Stark, Randy v. Colvin, Carolyn
Filing
18
OPINION and ORDER reversing and remanding action to Commissioner for further proceedings re: 7 Social Security Transcript. Signed by District Judge William M. Conley on 3/31/2016. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RANDY STARK,
Plaintiff,
OPINION & ORDER
v.
14-cv-379-wmc
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
Plaintiff Randy Stark seeks judicial review of a decision by the Commissioner of
the Social Security Administration denying his application for Social Security Disability
Insurance Benefits and Supplemental Security Income. Stark contends that the decision of
the Administrative Law Judge (“ALJ”) was not supported by substantial evidence because
the ALJ: (1) failed to afford sufficient weight to the statement of Stark’s treating physician;
and (2) failed to provide a complete hypothetical question to the Vocational Expert (“VE”).
The court agrees that the ALJ’s approach to the treating physician’s opinion requires
remand and will grant Stark’s motion.
BACKGROUND1
I. Procedural History
On December 19, 2012, ALJ Thomas J. Sanzi issued a decision denying Stark’s
request for disability insurance benefits. (AR 19-32.) Stark filed a petition for review on
February 5, 2013. (Id. at 14.) The Appeals Council denied the request for review on March
28, 2014, making the ALJ’s decision the final determination of the Commissioner. (Id. at
Some citations in this Opinion and Order are drawn from the Administrative Record (“AR”). (Dkt.
##7, 7-1.)
1
1.)
On May 23, 2014, Stark filed a timely complaint for judicial review in this court
pursuant to 42 U.S.C. § 405(g).
II. Medical Evidence
Stark relates his medical history in some detail in his opening brief, and so the court
need not repeat it all here. (See Pl.’s Am. Br. (dkt. #16) 1-11.)2 Since 2010, Stark has
suffered from several impairments, both physical and mental, that have limited his daily
activities and occupational capabilities. He does not challenge the ALJ’s findings related to
his alleged physical disabilities, and so this opinion focuses primarily on record evidence
related to his mental limitations.
Dr. Carmen Scudiero is Stark’s treating physician.
On February 23, 2010, Dr.
Scudiero noted that Stark had chronic pain syndrome, chronic low back pain, dyslipidemia,
gout, panic disorder and depression. (AR 318.) At that time, Dr. Scudiero noted that Stark
was in “good spirits” and “on an even keel.” (Id.) Following some new difficulty with leg
pain and a motor vehicle accident, both incidents for which Dr. Scudiero saw Stark, Stark’s
mental condition worsened, according to Dr. Scudiero’s treatment notes of July 23. (AR
315.) Dr. Scudiero wrote that Stark was “not doing well from a mental health standpoint.”
While his neck pain was “really gone,”
His new symptom is marked mood lability. He will be feeling
good one second and feeling kind of depressed, but also angry
the next. This is causing a problem with his relationship with
his roommate.
Stark filed an “amended brief in support” of his request for judicial review concurrently with his
reply brief. (See dkt. #16.) It appears that the amended brief is substantively identical to the
original brief in support, but corrects a number of typographical errors that appeared in the original
brief.
2
2
(Id.) On November 5, Dr. Scudiero noted that Stark’s pain was continuing, that he had not
worked for the last three weeks due to discomfort, and that Stark “continued to have the
sweats.” (AR 311.)
On January 12, 2011, Dr. Scudiero noted that while some of Stark’s physical pain
had improved, Stark was “not doing as well in regard to his depression and panic.” (AR
306.)
While Dr. Scudiero’s treatment notes of March 28 observed that Stark was
“significantly improved” and that his depression was “dramatically improved also” (AR
303), Dr. Scudiero treated Stark on April 13 for “[s]evere depression with suicide attempt
and suicidal ideation,” noting in part:
Things have not been going well for Mr. Stark. The situation is
multifactorial. He has had to go off the Venlafaxine because he
could not afford it. He has been severely stressed at work in his
customer service job[.] . . . He took 8 Valium yesterday. He
emptied the whole bottle into his hand, was going to take
everything that he had left but took 8 and then stopped at that,
hoping that he would fall asleep and die. He has thought about
nothing but suicide for the last 3 days and is very very much
worried if he goes home, he is going to do something to kill
himself. . . . I am referring him to the Psychiatry Unit to be
admitted with suicidal depression.
(AR 302.) On April 19, Dr. Nancy Charlier at Gundersen Lutheran Hospital, where Stark
had been admitted on a direct basis from Dr. Scudiero’s office, noted that Stark had
complained of “increasing depression” and that he had still been “feeling suicidal” upon his
arrival. (AR 353.)
On April 26, after Stark’s discharge from the hospital, treatment notes indicate that
Stark reported a longstanding history of depressive symptoms, multiple episodes of
depression that could last weeks or months, and suicidal contemplation. (AR 290.) He was
diagnosed with a “mood disorder not otherwise specified (probably bipolar disorder type
3
II),” panic disorder without agoraphobia, anxiety disorder and posttraumatic stress disorder
symptoms, as well as some other physical conditions. (AR 292.) On May 25, 2011, Dr.
Scudiero noted that Stark had again been hospitalized for severe depression. (AR 299.)
On September 14, 2011, Dr. Kelly Clouse noted that Stark had been doing better
but was “recently worse with mood and anxiety symptoms” and documented Stark with
bipolar disorder, panic disorder without agoraphobia, anxiety disorder, chronic back pain,
hypertension, hyperlipidemia, hypothyroid, gout, reflux, irritable bowel, fatty liver, anemia,
and a GAF score of 52. (AR 450.) On September 19, Dr. Clouse reported that Stark
reported moods that were “up and down,” erratic sleep, more panic attacks and significant
anxiety. (AR 452.)
On January 19, 2012, Dr. Stephen C. Copps at Gundersen Lutheran saw Stark and
recorded his reports of increasing depression and suicidal ideation. (AR 528.) The next
day, Dr. Kristen Freier noted: (1) that Stark had voluntarily admitted himself with suicidal
ideations of overdose; and (2) he reported “significant problems with mood swings” and
“panic symptoms.” (AR 529-30.) On February 9, 2012, Dr. Pamjai Johnson noted that
Stark had depression and anxiety, many suicide attempts, suicidal ideation and severe
anxiety problems with panic attacks. On May 17, Dr. Johnson recorded Stark’s reports of
poor sleep and worsening anxiety.
III. Written Opinions
Dr. Scudiero filled out a mental residual functional capacity assessment (“MRFCA”),
in which he concluded that Stark had marked limitations in the following “Sustained
Concentration and Persistence” categories:
4
The ability to carry out detailed instructions.
The ability to maintain attention and concentration for extended periods.
The ability to perform activities within a schedule, maintain regular attendance, and
be punctual within customary tolerances.
The ability to sustain an ordinary routine without special supervision.
The ability to work in coordination with or proximity to others without being
distracted by them.
The 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.
(AR 491-92.) Dr. Scudiero also found that Stark had marked limitations in his ability to
interact appropriately with the general public and accept instructions and respond
appropriately to criticism from supervisors. (AR 492.)
IV. Questioning of the Vocational Expert
At the hearing, the ALJ asked a number of questions of VE William Dingess. The
only portion of that questioning relevant to this review are the hypotheticals that the ALJ
posed with respect to Stark’s mental limitations.
After asking a number of questions
regarding persons with Stark’s age, education level, work experience and physical
limitations, the ALJ asked if a person with all of those limitations could perform jobs in the
regional or national economy adding the following additional limitations:
5
The work must be “limited to simple, routine, and repetitive tasks in a low-stress job,
defined as having only occasional decision-making required and only occasional
changes in the work setting.” (AR 105.)
There must be “only occasional interaction with the public, and only occasional
interaction with coworkers.” (AR 106.)
V.
There must be “only occasional judgment required.” (AR 107.)
The ALJ’s Decision
On December 19, 2012, the ALJ issued a decision in Stark’s case, employing the five-
step evaluation process of 20 C.F.R. §§ 404.1520 and 416.920. At step one, he found that
Stark met the insured status requirements of the Social Security Act and had not engaged in
substantial gainful activity since March 1, 2009, the alleged date of onset of disability. (AR
24.) At step two, he found that Stark had a number of “severe impairments,” including:
degenerative disc disease of the lumbar spine; obesity; bipolar disorder, type II; panic
disorder; and anxiety disorder. (Id.) At step three, the ALJ concluded that despite these
numerous, “severe impairments,” Stark 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. § 404, Subpart P, Appendix 1, although he found that Stark had moderate
limitations in social functioning and in concentration, persistence or pace (“CPP”). (AR 2526.)
At step four, the ALJ determined that Stark had the residual functional capacity
(“RFC”) to perform light work, except that (1) he should “no more than frequently” stoop
and crouch, and (2) his work should require “no more than occasional” use of far acuity
6
vision. (Id. at 27.) The ALJ further found that Stark had the mental residual functional
capacity to perform work involving simple, routine and repetitive tasks, in a “low-stress job,”
which he defined as having only: occasional decision-making; occasional changes in the
work setting required; occasional interaction with the public; and occasional exercise of
judgment. (Id.) In arriving at this RFC, the ALJ acknowledged giving some weight to the
state agency, non-examining psychological consultants, but giving little weight to the
opinion of Stark’s treating physician, Dr. Scudiero.
Dr. Scudiero opined that the claimant has no limitations in
understanding
and
memory,
marked
limitations
in
concentration and persistence, marked limitation in social
interaction, and moderate limitation in adaption. Dr. Scudiero
does not provide any explanation for [his] findings in [his]
opinion. Furthermore, I note that [his] opinions in terms of the
claimant’s limitations related to understanding, memory,
concentration, and persistence are inconsistent with the results
of treating source mental status examinations[,] which reveal
that the claimant demonstrated average cognition, good insight,
good judgment, and intact memory.3
(AR 30.)
The ALJ also recognized that he had not accommodated all of Stark’s alleged
symptoms and limitations, but explained that the objective evidence of record “does not
provide support for the extent of disabling symptoms and limitations alleged.” (Id.) Based
on this assessment of Stark’s residual functional capacity and the testimony of the VE, the
ALJ concluded that Stark was unable to perform his past relevant work as a purchasing
agent. Finally, at step five, the ALJ found that jobs existed in significant numbers in the
Inexplicably, the ALJ repeatedly sued the possessive “her” instead of “his” when referring to Dr.
Scudiero, which has been corrected in the text above.
3
7
national economy that Stark could perform, based on the VE’s responses to his hypothetical
questions. (AR 31.) Accordingly, he found Stark was not disabled.
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) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). When reviewing the Commissioner’s findings under § 405(g), the
court cannot reconsider facts, re-weigh the evidence, decide questions of credibility or
otherwise substitute its own judgment for that of the ALJ. 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. Id. (citing Ehrhart v. Sec’y of Health & Human Servs., 969 F.2d 534, 538 (7th Cir.
1992)). Rather, “the court must conduct a ‘critical review of the evidence’ before affirming
the [C]ommissioner’s decision, and the decision cannot stand if it lacks evidentiary support
or ‘is so poorly articulated as to prevent meaningful review.’” Hemminger v. Astrue, 590 F.
Supp. 2d 1073, 1079 (W.D. Wis. 2008) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th
Cir. 2002)). To provide the necessary support for a decision to deny benefits, the ALJ must
“build an accurate and logical bridge from the evidence to [his] conclusion.” Zurawski v.
Halter, 245 F.3d 881, 887 (7th Cir. 2001). At least with respect to the ALJ’s unexplained
failure to defer to the opinions of Stark’s treating physicians, the opinion falls short.
8
I. Rejection of Treating Physician’s Opinion
Stark first argues that the ALJ erred in failing to give Dr. Scudiero’s opinion
sufficient weight and in failing to apply the factors of 20 C.F.R. § 404.1527(c) in weighing
his opinion. In Jelinek v. Astrue, 662 F.3d 805 (7th Cir. 2011), the Seventh Circuit set forth
the standards an ALJ must follow in evaluating the weight to be given to a treating source.
“A treating physician’s opinion that is consistent with the record is generally entitled to
‘controlling weight.’” Id. at 811 (quoting then 20 C.F.R. § 404.1527(d)(2) (2011)4; Schaaf
v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010)). An ALJ who rejects a treating physician’s
opinion “must provide a sound explanation for the rejection.” Id. Furthermore, the ALJ
must also decide what weight to give the opinion by applying the factors now enumerated in
20 C.F.R. § 404.1527(c). Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010); see also
Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (criticizing ALJ for saying “nothing
regarding this required checklist of factors”).
Here, the ALJ plainly did not afford Dr. Scudiero’s opinions controlling weight, which
required him to offer a “sound explanation” for his decision to reject those opinions. He
briefly articulated two reasons: (1) Dr. Scudiero provided no explanation for his findings;
and (2) Dr. Scudiero’s opinion was inconsistent with the result of treating source mental
examinations revealing average cognition, good insight, good judgment and intact memory.
(AR 30 (citing Ex. 22F/25-26, 33).) Stark argues, and the court agrees, that neither of these
perfunctory statements constitutes a “sound explanation” for the ALJ’s decision to reject Dr.
Scudiero’s opinion.
Formerly, the factors an ALJ had to consider in evaluating the weight to give an opinion appeared
in 20 C.F.R. § 404.1527(d)(2). That section has since been renumbered 20 C.F.R. § 404.1527(c),
and the court will refer to it as such throughout this opinion.
4
9
The Commissioner argues that the first reason suffices to provide a “sound
explanation” for the ALJ’s decision because Dr. Scudiero left blank the third section of the
MRFCA form, in which he was asked to explain his summary conclusions from the
checklist. (See AR 493.) On this point, the Commissioner is correct, at least insofar as a
check-box form by itself could be “weak evidence.” Larson, 615 F.3d at 751. The Seventh
Circuit has noted, however, that “the form takes on greater significance when it is supported
by medical records.” Id.
Here, as Stark points out, the record is replete with medical records that support Dr.
Scudiero’s MRFCA conclusions. Dr. Scudiero saw Stark repeatedly over the course of his
treatment and noted his severe depression, suicidal ideation and suicide attempts, job stress,
anxiety and panic on numerous occasions.
The ALJ failed to account for any of these
records in ruling that Dr. Scudiero had not explained his findings. Cf. id. (“Here, there is a
long record of treatment by Dr. Rhoades that supports his notations on the form.”).
With respect to the ALJ’s second reason for rejecting Dr. Scudiero’s opinion, Stark
concedes that inconsistency with other evidence in the record can constitute a good reason
to reject a treating source opinion. See Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir.
2006) (noting that “once well-supported contradicting evidence is introduced, the treating
physician’s evidence is no longer entitled to controlling weight”).
However, Stark also
accurately notes that the ALJ ignored the evidence supporting Dr. Scudiero’s opinions,
including copious notes detailing Stark’s worsening depression, severe anxiety and poor
sleep. “An ALJ may not selectively consider medical reports, especially those of treating
physicians, but must consider ‘all relevant evidence.’” Myles v. Astrue, 582 F.3d 672, 678
(7th Cir. 2009) (citing Clifford, 227 F.3d at 871; Books v. Chater, 91 F.3d 972, 979 (7th Cir.
10
1996)). Therefore, the ALJ erred by impermissibly cherry-picking the evidence by relying
solely on the relatively positive mental examinations and ignoring evidence in the record
unfavorable to his conclusion. Smith v. Apfel, 231 F.3d 433, 438 (7th Cir. 2000). Thus, the
second justification for rejecting Dr. Scudiero’s opinion likewise fails, meaning that the ALJ
failed to provide the “sound explanation” that the treating source rule requires.
Furthermore, Stark is correct that after declining to afford Dr. Scudiero’s opinion
controlling weight, the ALJ also failed to consider how much weight to give that opinion by
employing all of the § 404.1527(c) factors, which is itself an independent basis for remand.
See, e.g., Campbell, 627 F.3d at 308 (reversing an ALJ even when her “decision indicates that
she considered opinion evidence in accordance with §§ 404.1527 and 416.927 [but] does
not explicitly address the checklist of factors as applied to the medical opinion evidence”)
(emphasis added). Section 404.1527(c) requires that an ALJ evaluate a physician’s opinion
by considering: “the length, nature, and extent of the treatment relationship; frequency of
examination; the physician’s specialty; the types of tests performed; and the consistency and
support for the physician’s opinion.” Larson, 615 F.3d at 751 (citations omitted).
Here, the Commissioner concedes that the ALJ did not evaluate the length of the
treatment relationship between Dr. Scudiero and Stark, but argues that Stark failed to
explain why this factor supports Dr. Scudiero’s opinions. It is readily apparent, however,
that a longer treating relationship supports giving an opinion greater weight. See, e.g., id.
(“These factors support Dr. Rhoades: he had treated Larson for several years on a monthly
basis[.]”);
Additionally, Stark argues, and the court agrees, that the ALJ failed to consider the
consistency of Dr. Scudiero’s opinion with the record. The Commissioner objects that the
11
record also includes treatment notes that are inconsistent with Dr. Scudiero’s ultimate
MRFCA opinion, but this does not excuse the ALJ’s failure to consider any of the evidence
consistent with that opinion. See Myles, 582 F.3d at 678 (“It is not enough for the ALJ to
address mere portions of a doctor’s report.”); Zurawski, 245 F.3d at 888 (“It is worth
repeating that ‘an ALJ may not ignore an entire line of evidence that is contrary to her
findings,’ Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999)[.]”). The ALJ’s conclusory
finding of inconsistency, based on a selective review of the record and lacking an explicit
discussion of the § 404.1527(c) factors, cannot support his decision to afford little weight to
Dr. Scudiero’s opinion.5
The above discussion provides several legitimate reasons for the ALJ to consider
affording Dr. Scudiero’s opinion greater weight on remand. Of course, the court does not
intend to suggest that the ALJ must ultimately give Dr. Scudiero’s opinion controlling
weight; that determination is best left for the ALJ. See Clifford, 227 F.3d at 869 (reviewing
court does not reweigh the evidence or resolve conflicts). Whatever the outcome, however,
the ALJ must properly explain his decision by using the framework set forth in § 404.1527(c)
and addressing all relevant evidence, not merely selective portions of Dr. Scudiero’s
treatment notes. His failure to do so in the proceedings below requires that this court
remand for further proceedings.
The Commissioner also cites to the records that are ostensibly inconsistent with Dr. Scudiero’s
opinions on the MRFCA form, including the GAF score of 52 and the notes indicating that Stark’s
depression was “actually doing a lot better in some ways.” This attempt to rehabilitate the ALJ’s
decision also fails to the extent that the ALJ himself apparently did not rely on those records in
rejecting Dr. Scudiero’s opinion, which violates the principle of SEC v. Chenery Corp., 318 U.S. 80,
87-88 (1943). E.g., Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010).
5
12
II. Hypothetical Question
Because the court has found that the ALJ’s treatment of Dr. Scudiero’s opinion
requires remand, it need not reach the question of whether the ALJ’s hypothetical to the
vocational expert properly took into account Stark’s CPP limitations. In the interest of
providing some limited guidance on remand, however, the court briefly notes that the
Seventh Circuit has held repeatedly that in most cases, “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[.]” O’Connor-Spinner v. Astrue, 627 F.3d 614, 620-21
(7th Cir. 2010). This means, for example, that a hypothetical confining the claimant to
simple, routine tasks and limited interactions with others does not adequately capture
limitations in concentration, persistence and pace. Yurt v. Colvin, 758 F.3d 850, 858-59
(7th Cir. 2014).
Here, the ALJ found at step three that Stark had moderate difficulties in regard to
concentration, persistence or pace (AR 26, 29) and gave some weight to the opinion of the
State Agency physician, who likewise found that Stark had moderate limitations with
respect to the ability to carry out detailed instructions, maintain attention and
concentration for extended periods, make simple work-related decisions and complete a
normal workday and workweek without interruptions from psychologically based symptoms
and perform at a consistent pace without an unreasonable number of breaks (id. at 46970).
However, it is not clear that the ALJ’s hypothetical accounted for any of these CPP-
related restrictions, though the court need not and does not reach that question.
On
remand, the ALJ should be sure to pose a complete hypothetical to the VE that expressly
accounts for any limitations Stark has with regard to CPP.
13
ORDER
IT IS ORDERED that the decision of the Commissioner is REVERSED and the case
is REMANDED to the commissioner 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 and close this case.
Entered this 31st day of March, 2016.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?