Rapp, Johnna L. v. Astrue, Michael

Filing 14

ORDER reversing and remanding action to Commissioner for further proceedings RE: 7 Social Security Transcript. Signed by District Judge William M. Conley on 3/18/2015. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHNNA L. RAPP
Plaintiff,

OPINION & ORDER

v.

12-cv-353-wmc

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

Plaintiff Johnna L. Rapp seeks judicial review of a final determination by the
Commissioner of Social Security finding that she was not disabled within the meaning of
the Social Security Act. Rapp principally contends that remand is warranted because: (1)
the administrative law judge (“ALJ”) failed to properly accommodate her mental health
limitations regarding concentration, persistence and pace by equating them to being off
task for 10% of the day; and (2) the ALJ provided a flawed credibility assessment.

For

the reasons set forth below, the case will be remanded to the Commissioner for rehearing.
FACTS
I. Background
On December 23, 2011, Administrative Law Judge Joseph Jacobson issued a
decision denying Rapp’s application for Supplemental Security Income (“SSI”). (AR 10.)1
Rapp filed a request for review of the ALJ’s decision. On April 3, 2012, the Appeals
Council denied Rapp’s request, making the ALJ’s decision the final determination of the

1

The citations in this Order are drawn from the Administrative Record (“AR”). (Dkt. #7.)

Commissioner. (AR 1.)

On May 11, 2012, Rapp filed a timely complaint for judicial

review in this court under 42 U.S.C. §405(g).
II. Relevant Medical Evidence
Rapp’s detailed medical history from 2008 through 2011 is addressed in her brief.
(Pl.’s Opening Br. (dkt. #11) 2-10.) As early as 2006, Rapp apparently received some
mental health treatment, but did not start a period of sustained treatment until 2008.
(Pltf. Br. (dkt. #11) 2.)
In early 2008, Rapp was diagnosed with major depression and prescribed
Wellbutrin.

(AR 338, 339.)

By November 2008, the diagnosis included a mood

disorder, as well as “major depression, recurrent, moderate.” (AR 344.) After a suicide
attempt in July of 2009, Rapp was diagnosed with major depressive disorder, recurrent,
with underlying dysthymia, anxiety disorder, with possible elements of PTSD and
borderline personality disorder. (AR 257, 264.) At that point, she was and prescribed
Wellbutrin and Gabapentin. (Id.)
A. Opinion of Denise Darling, MS
Rapp participated in a period of therapy sessions with Denise Darling at Arcadia
Clinic from November 10, 2008, through May 10, 2010. On November 10, Darling
noted that Rapp “describes herself as being ‘one minute in a great mood’ and ‘the next
minute screaming angrily and mad’ . . . was physically agitated through most of today’s
session.” (AR 344.) On November 17, Darling noted “[a]fter seeing this clinician last
Tuesday, client went into a higher energy time for the rest of that Tuesday, Wednesday

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and Thursday, and meets every requirement for a manic episode.” Darling also noted
that Rapp “says she want to be normal and feel normal. Unfortunately, client cannot get
into see Dr. Warsing until December.” (AR 347-48.) At a session on December 2, Rapp
was reverberating tension and “shaking something – mostly her legs” during the entire
session. (AR 351.) By December 29, 2008, some depression had lifted, but Rapp’s level
of irritability remained the same. (AR 358.)
At a session on February 2, 2009, Rapp reported being depressed for the first 2
weeks in January, which caused her to miss an appointment; she also admitted not being
good at taking her medication when depressed. Darling opined “early abuse [by Rapp’s
mother] would have laid the groundwork for borderline features, and hereditary probably
provided the genetic configuration on bipolar-ism.” (AR 362.)
On July 28, 2009 (approximately three weeks after Rapp’s suicide attempt),
Darling noted “symptoms of dizziness, weakness, and shaking have not abated. Severe
level of distress due to [Rapp] feeling like a failure as a mother because she cannot play
with [her son] right now.” (AR 407.) On August 27, Rapp reported continued mood
swings, but dizziness was better. She also reported partial compliance with her meds.
(AR 417.) On September 8, Rapp reported her depression had “not been good lately.”
Darling noted that Rapp alternated “as only a Borderline can do” between wanting to
leave her husband and declaring how much she loved him. (AR 419.) On September 28,
Rapp reported having “3 to 4 panic attacks per week, the majority of anxiety/panic
symptoms, and almost every depressive aspect listed.”

Darling opined “the most

worrisome thing is that the suicidal thoughts and development of a plan can happen
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impulsively, as happens specifically with a Borderline. [Rapp] comments on sometimes
wanting to not have to take her medication but also indicates current compliance.” (AR
423.)
By November 2, 2009, Rapp was noted as doing well with less depression, but
that she was not taking her medicines. (AR 425.) On November 17, Rapp denied any
thoughts of self-harm and reported she was in full medication compliance. (AR 427.)
On January 5, 2010, Rapp reported being depressed again with suicidal thoughts.
(AR 437.) On February 22, she reported medication compliance and that things were
going well. (AR 447.) By March 29, Rapp reported no thoughts of self-harm, despite
being “off her meds for 2 weeks and just compliant for the last 2 days,” resulting in more
mood swings. (AR 449.) On May 6, Rapp was apparently discharged, having “stopped
attending due to significant improvement in symptomology.” (AR 453.)
B. Opinion of George Melynk, M.D.
While attending counseling sessions with Psychologist Darling, Rapp also saw Dr.
George Melynk of the La Crosse Clinic.

On December 4, 2008, Melynk opined a

“current ongoing stressor seems to be conflictual relationship with her husband . . .
history of poor coping. In the past, she has cut herself for relief and, several weeks ago,
overdosed on her husband’s pain medicine.”

Melynk also noted that Rapp reported

being “compliant with her meds,” while her “therapist strongly suggests a bipolar
disorder.” (AR 353.)
On July 14, 2009, Melynk noted: that Rapp “was recently hospitalized on the
Inpatient Psychiatric Unit . . . for a brief stay”; that “she stopped taking her medications
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for at least 3 weeks and did not notify us”; that she “indicates . . . the medication has
been helpful to her, as it assisted mood stabilization”; and that she “does not really give
the reason as to why she stopped taking the medication.”

(AR 320.)

On July 30,

Melynk noted that Rapp was “compliant with her medication regimen,” and that while
her mood was irritable, she denied any suicidal thoughts. (AR 318.)
On January 21, 2010, Melynk noted that Rapp reported struggling with
depression a couple weeks ago, stating “I was kinda suicidal then” although there was no
“adverse outcome.” (AR 443.) He goes on to note that: her “mood swings are a little
better . . . continues to be involved with therapy . . . was engaged during the visit. She is
compliant with her meds.” (Id.)
On April 8, 2010, Melynk noted that Rapp was “taking school classes online . . .
under stress . . . had some feelings of wanting to cut again . . . had become noncompliant
with her medications.” Melynk further noted that Rapp “kept forgetting to take” [her
medications] as she “got busy at school . . . then felt worse”; “started taking them again, a
week ago” as “they have helped me before”; and was going to return to her sessions with
Darling. (AR 451.)
C. Opinion of Roger Rattan, Ph.D.
On December 7, 2010, Dr. Roger Rattan, a State Agency psychologist, concluded
that Rapp had severe impairments relating to mood, depressive, anxiety and borderline
personality disorders. (AR 85.) More specifically, Dr. Rattan found Rapp had moderate
limitations in social functioning and in concentration, attention, and work pace. (Id.)
This opinion was afforded “great weight” by the ALJ. (AR 20.)
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Dr. Rattan also found that Rapp would have moderate limitations in
understanding, remembering and carrying out detailed instructions, maintaining
attention and concentration for extended periods of time, sustaining an ordinary routine
without special supervision, working in coordination with or in proximity to others
without being distracted by them, interacting with the general public, accepting
instructions and responding appropriately to criticism from supervisors, being able to get
along with coworkers and peers without distracting them or exhibiting behavioral
extremes, and responding appropriately to changes in work settings.

(AR 86-87.)

Notwithstanding these limitations, Dr. Rattan further noted that Rapp “retains the
ability to meet the basic mental demands of unskilled work.” (AR 88.)
III. ALJ Decision
On December 23, 2011, the ALJ found that Rapp had not engaged in substantial
gainful activity since October 31, 2006, the alleged onset date. The ALJ also found the
following “severe” impairments: ‘affective disorder, anxiety disorder, and personality
disorder.’” (AR 15.)

With regard to the mental listings, however, the ALJ found no

more than moderate restrictions in the activities of daily living, and moderate limitations
in social functioning and concentration, persistence or pace. (AR 16.) Specifically, with
regard to concentration, persistence and pace, the ALJ found that while Rapp “has alleged
difficulties with attention, concentration, memory, completing tasks and following
instructions . . . her doctors have not documented any objective findings consistent with
significant deficits in this area of functioning.” (AR 16.)

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Based on these finding, the ALJ determined that Rapp had the Residual
Functional Capacity (“RFC”) to perform
a full range of work at all exertional levels but with non-exertional
limitations. She is limited to simple, routine, repetitive tasks in a low stress
job, defined as one with only occasional decision making or occasional
changes in the work setting required. She is limited to occasional
interaction with the public and coworkers with no tandem tasks. She is
precluded from piece work or production line type work. She must be
allowed to be off task up to ten percent of the work day in addition to
regularly scheduled breaks.
(AR 17.) At step four, the ALJ determined that Rapp had no past relevant work.
(AR 20.)
At step five, the ALJ relied upon a vocational expert’s opinion that given
the claimant's age, education, work experience, and RFC, there were jobs that exist
in significant numbers in the national economy that the claimant could perform.
Accordingly, the ALJ found that Rapp was not under a disability as defined in the
Social Security Act. (AR 21.)

OPINION

When a federal court reviews a final decision by the Commissioner of Social
Security, the Commissioner’s findings of fact are “conclusive,” so long as they are
supported by “substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence means
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971).

When reviewing the

Commissioner’s findings under § 405(g), the court cannot reconsider facts, re-weigh the

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evidence, decide questions of credibility or otherwise substitute its own judgment for that
of the administrative law judge. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Even so, a district court may not simply “rubber-stamp” the Commissioner’s
decision without a critical review of the evidence. See Ehrhart v. Sec’y of Health and Human
Servs., 969 F.2d 534, 538 (7th Cir. 1992). A decision cannot stand if it lacks evidentiary
support. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). The ALJ must also
explain his “analysis of the evidence with enough detail and clarity to permit meaningful
appellate review.” Id.; see Herron v. Shalala, 19 F.3d 329, 333–34 (7th Cir. 1994).
Moreover, when the administrative law judge denies benefits, he must build a logical and
accurate bridge from the evidence to his conclusion. Zurawski v. Halter, 245 F.3d 881,
887 (7th Cir. 2001).
“Although a claimant has the burden to prove disability, the ALJ has a duty to
develop a full and fair record.” Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000) (citing
Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991)); see also Richards v. Astrue, 370
F. App’x. 727, 731 (7th Cir. 2010) (“[A]n ALJ may not draw conclusions based on an
undeveloped record and has a duty to solicit additional information to flesh out an
opinion for which the medical support is not readily discernable”); Smith, 231 F.3d at
437 (stating that “failure to fulfill this obligation is ‘good cause’ to remand for gathering
of additional evidence”).
Rapp principally contends that the ALJ erred in equating her moderate limitations
on concentration, persistence and pace (“CPP”) to being off-task for 10% of the day
without any evidentiary basis for doing so. Because this same erroneous equivalency was
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used by the ALJ in framing his RFC, Rapp contends that the hypothetical questions
posed to the vocational expert (“VE”) were similarly deficient. (AR 33.) See Steele 290
F.3d at 942 (hypothetical questions posed to the VE “ordinarily must include all
limitations supported by medical evidence in the record”).
In O'Connor–Spinner v. Astrue, the state examiner and the ALJ concluded that the
claimant had moderate limitations in CPP because of her depression, but the ALJ asked
the VE to consider only a “hypothetical worker [who] was restricted to routine, repetitive
tasks with simple instructions.” 627 F.3d 614, 617 (7th. Circ. 2010). On appeal, the
Seventh Circuit rejected the Commissioner's argument that the limitation to routine and
repetitive tasks “implicitly incorporated” limitations for concentration, persistence and
pace because “[t]he ability to stick with a given task over a sustained period is not the
same as the ability to learn how to do tasks of a given complexity.” Id. at 620.
The O'Connor–Spinner court held instead that limiting the hypothetical worker to
routine repetitive tasks did not adequately “orient the VE to the totality of a claimant's
limitations.” Id. While some exceptions exist to this general rule,2 the Seventh Circuit
further held in O’Connor-Spinner that the ALJ should refer “expressly to limitations on
concentration, persistence, and 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.” Id. at 620-21.
The exceptions include: “(1) where the record revealed that the VE had reviewed the claimant's
medical records or heard testimony about the limitations; (2) where the ALJ used alternative
phrasing and “it was manifest that the ALJ's alternative phrasing specifically excluded those tasks
that someone with the claimant's limitations would be unable to perform; or (3) where the ALJ's
hypothetical question specifically mentioned the underlying condition that caused the difficulties
with concentration, persistence, and pace.” O'Connor–Spinner, 627 F.3d at 619–20.
2

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Much like O'Connor–Spinner, the ALJ here intended to implicitly incorporate
Rapp’s moderate limitations for CPP by adding a provision in the RFC that Rapp would
be off-task 10% of the day. And like O'Connor–Spinner, the ALJ failed to explain why the
10% limitation he arrived at properly characterizes each of the claimant’s moderate
limitations in CPP.3 In particular, the ALJ fails to provide adequate support in the record
to uphold this supposed equivalence was based upon substantial evidence.
An ALJ must assess a claimant’s RFC “based on all the relevant evidence in [the
claimant’s] case record.” 20 C.F.R. § 404.1545(a)(1). Examples of the types of evidence
are the claimant’s medical history, medical signs and laboratory findings, and medical
source statements. SSR 96–8p. Relevantly:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence . . . . [T]he adjudicator
must discuss the individual’s ability to perform sustained
work activities in an ordinary work setting on a regular and
continuing basis . . . and describe the maximum amount of
each work-related activity the individual can perform based
on the evidence available in the case record. The adjudicator
must also explain how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved.
SSR 96–8p (emphasis added).
As an initial matter, the evidence supporting a conclusion going to a claimant’s
CPP is critical. It forms the core of their mental limitations (i.e. non-exertional
limitations). Sufficient disability in a claimant’s mental limitations can result in the
claimant gridding out at step three of the sequential evaluation analysis. Where, as here,
There is the issue, addressed later, whether each of the limitations have been accommodated for
in the RFC in light of the Seventh Circuit’s more recent decision in Yurt v. Colvin, 758 F.3d 850
(7th Cir. 2014).
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a claimant is not found disabled at step three, the ALJ must properly formulate an RFC
step four so to reflect a claimant’s ability to perform full time work.4
Here, the ALJ found that Rapp’s residual functional capacity -- limitations
included in the hypothetical question to the VE -- was sufficiently accounted for by her
being off-task for 10% of the day. This was presumably predicated on the opinion of
state psychologist, Dr. Rattan, whose opinions were afforded “great weight” in the ALJ’s
decision. (AR 20.) But nowhere in the opinion does Dr. Rattan provide this limitation.
Instead, he provides limitations that are qualitative in nature -- including: moderate
limitations in (a) understanding, remembering and carrying out detailed instructions, (b)
maintaining attention and concentration for extended periods of time, (c) sustaining an
ordinary routine without special supervision, (d) working in coordination with or in
proximity to others without being distracted by them, (e) interacting with the general
public, (f) accepting instructions and responding appropriately to criticism from
supervisors, (g) being able to get along with coworkers and peers without distracting
them or exhibiting behavioral extremes, and (h) responding appropriately to changes in
work settings. (AR 86-87.)
Notwithstanding the absence of quantitative data supporting the 10% off-task
limitation, the ALJ does not even attempt to explain how Dr. Rattan’s qualitative
limitations lead to the quantitative limitation adopted by the ALJ in formulating Rapp’s
RFC. The ALJ also cites no regulation, law or Social Security Ruling as to how an ALJ
In this court’s view, what is really missing is a Social Security Ruling that provides clarification
on the issue of CCP. More specifically, the ruling should set forth what evidence or factors can be
relied up on by an ALJ in formulating the quantitative and qualitative limitations where CCP is
concerned.
4

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would come to such a decision. Indeed, without more, the 10% figure doesn’t point in
favor of Rapp’s disability claim; rather, it possibly points the other way as the vocational
expert could well have understood the evidence to mean that Rapp was capable of
working 90% of the time despite the qualitative limitations credited in the medical
record. While this view is speculative, it presents the precise problem that SSR 96–8p
seeks to guard against by requiring the ALJ to include “a narrative discussion describing
how the evidence supports each conclusion.”5
Thus, the ALJ’s failure to comply with SSR 96–8p constitutes error. Indeed, given
the ALJ’s silence and the minimal record, it cannot be said that Rapp was any more or
less likely to be off-task 10% of the day than being off-task for 50% of the day. Because
of this failure to provide a rationale to support the conclusion drawn in the RFC, the
ALJ’s decision is not based upon substantial evidence and remand is required. See SSR
96–8p
Two further reasons fortify this conclusion. Both are mandated by the Seventh
Circuit. The first is that an ALJ must explain his analysis of the evidence with enough
detail to permit meaningful appellate review. See Herron, 19 F.3d at 333-34; see also Tapia
v. Astrue, 2012 WL 3100380 *8 (E.D.Wis.July 30, 2012) (case remanded when “the ALJ
took no effort to explain why Plaintiff would be off task 5% of the time”). The ALJ has
failed in this respect, providing further grounds for remand since the court cannot
meaningfully assess whether substantial evidence supports the 10% limitation when no
By providing a narrative, it also prevents the ALJ from playing doctor and supplying conclusions
in the RFC without substantial evidence. See Rohan v. Chater, 98 F.3d 966, 971 (7th Cir.1996)
("ALJs must not succumb to the temptation to play doctor and make their own independent
medical findings.")
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evidence is offered at all. See Ehrhart, 969 F.2d at 538 (explaining that a district court
may not simply “rubber-stamp” the Commissioner’s decision without a critical review of
the evidence).
Second -- and in relation to the specific limitations enunciated by Dr. Rattan -the Seventh Circuit has gone to great pains in holding that each of a claimant’s specific
deficiencies in CPP should be articulated in an RFC determination. In Yurt v. Colvin, 758
F.3d 850 (7th Cir. 2014), for example, the Seventh Circuit detailed moderate limitations
in CPP, identified by the claimant’s doctor, in his “(a) ability to carry out detailed
instructions, (b) perform within a schedule, (c) be punctual, (d) perform at a consistent
pace, and (e) to complete a normal workday and workweek.” Id. at 857. Given these
limitations, the Seventh Circuit was “hard-pressed to conclude” that the ALJ’s RFC
finding was adequate in describing him as an individual who “could perform unskilled
tasks, related superficially to small numbers of people, and attend to tasks long enough to
complete them.” Id. at 857-58.6 The Seventh Circuit remanded for further proceedings,
concluding that the ALJ failed to “build an ‘accurate and logical bridge’ between the
evidence of mental impairments and the hypothetical and the mental RFC.” Id. at 859. 7

Finding that the RFC and questions to the vocational expert were deficient, the court also stated
that “the hypothetical [question] does nothing to ensure that the VE eliminated from her
responses those positions that would prove too difficult for someone with [the claimant’s]
depression and psychotic disorder.” See Yurt, 758 F.3d at 857-58.
6

There is also the issue of whether evidence suggests a flawed credibility finding. The ALJ
criticized Rapp for not being fully credible, using improper boilerplate language and then failing
to provide sufficient other grounds upon which the finding could be sustained. Given that the
RFC determination requires further explanation, which may well lead to a change to the RFC
determination itself, the ALJ should further consider Rapp’s credibility on remand.
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Notably, there are more moderate limitations in this case than in Yurt, but this
only reinforces the need for the vocational expert to be accurately informed, either
through a re-formulated RFC determination or by inspection of the medical records.
Taking this course is consistent with what the Seventh Circuit stated in O’Conner-Spinner
-- i.e. that the ALJ must “orient the VE to the totality of a claimant's limitations.” 627
F.3d at 620. Accordingly, on remand, the ALJ should not only explain the basis for the
10% limitation, but why each of the limitations ((a)-(h)) are not expressly reflected in the
RFC determination.

ORDER
IT IS ORDERED that the decision of defendant Carolyn W. Colvin,
Commissioner of Social Security, denying plaintiff Johnna L. Rapp’s application for
disability benefits is REVERSED AND REMANDED under sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this opinion. The clerk of court is directed
to enter judgment for plaintiff Johnna L. Rapp’s and close this case.
Entered this 18th day of March, 2015.

BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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