MALONEY v. BERRYHILL

Filing 20

ENTRY - REVIEWING THE COMMISSIONER'S DECISION; The Court VACATES the ALJ's decision denying Ms. Maloney's benefits and REMANDS the case for further proceedings, pursuant to 42 U.S.C.§ 405(g) (sentence 4), as detailed in this entry. The decision of the ALJ is REVERSED and the case REMANDED for action consistent with the opinion. Final Judgment shall issue accordingly. Signed by Judge Sarah Evans Barker on 1/18/2018.(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MELINDA L. MALONEY,
Plaintiff,
v.
NANCY A. BERRYHILL Acting Commissioner
of the Social Security Administration,
Defendant.

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No. 1:17-cv-01009-SEB-MJD

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Melinda Maloney applied for supplemental security income from the Social
Security Administration (“SSA”) on April 9, 2014, alleging a disability onset date of August 1,
1998. [Filing No. 13-5 at 2.] Her application was initially denied on June 13, 2014, [Filing No.
13-4 at 2], and upon reconsideration on September 12, 2014, [Filing No. 13-4 at 9]. The ALJ held
a hearing on February 16, 2016, [Filing No. 13-2 at 47-72], and issued a decision on March 10,
2016, concluding that Ms. Maloney was not entitled to receive supplemental security income,
[Filing No. 13-2 at 23]. The Appeals Council denied review on February 23, 2017. [Filing No.
13-2 at 2.] On March 31, 2017, Ms. Maloney timely filed this civil action asking the Court to
review the denial of benefits, pursuant to 42 U.S.C. § 1383(c). [Filing No. 1.] For the reasons
detailed below, decision of the ALJ is REVERSED and the case REMANDED for action
consistent with the opinion.
I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits … to
individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214 (2002). “The statutory

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definition of ‘disability’ consists of two parts. First, it requires a certain kind of inability, namely,
an inability to engage in any substantial gainful activity. Second, it requires an impairment,
namely, a physical or mental impairment, which provides reason for the inability. The statute adds
that the impairment must be one that has lasted or can be expected to last … not less than 12
months.” Id. at 217.
When an applicant appeals an adverse benefits decision the Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
purposes of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ “is
in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d 668, 678
(7th Cir. 2008), we afford the ALJ’s credibility determination “considerable deference,”
overturning it only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir.
2006) (quotations omitted).
The ALJ is required to apply the five-step inquiry set forth in 20 C.F.R. § 416.920(a)(4)(i)(v) in making disability determinations, evaluating the factors in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals one of
the impairments listed by the [Commissioner]; (4) whether the claimant can
perform her past work; and (5) whether the claimant is capable of performing work
in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four

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is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable
impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ
uses the RFC at Step Four to determine whether the claimant can perform her own past relevant
work and, if not, at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 416.920(e), (g). The burden of proof is on the claimant for Steps One through Four; only
at Step Five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate where all factual issues have been resolved and the record can
yield but one supportable conclusion.” Id. (citation omitted).
II.
BACKGROUND
Ms. Maloney was 43 years old at the time she applied for supplemental security income.
[Filing No. 13-5 at 2.] She had completed high school and previously worked as a telephone
inspector. [Filing No. 13-2 at 37-38.] 1

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Both parties provided a detailed description of Ms. Maloney’s medical history and treatment in
their briefs. [Filing No. 16; Filing No. 17.] Because that discussion implicates sensitive and
otherwise confidential medical information concerning Ms. Maloney, we will simply incorporate
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The ALJ followed the five-step sequential evaluation set forth by the Social Security
Administration in 20 C.F.R. § 416.920(a)(4) and ultimately concluded that Ms. Maloney is not
disabled. [Filing No. 13-2 at 39.] The ALJ found as follows:
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At Step One, the ALJ found that Ms. Maloney has not engaged in substantial gainful
activity2 since March 26, 2014, her application date. [Filing No. 13-2 at 28.]

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At Step Two, the ALJ found that Ms. Maloney has the following severe impairments: “low
back pain; obesity; post-traumatic stress disorder; and generalized anxiety disorder.”
[Filing No. 13-2 at 28.]

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At Step Three, the ALJ found that Ms. Maloney does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments. [Filing No. 13-2 at 30.]

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After Step Three but before Step Four, the ALJ also found that Ms. Maloney has the RFC
to “perform medium work as defined in 20 CFR 416.967(c) except she can lift and/or carry
50 pounds occasionally and 25 pounds frequently; stand and/or walk for six hours during
an eight-hour workday; and sit for six hours during an eight-hour workday; must be
allowed to alternate to sitting or standing position for one to two minutes each hour;
occasionally climb ramps and stairs; never kneel, crawl, or climb ladders, ropes, and
scaffolds; avoid work at unprotected heights, around dangerous moving machinery,
operating a motor vehicle, around open flames, and around large bodies of water; work
should be such that it can be learned in 30 days or less or by short demonstration; and no
more than superficial interaction with the public coworkers, and supervisors.” [Filing No.
13-2 at 33-34.]

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At Step Four, the ALJ concluded, after considering Ms. Maloney’s age, education, work
experience, and RFC and relying on the testimony of the vocational expert (“VE”), that
Ms. Maloney is incapable of performing her past relevant work as a telephone inspector.
[Filing No. 13-2 at 37.]

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At Step Five, the ALJ found that considering Ms. Maloney’s age, education, and RFC she
could perform other jobs that exist in significant numbers in the national economy. The
ALJ found that Ms. Maloney could work as a merchandise marker, sub assembler, and an
electrical accessory assembler. [Filing No. 13-2 at 38.]

those facts by reference and detail specific facts only as necessary to address the parties’
arguments.
2
Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 416.972(a).
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III.
DISCUSSION
Ms. Maloney makes two assertions of error regarding the ALJ’s decision, each of which
we consider in turn below.
A. Whether the ALJ Erred by Failing to Evaluate the Two Third-Party Statements
Completed by Ms. Maloney’s Case Manager, Robyn Brush, as Required by Social
Security Ruling 06-03p and 20 C.F.R. § 416.972(f)
Ms. Maloney asserts that the ALJ mentioned two third-party reports filled out by Ms.
Maloney’s case manager, Ms. Brush, but did not evaluate them at any point in the decision. [Filing
No. 16 at 20.] Ms. Maloney argues that summarizing the statements is not enough, that “the ALJ
must perform the judicial function of weighing evidence,” and that it “is not possible to tell if the
ALJ accepted all of [Ms.] Brush’s statements, rejected all of [Ms.] Brush’s statements, or accepted
some and rejected others.” [Filing No. 16 at 21.]
The Commissioner responds that the ALJ reasonably assessed Ms. Maloney’s mental
impairments and the RFC includes all the limitations supported by the record. [Filing No. 17 at
6.] The Commissioner further maintains that the ALJ considered all the opinion evidence related
to Ms. Maloney’s impairments, including giving great weight to the opinions of two doctors.
[Filing No. 17 at 9.] With regard to the third-party reports of Ms. Brush, the Commissioner notes
that the ALJ explicitly referred to the reports, that the “ALJ need not give ‘good reasons’ for the
weight given such opinions; instead, he merely needs to consider [them] and explain the weight
given,” citing Social Security Ruling (“SSR”) 06-03p. [Filing No. 17 at 10.] The Commissioner
concludes that “[d]espite not explicitly explaining the weight he gave Ms. Brush’s opinion, the
ALJ’s extensive discussion of her reports allows this Court to follow his reasoning and shows that
he credited Ms. Brush’s opinion on [Ms. Maloney’s] limitations.” [Filing No. 17 at 10.]

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Both parties agree that SSR 06-03p is controlling, given the filing date of Ms. Maloney’s
claim. [Filing No. 16 at 16; Filing No. 17 at 10 (including footnote 30.] Both parties also agree
that Ms. Brush would be considered an “other source” for purposes of applying the ruling to her
specific opinions. [Filing No. 16 at 17; Filing No. 17 at 10.] We note that Ms. Brush, as a case
manager for Ms. Maloney, through her employer Centerstone, had contact in a professional
capacity with Ms. Maloney on a weekly basis. [Filing No. 13-6 at 24 and Filing No. 13-6 at 51.]
Ms. Maloney asserts that “non-medical sources who have contact with the claimant in their
professional capacities are ‘valuable sources of evidence for assessing impairment severity and
functioning. Often these sources have close contact with the individual and have personal
knowledge and expertise to make judgments about their impairment(s), activities, and level of
functioning over a period of time.’” [Filing No. 16 at 17; citing SSR 06-03p.] The ruling describes
the ALJ’s obligation with regard to such sources:
Although there is a distinction between what an adjudicator must consider and what
the adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these ‘other
sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of
the case.
Ms. Brush proffered several opinions regarding Ms. Maloney’s functioning. For example,
when asked if Ms. Maloney could “go out alone”, Ms. Brush responded, “No,” due to her “[l]ack
of personal mode of transportation. [And that she] [d]oes not use public transportation due to social
and general anxiety.” [Filing No. 13-6 at 27.] When asked the same question in a later report, she
again said, “No,” adding that “[s]he does not go out alone due to anxiety. She has panic attacks in
public places.” [Filing No. 13-6 at 54.] When asked if Ms. Maloney “need[s] someone to
accompany” her, Ms. Brush indicated “yes,” adding it was “[d]ue to anxiety.” [Filing No. 13-6 at

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28; see also Filing No. 13-6 at 55.] Ms. Brush further stated that Ms. Maloney “needs guidance
with tasks in the community such as grocery shopping and using community resources due to
social phobia. She does not leave the house alone due to anxiety.” [Filing No. 13-6 at 31.]
Ms. Brush also contributed several observations as to Ms. Maloney’s functioning, which
could have a bearing on her work setting. For example, when asked how well Ms. Maloney gets
along with authority figures, Ms. Brush responded, “Not well.

She often perceives

judgment/disrespect when it is not necessarily present due to sensitivity from social phobia. She
projects these fears in interactions and struggles to communicate, and often ends up in tears.”
[Filing No. 13-6 at 30.] When asked how Ms. Maloney handles stress, Ms. Brush responded,
“Poorly. Exhibits signs of anxiety. Often does not follow through with important tasks due to
anticipating poor outcomes.” [Filing No. 13-6 at 30.] Mr. Brush also noted that Ms. Maloney
requires reminders to take her medications. [Filing 13-6 at 53.]
We agree with Ms. Maloney that the ALJ’s evaluation of Ms. Brush’s observations and
opinions is inadequate. The entirety of the ALJ’s discussion of Ms. Brush’s opinions is as follows:
Robyn Brush, the claimant's case manager, reported the claimant does not have
problems taking care of her personal needs except for physical limitations. She
continued that the claimant is able to prepare simple meals and that she is able to
do dishes, laundry, vacuuming, sweeping, and mopping. Ms. Brush also stated the
claimant is able to go grocery shopping once a week for 30 to 60 minutes, and with
assistance from her case manager or family and that she spends the remainder of
her time caring for her children, reading, and taking naps. (Exs. 5E and 9E).
The claimant and her case manager have described daily activities which are not
limited to the extent one would expect, given the complaints of disabling symptoms
and limitations.
[…]
The claimant's case manager, Robyn Brush, reported the claimant has problems
with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling,
climbing stairs, memory, completing tasks, and getting along with others. Ms.
Brush continued the claimant can walk for five to 15 minutes at a time before she
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has to stop and rest for five to 15 minutes. She also stated the claimant is able to
pay attention and can sometimes complete tasks that she begins. Ms. Brush further
reported the claimant has problems getting along with others because she has
trouble communicating and perceives that others are judging and sabotaging her.
(Exs. SE and 9E).
[Filing No. 13-2 at 36.] The Commissioner admits that the ALJ did not explicitly indicate the
weight he had given to Ms. Brush’s assessments.

[Filing No. 17 at 10.]

However, the

Commissioner argues that the ALJ’s “extensive discussion of her reports allows this Court to
follow his reasoning and shows that he credited Ms. Brush’s opinion on [Ms. Maloney’s]
limitations.” [Filing No. 17 at 10.] For support, the Commissioner invokes the holding in Filis v.
Astrue that the “ALJ need only ‘minimally articulate his reasoning’ in order to satisfy his duty to
build a logical bridge from the evidence to his conclusions.” [Filing No. 17 at 10-11; citing Filis
v. Astrue, 694 F.3d 863, 869 (7th Cir. 2012).]
We begin by noting that in our opinion Filis is not controlling here. In Filis, the “ALJ
explained which opinions he had accepted and which he had discounted in reaching [his]
conclusions and why.” Filis, 694 F.3d at 866. With regard to doctor’s opinions which the plaintiff
had argued were improperly rejected, the Court noted that the “ALJ […] gave little weight to Dr.
Owen's opinion that Filis has severe difficulties with common tasks because it was inconsistent
with other record evidence. Finally, the ALJ discounted Dr. Sajadi's opinion that he could complete
only six hours of an eight-hour workday (with two-hour long stretches of standing or sitting)
because it was not supported by Dr. Sajadi's ‘otherwise normal examination.’” Id. at 867. The
Court concluded that the “ALJ's rejection of these two opinions was somewhat cursory because he
did not specify the ‘other’ record evidence that undermined the doctors' opinions. But we require
only that the ALJ ‘minimally articulate’ his reasoning.” Id. at 869.

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In the case at bar, the ALJ did not specify the weight he attributed to Ms. Brush’s opinions.
It might be possible in a rare case to infer from the evidence the weight given to a particular
opinion, if it was not specifically noted in the decision. Such is not the case here. The ALJ omitted
any mention of his reason for not following or otherwise considering Ms. Brush’s input. The
ALJ’s sole reference states that Ms. Maloney and “her case manager have described daily activities
which are not limited to the extent one would expect, given the complaints of disabling symptoms
and limitations.” [Filing No. 13-2 at 36.] Curiously, this statement reflects that Ms. Maloney’s
disabling complaints were not deemed credible in part due to Ms. Brush’s statements; it clearly
does explain whether Ms. Brush herself was deemed credible. The ALJ has not set forth any
reason for his discounting of Ms. Brush’s credibility.
One could maintain that the ALJ actually found Ms. Brush’s statements to be credible. The
Commissioner seems to concede as much in holding that “the ALJ’s extensive discussion of her
reports allows this Court to follow the reasoning and shows that he credited Ms. Brush’s opinion
on [Ms. Maloney’s] limitations.” [Filing No. 17 at 10.] The Commissioner continues, stating that
the ALJ’s RFC actually incorporated all of the limitations opined by Ms. Brush. [Filing No. 17 at
11.] However a close review of the limitations noted by Ms. Brush is incompatible with Ms.
Maloney’s ability to work independently in the national economy, given her need for
accompaniment when leaving the house to access community resources, her inability to manage
stress and accept criticism from authority figures (such as a supervisor). These limitations are
clearly material to a disability determination. [Filing No. 16 at 21-23; citing SSR 85-15 (stating
that a “substantial loss of ability to meet any of [the] basic work related activities [described in the
ruling, similar to those above] would severely limit the potential occupation base [and] in turn,
would justify a finding of disability”).]

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The ALJ’s assessment that Ms. Brush’s description of Ms. Maloney’s daily activities was
not as limited as might be expected, given her complaints of disabling symptoms and limitations
is unconvincing. An individual cannot work independently in the workforce if because of her
social phobias and resulting panic attacks, she needs accompaniment in public and her mental
instability magnifies the seriousness of supervisor criticism and her paranoia results in isolation
and an inability to follow through on important tasks. We are left to wonder whether the ALJ even
noticed the apparent discrepancy between his findings and Ms. Brush’s opinions.
Thus, because we cannot trace the ALJ’s logic or reasonably determine from the decision
how if it all he weighed Ms. Brush’s opinions, we find Ms. Maloney’s objections meritorious.
B. Whether the ALJ Took Into Account that Someone with Ms. Maloney’s Social
Limitations is Likely Incapable of Completing the Probationary Periods for the
Employment Positions Referenced in Denying Ms. Maloney’s Claim
Ms. Maloney contends, based on the VE’s testimony in response to a hypothetical, that the
ALJ’s RFC limitation of no more than superficial interaction with supervisors, would necessarily
preclude her from completing the probationary period for work that the ALJ determined she could
perform. [Filing No. 16 at 24.] Ms. Maloney references a prior holding of our Court, wherein we
stated: “Here in lies the problem. [The other jobs the claimant was found capable of] require a
worker to go through a probationary period during which she must have more than brief, superficial
interaction with supervisors and co-workers. Yet, according to the ALJ, [the claimant] is not able
to do that.” [Filing No. 16 at 25; citing Shelton v. Colvin, 2015 U.S. Dist. LEXIS 177388 at *8-9
(S.D. Ind. October 13, 2015).]
We need not resolve this issue, given our prior ruling that remand is required here, and so
we won’t, except to note in passing that the case referenced above does not relate precisely to the
issue for which it is cited. On remand, we encourage the ALJ to reexamine this claim as well.

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IV.
CONCLUSION
For the reasons detailed herein, the Court VACATES the ALJ’s decision denying Ms.
Maloney’s benefits and REMANDS the case for further proceedings, pursuant to 42 U.S.C.§
405(g) (sentence 4), as detailed above. Final Judgment shall issue accordingly.

Date:

1/18/2018

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Timothy J. Vrana
TIMOTHY J. VRANA LLC
[e-mail]

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