Obenauf v. Colvin

Filing 17

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 3/31/2014. 16 MOTION to Amend/Correct Complaint GRANTED; Clerk of Court DIRECTED to file [16-1] Obenauf's amended complaint. ALJ's decision REVERSED and matter REMANDED for further proceedings pursuant to 42 USC § 405(g) (sentence 4). (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VALERIE OBENAUF,
Plaintiff,
v.

Case No. 13-C-355

CAROLYN W COLVIN,
Acting Commissioner of the
Social Security Administration
Defendant.

DECISION AND ORDER

This matter is before the Court on Plaintiff Valerie Obenauf‟s (“Obenauf”)
request for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c) of the adverse
decision of the Acting Commissioner of the Social Security Administration
(“Commissioner”) denying her applications for disability insurance benefits and
supplemental security income (“SSI”).
Also before the Court is Obenauf‟s motion to amend her complaint to reflect
that the only time frame at issue is between her alleged onset date of September 18,
2008, and March 19, 2012, the day before the date of the allowance of her subsequent
applications for benefits. (ECF No. 16.) Obenauf also filed a proposed amended
Complaint. (ECF No. 16-1.) The time for the Commissioner to file a response has
ended and none was filed.

Having reviewed the motion and the proposed amended Complaint, the Court
finds that justice requires the proposed amendment be allowed, see Fed. R. Civ. P.
15(a)(2). Therefore, the motion is granted. The Court now addresses the issues raised
by Obenauf‟s action for judicial review.
Background
The Social Security Act authorizes disability benefits for those who are unable
“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 physical and/or mental impairments prevent her from doing not only her previous
work, but any other substantial gainful employment that exists in the national economy
considering her age, education and work experience. 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner has established
a five-step sequential analysis. See 20 C.F.R. § 404.1520.1 The Commissioner‟s
evaluation requires consideration of the following issues in sequence: (1) whether the
claimant is currently unemployed; (2) whether the claimant has a severe impairment;
(3) whether the claimant‟s impairment or combination of impairments meets or equals

1

The Court‟s citations to the Social Security Act and regulations promulgated by the Social Security
Administration are those applicable to disability insurance benefits. For SSI benefits, materially identical
provisions appear in Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., and at 20 C.F.R. § 416.901
et seq.

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an impairment listed by the Commissioner, see 20 C.F.R. § 404, Subpart P, App. 1; (4)
whether the claimant is unable to perform her past work; and (5) whether the claimant
is incapable of performing work in the national economy. See Dixon v. Massanari,
270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. § 404.1520.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, the Commissioner has the burden at step five to show that work exists in
significant numbers in the national economy that the claimant can perform, given her
age, education, work experience and functional capacity. 20 C.F.R. § 404.1560(c)(2).
Obenauf filed applications for disability insurance benefits and SSI on August
25, 2010, alleging a disability onset date of September 18, 2008. (Tr. 128.) Obenauf‟s
applications were denied initially and upon reconsideration.
At Obenauf‟s request, an administrative hearing was held on December 11,
2011, with administrative law judge (“ALJ”) Arthur J. Schneider presiding. Obenauf,
represented by counsel, appeared and testified. At the ALJ‟s request, vocational
expert Allen Noll also appeared and testified. By a January 10, 2012, decision the
ALJ denied Obenauf‟s claims. (Tr. 140.)
The ALJ found that Obenauf had not engaged in substantial gainful activity
since May 29, 2010, and she had severe impairments of morbid obesity, diabetes
mellitus, chronic kidney disease, and multiple arthralgias affecting the back, knees,
hip, hands, and feet.

Although Obenauf also claimed to have additional severe
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impairments including hypertension, cellulitis, left ganglion cyst, carpal tunnel
syndrome, diabetic retinopathy, and vision problems, the ALJ determined that those
impairments, and her medically determinable impairment of a dysthymic disorder, did
not cause more than minimal work-related limitations. The ALJ also determined that
Obenauf does not have an impairment or combination of impairments that meets or
medically equals an impairment listed by the Commissioner.
The ALJ further found that Obenauf was unable to perform her past relevant
work as a cleaner/housekeeper and a delicatessen cutter/slicer. However, using the
Medical-Vocational Guidelines, 20 C.F.R. § Part 404, Subpart P, App. 2, as a
framework for decision-making, together with the vocational expert‟s testimony, the
ALJ found that despite the reduction in Obenauf‟s ability to perform all or
substantially all the requirements of sedentary work, there are a significant number of
unskilled sedentary jobs in the national economy that a person of Obenauf‟s age,
education, work experience and residual functional capacity (“RFC”) could perform.
Obenauf requested review of the ALJ‟s decision by the Appeals Council. That
request was denied on January 30, 2013 (Tr. 1-4), leaving the ALJ‟s decision as the
final decision of the Commissioner. Obenauf filed her Complaint in this Court on
March 28, 2013. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c).
Analysis
Obenauf raises six primary issues before this Court. The first of the issues is
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that the ALJ improperly evaluated her mental impairment, a dysthymic disorder (a
form of depression with milder symptoms than a major depressive disorder), see Spiva
v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010), in concluding that it did not constitute a
severe impairment and caused no more than minimal work related limitations.
“A severe impairment is an impairment or combination of impairments that
„significantly limits [one‟s] physical or mental ability to do basic work activities.”‟
Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (quoting 20 C.F.R. § 404.1520(c))
(alteration in original). “Basic work activities” means “the abilities and aptitudes
necessary to do most jobs,” including: “(1) Physical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2)
Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and
remembering simple instructions; (4) Use of judgment; (5) Responding appropriately
to supervision, co-workers and usual work situations; and (6) Dealing with changes in
a routine work setting.” 20 C.F.R. § 404.1521(b). Mental impairments are evaluated
by a special technique set forth in 20 C.F.R. § 404.1520a.

The ALJ used that

evaluation process and discussed the relevant factors set out in the regulation.
A decision denying benefits need not discuss every piece of evidence, but
when an ALJ fails to support his conclusions adequately remand is appropriate.
Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). The Court‟s review is limited to
the reasons articulated by the ALJ in the written decision. Id. A treating physician‟s
opinion that is consistent with the record is generally entitled to “controlling weight.”
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20 C.F.R. § 404.1527(c)(2); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). An
ALJ who chooses to reject a treating physician‟s opinion must provide a sound
explanation for the rejection. 20 C.F.R. § 404.1527(c)(2); Campbell v. Astrue, 627
F.3d 299, 306 (7th Cir. 2010); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007).
On judicial review, a court will uphold the Commissioner's decision if the ALJ
applied the correct legal standards and supported his decision with substantial
evidence. Jelinek, 662 F.3d at 811.
The ALJ found that Obenauf‟s medically determinable impairment of a
dysthymic disorder did not cause more than a minimal limitation in her abilities to
perform basic mental activities and, therefore, was non-severe. Noting that Obenauf
underwent a psychological evaluation in August 2011, the ALJ considered the
symptoms she reported at that time, including sadness, crying spells, suicidal ideation,
sleep disturbance, social withdrawal, and the dysthymia diagnosis by treating
psychologist Daniel M. Christy (“Christy”), Ph.D. The ALJ summarized some of
Christy‟s findings from Obenauf‟s four subsequent appointments noting that her
mental status examinations remained “generally unremarkable.” (Tr. 132). The ALJ
also indicated that at her most recent appointment on October 5, 2011, Obenauf had
reported feeling much better overall and noted decreased depressive symptoms.
The ALJ created a seemingly accurate, but selective, summary of Christy‟s
findings. Christy‟s October 5, 2011 note included the following: “One of the primary
topics . . . was how sadness seems to have been internalized by every member of the
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family. . . . It is difficult to connect [Obenauf] with her sadness. She is so well
defended and keeps her affect pretty flat, so her progress is slow and incremental.”
(Tr. 879-80.) Christy found:
some incremental improvement in the level of
psychomotor activity and animation. She was clinically
alert, attentive, responsive, oriented in all spheres. Speech
was clear, coherent, goal directed with no apparent
anomolies. Mood was sad. Affect was considerably
flattened and constricted. Problem solving skills are
minimal but showing slight improvement. Judgment
and insight is fair to poor. Eye contact and social
relatedness was adequate.
(Tr. 880.) (Emphasis added.)

While the ALJ need not mention every piece of

evidence, he omitted discussion of favorable evidence regarding the extent of
Obenauf‟s mental impairment. An ALJ is not permitted to “cherry-pick” from those
mixed results to support a denial of benefits. Scott v. Astrue, 647 F.3d 734, 740 (7th
Cir. 2011).
The ALJ‟s lopsided review of the evidence is more problematic when
considered with the context provided by the medical evidence of record, also not
discussed by the ALJ. That evidence reflects that mental impairment was not a new
factor in Obenauf‟s medical history. In a May 22, 2009, diabetes residual functional
capacity questionnaire, Obenauf‟s long-time treating physician, Dr. Nestor Alabarca
(“Alabarca”), reported that situational depression due to the loss of her job affected
Obenauf‟s physical condition. (Tr. 558.) Nearly a year later, on April 7, 2010, Dr.
Thomas Fugette (“Fugette”), Ph.D., conducted a psychological evaluation of Obenauf
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and diagnosed depression (Tr. 488), noting that Obenauf had experienced depression
since the January 2006 death of her father. He also reported that Obenauf‟s responses
to the Self-Rating Depression Scale were consistent with moderate depression.
Fugette found that limitations imposed by Obenauf‟s depressive disorder, DSM-IV
Code 311, were secondary to her multiple physical conditions.
On September 7, 2010, Obenauf sent an email to Sue Ellen Rich (“Rich”),
R.N., a diabetes nurse educator, stating that she was wasting Rich‟s time, that her life
was not running right and that she has been a “huge problem financially, mentally,
physically . . . for almost 2 years now. . . [and] that today is not a particularly good
day, just feel like crying mostly.” (Tr. 639.)
An ALJ can reject an examining physician‟s opinion only for reasons
supported by substantial evidence in the record; a contradictory opinion of a nonexamining physician does not, by itself, suffice. Gudgel v. Barnhart, 345 F.3d 467,
470 (7th Cir. 2003). ALJs must not succumb to the temptation to play doctor and
make their own independent medical findings. Rohan v. Chater, 98 F.3d 966, 970
(7th Cir. 1996).
The ALJ stated that he gave some weight to the February 18, 2011, opinion of
the state agency psychological consultant, Joan Kojis (“Kojis”), Ph. D, (Tr. 796-809),
who found that Obenauf had no medically determinable mental impairment and
whose sole comment was Obenauf “notes feeling down . . . due to her limited
mobility.

She did email her diabetes RN and expressed feeling down over her
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treatment regime but she has no [diagnosis].” (Tr. 808) (Emphasis added). In
reaching that conclusion, Kojis apparently overlooked Fugette‟s April 2010,
depression diagnosis. Thus, Kojis‟s opinion does not provide substantial evidence for
the ALJ‟s assessment of Obenauf‟s mental impairment.
The ALJ also stated that he gave little weight to the more recent opinion of
Christy, who reported Obenauf‟s global assessment of functioning (“GAF”) score was
50 to 58, indicative of moderate to severe symptoms or moderate to severe
impairment of occupational or social functioning.2 The ALJ supported his decision to
give minimal weight to Christy‟s opinion by citing Christy‟s brief treating
relationship with Obenauf and the fact that Christy‟s conclusions were not consistent
with the ALJ‟s assessment of Obenauf‟s functional abilities.
Review of the ALJ‟s functional assessment discloses that it, like the his
discussion of Christy‟s report, is highly selective. For example, citing exhibit 12E
dated October 10, 2010, (Tr. 437-445), the ALJ stated that with respect to Obenauf‟s
daily activities she had been able to live independently, attend to personal care tasks,
prepare meals, manage her finances, drive a vehicle and shop, and that her reported
limitations were attributed to her physical health conditions.
Obenauf lives with her three adult brothers, and they do the household chores,

2

A GAF between 51 and 60 reflects “Moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).” American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, Text Revision (DSM–IV–TR) 34 (4th ed. 2000).

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including the dusting, vacuuming, and cleaning of the home. (Tr. 153-54, 160.) In
exhibit 12E Obenauf reported difficulties with personal care (Tr. 438), including pain
when bending to put clothes on, and limitations reaching which affect her ability to
bathe, use the toilet, and brush her hair. For meals, she usually prepares sandwiches,
microwave meals, and canned soup that take five to ten minutes, and she “used to
actually cook – not just eat ready to eat foods.” (Tr. 439.) She does laundry but
needs help carrying it to the washing machine. With the exception of checking her
email on the computer, Obenauf spends most of her day watching television. (Tr.
437.)
She goes out two or three times a week, and shops for groceries once a week
which takes about an hour. (Tr. 440.) She does not do any yard work due to back and
shoulder pain, and the amount of walking involved. (Tr. 440.) Obenauf also reported
that she does not handle stress well and is a lot more emotional than she used to be.
She also reported “[m]y lack of mobility makes life a daily struggle. I feel like my
days are just passing by, and I am out of control. I have so much trouble sleeping, I
feel tired and defeated many days. I wish I knew what to do.” (Tr. 444.)
At the December 13, 2011, administrative hearing, Obenauf testified that she
drove very little, she is lucky if she drives once a week, and driving within a 15-mile
radius of her home “might be [her] maximum.” (Tr. 157.) Due to her poor vision,
she does not drive at night or when it is raining. (Tr. 162-63.) Obenauf also testified
that she went grocery shopping once a month.
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(Tr. 160.)

The ALJ‟s decision

suggests normalcy in Obenauf‟s daily activities that is not consistent with the very
information he cited.
Furthermore, he did not explain satisfactorily in the written decision his
rejection of Christy‟s opinion, and the reasons he provided lack the support of
substantial evidence. The ALJ did not adequately articulate his consideration of all
the evidence regarding Obenauf‟s alleged mental impairment when weighing the
opinion of treating psychologist Christy versus that of non-treating psychologist Kojis
and assessing the impact, if any, on Obenauf‟s activities. Reasons offered in the
Commissioner‟s brief, but not discussed by the ALJ, cannot serve as a basis for
upholding the ALJ‟s decision. See Jelinek, 662 F.3d at 812. Therefore, the action
must be remanded pursuant to sentence four for further proceedings. To provide
guidance on remand, the Court will briefly comment on the other five issues raised by
Obenauf.
Other Issues
Obenauf asserts that the ALJ improperly analyzed her morbid obesity under §
1.02 of the Listing of Impairments because the obesity resulted in her not being able to
ambulate properly and that obesity substituted for the major joint dysfunction from
which a claimant must suffer in order to meet that particular Listing. In her reply brief,
Obenauf contends that the Commissioner did not respond and, therefore, has waived
the issue.
The Commissioner adequately responded to the issue, see Def.‟s Mem., 15
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(ECF No. 14), and the ALJ found that Obenauf was morbidly obese; specifically
addressing her obesity with respect to § 1.02(A) and (B) as well as Social Security
Ruling 02-1p. The Listing issue Obenauf raises is not a basis for remand. See
Sienkiewicz v. Barnhart, 409 F.3d 798, 802 (7th Cir. 2005).
Obenauf also contends that the ALJ (1) impermissibly cited only some portions
of treating physician Alabarca‟s June 2010 report, failing to mention the additional
limitations that Obenauf could only occasionally reach with her right arm, could not
reach with the left, and could not use her right fingers due to pain; (2) did not discuss
the need for vocational training (Tr. 490-91); and (3) did not adequately discuss his
reason for rejecting Alabarca‟s September 2011 report that Obenauf would need to
elevate her legs half the work day if she had a sedentary job. (Tr. 876.) The need for
vocational training is not a factor that the ALJ need address, and the ALJ adequately
addressed Obenauf‟s need to elevate her legs. However, on remand the ALJ must
articulate his consideration of the cited limitations on Obenauf‟s use of her arms for
reaching and the inability to use her right fingers.
Obenauf contends that when the ALJ assessed her credibility he failed to
discuss her activities of daily living, improperly found that she was non-compliant
with treatment, improperly relied on her work history, mischaracterized her treatment
history, and improperly determined her RFC before he determined her credibility. The
Court concludes that due to the foregoing flaws, the ALJ must reassess Obenauf‟s
credibility on remand in compliance with the case law of this circuit.
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Obenauf also contends that the ALJ failed to explain how she could perform
the jobs he identified when evidence indicated that she did not possess the requisite
skills. This issue will not be addressed because the ALJ will need to revisit the steps
of the sequential analysis properly assessing Christy‟s opinion, Obenauf‟s mental
impairment, and the reaching/fingering limitations of treating physician Alabarca‟s
June 2010 report.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Obenauf‟s motion to amend the Complaint (ECF No. 16) is GRANTED;
The Clerk of Court is DIRECTED to file Obenauf‟s amended Complaint
(ECF No. 16-1.);
Obenauf‟s action for judicial review is GRANTED to the extent that the ALJ‟s
decision is REVERSED and this matter is remanded for further proceedings not
inconsistent with this Decision and Order. This is a sentence four reversal and remand.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of March, 2014.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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