NASH v. COLVIN
Filing
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FINDINGS OF FACT AND DECISION - For reasons explained in this Order, the ALJ did not commit error in most of the aspects raised by Nash. However, the court cannot trace the path of his reasoning when he concluded that Nash can concentrate for two hours at a time and for an eight-hour workday. This error is not harmless. This case is remanded for further development of the Record in that regard. Signed by Magistrate Judge William G. Hussmann, Jr., on 6/17/2014.(NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
SUZANNE E. NASH
(Social Security No. XXX-XX-7838),
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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2:13-cv-226-WGH-JMS
MAGISTRATE JUDGE’S FINDINGS OF FACT AND DECISION
I find that Susanne Nash (“Nash”) raises six issues on appeal in her
Brief, which are as follows:
(1)
Did the ALJ properly address the opinions of treating
physician Dr. John Johnson?
(2)
Did the ALJ properly address the opinions of state agency
physicians Dr. Sands and Dr. Ruiz?
(3)
Did the ALJ properly address the opinions of consultative
examiner Dr. Wang?
(4)
Did the ALJ properly address the evidence concerning
Nash’s ability to concentrate found in the opinions of Dr.
Patrick Brophy, Vocational Counselor Linda Vicory, Case
Manager Sara Minor, and Tony Wassel, who is a friend or
guardian of Nash?
(5)
Did the ALJ properly assess Nash’s credibility?
(6)
Was the ALJ’s hypothetical question to the Vocational
Expert improper because it did not include certain alleged
manipulative impairments?
With respect to each issue, I make the following findings:
1. I find no error or harmless error in the ALJ’s failure to assess Dr.
Johnson’s records. These records preceded the onset date by one year and
covered a short period of time. They addressed Nash’s condition immediately
after surgery and did not specifically address long-term complications except
through some predictive language by Dr. Johnson. I therefore find no error in
that regard.
2. I find that the ALJ properly assigned great weight to Dr. Sands’s and
Dr. Ruiz’s medical opinions. I find that these opinions support the ALJ’s
residual functional capacity (“RFC” determination. I note that Drs. Sands and
Ruiz performed their reviews without the benefit of assessments by Drs.
Johnson (Filing No. 18-16 at ECF pp. 16–18) and Srinivaserao (id. at ECF p.
11) which were added to the Record later. For the reasons I discussed in
addressing Issue 1, the absence of Dr. Johnson’s records renders the ALJ’s
assignment of great weight a harmless error. The absence of Dr. Srinivaserao’s
records creates a closer call but also amounts to harmless error. Dr.
Srinivaserao reported a “diffuse bulging” of Nash’s disc at C5-C6 that “extends
into the neural foramen on the right side” and also noted that her “right exiting
nerve root appears impinged.” (Filing No. 18-16 at ECF p. 11.) However, I am
not at liberty to reweigh the evidence myself, see Butera v. Apfel, 173 F.3d
1049, 1055 (7th Cir. 1999), and that would be required if I ordered the ALJ to
reconsider this case because one piece of medical data was not considered by
the state agency physicians.
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3. The ALJ gave “great weight” to the opinion of Dr. Shuyan Wang, a
consulting physician. (Filing No. 18-2 at ECF p. 29.) The ALJ found that Dr.
Wang’s opinion indicates that Nash is able to perform “a limited range of light
work.” (Id.) Dr. Wang’s report does state that Nash walked with a “normal
gait,” but also opines that Nash “may need some restriction for standing and
walking.” (Filing No. 18-11 at ECF p. 87.) Dr. Wang does not quantify just
how much of a “restriction” is necessary. In this case, the ALJ’s finding that
Nash can perform light work requires that Nash be able to do a “good deal” of
walking—but not constant walking. (See 20 C.F.R. § 404.1567(b).) An ALJ
who sees a consulting physician’s report of both “normal gait” and an
unquantified limitation of walking and standing can be justified in concluding
that a person can perform light work. Though another ALJ might have
concluded differently, there is no error in the assessment of Dr. Wang’s
opinions.
4. Dr. Patrick Brophy performed a consultative psychological
examination on June 30, 2010. (Filing No. 18-11 at ECF pp. 76–80.) This
examination found Nash’s concentration “impaired.” (Id. at ECF pp. 78–79.) A
third-party functional report from Sara Minor, Nash’s Case Manager at
Hamilton Center, described Nash as having a number of difficulties with
standing, sitting, remembering, concentrating, and following instructions. (Id.
at ECF p. 62.) She described Nash as being unable to pay attention for more
than a few minutes at a time. (Id. at ECF p. 64.) A similar functional report
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from Mr. Tony Wassel, a friend or guardian, supported Ms. Minor’s
observations. (See id. at ECF p. 74.)
Nash underwent a vocational evaluation with Linda Vicory of the Indiana
Department of Human Resources’ Vocational Rehabilitation Services division.
(Filing No. 18-17 at ECF p. 34 et seq.) Because Nash was unable to stand for
long periods, Ms. Vicory tested Nash’s ability to perform a variety of clerical
tasks from a seated position. (Id. at ECF p. 35.) With each task, Ms. Vicory
observed that Nash’s concentration waned—and her error rate increased—
within five to seven minutes. (Id. at ECF pp. 35–36.) She did not complete any
exercise, and she quit each due to frustration within 20 minutes. (Id.) Ms.
Vicory also observed that Nash’s performance was “below a level acceptable for
office assistant jobs” and “significantly below a competitive rate.” (Id.) In her
summary, Ms. Vicory opined that, “[b]ased on Suzanne’s poor physical
endurance, inability to maintain focus on work tasks, low rate of work, high
error rate, and high frustration level, it is the opinion of the evaluator that
competitive employment is not a realistic goal at this time.” (Id. at ECF p. 37.)
The ALJ discussed Dr. Brophy’s report. He pointed to Dr. Brophy’s
conclusions that Nash was “delusional,” had been diagnosed with “alcohol
abuse in remission” and personality disorder, and experienced only “moderate”
psychiatric symptoms. (See Filing No. 18-2 at ECF p. 29.)
The ALJ also discussed Vicory’s report. He assigned it “little weight”
because it was “not consistent with the record.” (Id. at ECF p. 32.)
Specifically, he indicated that treating records from Dr. Balmaseda indicated
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that Nash did not walk with an assistive device, and that psychiatric records
from Hamilton Center indicated Nash’s mood improved during treatment. (Id.)
Finally, the ALJ concluded that Ms. Vicory was not an acceptable medical
source under the appropriate regulations. (Id.)
As to Ms. Minor and Mr. Wassel, the ALJ recognized that he must accord
these opinions “some weight” under the regulations. (See id.) However, the
ALJ explicitly states that he gave these opinions “little weight” but does not
explain why he gave them little weight. (See id.)
The ALJ concluded that Nash
is able to understand, remember and carry out short, simple,
repetitive instructions; is able to sustain attention and
concentration for two-hour periods at a time and for eight hours in
the workday on short, simple, repetitive instructions; is able to use
judgment in making work decisions related to short, simple,
repetitive instructions; would require a set schedule with set
routines and procedures and few changes during the workday;
[and] is unable to perform fast paced production work[ . . . ]. The
medical evidence does not support more extensive limitations than
those in the residual function capacity.”
(Id. at ECF p. 33 (emphasis added).)
I find that the ALJ erred in this conclusion. Aside from Dr. Brophy’s
evaluation, the only medical records addressing Nash’s mental state and
abilities are from Hamilton Center, where Nash was voluntarily hospitalized for
eight days with suicidal thoughts in September 2009. (Filing No. 18-8 at ECF
pp. 8–18.) She was discharged with a diagnosis of major depressive disorder,
alcohol abuse in early remission, amphetamine and opiate abuse in remission,
and histrionic and borderline personality traits. (Id. at ECF p. 18.) The ALJ
found that Nash continued to treat at Hamilton Center for well over one
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year—until January 2011—during most of which time the records indicate
presence of serious or severe psychiatric symptoms. (Filing No. 18-2 at ECF p.
28.) The ALJ then found that Nash’s “personality disorder” “was managed with
medications prescribed by her treating physician.” (Id. at ECF pp. 28–29
(citing Filing No. 18-21 at ECF pp. 29–45).)
I find that none of the medical evidence cited to by the ALJ specifically
addresses Nash’s ability to concentrate. What diagnoses are found in those
medical records—a suicide attempt, depression, substance abuse in remission,
or histrionic personality disorder—all suggest that there would be significant
problems with maintaining concentration. All of the evidence from Dr. Brophy,
along with the lay evidence from Minor, Wassel, and Vicory, support the
conclusion that Nash has significant impairments in the ability to concentrate.
I cannot trace the path of the ALJ’s reasoning with respect to his conclusion
that Nash can concentrate for two hours at a time, and for an eight-hour day.
5. I find that the ALJ's credibility assessment in this case (see Filing No.
18-2 at ECF pp. 29–31) is not patently wrong. The ALJ specified ten factors in
support of his assessment, including that Nash:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
worked part-time at Sam’s Club in 2010;
“was treated for kidney stones and a urinary tract infection,
which is inconsistent with the severity of her symptoms”;
presented inconsistent accounts of her past occupations;
presented inconsistent causes of her injuries;
was considered “an unreliable, possibly delusional historian” by
multiple sources;
gave a questionable effort during Dr. Wang’s consultative
examination;
did not adhere to her psychiatric treatment program, even
though she stated in December of 2011 that her treatment was
helpful;
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(8)
(9)
(10)
appeared with a walker at the hearing even though a walker
was never prescribed for her and her treating physician noted
that she did not use an assistive device;
claimed symptoms that her neurological consultant thought
were unsupported by her condition; and
engaged in apparent drug-seeking behavior.
(Id. at ECF pp. 30–31.) The ALJ conducted an extensive review of these
factors and recited to appropriate legal criteria. While certain of his
findings are subject to challenge1, the majority of the findings are
supported by evidence of the record, and therefore his credibility
assessment cannot be set aside.
6. I find that the hypotheticals given to the vocational expert in this case
were not incorrect because of a failure to include a manipulative impairment.
The ALJ did not find that the plaintiff had a manipulative impairment or
limitation in his residual functional capacity, and therefore his failure to
include a limitation on manipulation in the hypothetical itself was not error.
However, because remand is necessary to include a potentially different ability
to concentrate, on remand the hypothetical questions to the vocational expert
will not be identical to those used by the ALJ in the hearing under review.
Conclusion
In this case, the ALJ did not commit error in most of the aspects raised
by Nash. However, I cannot trace the path of his reasoning when he concluded
that Nash can concentrate for two hours at a time and for an eight-hour
As to Factor 8, I find that Dr. Balmaseda prescribed a walker for Nash for at least
some period of time. (See Filing No. 18-2 at ECF p. 72.) As to Factor 4, it is not clear
to me that Nash gave “inconsistent” reasons for her injuries.
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workday. This error is not harmless. I remand this case for further
development of the Record in that regard.
SO ORDERED the 17th day of June, 2014.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Served electronically on all ECF-registered counsel of record.
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