WALTERS v. COLVIN

Filing 26

ENTRY on Judicial Review-The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings consistent with this Entry. Signed by Judge William T. Lawrence on 3/30/2017.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARIE E. WALTERS,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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) Cause No. 1:16-cv-231-WTL-MJD
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ENTRY ON JUDICIAL REVIEW
Plaintiff Marie E. Walters requests judicial review of the final decision of Defendant
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying Walters’s application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Insurance Benefits (“SSI”) under Titles II and XVI of the Social Security
Act (“the Act”). The Court, having reviewed the record and the briefs of the parties, now rules
as follows.
I.

PROCEDURAL HISTORY

Walters protectively filed for SSI and DIB on October 11, 2012, alleging she became
disabled on December 31, 2001.2 Walters’s application was denied initially on November 28,
2012, and again upon reconsideration on March 20, 2013. Following the denial upon
reconsideration, Walters requested and received a hearing before an Administrative Law Judge

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Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill automatically
became the Defendant in this case when she succeeded Carolyn Colvin as the Acting
Commissioner of Social Security on January 23, 2017.
2
Although Walters filed for SSI and DIB, the ALJ found that the evidence failed to
establish impairments prior to Walters’s date last insured, making Walters ineligible for DIB.
Record at 20. She does not appeal this determination.

(“ALJ”). The hearing, during which Walters was represented by counsel, was held on January
14, 2014, before ALJ John R. Allen by video conference. The ALJ issued his decision on April
15, 2014, denying Walters’s claims. Walters requested review by the Appeals Council, and on
November 24, 2015, the Appeals Council denied review of the ALJ’s decision. Thereafter,
Walters filed this timely appeal.
II.

APPLICABLE STANDARD

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 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).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. 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).3 At
step two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits
his ability to perform basic work activities), he is not disabled. 20 C.F.R. § 416.920(a)(4)(ii). At
step three, the Commissioner determines whether the claimant’s impairment or combination of

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The Code of Federal Regulations contains separate sections relating to DIB and SSI
that are identical in all respects relevant to this case. For the sake of simplicity, this Entry
contains citations to SSI sections only, with the exception of DIB section cites where they
provide information beyond that found in the SSI sections. Additionally, the Court notes that
various Social Security Regulations and related Social Security Rulings were rescinded or
amended effective March 27, 2017; however, the previous versions, as cited here, remain
applicable to this case because Walters’s claim was filed prior to that date.
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impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled, 20 C.F.R. §
416.920(a)(4)(iii). 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 step five, if the claimant can perform any other
work in the national economy, he is not disabled. 20 C.F.R. § 416.920(a)(4)(v).
In reviewing the ALJ’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., and 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). In order to be affirmed, the
ALJ must articulate his analysis of the evidence in his decision; while he “is not required to
address every piece of evidence or testimony presented,” he must “provide an accurate and
logical bridge between the evidence and [his] conclusion that a claimant is not disabled.”
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). “If a decision lacks evidentiary support or
is so poorly articulated as to prevent meaningful review, a remand is required.” Id. (citation
omitted).
III.

ALJ ALLEN’S DECISION

ALJ Allen determined at step one that Walters had not engaged in substantial gainful
activity since December 31, 2001, the alleged disability onset date. R. at 20. At step two, the
ALJ concluded that Walters had the severe impairments of depression, anxiety, degenerative disc
disease, and obesity, id. at 21, as well as the non-severe impairments of neck and shoulder

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problems and sleep apnea, id. At step three, the ALJ determined that Walters’s impairments or
combination of impairments did not meet or equal any Listing. Id. at 21-22. At step four, the
ALJ determined that Walters had the following residual functional capacity (“RFC”):
[T]he claimant has the [RFC] to perform medium work . . . except the claimant is
limited to: simple, routine repetitive tasks, superficial contact with coworkers and
the general public, occasional changes in work setting or assignment, and jobs that
do not involve fast-paced production-type work.
Id. at 22.
The ALJ determined that Walters was unable to perform past relevant work as a cashier,
but would be capable of performing medium demand level work that exists in significant
numbers in the national economy. Id. at 26-27. Accordingly, the ALJ concluded that Walters
was not disabled as defined by the Act.
IV.

EVIDENCE OF RECORD

The ALJ’s decision in combination with Walters’s briefs (Dkt. Nos. 15 & 25) aptly set
forth the medical evidence of record, which need not be recited here.4 Specific facts are
introduced in the discussion section below where relevant.
V.

DISCUSSION

In her brief in support of her Complaint, Walters argues that the ALJ (1) failed to include
Walters’s moderate limitation in concentration, persistence, and pace in the hypothetical question
he posed to the vocational expert at the hearing and (2) erred in giving no weight to the opinion
of Amanda Whitten, one of Walters’s mental health counselors.

Because Walters does not challenge the ALJ’s findings regarding her physical
limitations, those are not discussed.
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A.

Failure to Account for Concentration, Persistence, and Pace Limitations

Walters argues that the ALJ failed to address with the vocational expert the moderate
limitations he found with respect to Walters’s concentration, persistence, and pace. The Court
agrees. Once the ALJ found that those limitations existed, he was required to account for them
in his RFC and in his hypothetical questions to the vocational expert. O’Connor-Spinner v.
Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (“Among the limitations the [vocational expert] must
consider are deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d
679, 684 (7th Cir. 2009) (“the [hypothetical] question must account for documented limitations
of ‘concentration, persistence, or pace’”) (collecting cases) (cited in Yurt v. Colvin, 758 F.3d 850,
857 (7th Cir. 2014)). While the ALJ included in his RFC and hypothetical questions a limitation
to simple, repetitive tasks; a restriction to jobs that do not involve fast-paced production; limiting
changes in work setting or assignment to “occasional”; and requiring only superficial interaction
with co-workers and the general public, he did not explain why he believed the evidence
indicated that those restrictions accounted for Walters’s moderate difficulties with concentration,
persistence, and pace. Moreover, it is not clear to the Court that the RFC and hypothetical
questions address the moderate limitations in each of the categories of concentration, persistence,
and pace. These omissions should be corrected on remand. See Taylor v. Colvin, 829 F.3d 799,
802 (7th Cir. 2016) (noting Seventh Circuit’s “rejection of the view that ‘confining the claimant
to simple, routine tasks and limited interactions with others adequately captures temperamental
deficiencies and limitations in concentration, persistence, and pace’”) (citing Yurt, 758 F.3d at
858-59).

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B.

Whitten’s Opinion

Walters argues that the ALJ erred when he gave no weight to her counselor’s opinion.
Whitten, Walters’s counselor, is not an “acceptable medical source,” as defined by 20 C.F.R. §
416.902. For purposes of the regulation, Whitten falls into the “other sources” category. The
ALJ “may use evidence from ‘other sources’ . . . to show the severity of the individual’s
impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p.5 Opinions of
“other sources” are not entitled to controlling weight, but “depending on the particular facts in a
case, and after applying the factors for weighing opinion evidence, an opinion from a medical
source who is not an ‘acceptable medical source’ may outweigh the opinion of an ‘acceptable
medical source,’ including the medical opinion of a treating source.” Id. (citing 20 C.F.R. §§
404.1527 and 416.927).
Whitten completed a “medical source statement,” in which she indicated that Walters
would miss more than three days of work per month due to her impairments. See R. at 585. The
ALJ noted that Whitten also indicated that Walters would need unscheduled breaks and would
have difficulty dealing with others in a work setting. R. at 24 (citing R. at 583-88). The ALJ
gave no weight to Whitten’s opinion because she is not an acceptable medical source. He further
explained that her opinion was otherwise unpersuasive “for the same reasons outlined above,
given the extent of the claimant’s admitted daily activities, the primary care notes, and the
documented improvement in the claimant’s condition.” Id. The “reasons outlined above”
included an increase in Walters’s global assessment of functioning (“GAF”) scores, which
indicated improvement over time; reports that she had done well in therapy; and notes from her

SSR 06-3p is applicable to this case because Walters’s claim was filed prior to March
27, 2017. See 82 Fed. Reg. 15263-01 (March 27, 2017).
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primary care provider that described her depression as “stable” and “improved,” noted her
mental status as “normal,” and did not document the symptoms Walters had reported to a treating
psychologist. See, id.
Walters argues that her improved GAF scores and the lack of mental health information
in her primary care provider’s notes should not form the basis for discounting Whitten’s opinion
because they are “not substantial evidence to discount [that opinion].” Dkt. No. 15 at 18; 20.
Walters notes that, although her GAF scores increased, they were not inconsistent with Whitten’s
opinion: “A GAF rating of 50 does not represent functioning within normal limits, nor does it
support a conclusion that [Walters] is mentally capable of sustaining work.” Id. at 18 (citation
omitted). Walters also points out that she visited her primary care provider primarily for
physical conditions, not mental health issues, so the lack of documentation of her mental health
issues in such records should not provide a basis for discounting her mental health providers’
opinions. Id. at 19. Walters further disputes the ALJ’s assessment that her daily living activities
“are not indicative of a totally disabled individual.” Id. at 16 (citing R. at 24). She argues that
the ALJ failed to evaluate evidence of her need for help with daily activities, including evidence
that her children helped with chores and making meals and that she needed encouragement to
complete tasks because she was not motivated. Id. at 16-17. Walters further argues that the ALJ
did not explain how her daily living activities were inconsistent with Whitten’s evaluation that
Walters would miss more than three days of work per month due to her mental impairments. Id.
at 16.
Generally, Walters contends that the ALJ should have evaluated the factors found in SSR
06-03p when he determined the weight to be given to Whitten’s opinion. SSR 06-03p does not
require that the ALJ expressly evaluate each of the factors discussed in the regulations:

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“Although the factors . . . explicitly apply only to the evaluation of medical opinions from
‘acceptable medical sources,’ these same factors can be applied to opinion evidence from ‘other
sources.’” SSR 06-03p (emphasis added). At the same time, SSR 06-03p recognizes that the
“factors represent basic principles that apply to the consideration of all opinions from medical
sources who are not ‘acceptable medical sources’ as well as from ‘other sources.’” With this
general principle in mind, the Court makes no determination about whether the weight given to
Whitten’s opinion was sufficient, but advises the ALJ to apply the factors to his evaluation of
Whitten’s opinion on remand.
VI.

CONCLUSION

For the reasons set forth above, the Commissioner’s decision is REVERSED and this
case is REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 3/30/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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