HELTERBRAND v. BERRYHILL

Filing 23

ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL: This cause is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration due to the ALJ's perfunctory step three analysis and failure to address Helterbrand's treating psychiatrist's opinion. See Order. Signed by Magistrate Judge Tim A. Baker on 12/21/2017.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VIRGINIA G. HELTERBRAND,
Plaintiff,
v.
NANCY A. BERRYHILL Commissioner of the
Social Security Administration,
Defendant.

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No. 1:17-cv-01318-TAB-JMS

ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
I.

Introduction
When conducting a hearing and issuing a decision, Administrative Law Judges have

many things they must remember to properly discuss, develop, and analyze, all while being
efficient under the weight of heavy caseloads. 1 Nonetheless, ALJs’ decisions greatly impact
claimants’ lives, and perfunctory analysis will not do. Unfortunately, in this instance the ALJ
erred in her step three discussion of Listing 12.04(C), and the Court grants Plaintiff Virginia
Helterbrand’s request for remand. [Filing No. 19.]
Plaintiff Virginia Helterbrand sought Social Security Income benefits due to her mood
disorder and other physical and mental impairments. The Social Security Administration found
she was not disabled, and Helterbrand appeals. Helterbrand argues the ALJ’s step three analysis
was perfunctory and failed to properly address her treating psychiatrist’s opinion that she met the
Listing 12.04(C)(2) criteria. The Court finds that the ALJ’s discussion was insufficient and

1

In 2015, the most recent year on which there is data, ALJs averaged 44 hearings a month and
708 pending hearings. Annual Statistical Supplement to the Social Security Bulletin, 2016, SOC.
SEC. OFFICE OF RET. & DISABILITY POL’Y (May, 2017), 2.77,
https://www.ssa.gov/policy/docs/statcomps/supplement/2016/supplement16.pdf.

grants Helterbrand’s brief in support of appeal. [Filing No. 19.] Helterbrand raises four other
issues that the Court need not analyze in light of this remand order, but the ALJ may want to
reevaluate some of the evidence in light of Helterbrand’s arguments and the recent changes to
Social Security Rulings regarding credibility and weighing physician testimony.
II.

Background
Helterbrand filed her application for SSI on April 22, 2014, alleging disability beginning

April 1, 2014. The claim was denied initially and upon review, so Helterbrand requested a
hearing. Helterbrand attended the hearing and was represented by an attorney. The ALJ found
Helterbrand was not disabled because she could perform limited unskilled light work such as
housekeeping or preparing food.
The ALJ found at step one that Helterbrand had not engaged in substantial gainful
employment for the relevant period. At step two, the ALJ found Helterbrand had severe
impairments of mood disorder, personality disorder, and morbid obesity, and non-severe
impairments of depression, anxiety, diabetes, migraine headaches, carpal tunnel, and
gastroesophageal reflux disease.
The ALJ found at step three that these impairments, individually or in combination, did
not meet or medically equal any of the listings under 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ looked to several listings, but Helterbrand only challenges the ALJ’s analysis of Listing
12.04(C)(2), which relates to mood disorders. At step four, the ALJ determined that Helterbrand
had the residual functional capacity to perform light work with several additional limitations.
The ALJ also found Helterbrand’s claims were not entirely credible. Based on her RFC, age,
education, work experience, and the testimony of a vocational expert, the ALJ determined at step
five that there were significant numbers of jobs in the national economy that Helterbrand could
perform. Thus, the ALJ found Helterbrand was not disabled.
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III.

Discussion
Helterbrand argues that the ALJ’s decision must be remanded because the ALJ erred at

step three in her discussion of whether her condition met or medically equaled Listing
12.04(C)(2). 2 Helterbrand’s argument is two-fold. First, she argues the ALJ’s analysis was
impermissibly perfunctory. Second, she argues the ALJ failed to adequately address Dr. Betsy
Rosiek’s opinion. The Commissioner responds that, read as a whole, the decision adequately
supports the ALJ’s determination, and that Dr. Rosiek’s opinion was properly rejected.
Claimants are presumptively eligible for benefits if their impairment meets or equals one
or more of the impairment listings. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015);
20 C.F.R. § 404.1520(d). Claimants may satisfy the listing requirements by meeting the listed
criteria or by showing that their symptoms medically equal the severity of the listing. Minnick,
775 F.3d at 935; 20 C.F.R. § 404.1526. ALJs “must discuss the listing by name and offer more
than a perfunctory analysis of the listing.” Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004). In Barnett, the court held that a two-sentence analysis of a listing was perfunctory and
warranted remand. Id. at 670.
The listing criterion at issue here reads: “A residual disease process that has resulted in
such marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate . . . .” 20 C.F.R. § Pt.
404, Subpt. P, App. 1. 3

2

The Commissioner argues that Helterbrand’s brief fails to demonstrate how Listing 12.04(C)
applies given that subsection C is for individuals in highly structured settings. However, the ALJ
implicitly found that Helterbrand presented sufficient evidence of such a setting by analyzing the
subsection C criteria. The Court will not reweigh the evidence to make a different
determination. Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017).
3
This is the version of 20 C.F.R. § 404, Subpt. P, App. 1 in effect for Helterbrand’s date of
disability, April 1, 2014.
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The ALJ’s entire analysis was a single sentence: “The claimant does not have a residual
disease process that has resulted in such marginal adjustment that even a minimal increase in
mental demands or change in the environment would be predicted to cause the claimant to
decompensate.” [Filing No. 15-2, at ECF p. 25; R. at 24.] It appears that ALJ merely copied the
exact language from the listing and tacked “the claimant does not have . . .” to the beginning.
To her credit, the Commissioner does not argue that this analysis is not perfunctory.
Instead, the Commissioner argues that the ALJ discussed relevant facts in other areas of the
decision. In a footnote, the Commissioner cites Molnar v. Astrue, 395 F. App’x 282, 287 (7th
Cir. 2010), for the proposition that the decision should be read as a whole.
However, this gives an incomplete picture of the standard. The Court reads the ALJ’s
decision as a whole, giving it “a commonsensical reading rather than nitpicking at it.” Castile v.
Astrue, 617 F.3d 923, 929 (7th Cir. 2010). It defies commonsense to think that a reader would
see the ALJ’s one-sentence assertion and conclude that evidence strewn throughout later sections
provide the factual support for that conclusion. In Kastner v. Astrue, 697 F.3d 642, 647 (7th Cir.
2012), the Seventh Circuit criticized the ALJ for relying on an “obscure cross-reference” as
supporting evidence for a step three determination. Here, the ALJ did not even supply that. This
is precisely the kind of perfunctory analysis that the Seventh Circuit repeatedly remands.
Minnick v. Colvin, 775 F.3d 929, 936 (7th Cir. 2015) (collecting cases). Therefore, the ALJ’s
decision must be remanded.
The error of this perfunctory analysis is exacerbated by the ALJ’s lack of discussion of
Dr. Rosiek’s opinion. Dr. Rosiek was Helterbrand’s treating psychiatrist. Helterbrand offered a
medical record from Dr. Rosiek in which the psychiatrist checked a box next to language
identical to Listing 12.04(C)(2), indicating Helterbrand met the listing criterion. Helterbrand

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argues that the ALJ was required to provide a “good reason” for not giving controlling weight to
the psychiatrist’s opinion because Dr. Rosiek was Helterbrand’s treating physician. [Filing No.
19, at ECF pp. 10–11 (citing Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010)).] The
Commissioner argues the ALJ rejected Dr. Rosiek’s opinion and that Dr. Rosiek’s opinion was
unsupported. The Commissioner’s argument is unpersuasive.
Though an ALJ’s rejection of a doctor’s opinion will be upheld unless patently erroneous,
the ALJ must actually reject the opinion. See Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015);
Campbell, 627 F.3d at 306. Here, the Court sees no reason to afford such deference to the ALJ’s
decision given that the ALJ failed to articulate her rejection, let alone explain it. The ALJ never
mentioned Dr. Rosiek’s check-the-box opinion in her step three analysis. In fact, the ALJ never
rejected any of Dr. Rosiek’s opinions. She only noted giving little weight to a separate, specific
opinion Dr. Rosiek offered regarding “‘marked’ limitations.” [Filing No. 15-2, at ECF p. 28; R.
at 27.] The Seventh Circuit has held that ALJs may rely on a physician’s opinion after assigning
it less than controlling weight. See, e.g., Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).
Thus, the ALJ did not reject Dr. Rosiek’s opinion. Rather, she simply omitted it. This is an
important distinction, which supports the finding that the ALJ failed to adequately address and
weigh Dr. Rosiek’s opinion.
The Commissioner argues that Dr. Rosiek’s opinion should not be given weight because
it is unsupported. However, the Court cannot decide the facts anew to assign relative weight to
Dr. Rosiek’s opinion vis-à-vis other medical sources. Rice v. Barnhart, 384 F.3d 363, 369 (7th
Cir. 2004) (The Court “will not reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute [its] own judgment for that of the Commissioner.”). The Commissioner
cites evidence to undermine Dr. Rosiek’s opinion while Plaintiff cites evidence in support of it.

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[Compare Filing No. 21, at ECF p. 11 with Filing No. 22, at ECF pp. 4–6.] Weighing this
evidence and deciding whether to adopt, reject, or otherwise consider Dr. Rosiek's check-the-box
opinion is a task reserved to the ALJ, not the Court. Rice, 384 F.3d at 369; see Elder, 529 F.3d
at 413 (the court’s “role is extremely limited”). Therefore, Court must remand the ALJ’s
decision.
Helterbrand makes four additional arguments in favor of remand, but the Court declines
to address them. Helterbrand challenges the ALJ’s credibility determination and her application
of the treating physician rule. Coincidentally, the SSA has issued new Social Security Rulings
regarding these analyses. An in-depth analysis of Helterbrand’s arguments regarding the old
SSRs would serve no purpose because ALJs must apply the new rulings on remand. Helterbrand
also argues the ALJ erred in failing to address Helterbrand’s migraines and obesity. While the
ALJ is to use her judgment in reviewing the evidence, additional discussion would seem to be
appropriate considering the potential impact of absenteeism on employability.
IV.

Conclusion
For the reasons set forth above, the Court grants Helterbrand’s brief in support of appeal

[Filing No. 19]. This cause is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for
further consideration due to the ALJ’s perfunctory step three analysis and failure to address
Helterbrand’s treating psychiatrist’s opinion.
Date: 12/21/2017

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution: All ECF-registered counsel of record by email.

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