Swenson v. Berryhill
Filing
25
MEMORANDUM OPINION adopting 21 Report and Recommendation as modified and reversing the decision of the Commissioner. Signed by U.S. District Judge Karen E. Schreier on 7/26/18. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHRISTI S.,
4:17-CV-04067-KES
Plaintiff,
vs.
MEMORANDUM OPINION ADOPTING
REPORT AND RECOMMENDATION
AS MODIFIED AND REVERSING THE
DECISION OF THE COMMISSIONER
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
INTRODUCTION
Plaintiff, Christi S., appealed the denial of her application for social
security benefits by the Social Security Administration. Docket 1. The case was
referred to United States Magistrate Judge Veronica Duffy under 28 U.S.C.
§ 656(b)(1)(B) for a report and recommendation. Docket 19. On February 15,
2018, Magistrate Judge Duffy submitted the report and recommendation for
disposition of this case to the court and recommended that the Commissioner’s
decision be reversed and remanded for further proceedings. The Commissioner
filed a timely objection. Docket 23. For the reasons set forth herein, Magistrate
Judge Duffy’s report and recommendation is adopted as modified below.
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PROCEDURAL BACKGROUND
Christi S. filed her application for benefits on September 9, 2014,
alleging disability since July 6, 2014, due to post-concussion syndrome,
headaches, face, head and neck pain, and numbness in hands and feet. AR 80,
218, 220, 247, 255, 260. Christi S.’s claim was initially denied and denied
again upon reconsideration. AR 116, 127, 133. She requested and was given a
hearing before an Administrative Law Judge (ALJ). AR 140. The ALJ
determined that Christi S. was not disabled. AR 26. The Appeals Council
denied Christi S.’s timely request for review. AR 1. Thus, the ALJ’s unfavorable
decision became the Commissioner’s final decision.
STANDARD OF REVIEW
This court’s review of a magistrate judge’s decision is governed by 28
U.S.C. § 636(b)(1). The court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to.”).
An ALJ’s decision must be upheld if it is supported by substantial
evidence in the record as a whole. 41 U.S.C. § 405(g). “Substantial evidence is
‘less than a preponderance, but is enough that a reasonable mind would find it
adequate to support the Commissioner’s conclusion.’ ” Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009) (quoting Maresh v. Barnhart, 438 F. 3d 898 (8th
Cir. 2006)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971) (reasoning
that substantial evidence means “more than a mere scintilla”). In determining
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whether substantial evidence supports the ALJ’s decision, the court considers
evidence that both supports and detracts from the ALJ’s decision. Moore v.
Astrue, 623 F.3d 599, 605 (8th Cir. 2010) (internal citation omitted). As long as
substantial evidence supports the decision, the court may not reverse merely
because substantial evidence exists in the record that would support a
contrary outcome or because the court would have decided the case differently.
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
The court reviews the Commissioner’s decision to determine if an error of
law has been committed, which may be a procedural error, the use of an
erroneous legal standard, or an incorrect application of law. Collins v. Astrue,
648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commission’s construction of
the Social Security Act. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir.
1992).
The court has reviewed the detailed fact section of Magistrate Judge
Duffy’s report and recommendation. No objections to the facts have been filed
by either party and the facts appear to accurately reflect the record. As a
result, this court adopts the facts as set forth in pages 2 through 26 of the
magistrate judge’s report and recommendation.
DISCUSSION
The Commissioner disputes several legal conclusions in the report and
recommendation.
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I.
Step Two
Magistrate Judge Duffy found that the ALJ improperly failed to
incorporate Christi S.’s asserted impairments of post-concussion syndrome
and headaches at step two. The Commissioner contends that this was
harmless error because the ALJ’s analysis did not stop at step two, but rather
continued through step five. The Commissioner asserts that at steps four and
five the ALJ properly accounted for Christi S.’s headaches and post-concussion
syndrome when the Residual Functional Capacity (RFC) was formulated. In
support of this argument, the Commissioner cites precedent from the Sixth
Circuit Court of Appeals: “When an ALJ considers all of a claimant’s
impairments in the remaining steps of the disability determination, an ALJ’s
failure to find additional severe impairments at step two ‘[does] not constitute
reversible error.’ ” Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (quoting
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)).
The Eighth Circuit has not directly considered the issue of whether an
ALJ’s failure to address an asserted impairment at step two is harmless error if
the effects of the impairment are sufficiently incorporated into the ALJ’s
analysis at steps four and five. The Eighth Circuit has, however, indicated that
an error is harmless if, absent the error, the ALJ would have inevitably reached
the same result. See Dewey v. Astrue, 509 F.3d 447, 449-50 (8th Cir. 2007).
The court does not agree with the Commissioner’s characterization of the
present case, because the ALJ clearly failed to separately analyze postconcussion syndrome and headaches as potential causes for Christi S.’s
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alleged symptoms when formulating her RFC. In her decision, the ALJ noted
that “claimant reported that she recently tripped and fell on her face,” and then
described a battery of symptoms such as “persistent headaches, . . .
intermittent difficulty concentrating, nausea, fogginess, and confusion.” AR 20.
The ALJ discredited the severity of these alleged symptoms by citing a “normal
neurological evaluation” and a negative CT scan without change from July 6,
2014. Id. The ALJ then noted numerous “normal” neurological and physical
examinations conducted by Dr. Daniel Heckmann, M.D., Dr. Jeffrey Boyle,
M.D., and Dr. Eugenio Matos, M.D. over the next several months in response to
Christi S.’s repeated reports of daily debilitating headaches. Id. at 20-21.
Significantly, however, this analysis directly followed the ALJ’s statement
“turning to the claimant’s somatization disorder, conversion disorder,
depression and anxiety,” demonstrating that the ALJ attributed those
symptoms to Christi S.’s somatization disorder, conversion disorder,
depression and anxiety – not her post-concussion syndrome or headaches. Id.
at 20. And as noted by Magistrate Judge Duffy, somatization disorder and
conversion disorder can co-exist with medical diagnoses of objectively verifiable
conditions, such as post-concussion syndrome or chronic headaches. See
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”)
at 309-10 (5th ed. 2013); Docket 21 at 32. Although unnoted by the ALJ in her
report, Christi S. was diagnosed with post-concussion syndrome by Dr.
Heckmann on August 8, 2014. AR 319. Therefore, the Commissioner is
incorrect in stating that the ALJ properly considered Christi S.’s post5
concussion syndrome and headaches as separate impairments when
formulating her RFC, thereby curing any error at step two.
Remand is required at step two because it is improper for the court to
speculate as to what the ALJ would have done had she conducted the proper
analysis at Step Two. See Collins v. Astrue, 648 F.3d 869, 872 (8th Cir. 2011).
Even under the general indication given by Dewey v. Astrue, the court cannot
say that if the ALJ had separately analyzed post-concussion syndrome and
headaches as potentially severe impairments, the result would have inevitably
been the same. Moreover, “the failure of the ALJ to follow the mandated
procedure is more than a mere oversight in opinion writing.” Collins, 648 F.3d
at 872. As noted by Magistrate Judge Duffy, it is possible that the ALJ
concluded that all of Christi S.’s symptoms were the result of her somatization
disorder and conversion disorder, but it is equally if not more likely that the
ALJ overlooked or misunderstood the nature of Christi S.’s separate diagnoses.
Docket 21 at 32. It is not the role of the court to guess which scenario
occurred. The ALJ has a duty at step two to determine whether the applicant
has an impairment or combination of impairments that are severe. 20 C.F.R. §
404.1520(c). In this case, the ALJ did not make such a determination regarding
Christi S.’s post-concussion syndrome or chronic headaches, even though her
post-concussion syndrome was medically diagnosed and the original basis for
her disability application. Consequently, remand is required at step two.
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II.
RFC Formulation
The Commissioner objects to Magistrate Judge Duffy’s conclusion that
the ALJ erred in determining both the mental and physical RFC of Christi S.
Residual functional capacity is defined as “what the claimant can still do
despite his or her physical or mental limitations.” Lauer v. Apfel, 245 F.3d 700,
703 (8th Cir. 2001) (citations omitted, punctuation altered). The RFC
assessment is an indication of what the claimant can do on a “regular and
continuing basis” given the claimant’s disability. 20 C.F.R. § 40.1545(b). “ ‘[To]
find a claimant has the [RFC] to perform a certain type of work, the claimant
must have the ability to perform the requisite acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in
the real world.’ ” Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir. 2005) (quoting
Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989)).
When determining RFC, the ALJ must consider all of a claimant’s mental
and physical impairments in combination, including those impairments that
are severe and those that are non-severe. Lauer, 245 F.3d at 703. “Although
the ALJ bears the primary responsibility for assessing a claimant’s [RFC] based
on all relevant evidence, we have also stated that a claimant’s [RFC] is a
medical question.” Id. at 703-04 (citations omitted). “Some medical evidence
must support the determination of the claimant’s RFC, and the ALJ should
obtain medical evidence that addresses the claimant’s ability to function in the
workplace.” Id. at 704 (citations omitted).
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A. Mental RFC
Magistrate Judge Duffy recommends that remand is required as to the
ALJ’s formulation of Christi S.’s mental RFC because the ALJ fundamentally
misunderstood the nature of Christi S.’s somatization disorder and conversion
disorder. Docket 21 at 44. Namely, the ALJ appeared to misunderstand that a
lack of objective medical support for reported symptoms is a primary feature of
somatoform disorder and conversion disorder. Magistrate Judge Duffy correctly
concludes that this case is analogous to Nowling v. Colvin, 813 F.3d 1110,
1118 (8th Cir. 2016), where the Eighth Circuit held that an ALJ’s failure to
address a primary feature of conversion disorder and somatoform symptoms
constituted reversible error. In Nowling, as here, the ALJ did not recognize that
the absence of clinical findings to support the claimed symptoms is a key
requirement for the diagnosis of somatic symptom and conversion disorder.
See id.
The Commissioner objects to Magistrate Judge Duffy’s recommendation
and asserts that Christi S. failed to satisfy her burden of proving concrete
restrictions stemming from her somatoform disorder and conversion disorder
relevant to RFC formulation. Docket 23 at 6. The Commissioner argues that
Christi S. failed to provide adequate “medically determinable” restrictions of
function. Id. But, as the Commissioner recognizes, Magistrate Judge Duffy
cites to the findings of Dr. Rhonda Smith, Ed.D., who identified several
functional limitations stemming from Christi S.’s somatoform disorder and
conversion disorder, such as difficulty managing routine affairs and potential
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poor memory and concentration problems. Docket 21 at 48. The Commissioner
argues that Magistrate Judge Duffy’s reliance on Dr. Smith’s opinion is
misplaced because Dr. Smith’s findings were based on Christi S.’s subjective
responses to psychological tests, but this objection misses the point of
Magistrate Judge Duffy’s analysis. Because an essential feature of both somatic
symptom disorder and conversion disorder is that a patient’s symptoms are
actually and subjectively experienced without an underlying medical cause, the
fact that Dr. Smith’s tests were based on Christi S.’s subjective responses does
not diminish their credibility. See Nowling, 813 F.3d at 1113-14. The court
thus accepts Magistrate Judge Duffy’s recommendation on this issue.
Magistrate Judge Duffy also recommends that on remand, the ALJ
reconsider Dr. Konrady’s opinion in light of the nature of Christi S.’s mental
impairments and in light of the evidence in the record as a whole. Docket 21 at
47. Magistrate Judge Duffy points out that in addition to her written opinion,
the amount of data obtained from the four tests Dr. Konrady conducted do not
support the ALJ’s characterization of “quite vague.” Id. The report and
recommendation also notes that the ALJ did not specify which parts of Dr.
Konrady’s opinion were being credited and which were not, and that Dr.
Konrady’s tests were administered to determine cognitive and memory function
rather than diagnose disease or impairment. Id. at 46. In response, the
Commissioner contends that the ALJ was correct to assign Dr. Konrady’s
opinion only partial weight. Docket 23 at 8. The Commissioner argues that the
data obtained from Dr. Konrady’s tests were not translated into any concrete
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functional limitations relevant to Christi S.’s RFC. Id. But rather than making
any specific objections to Magistrate Judge Duffy’s analysis, the Commissioner
in her memorandum merely repeats arguments contained in her initial brief or
extrapolates reasoning not contained within the actual ALJ opinion. Thus, the
court accepts Magistrate Judge Duffy’s recommendation and the Commissioner
is ordered to reconsider Dr. Konrady’s opinion.
In summary, Magistrate Judge Duffy’s recommendations regarding
Christi S.’s mental RFC are adopted and the ALJ is ordered on remand to
reconsider Christi S.’s mental RFC consistent with this opinion.
B. Physical RFC
Magistrate Judge Duffy recommends that remand is also required as to
the formulation of Christi S.’s physical RFC. Docket 21 at 55. The report and
recommendation states that the ALJ’s formulation of Christi S.’s physical RFC
bears no relation to the evidence placed in the record by Dr. Knutson and Dr.
Boyle concerning the impact Christi S.’s impairments have on her physical
functioning. Id. Specifically, Magistrate Judge Duffy takes issue with the ALJ’s
discounting of the effects of Christi S.’s headaches, as verified by Dr. Boyle,
and Dr. Knutson’s opinion about Christi S.’s ability to lift and use her hands.
Id. at 50-51.
The Commissioner objects to Magistrate Judge Duffy’s recommendation
and asserts that substantial evidence supports the ALJ’s finding that Christi S.
could perform a full range of work at all exertional levels, except that she could
never climb ropes, ladders, or scaffolds and could frequently handle, finger,
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and feel. Docket 23 at 9. In support of this statement, the Commissioner
asserts that Christi S.’s subjective statements about her limitations were
properly ignored because the ALJ expressly deemed her not credible, and,
additionally, there is “no requirement that an RFC finding be supported by a
specific medical opinion.” Id. (quoting Hensley v. Colvin 829 F.3d 926, 932 (8th
Cir. 2016)). The Commissioner then argues that, “[i]n the absence of opinion
evidence at all, the medical records themselves can provide sufficient support
for the ALJ’s RFC assessment.” Id. at 9-10 (citing Hensley, 829 F.3d at 932
(internal citation omitted)). The medical records that the Commissioner cites to
support the ALJ’s finding are several tests indicating normal sensory response.
Docket 23 at 10-11. The Commissioner also points to the ALJ’s finding, based
on Christi S.’s testimony, that she could dress herself, prepare meals, dust, do
laundry, and shop in stores. Id. at 11.
The court finds the Commissioner’s arguments unpersuasive. As an
initial matter, although medical records alone can provide sufficient support for
an ALJ’s RFC assessment in the absence of opinion evidence, that
circumstance is not present in the current case. Here, there is opinion evidence
from Dr. Knutson identifying concrete limitations contrary to the ALJ’s finding.
AR 546. Dr. Knutson opined that Christi S. was limited to lifting less than 50
pounds occasionally, less than 25 pounds frequently, and less than frequent
fingering and handling. Id. Regarding the “normal” sensory response tests, the
Commissioner has not explained the significance of such tests on an
individual’s ability to handle, finger, or feel, and it is not proper for the court to
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guess. Consequently, this argument does not impact the court’s consideration
positively or negatively. And finally, the court agrees with Magistrate Judge
Duffy that Christi S.’s ability to dress herself, prepare simple meals, dust, do
laundry, and occasionally shop does not support a finding that she can
perform handling and fingering with her hands for 2/3 of the day, five days a
week, month after month – especially without an explanation by the ALJ to
support this finding. Docket 21 at 54.
The court adopts Magistrate Judge Duffy’s recommendation and the
Commissioner is ordered on remand to reconsider Christi S.’s physical RFC in
light of her medical impairments and the record as a whole.
III.
Christi S.’s Credibility
As with the ALJ’s RFC formulation, Magistrate Judge Duffy recommends
remand as to the issue of Christi S.’s credibility because the ALJ fundamentally
misunderstood the nature of Christi S.’s mental impairments. Docket 21 at 60.
In response, the Commissioner contends that the ALJ provided adequate
justifications for her discrediting of Christi S.’s statements concerning the
severity of her symptoms.
Before the ALJ can make a determination on a claimant’s RFC, “the ALJ
must determine the applicant’s credibility, as [her] subjective complaints play a
role in assessing [her] RFC.” Ellis v. Barnhart, 392 F.3d 988, 995-96 (8th Cir.
2005) (citing Pearsall v. Massanari, 274 F.3d 1211, 1217-18 (8th Cir. 2001)).
“[W]hen evaluating a claimant’s credibility, in addition to considering the
absence of objective medical evidence to support complaints of pain, an ALJ
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should consider a claimant’s reported daily activities, the duration, frequency
and intensity of his or her pain, precipitating and aggravating factors,
medication, and functional restrictions.” Steed v. Astrue, 524 F.3d 872, 875 n.4
(8th Cir. 2008) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984));
see 20 C.F.R. § 404.1529(c)(3). “The ALJ is not required to discuss
methodically each Polaski consideration, so long as [the ALJ] acknowledged
and examined those considerations before discounting [the claimant’s]
subjective complaints.” Steed, 524 F.3d at 876 (internal quotation omitted). An
ALJ’s credibility determination is entitled to deference because the ALJ is in a
better position than a reviewing court to gauge credibility. Travis v. Astrue, 477
F.3d 1037, 1042 (8th Cir. 2007).
Because the ALJ is instructed to further analyze Christi S.’s RFC
consistent with this opinion, the ALJ’s credibility determination may change in
light of possible new RFC findings. Thus, this court will not address whether
the ALJ erred in her credibility determination. On remand, the court instructs
the ALJ to review the medical evidence in its entirety and to make new findings
throughout the disability analysis.
CONCLUSION AND ORDER
The court finds that the ALJ erred by failing to separately consider
Christi S.’s post-concussion syndrome and headaches as potentially severe
impairments. The court further finds that the ALJ failed to properly consider
the medical evidence in the record when determining Christi S.’s RFC.
Thus,
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IT IS ORDERED that the report and recommendation (Docket 21) is
adopted consistent with this opinion, and the decision of the Commissioner is
REVERSED and REMANDED for further review.
DATED this 26th day of July, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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