Sharp v. Colvin

Filing 17

ORDER signed by Judge Rudolph T. Randa on 8/31/2015. Denial of Benefits REVERSED and Matter REMANDED to Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EMMANUEL SHARP,
Plaintiff-Claimant,
-vs-

Case No. 14-C-673

CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant-Respondent.

DECISION AND ORDER
Plaintiff-Claimant Emmanuel Sharp (“Sharp”) appeals the final
decision

of

Defendant-Respondent

Carolyn

Colvin,

the

acting

Commissioner of Social Security (the “Commissioner”), denying his
application for supplemental security income (“SSI”) benefits. The Court
is reviewing the determination of the Administrative Law Judge (“ALJ”)
who, having conducted a hearing, found that Sharp had severe
impairments: back disorders, deep venous thrombosis (“DVT”), carpel
tunnel syndrome, asthma, and a history of ischemic attacks.
(ECF No. 12-3.)

(Tr. 22.)

He also found that Sharp had additional non-severe

impairments: a physical impairment—hypertension, and a mental
impairment—past alcohol abuse. (Id.) In conjunction with Sharp’s past
alcohol use, the ALJ evaluated four functional categories and found that

Sharp had mild limitations in activities of daily living; no limitations in
social functioning; a mild limitation in concentration, persistence or pace;
and no episodes of decompensation that had been of extended duration.
(Id. at 22-23.)
The ALJ further determined that Sharp had the residual functional
capacity (“RFC”) to perform light work so long as it was unskilled work
involving simple routine tasks, frequent but not constant handling and
fingering with the right hand, and no excessive exposure to fumes, odors,
dust, gases or areas of poor ventilation.1 (Id. at 23-24.) In finding Sharp
not disabled, the ALJ further determined that based on Sharp’s age,
limited education, ability to communicate in English, lack of past relevant
work, and RFC to perform light work there were a significant number of
jobs in the national economy he could perform; including as an assembler,

The Social Security Administration (“SSA”) applies a five-step analysis to SSI
claims. See 20 C.F.R. § 416.920. (1) The SSA considers whether the claimant has
engaged in substantial gainful activity during the claimed period of disability. 20 C.F.R.
§ 416.920(b). (2) It determines whether the claimant’s physical or mental impairment is
severe and meets the twelve-month durational requirement. 20 C.F.R. § 416.920(c). (3)
The SSA compares the impairment (or combination of impairments) found at step two to
a list of impairments identified in the regulations (“the Listings”). See 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant’s impairments meet or “medically equal” a Listing, he
is considered to be disabled, and the analysis concludes; if a Listing is not met, the
analysis proceeds to the next step. 20 C.F.R. § 416.920(d). (4) The SSA considers the
claimant’s RFC and past relevant work. If the individual can perform his past relevant
work, he is found to be not disabled, 20 C.F.R. §§ 416.920(f) and (h), if not, at step (5),
the SSA considers the claimant’s RFC, age, education, and work experience to see
whether he can make the vocational adjustment to other work, 20 C.F.R. §§ 416.920(g)
and (h). If he can make the adjustment the claimant is found to be not disabled; if not,
he is found to be disabled.
1

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inspector, and marker, as identified by the vocational expert (“VE”). (Tr.
27.) The Appeals Council denied review of the ALJ's decision, making it
the final determination of the Commissioner.

(Tr. 1-3.)

20 C.F.R.

§ 404.981; Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013).
Sharp contends that the ALJ (1) failed to properly evaluate his
amnestic disorder at step two of the evaluation, which impacted his RFC,
credibility finding, and the evaluation of opinion evidence; (2) improperly
evaluated Sharp’s credibility; (3) improperly evaluated Sharp’s RFC; and
(4) posed an incomplete hypothetical to the vocational expert.
To uphold the denial of benefits, the ALJ's decision must be
supported by substantial evidence, which is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).

To determine

whether substantial evidence exists, the Court reviews the record as a
whole but does not attempt to substitute its judgment for the ALJ’s by
reweighing the evidence, resolving material conflicts, or reconsidering
facts or the credibility of witnesses. Beardsley v. Colvin, 758 F.3d 834,
836-37 (7th Cir. 2014).
The ALJ must articulate, at least minimally, his analysis of all
relevant evidence, Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), and
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“the [ALJ's] decision cannot stand if it lacks evidentiary support or an
adequate discussion of the issues,” Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003).

Additionally, the ALJ must “build an

accurate and logical bridge from the evidence to his conclusion.” Clifford
v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
An ALJ's credibility determination is entitled to “special deference.”
Schomas, 732 F.3d at 708. The Court will reverse an ALJ’s credibility
finding only if it is patently wrong. See Pepper v. Colvin, 712 F.3d 351,
367-68 (7th Cir. 2013) (also noting that the ALJ must adequately explain
his credibility finding).
Amnestic Disorder
With respect to Sharp’s amnestic disorder, Thomas S. Lehman,
Ph.D. (“Lehman”) conducted a consultative examination2 of Sharp on
December 28, 2011, to address memory problems. Lehman issued a report
which included the results of a mental status examination and Wechsler
Memory Scale testing. (Tr. 424-30.) (ECF No. 12-9.) Lehman reported
that Sharp had “an amnestic disorder secondary to stroke with general
memory of 67 and preserved working memory of 83.”

(Tr. at 429.)

2 Consultative examinations are arranged when the SSA does not have sufficient
evidence about an individual’s impairment. See 20 C.F.R. § 416.917.

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Lehman also reported severity of psychosocial stressors, reduced activity
level, difficulty with medical compliance, and social isolation, and found
that Sharp had a “low average ability to understand, but a marked
limitation in his

ability

to remember anything

but simple job

instructions.” (Id.) In addition, Sharp had mild limitations in his ability
to maintain concentration, attention, and pace; and mild limitations on his
ability to withstand the stress of a routine workday or to adapt to changes.
The ALJ did not mention Lehman by name but noted that WMS-III
scores (the test Lehman had administered) indicated deficits. (Tr. 23.)
The ALJ also noted that there was no competent evidence that it was
residual to past alcohol use. (Id.) The ALJ did not mention Lehman’s
other findings, including his finding that the memory disorder was linked
to another physical impairment; that is, secondary to stroke.
With respect to Sharp’s memory disorder, the ALJ also discussed the
opinions of non-examining consultants Deborah Pape, Ph.D. (“Pape”) (Tr.
454-71) and Susan Donahoo, Psy.D. (“Donahoo”) (Tr. 343-46) (ECF No. 128). He gave little weight to Pape’s assessment dated January 17, 2012,
and some weight to that of Donahoo dated July 11, 2011. (Tr. 26.) The
ALJ

stated

that

Donahoo’s

opinion,

which

found

no

medically

determinable impairment, was consistent with the record, pointing out
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findings of normal mood, affect, judgment and thought content found in
the record; and that Pape’s opinion that Sharp had an amnesiac disorder
was not substantiated by the evidence of record.
The weight given to consultative opinions is usually a matter
reserved for the ALJ.

See 20 C.F.R. § 416.927.

However, Donahoo’s

opinion predates Lehman’s evaluation and states that during clinical
visits Sharp never complained of memory problems and denied having any
mental status changes. That does not reflect Sharp’s subsequent visit to
Lehman, when his complaints of an impaired memory were corroborated
by his ex-wife.
The ALJ’s reliance on comments by Donahoo regarding Sharp’s
normal mood, affect, judgment and thought content may be irrelevant to
the impaired memory issue because Lehman, too, found “normal affect and
mood,” and “adequate and intact” thought processes; but he also reported
objective test results indicating memory deficits and “some memory
difficulty recalling even personal information.” (Tr. 426.) (Lehman also
found “below average practical judgment and comprehension of the world
around him.” (Tr. 427.))
Lehman’s report, which postdates Donahoo’s evaluation, documents
Sharp’s complaint that he had been having a hard time remembering
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things for several years. (Tr. 424.) Sharp’s “cohabitating ex-wife” was a
collateral informant, indicating that he had trouble remembering things
for as long as she could recall and could not remember his wedding date or
his age, was forgetful in general, and needed reminders to take his
medication appropriately. (Tr. 425.)
Pape relied upon Lehman’s report (“per recent CE”) in finding that
Sharp had an amnestic disorder (Tr. 459) which did not meet § 12.02 of
the Listing of Impairments for organic mental disorders. Pape further
detailed her reasons for concluding that Sharp could meet the mental
demands of unskilled work. (Tr. 456.)
Despite the deference afforded the ALJ’s assessment of medical
evidence, his evaluation of Sharp’s amnesic disorder is not supported by
substantial evidence and requires remand of this matter to the
Commissioner for further proceedings to reevaluate such evidence.
Furthermore, such reevaluation may impact ALJ’s assessment of Sharp’s
credibility, his RFC, and the additional steps in the sequential evaluation
of a disability benefits claim.

Because the ALJ’s analysis may change

significantly on remand, analysis of the additional issues raised by Sharp
would not be meaningful.
The Court recognizes the Commissioner’s assertion that despite the
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ALJ’s finding that the amnesic disorder was unsupported by the record,
his mental RFC finding nonetheless included limitations consistent with
Pape and Lehman’s opinions that Sharp was limited to unskilled work
involving only simple instructions and routine tasks.

(Commissioner’s

Mem, 5.) (ECF No. 15.) However, the ALJ’s errors may make a difference
in the non-exertional aspects of Sharp’s RFC.
Pape’s report contains medical findings of severe amnesic disorder
with moderate limitations in Sharp’s ability to maintain concentration and
attention, perform activities within a schedule and maintain regular
attendance, complete a normal work day without interruptions from
psychologically based symptoms, and respond appropriately to changes in
the work setting; and a moderate difficulty in concentration, persistence or
pace. (Tr. 454-55 and 468.) If these limitations are credited upon proper
evaluation of the doctors’ opinions, they should be included in the
hypothetical presented to the VE to determine their effects on Sharp’s
RFC and remaining occupational base. See Murphy v. Colvin, 759 F.3d
811, 820-21 (7th Cir. 2014) (remanding due to the failure to incorporate
limitations in concentration, persistence or pace into the hypothetical to
the VE); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (awarding
attorneys’ fees based on finding of lack of substantial justification of
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Commissioner’s defense of incomplete evaluation of limitations in
concentration, persistence, or pace); O’Connor-Spinner v. Astrue, 627 F.3d
614, 620-21 (7th Cir. 2010) (remand because ALJ did not include
limitations in concentration, persistence, or pace in hypothetical presented
to VE).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s
final decision on Sharp’s claim for SSI is REVERSED and this matter is
REMANDED for further proceedings consistent with this Decision and
Order;
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of August, 2015.

BY THE COURT:

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

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