI. Following this decision, Manifold requested review by the Appeals Council
on January 21, 2014. On March 2, 2015, the Appeals Council denied Manifold’s request for review
of the ALJ’s decision, thereby making the ALJ’s decision the final decision of the Commissioner
for purposes of judicial review. On April 27, 2015, Manifold filed this action for judicial review
of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
B.

Factual Background
Manifold was born in February 1983. At the time of her alleged disability on-set, she was

27 years old, and she was 30 years old at the time of the ALJ’s decision. Beginning in grade four,
Manifold participated in special education courses and she completed school through the eighth
grade. She attempted the GED examination three times but failed to pass each time. Prior to the
on-set of her alleged disability, she had an employment history that included various jobs such as
a housekeeper, but she did not hold any job for an extensive period of time because employers told
her that she was too slow or not qualified.
In 2006, Manifold underwent a psychological examination for a previous Social Security
benefits application. She reported that she had received benefits as a minor. The Wechsler Adult
Intelligence Scale-III was administered, and she scored 76 for verbal IQ, 86 for performance IQ,
and 79 for full scale IQ (Filing No. 12-7 at 5). These scores put her in the borderline to low average
range of functioning. Her global assessment of functioning (“GAF”) score was listed as 54 (Filing
No. 12-7 at 5).
Manifold was first diagnosed with depression in 2008 and was later diagnosed with bipolar
disorder in 2009. She was documented as having speech impediments, including stuttering.
During a 2010 psychiatric evaluation by Masooma Sheikh, M.D. (“Dr. Sheikh”), Manifold was

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diagnosed with borderline personality disorder and “rule out” bipolar disorder and “rule out” posttraumatic stress disorder. (Id.). Some of the symptoms that she reported included sleeplessness,
loss of appetite, weight loss, and periods of energy that ended in being depressed. She reported
witnessing her mother being physically abused by her father, and she also reported being molested
by her stepfather. At the end of her psychiatric evaluation, Dr. Sheikh assigned her a GAF score
of 27. Her prescription for Topamax was increased, and she was prescribed Remeron. Dr. Sheikh
recommended holding off on her Xanax.
Manifold continued to receive counseling throughout 2010 and 2011. She reported that
she needed less Xanax after her counseling sessions. (Filing No. 12-7 at 10). At a follow-up
appointment with Dr. Sheikh, she reported feeling better after her medications were adjusted
although she experienced some negative side effects. It was noted that she continued to exercise
poor judgment and insight. During her next two appointments, Manifold reported that she was
taking her medications but was feeling worse and depressed, had an eating disorder, and was
experiencing weight loss and motor ticks in her neck and face. Her medications were adjusted to
address her issues.
During her next follow-up examination, Manifold reported that one of her medications was
making her feel tired and that she was still having motor ticks. (Filing No. 12-7 at 29). She also
reported being worried about her weight, but mentioned no depression. Her next follow-up was
more positive because her ticks had improved, she had a good appetite, and she was maintaining
her weight. At later appointments with Dr. Sheikh, Manifold reported mood swings, crying spells,
and less energy, but improved concentration. By the time she applied for disability benefits,
Manifold was diagnosed with PTSD, “rule out” bipolar, “rule out” anorexia, attention deficit
hyperactivity disorder (“ADHD”), and borderline personality disorder, with the continued GAF

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score of 27.

At another follow-up appointment, Manifold reported feeling “okay” on her

medications and not having anxiety. (Filing No. 12-7 at 40). Her mood was stable.
In June 2012, Donna Unversaw, Ph.D. (“Dr. Unversaw”), a state agency medical
consultant, completed a mental residual functional capacity assessment and opined that Manifold
had only moderate limitations in understanding, remembering, and carrying out detailed
instructions (Filing No. 12-7 at 54). Dr. Unversaw also wrote that Manifold was not significantly
limited in many other areas such as the ability to understand and remember very short and simple
instructions. She opined that Manifold could complete simple, routine, unskilled work. Dr.
Unversaw also completed a psychiatric review technique form for Manifold (Filing No. 12-7 at
58). She indicated that Manifold’s primary impairment was anxiety. Dr. Unversaw also opined
that Manifold has “[i]nflexible and maladaptive personality traits which cause either significant
impairment in social or occupational functioning or subjective distress, as evidenced by . . .
[i]ntense and unstable interpersonal relationships and impulsive and damaging behavior.” (Filing
No. 12-7 at 65.) Dr. Unversaw determined that Manifold had only mild restrictions in activities
of daily living and moderate limitations in social functioning and concentration, persistence, and
pace. She noted no episodes of decompensation (Filing No. 12-7 at 68). Benetta Johnson, Ph.D.
(“Dr. Johnson”), affirmed Dr. Unversaw’s assessment and noted Manifold’s good attention and
concentration and no memory concerns (Filing No. 12-7 at 84).
Manifold’s next visits with Dr. Sheikh in June, July, and August 2012, showed a variation
of her suffering from mood swings, poor appetite, and sleeplessness to her feeling better and more
functional with her medication.
Manifold underwent a psychological consultative examination by Michael O’Brien, Psy.D.
(“Dr. O’Brien”) on June 26, 2013, as part of the disability determination process. Manifold

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reported to Dr. O’Brien that her main areas of concern were her bipolar disorder, anxiety,
depression, and trouble concentrating (Filing No. 12-7 at 85). She reported that she had a history
of PTSD, and she discussed her struggles with education. Manifold reported that her medication
is helpful. Dr. O’Brien noted that Manifold demonstrated no problems in the area of attention and
distractibility and that she was calm and cooperative. She had only a moderate number of errors
on the mental status examination. Dr. O’Brien diagnosed Manifold as having anxiety and bipolar
disorder with post-traumatic traits. He noted “rule out” borderline intellectual functioning and
assigned Manifold a GAF score of 55 to 65 depending on the rule out. Dr. O’Brien also opined
that Manifold could understand, remember, and carry out simple directions and concentrate well
enough to carry out simple tasks (Filing No. 12-7 at 91).
On July 1, 2013, Dr. O’Brien completed a medical source statement for Manifold and noted
that her ability to understand, remember, and carry out instructions was moderately to markedly
limited for simple instructions and tasks and markedly to extremely limited for complex
instructions. He qualified this opinion “depending on IQ.” (Filing No. 12-7 at 94.)
During the hearing before the ALJ on October 10, 2013, Dr. Brooks testified that Manifold
had a medically determinable mental impairment, pointing to her IQ scores, which were
established before her disability on-set date. He also testified regarding Manifold’s symptoms,
treatment and her diagnoses. Dr. Brooks noted several inconsistencies between the diagnoses and
symptoms in the record; however, he attributed these discrepancies to Manifold’s borderline
personality disorder. He testified that Manifold’s conditions coupled with borderline personality
disorder could be better attributed to mood disorder and not necessarily bipolar disorder.
Regarding Manifold’s mental functional capacity, Dr. Brooks believed that, she could perform
simple, repetitive tasks.

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Dr. Brooks then was questioned by Manifold’s attorney about her social limitations. Dr.
Brooks testified that Manifold’s social interaction with the general public, co-workers, and
supervisors might be moderately limited, and these interactions should be only occasional. Dr.
Brooks testified that Manifold should not have difficulty with production based or fast-paced work.
He questioned the current validity and usefulness of her IQ scores because IQ testing must be done
multiple times over time to be reliable and useful. Dr. Brooks also discredited Dr. Sheikh’s
assignment of a GAF score of 27 to Manifold, because a score that low would indicate a patient
required hospitalization, which Manifold did not require. Dr. Brooks testified that Dr. Sheikh
likely just repeated the initial low GAF score throughout his records without actually reevaluating
and updating Manifold’s GAF score during subsequent visits. The low score also was inconsistent
with Manifold’s other GAF scores which were in the 50s range. Dr. Brooks reiterated that
Manifold should be limited to simple, repetitive tasks with only occasional contact with the general
public, co-workers, and supervisors.
During the administrative hearing, Manifold testified regarding her special education
courses in school and that she dropped out of school in the ninth grade because “it got too difficult.”
(Filing No. 12-2 at 46.) She attempted the GED test three times without success. She testified
that she has trouble understanding what she reads and usually has her father read to her. However,
she also testified that she can fill out paperwork.
Manifold testified that her bipolar disorder is managed on her medications, but she still
struggles with paying attention and with her motor ticks. She testified that her doctor prescribed
new medications and increased the dosage of her old medications. She explained the medications
affect her driving, so she does not drive often. Manifold testified that she does not like being
around people because it makes her feel anxious and nervous. Her PTSD also makes her feel

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paranoid and fearful. However, Manifold asserted that she does not want to hurt herself or anyone
else because she is not violent and she loves herself and her children too much to do something
like that. She testified that she feels tired and has racing thoughts.
In response to the ALJ’s hypothetical of a person able to perform only simple, repetitive
tasks with only occasional contact with the general public, co-workers, and supervisors, the
vocational expert, testified that jobs were available in the national economy for such a hypothetical
person such as housekeeper/cleaner, office machine operator, and electronic assembler. She
testified that each of these jobs were light, unskilled jobs. She also testified that if the hypothetical
person could not work eight hours a day and five days a week then the jobs would no longer be
available.
Manifold’s attorney asked the vocational expert whether any of the jobs would be
eliminated if the hypothetical person had trouble reading. The vocational expert testified that
limitation would eliminate only the office machine operator. Manifold’s attorney expanded the
hypothetical again to a person who had to be reminded to stay on task and needed to work in
isolation. The vocational expert indicated that these limitations would eliminate all positions
except for a nighttime housekeeper. The final limitations that Manifold’s attorney posed to the
vocational expert were that the person would be off task twenty percent of the day and would be
absent two days a month, to which the vocational expert responded that these limitations would
eliminate all jobs in the economy.
II.

DISABILITY AND STANDARD OF REVIEW

Under the Act, a claimant may be entitled to SSI only after he establishes that he is disabled.
Disability is defined 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

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which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must demonstrate that his physical
or mental limitations prevent him from doing not only his previous work but any other kind of
gainful employment which exists in the national economy, considering his age, education, and
work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled
despite his medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the
claimant does not have a “severe” impairment that meets the durational requirement, he is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). 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). At
step three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve month
duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii).
If the claimant’s impairments do not meet or medically equal one of the impairments on
the Listing of Impairments, then his residual functional capacity will be assessed and used for the
fourth and fifth steps. Residual functional capacity (“RFC”) is the “maximum that a claimant can
still do despite his mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675–76 (7th
Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to
perform his past relevant work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and
final step, it must be determined whether the claimant can perform any other work in the relevant
economy, given his RFC and considering his age, education, and past work experience. 20 C.F.R.

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§ 404.1520(a)(4)(v). The claimant is not disabled if he can perform any other work in the relevant
economy.
The combined effect of all the impairments of the claimant shall be considered throughout
the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the court “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). In
reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the findings are
supported by substantial evidence 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. Further, this 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). While the court reviews an ALJ’s decision deferentially, the court cannot uphold
an ALJ’s decision if the decision “fails to mention highly pertinent evidence, . . . or that because
of contradictions or missing premises fails to build a logical bridge between the facts of the case
and the outcome.” Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).
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). The ALJ is required to articulate only a minimal, but legitimate, justification for her
acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700

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(7th Cir. 2004).

III.

THE ALJ’S DECISION

The ALJ began the five-step analysis and first determined that Manifold had not engaged
in substantial gainful activity since May 18, 2012, the application date. At step two, the ALJ found
that Manifold has the following severe impairments: mood disorder, anxiety disorder, borderline
personality disorder, and post-traumatic stress disorder. At step three, the ALJ concluded that
Manifold does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then determined that Manifold has a RFC to perform “a full range of work at all
exertional levels but with the following non-exertional limitations: limited to simple, repetitive
tasks and occasional contact with the public, co-workers and supervisors.” (Filing No. 12-2 at 21.)
At step four, the ALJ found that Manifold has no past relevant work. At step five, the ALJ
determined that Manifold is not disabled because there are jobs that exist in significant numbers
in the national economy that Manifold could perform, considering her age, education, past work
experience, and RFC. Therefore, the ALJ denied Manifold’s application for SSI because she is
not disabled.
IV.

DISCUSSION

In her request for judicial review, Manifold argues that the ALJ’s decision contains two
errors that warrant remand. First, she argues that the ALJ did not sufficiently question the
vocational expert because the ALJ did not address in the hypothetical that Manifold had limitations
in concentration, persistence, and pace. Second, the ALJ did not take into account Manifold’s

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unstable work history when he found that she was not disabled. The Court will address each of
these arguments in turn.

A.

The ALJ Adequately Addressed Manifold’s Limitations When He Questioned the
Vocational Expert
Manifold first argues that the ALJ failed to include in the hypothetical question her

moderate limitations in concentration, persistence, and pace. Manifold asserts that the ALJ
selectively cited the record when he found that she had only mild difficulties in concentration,
persistence, and pace. Furthermore, she alleges that the ALJ omitted all evidence from her treating
physician, family members, and a state agency reviewer concerning her limitations. She asserts
that the ALJ simply made his decision based on the fact that she had made improvements; and
failed to consider that her symptoms often would come back after improvements were made.
Manifold also argues that the ALJ and the medical expert, Dr. Brooks, never mentioned her ADHD
diagnosis, leaving her to wonder if the entire record was considered. Finally, Manifold argues the
ALJ’s finding that she does not have memory problems is a misrepresentation of the entire record.
Citing several Seventh Circuit cases, Manifold argues that the ALJ must provide a
complete picture of the claimant’s limitations to the vocational expert. See O’Connor-Spinner v.
Astrue, 627 F.3d 614, 619 (7th Cir. 2010). She asserts that the ALJ must include all limitations
supported by medical evidence in the record, citing to Young v. Barnhart, 362 F.3d 995 (7th Cir.
2004). Otherwise, she states, there must be some evidence in the record to show that the vocational
expert knew of the claimant’s limitations. Id. Finally, she argues that the ALJ must expressly
refer to concentration, persistence, and pace in the hypothetical presented to the vocational expert,
citing O’Connor-Spinner, 627 F.3d at 620–21.

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In response to Manifold’s argument, the Commissioner asserts that the ALJ’s hypothetical
to the vocational expert was sufficient. The Commissioner explains that at Step Three of the
disability analysis, the ALJ found that Manifold had only moderate limitations in social
functioning and mild limitations in activities of daily living and concentration, persistence, and
pace, which findings were supported by substantial evidence, including Dr. O’Brien’s opinion,
Manifold’s lack of memory problems, and her treatment notes from appointments with Dr. Sheikh.
The Commissioner also argues that, in the RFC analysis, the ALJ accounted for Manifold’s
subjective complaints as to the duration, frequency, and intensity of her impairments as well as her
ADHD. The Commissioner points to examples of evidence that the ALJ relied on to support the
ALJ’s RFC determination—improved concentration with ADHD medication, mental status
examinations within normal limits, and Dr. Sheikh’s medical notes that her concentration was
good and fair. The Commissioner asserts that the ALJ considered the entire record when he made
the determination that Manifold’s symptoms and ADHD improved with treatment and
medications. Dr. Sheikh and Dr. Brooks both opined that she had mild limitations, and the ALJ
gave great weight to Dr. Brooks’ opinion because it was heavily supported by the record. The ALJ
also considered Dr. Unversaw’s opinion that Manifold could perform simple, repetitive tasks.
The Commissioner further responds that Manifold’s claims that the ALJ selectively cited
the record and the decision grossly misrepresented the record are simply incorrect. Instead, the
ALJ considered the record as a whole, looking at the treatment history of Dr. Sheikh, the ADHD
diagnosis and notes regarding concentration, Dr. O’Brien’s opinions and conditional opinions, Dr.
Unversaw’s mental examination and mental RFC assessment, and Dr. Brooks’ full record review
and opinions. The ALJ then assigned weight to the various opinions and testimony based on their

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support in the record. The ALJ’s Step Three, Step Five, and RFC analyses show that the review
and analysis of the record was not perfunctory or selective.
The Commissioner points out that Dr. Unversaw provided an opinion regarding Manifold’s
limitations (including in the area of concentration) and then converted that opinion into an RFC of
an ability to perform simple, repetitive tasks. Dr. Johnson affirmed this assessment. Then Dr.
Brooks, during the administrative hearing, agreed with this opinion, offering it as an appropriate
RFC. The ALJ then adopted this RFC as his own. Therefore, the Commissioner asserts, there is
substantial evidence in the record to support the extent of Manifold’s limitations and the
corresponding RFC as determined by the ALJ. What is more, the vocational expert, was present
during the administrative hearing and heard the testimony regarding these limitations, the
diagnoses, the symptoms, the limitations in concentration, and the assigned RFC, so the vocational
expert was aware of the limitations when offering her opinion about available work.
Upon review of the ALJ’s decision and the record, including the administrative hearing
transcript, the Court determines that the ALJ’s hypothetical questions presented to the vocational
expert were sufficient to account for Manifold’s limitations, including her limitations in
concentration, persistence, and pace. The ALJ considered the entire record, not just selective
portions favorable to his decision. The ALJ properly weighed the record evidence, gave sufficient
reasons for the weight given, accounted for limitations in the RFC determination, and then
adequately addressed the limitations when questioning the vocational expert. This is particularly
true where the ALJ essentially adopted Dr. Unversaw’s RFC opinion, and the vocational expert
was present to hear all the testimony regarding Manifold’s limitations. There is substantial
evidence to support the ALJ’s Step Five determination as well as substantial evidence to support

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the ALJ’s entire decision. Therefore, Manifold’s first basis for seeking remand of the ALJ’s
decision is unavailing.
B.

The ALJ Sufficiently Considered Manifold’s Unstable Work History
As a second reason for seeking remand, Manifold asserts that the ALJ did not take into

account her unstable work history when he found that she was not disabled. Manifold asserts that
the ALJ should have considered her prior, failed work attempts as being an indication that she
could not perform any other work in the economy. Manifold argues that the ALJ provided no
discussion of her past work history in his decision. However, she acknowledges that the ALJ
properly found that she had no past relevant work.
Manifold, relying on cases from other circuits, argues that simply being employed does not
mean that a claimant has engaged in substantial gainful activity or that a claimant is capable of
maintaining substantial gainful activity. See Gatliff v. Commissioner of the SSA, 172 F.3d 690 (9th
Cir. 1999). She also asserts that being employed is not proof that a claimant can work, and a
person can be entitled to disability even if they are working.
The Commissioner responds that the ALJ’s findings regarding Manifold’s work history are
consistent with the evidence and are not inconsistent with Manifold’s argument before this Court.
The Commissioner asserts that the ALJ did not find that Manifold’s past work was proof of her
ability to work. In fact, the ALJ found that none of Manifold’s past jobs rose to the level of
substantial gainful activity.
Upon review of the ALJ’s decision and the record, the Court determines that the ALJ
correctly found that Manifold had no past relevant work and had not engaged in substantial gainful
activity. Thus, at Step Four of the disability determination, the ALJ provided no discussion
regarding past work because Manifold had none—a finding favorable to Manifold—and

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immediately went to Step Five of the disability determination. The cases from other circuits on
which Manifold relies appear to support the principle that having past employment does not
necessarily lead to the conclusion that a claimant is capable of maintaining substantial gainful
activity. However, those non-binding opinions do not require the converse—that not having past
relevant work necessarily leads to the conclusion that a claimant is incapable of maintaining
substantial gainful activity. The ALJ’s finding that Manifold is capable of performing work that
exists in the economy is supported by the testimony of the vocational expert, and thus, is supported
by substantial evidence. Therefore, Manifold’s second reason for remand also is unavailing.
V.

CONCLUSION

For the reasons set forth above, the final decision of the Commissioner is AFFIRMED.
Manifold’s appeal is DISMISSED.

SO ORDERED.

Date: 7/7/2016

DISTRIBUTION:
Charles D. Hankey
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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