Yoap v. Berryhill
Filing
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DECISION AND ORDER signed by Chief Judge William C. Griesbach. The Commissioner's decision is REVERSED and REMANDED to the Agency pursuant to 42 U.S.C. § 405(g)(sentence four). The clerk is directed to enter judgment. (cc: all counsel)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BARBARA L. YOAP,
Plaintiff,
v.
Case No. 17-C-1687
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
DECISION AND ORDER REVERSING COMMISSIONER’S DECISION
This is an action for judicial review of the final decision of the Commissioner of Social
Security denying Plaintiff Barbara L. Yoap’s application for a period of disability and disability
insurance benefits (DIB) under Title II of the Social Security Act. For the reasons set forth below,
the Commissioner’s decision will be reversed and remanded for further proceedings.
BACKGROUND
On October 24, 2013, Yoap filed an application for DIB with an alleged onset date of
January 1, 2012, due to lower lumbar pain, dystonia, anxiety, dyslexia, chronic back pain, arthritis,
and degenerative disk disease. R. 63. Following the denial of her application initially and on
reconsideration, Yoap requested a hearing before an administrative law judge (ALJ). ALJ Wayne
L. Ritter conducted a hearing on September 7, 2016. Yoap, who was represented by counsel, and
a vocational expert (VE) testified. R. 31–61.
At the time of the hearing, Yoap was 52 years old and lived with her husband in a house in
Green Bay, Wisconsin. Yoap had worked as a bookkeeper for a grocery store until 2009, when the
store closed. She worked at a hair salon in 2012 but left that job after a couple of weeks because
she could not understand how to use the computer programs associated with her job duties. R. 40.
Yoap testified that she was diagnosed with dystonia, a condition that causes a person’s muscles to
contract uncontrollably, in 2002. The dystonia causes pain in her neck and shoulders that she treats
by taking medication. R. 41. She further testified that she was diagnosed with neuropathy in 2014,
which causes chronic pain, numbness, and tingling in her legs. R. 42. Yoap reported that she has
concentration problems that began in 2007 but worsened in 2012. R. 42–43. She also indicated that
a degenerative disk bulge causes pain in her lower back. R. 43. As to her activities of daily living,
Yoap reported she uses the telephone, watches television, plays computer games, drives, and visits
with her sisters. R. 44. She rated her pain on an average day as a six on a ten-point scale. R. 48.
In a decision dated November 9, 2016, the ALJ found Yoap was not disabled. The ALJ
concluded Yoap had not engaged in substantial gainful activity during the period from her alleged
onset date of January 1, 2012, through her date last insured of December 31, 2014. R. 17. The ALJ
found Yoap had the following severe impairments: disorders of the back and neck, dystonia,
peripheral neuropathy, and anxiety. Id. He then concluded Yoap did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ ultimately determined Yoap had the residual functional capacity (RFC) to perform
light work as defined in 20 C.F.R. § 404.1567(b), “except that she is further limited to work
involving no more than occasional climbing of ramps, stairs, ladders, ropes or scaffolds and
occasional crouching; and she is limited to simple, routine, and repetitive tasks, with no fast-paced
work, only simple work-related decisions, occasional workplace changes, and occasional interaction
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with the public and supervisors.” R. 19. With these limitations, the ALJ found that Yoap was
unable to perform any past relevant work as an accounting clerk. R. 24. He nevertheless concluded
that there were jobs that existed in significant numbers in the national economy that Yoap could
have performed, including housekeeper/cleaner, hand packager, industrial inspector, and assembler.
R. 25. Based on these findings, the ALJ determined Yoap was not under a disability as defined in
the Social Security Act at any time from January 1, 2012, the alleged onset date, through December
31, 2014, the date last insured. Id.
The ALJ’s decision became the final decision of the Commissioner when the Appeals
Council denied Yoap’s request for review on October 3, 2017. R. 1. After the Appeals Council
issued its decision, Yoap commenced this action for judicial review.
LEGAL STANDARD
The Commissioner’s final decision will be upheld if the ALJ applied the correct legal
standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is “such relevant evidence as a
reasonable mind could accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869,
874 (7th Cir. 2010). Although a decision denying benefits need not discuss every piece of evidence,
remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn.
Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and
conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
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substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636,
638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ.
Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80,
93–95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
ANALYSIS
Yoap raises a number of challenges to the ALJ’s decision, but the court finds that only one
need be addressed since it is enough by itself to require a remand. Yoap contends that the ALJ erred
by failing to properly assess her deficits in concentration, persistence, or pace (CPP) when
formulating the RFC assessment and hypothetical question posed to the VE. A claimant’s RFC
specifies the most that claimant can do despite the limitations caused by her physical and mental
impairments. 20 C.F.R. § 404.1545(a)(1). An ALJ assesses a claimant’s RFC “based on all the
relevant evidence” in the case record, including severe and non-severe impairments as well as
medical and non-medical evidence. § 404.1545(e). The ALJ’s hypothetical question to the VE
must then incorporate all of the limitations included in the RFC. O’Connor–Spinner v. Astrue, 627
F.3d 614, 619 (7th Cir. 2010); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009). Even though
the SSA must consider opinions from medical sources, the “final responsibility” for determining
a claimant’s RFC is reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(2).
Three doctors provided evaluations regarding Yoap’s mental residual functional capacity.
Dr. Weber completed a mental status evaluation on February 11, 2014. R. 303. He opined that
Yoap would experience moderate to marked limitations in her ability to respond appropriately to
supervisors and co-workers; moderate limitations in her ability to understand, remember, and carry
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out simple instructions; moderate limitations in her ability to maintain concentration, attention, and
work pace; and marked limitations in her ability to withstand routine work stresses and adapt to
changes in the work environment. R. 309.
Susan Donahoo, Psy.D., a state agency consultant, also completed a Mental Residual
Functional Capacity Assessment on February 26, 2014. She indicated that Yoap is markedly limited
in her ability to carry out detailed instructions and moderately limited in her ability to carry out very
short and simple instructions, maintain attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance, be punctual within customary tolerances,
complete a normal workday and workweek without interruptions from psychologically-based
symptoms, and perform at a consistent pace without an unreasonable number and length of rest
periods. R. 74. As to Yoap’s social interaction limitations, Dr. Donahoo found Yoap is markedly
limited in her ability to accept instructions and respond appropriately to criticism from supervisors,
observing that Yoap “would have moderate to marked limitations with [her] ability to respond
appropriately to supervisors and coworkers.” R. 75. Finally, as to Yoap’s adaptation limitations,
Dr. Donahoo determined Yoap is markedly limited in her ability to respond appropriately to changes
in the work setting, explaining that Yoap “would have marked limitations in [her] ability to adapt
to changes in the work place.” Id. Dr. Donahoo concluded Yoap would not be capable of even
unskilled work. Id.
After Dr. Donahoo submitted her opinion, the Office of Quality Review determined the
consultative examination lacked sufficient findings to justify Dr. Donahoo’s conclusion and
recommend the state agency obtain updated records, intelligence testing, and memory testing to
evaluate Yoap’s claim. R. 206–08. Quality Analyst Lind-Jahn instructed disability examiner
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McKeown to revise the prior assessment to reflect that Yoap had the capacity to sustain unskilled
work and obtain Dr. Donahoo’s signature. R. 313. Dr. Donahoo never signed the revised report.
Dr. Jan Jacobson, a second state agency consultant, completed a mental residual functional
capacity assessment on January 15, 2015. R. 91. She indicated that Yoap is moderately limited in
her ability to understand and remember detailed instructions but clarified that Yoap is able to
understand and remember simple instructions; moderately limited in her ability to carry out very
short and simple instructions, maintain attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances; and markedly limited in her ability to carry out detailed instructions. R. 91. Dr.
Jacobson also noted that Yoap is moderately limited in her ability to complete a normal workday
and workweek without interruptions from psychologically-based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. She explained further
that Yoap is “able to sustain attention for simple, repetitive tasks for extended periods of two hour
segments over the course of a routine workday/workweek within acceptable attention,
concentration, persistence and pace tolerances” but is unable “to do so for moderately
detailed/complex tasks requiring sustained attention.” R. 92. As to social interaction limitations,
Dr. Jacobson determined Yoap is moderately limited in her ability to interact appropriately with the
general public and accept instructions and respond appropriately to criticism from supervisors,
noting Yoap “is able to sustain the basic demands associated with relating adequately to coworkers
[and] supervisors within the above parameters” and “is able to deal directly with the public on an
occasional basis.” Id. Finally, with regard to Yoap’s ability to adapt, Dr. Jacobson found Yoap is
moderately limited in her ability to respond appropriately to changes in the work setting and
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clarified that Yoap “is able to respond appropriately to infrequent changes within the parameters
noted above” and “is aware of normal hazards and can take appropriate precautions.” R. 92–93.
The ALJ gave little weight to the opinions of Dr. Weber. He noted that Dr. Weber’s
opinions reflect an overstatement of the exam findings, explaining that Dr. Weber’s report contained
few clinical findings and mainly consisted of a recitation of Yoap’s allegations and that his opinions
were inconsistent with Yoap’s own reports of numerous functional activities as well as the medical
records. R. 23. The ALJ also gave little weight to Dr. Donahoo’s opinion, reasoning that
insufficient medical documentation supported her assessment. R. 23. Although the ALJ concurred
with Dr. Jacobson’s determination that Yoap did not have an intellectual disability, the ALJ did not
otherwise discuss Dr. Jacobson’s assessment or weigh her opinions in his decision. Instead, he gave
partial weight to the revised initial determination that was offered by a nonmedical agency examiner
that was not endorsed by a psychologist.
In any event, the ALJ relied primarily on Yoap’s activities of daily living to conclude that
she had moderate difficulties in CPP and social functioning. R. 18. The ALJ then summarized
Yoap’s RFC: “[T]he claimant had the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except that she is further limited to work involving no more than occasional
climbing of ramps, stairs, ladders, ropes or scaffolds and occasional crouching; and she is limited
to simple, routine, and repetitive tasks, with no fast-paced work, only simple work-related decisions,
occasional workplace changes, and occasional interaction with the public and supervisors.” R. 19.
Yoap asserts this RFC does not sufficiently account for all of her moderate limitations in
CPP. It is well-established in this circuit that “both the hypothetical question posed to the VE and
the ALJ’s RFC assessment must incorporate all of the claimant’s limitations supported by the
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medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (quoting Yurt v. Colvin, 758
F.3d 850, 857 (7th Cir. 2014)). In this case, the ALJ did not mention Dr. Jacobson’s assessment
and did not include the limitations she found related to Yoap’s restrictions in CPP in formulating
the RFC and hypothetical question. In particular, the ALJ never addressed Dr. Jacobson’s opinion
that Yoap is only able to sustain attention for simple, repetitive tasks for extended periods of twohour segments. R. 92. Without any discussion of Dr. Jacobson’s opinions regarding Yoap’s
functional limitations, the court cannot be sure the ALJ considered the assessment. The ALJ has
therefore failed to build an accurate and logical bridge between all of the medical evidence
pertaining to Yoap’s limitations in CPP and the RFC and hypothetical question. The case will be
remanded for this reason.
Yoap also challenges the ALJ’s decision to give her treating physician, Dr. Durant,
controlling weight. A treating source’s opinion is entitled to “controlling weight” if it is adequately
supported by objective medical evidence and is not inconsistent with other substantial evidence in
the record. 20 C.F.R. § 404.1527(c)(2). Yoap reasonably argues that the ALJ made no inquiry into
whether Dr. Durant’s opinion was not inconsistent with other substantial evidence, specifically the
May 14, 2004 opinion of Dr. Kiser, which the ALJ concluded was irrelevant because the opinion
was from long before the alleged onset date. Substantial evidence is “the amount of evidence
which, while it may be less than a preponderance, nevertheless is sufficient to convince a reasonable
mind of the validity of a position taken on an issue.” SSR 82-13, 1982 WL 31370, at *3. Because
Yoap’s condition is degenerative, Dr. Kiser’s opinion that Yoap needed to avoid strenuous activities
with prolonged standing seems to constitute substantial evidence. In any event, this matter is being
remanded on other grounds, so the court need not determine whether the ALJ’s decision to give
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controlling weight to Yoap’s treating physician constitutes reversible error. The ALJ is reminded
to consider these principles on remand.
CONCLUSION
For these reasons, the Commissioner’s decision is REVERSED and REMANDED to the
Agency pursuant to 42 U.S.C. § 405(g) (sentence four). The Clerk is directed to enter judgment
accordingly.
SO ORDERED this 2nd
day of January, 2019.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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