O'CONNOR-SPINNER v. COLVIN

Filing 29

ENTRY ON JUDICIAL REVIEW: The decision of the Commissioner is AFFIRMED, and Ms. O'Connor-Spinner's claims are DISMISSED. Signed by Judge Tanya Walton Pratt on 6/8/2015.(JLM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
LOUQUETTA R. O’CONNOR-SPINNER,
Plaintiff,
v.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 4:13-cv-00186-TWP-TAB

ENTRY ON JUDICIAL REVIEW
This matter is once again before the Court on a request by Plaintiff Louquetta R. O’ConnorSpinner (“Ms. O’Connor-Spinner”) for judicial review of the decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying her applications for Social Security
Disability Insurance Benefits (“DIB”) under Title II and Social Security Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act (the “Act”), following a remand by the
Seventh Circuit Court of Appeals for an administrative rehearing. For the reasons set forth below,
the Court AFFIRMS the Commissioner’s decision.
I.
A.

BACKGROUND

Procedural History
Ms. O’Connor-Spinner filed applications for SSI and DIB effective January 29, 2005,

alleging a disability onset date of December 18, 2003, due to symptoms stemming from a blood
disorder, arthritis, and obesity. After the agency denied Ms. O’Connor-Spinner’s applications
initially and upon reconsideration, she appeared with counsel and testified at a hearing before
Administrative Law Judge Ronald T. Jordan (“ALJ Jordan”), as well as a vocational expert, on

January 31, 2006. On June 21, 2006, ALJ Jordan issued a decision in which he found that Ms.
O’Connor-Spinner was not disabled under the Act because she was able to perform a significant
number of jobs in the economy despite her functional limitations. The Appeals Council denied
review of ALJ Jordan’s decision, making it the final decision of the Commissioner.
Ms. O’Connor-Spinner filed a request for review with this Court, which upheld ALJ
Jordan’s decision. She then filed an appeal with the Court of Appeals for the Seventh Circuit. On
November 29, 2010, the Circuit Court remanded Ms. O’Connor-Spinner’s case to the agency for
further proceedings. The Seventh Circuit held that ALJ Jordan failed to direct the Vocational
Expert (“the VE”) to the totality of Ms. O’Connor-Spinner’s limitations, thus failing to support
ALJ Jordan’s step five determination that she could perform some jobs and thus was not disabled.
The Circuit Court noted that ALJ Jordan found Ms. O’Connor-Spinner had moderate deficiencies
in concentration, persistence, or pace and, therefore, was required to include this limitation in his
hypothetical question to the VE to account for those deficiencies.
Upon remand, Ms. O’Connor-Spinner’s earlier claims were merged with applications for
SSI and DIB that she filed on September 10, 2009. She also submitted new evidence and testified
at a supplemental hearing in June 2012, which was presided over by a new Administrative Law
Judge Dwight D. Wilkerson (the “ALJ”). In August 2012, the ALJ found that Ms. O’ConnorSpinner had severe physical impairments, however, she did not have a listing-level impairment or
combination of impairments. The ALJ specifically found that her impairments due to depression
did not rise to the level of a “severe” mental impairment, and therefore concluded that she did not
have a mental impairment that significantly limited her ability to perform basic work-related
activities, and found that she was not disabled because she could perform a significant number of
jobs. The Appeal’s Council denied review, making the ALJ’s decision the final decision of the

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Commissioner. Ms. O’Connor-Spinner has now filed this action seeking judicial review of the
agency’s second decision finding that she is not disabled.
B.

Factual Background
Ms. O’Connor-Spinner was about 34 years old on her alleged onset date and 43 years old

when the ALJ rendered his decision in August 2012. She is a high school graduate and performed
past relevant work as a delicatessen clerk, nurse’s aide, shoe gluer and fast-food worker.
The parties agree on the significance of Ms. O’Connor-Spinner’s physical impairments due
to degenerative disc disease, bilateral carpal tunnel syndrome, sleep apnea, restrictive lung disease
and obesity; thus the only relevant facts for purposes of this appeal relate to Ms. O’ConnorSpinner’s mental impairments. Ms. O’Connor-Spinner alleged an onset date for her depression of
December 2003. Although the record does not contain treatment records from any mental health
providers between 2002 and her first hearing in January 2006, physicians investigating her
physical ailments observed signs of and alluded to a history of depression. Ms. O’Connor-Spinner
was sent to psychologist Dr. Kamla Paul, Ph.D. at the request of the Disability Determination
Bureau for a consultative psychological examination in May 2004. Dr. Paul diagnosed Ms.
O’Connor-Spinner with depressive disorder, and noted that she has a blood disorder that causes
blood clots in her brain, resulting in stuttering, confusion, and forgetting her identity. (Tr. 24750.)
In late May 2004, state agency psychological consultant Dr. D. Unversaw, Ph.D. (“Dr.
Unversaw”) reviewed Ms. O’Connor-Spinner’s records and concluded in his summary that her
psychological condition “appears to moderately affect her concentration/pace/persistence” but that
she had the “ability to perform moderately complex work-related tasks.” (Tr. 267.) However, on
the Psychiatric Review Technique worksheet, Dr. Unversaw checked the box noting that she only

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had a mild degree of difficulty in maintaining concentration, persistence, or pace. (Tr. 261.) Ms.
O’Connor-Spinner testified at her first hearing that she was in treatment at Community Mental
Health Center (“CMHC”) but did not provide treatment records. ALJ Jordan held the record open
for thirty days to allow her to submit additional mental health records, but no records were
submitted. ALJ Jordan found that Ms. O’Connor-Spinner’s depression was a severe impairment
based upon Dr. Unversaw’s opinion, but noted the inconsistencies in Dr. Unversaw’s report with
regard to Ms. O’Connor-Spinner’s difficulties with concentration.
After Ms. O’Connor-Spinner filed subsequent applications in September 2009, additional
mental health records were provided. She provided records of her visits to CMHC in March 2006,
where she was diagnosed with major depression. Those records indicated that Prozac helped with
Ms. O’Connor-Spinner’s depression and anger. Records from CMHC from December 2010
through June 2011 indicated that Ms. O’Connor-Spinner was learning coping skills to deal with
family stressors, her depression was better and she reported no side effects from her medication.
Dr. Robert Kurzhals, Ph.D. (“Dr. Kurhzhals”) performed a consultative psychological examination
for the State agency on December 2, 2009. Dr. Kurzhals adopted the diagnosis of bipolar disorder;
however, it was only “by history” as reported by Ms. O’Connor-Spinner, and he noted that she did
not appear to be particularly anxious or manic.
II.

DISABILITY AND STANDARD OF REVIEW

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 her physical or mental limitations prevent her from doing not only her previous work, but any

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other kind of gainful employment which exists in the national economy, considering her 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, she is
not disabled, despite her 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 (i.e. one that significantly limits her
ability to perform basic work activities) that meets the durational requirement, she is not disabled.
20 C.F.R. § 416.920(a)(4)(ii).

At step three, the ALJ 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). In order to determine steps four and five, the ALJ must determine
the claimant’s Residual Functional Capacity (“RFC”), which is the “maximum that a claimant can
still do despite [her] 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 her past relevant work, she 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, she is not disabled. 20 C.F.R.
§ 416.920(a)(4)(v).
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

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F.3d 456, 462 (7th Cir. 2008). While the court reviews the 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 his
acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700
(7th Cir. 2004).
III. THE ALJ’S DECISION
As an initial matter, the ALJ found that Ms. O’Connor-Spinner met the insured status
requirements of the Act through June 30, 2008, for purposes of DIB. At step one, the ALJ found
that Ms. O’Connor-Spinner had not engaged in substantial gainful activity since December 18,
2003, the alleged onset date. At step two, the ALJ found that Ms. O’Connor-Spinner had the
following severe impairments: degenerative disc disease, bilateral carpal tunnel syndrome, sleep
apnea, restrictive lung disease, and obesity. At step three, the ALJ found that Ms. O’ConnorSpinner 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 concluded that Ms. O’Connor-Spinner has the RFC to perform sedentary work with the
following restrictions: lift and carry ten pounds occasionally and five pounds frequently;
stand/walk for two hours out of an eight-hour work day, but no more than fifteen to thirty minutes

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in any single hour; sit for eight hours out of an eight-hour day, but must have the opportunity at
30-minute intervals to stand and stretch for up to two minutes to relieve pressure on her back;
occasionally climb stairs or ramps and can bend at the waist sufficiently to do table or desk work;
no other postural activities, such as balancing, crouching, crawling, kneeling or climbing ladders,
scaffolds, or ropes; frequently handle and finger bilaterally; avoid concentrated exposure to dust,
fumes, gasses, strong odors, temperature extremes and excessive humidity; and should only
perform work involving routine, repetitive tasks and understanding and carrying out only simple
instructions. At step four, the ALJ determined that Ms. O’Connor-Spinner was unable to do any
of her past relevant work. At step five, the ALJ found that considering Ms. O’Connor-Spinner’s
age, education, work experience, and RFC, there are jobs that exist in significant numbers in the
national economy that she can perform, concluding that she is not disabled as defined by the Act.
IV. ANALYSIS
Ms. O’Connor-Spinner argues that the ALJ erred by finding that her depression was not a
severe impairment at step two and thus erred in his conclusion that she did not have moderate
difficulties with concentration, persistence or pace. She also argues that the ALJ erred by not
following the Court of Appeals’ order to ask hypothetical questions that included her moderate
limitations in concentration, persistence, and pace, and that such error was not harmless.
A.

Law of the Case Doctrine is Not Applicable
Ms. O’Connor-Spinner argues that the law of the case doctrine prohibited the ALJ from

disturbing the previous ALJ’s finding that her depression was a severe impairment and that she
has moderate difficulties with concentration, persistence or pace, and the mandate rule required
the ALJ to include those limitations in his hypothetical questions to the VE. The law of the case
doctrine “requires the trial court to conform any further proceeding on remand to the principles set

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forth in the appellate opinion unless there is a compelling reason to depart, [and] is applicable to
judicial review of administrative decisions.” Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998)
(citing Law v. Medco Research, Inc., 113 F.3d 781, 783 (7th Cir. 1997); Key v. Sullivan, 925 F.2d
1056, 1060 (7th Cir. 1991)) (internal quotations omitted). “It requires the administrative agency,
on remand from a court, to conform its further proceedings in the case to the principles set forth in
the judicial decision, unless there is a compelling reason to depart.” Id.
Ms. O’Connor-Spinner’s case does not involve a situation to which the law of the case
doctrine applies. A ruling that evidence was insufficient to support a particular finding is the type
of ruling that establishes the law of the case. Id. at 803. In addition, “[n]ew evidence can furnish
compelling ground for departure from a previous ruling.” Id. Following the remand by the Court
of Appeals, new evidence was submitted in connection with Ms. O’Connor-Spinner’s September
2009 application for benefits, which had been consolidated with her remanded case because the
Court’s actions rendered them duplicative. The ALJ was specifically instructed by the Court of
Appeals to “explain why he does not credit evidence that would strongly support a claim of
disability, or why he concludes that such evidence is outweighed by other evidence.” O’ConnorSpinner v. Astrue, 627 F.3d 614, 621 (7th Cir. 2010). This was not a situation in which the
appellate court found that there was insufficient evidence to support a particular conclusion
reached by the ALJ; rather, the ALJ was instructed to review the evidence and provide an
explanation as to why the evidence—specifically, the report from Dr. Unversaw—was not
credible. Id.
The ALJ adequately addressed the new evidence and provided an explanation for his
finding that Ms. O’Connor-Spinner’s depression was not a severe impairment, and that she did not
have moderate limitations in concentration, persistence or pace.

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The ALJ noted that Dr.

Unversaw’s opinion that Ms. O’Connor-Spinner’s depression caused moderate limitations was not
corroborated or supported by any other evidence in the record. (Tr. 830.) Both records from her
treating physicians and the consultative examiners lacked evidence of anxious or manic behavior
associated with her alleged bipolar disorder, and showed that her depression symptoms were better
with medication. (Tr. 828.) The ALJ noted “in all of the voluminous documents that address
physical impairments, there is scarcely even a hint of significant problems with social functioning
or concentration, persistence and pace . . . . indications of mental issues are conspicuously absent
from those records.” (Tr. 828.) The ALJ also cites to evidence from physical examinations in
which the nursing notes indicate that her psychosocial assessment was “within normal limits” and
there was no significant evidence of depression. (Tr. 829.)
Ms. O’Connor-Spinner cites to evidence that she claims the ALJ ignored in finding that
her depression was not a severe impairment. However, the ALJ is not required to cite to every
piece of evidence in the record, and is only required to build an accurate and logical bridge from
the facts to his conclusion. Carlson, 999 F.2d at 181. Ms. O’Connor-Spinner has not explained
how the evidence she cites supports a finding of disability, or how it contradicts the ALJ’s findings
that the record as a whole does not support the conclusion that she had significant problems with
social functioning or concentration, persistence and pace. The ALJ adequately discussed the
relevant evidence from both her original and subsequent applications and why such evidence does
not support a finding that her depression was a severe impairment, or that she had more than mild
difficulties with concentration, persistence, or pace, and also explained why he rejected Dr.
Unversaw’s opinion originally relied upon by ALJ Jordan. (Tr. 826-831.) The Court finds that
the ALJ followed the directives of the Court of Appeals by explaining why he did not fully credit
the opinion of Dr. Unversaw and why he concluded that evidence stating that Ms. O’Connor-

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Spinner had moderate limitations in concentration, persistence, or pace was outweighed by other
evidence that did not support this conclusion. Thus, the Court finds that there were compelling
grounds for the ALJ’s departure from the previous factual findings regarding Ms. O’ConnorSpinner’s mental limitations.
B.

The ALJ’s Hypothetical Complied with the Court of Appeals’ Ruling
Ms. O’Connor-Spinner next argues that the ALJ erred by not following the Court of

Appeals’ order to ask hypothetical questions which included her moderate limitations in
concentration, persistence or pace. As discussed above, the ALJ properly supported his conclusion
that Ms. O’Connor-Spinner did not have moderate limitations in concentration, persistence or
pace, and thus was not required to account for such a limitation in his hypotheticals to the VE.
However, despite not being required to do so, the ALJ specifically asked the VE a series of
hypotheticals in which he accounted for possible difficulties in concentration, persistence or pace.
As a general rule, both the hypothetical posed to the VE and the ALJ’s RFC assessment
must incorporate all of the claimant’s limitations supported by the medical record. Yurt v. Colvin,
758 F.3d 850, 857 (7th Cir. 2014). While it has been established that employing terms like “simple
repetitive tasks,” “simple, routine tasks,” or “unskilled work” are insufficient to bring a VE’s
attention to a claimant’s limitations in concentration, persistence or pace, there is no “per se
requirement” that specific terminology be used in the hypothetical in all cases. O’Connor-Spinner,
627 F.3d at 619. Moreover, the Seventh Circuit has stated that, “for most cases, the ALJ should
refer expressly to limitations on concentration, persistence or pace in the hypothetical in order to
focus the VE’s attention on these limitations and assure reviewing courts that the VE’s testimony
constitutes substantial evidence of the jobs a claimant can do.” O’Connor-Spinner, 627 F.3d at
620-21. This is precisely what the ALJ did at Ms. O’Connor-Spinner’s hearing on remand, as he

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“followed best practices and expressly included [the claimant’s] moderate limitations in
concentration, persistence, and pace.” Givens v. Colvin, 551 F. App’x 855, 862 (7th Cir. 2013).
In his second hypothetical, the ALJ asked the VE, “due to limitations in concentration,
persistence or pace, let’s say this person cannot do any work involving strict production quotas or
fast paced.” (Tr. 2064.) This is precisely what the Seventh Circuit instructed in its opinion in this
action, and the ALJ’s explicit reference to Ms. O’Connor-Spinner’s limitations on concentration,
persistence or pace satisfies the requirement to include all of her limitations in the hypothetical.
In addition, the ALJ asked the VE to assume that “[s]he should perform work involving only
routine, repetitive tasks, and understanding and carrying out only simple instruction,” and asked
the VE to assume Ms. O’Connor-Spinner would be off task ten percent of the time. (Tr. 2063-64.)
The hypothetical was not merely limited to “simple, repetitive work” which was found to be
insufficient by the Seventh Circuit in this case. Because the ALJ explicitly referenced Ms.
O’Connor-Spinner’s difficulties with concentration, persistence or pace, his hypothetical to the
VE during the hearing was adequate and complied with the requirements set forth by the Circuit
Court.
V.

CONCLUSION

Based upon the forgoing, the Court finds that he ALJ adequately supported his redetermination that Ms. O’Connor-Spinner does not have moderate limitations in concentration,
persistence or pace, and was therefore not required to include it in the hypothetical to the VE.
However, the Court further concludes that the ALJ explicitly referred to limitations in
concentration, persistence or pace in the hypothetical presented to the VE at the hearing, thus
satisfying the order of the Circuit Court. The decision of the Commissioner is AFFIRMED, and
Ms. O’Connor-Spinner’s claims are DISMISSED

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SO ORDERED.
Date: 6/8/2015

DISTRIBUTION:
Timothy J. Vrana
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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