Olson, Mark v. Colvin, Carolyn

Filing 12

OPINION AND ORDER reversing and remanding action to Commissioner for further proceedings RE: 7 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 3/3/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MARK OLSON,
OPINION AND ORDER
Plaintiff,
15-cv-375-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an appeal of an administrative decision denying plaintiff Mark Olson’s claim
under the Social Security Act, 42 U.S.C. § 405(g), for supplemental security income. The
administrative law judge, Thomas Springer, found that plaintiff suffered from severe
impairments in the form of borderline intellectual functioning and personality disorder.
However, the administrative law judge denied plaintiff’s claim because he found that
plaintiff could perform his past work as a cheese factory laborer and could perform other jobs
such as janitor or dishwasher.
I understand plaintiff to be arguing that the administrative decision should be
reversed and remanded because the administrative law judge failed to adequately explain
three things: (1) his assessment of plaintiff’s mental limitations regarding concentration,
persistence and pace; (2) the extent to which plaintiff’s obesity limited plaintiff’s abilities;
and (3) the reason for not adopting a psychologist’s finding that plaintiff may need close

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supervision. Because I agree with plaintiff’s third argument, I am remanding the case for
additional consideration on that issue.

OPINION
Michael Jan Nelson is a psychologist who evaluated plaintiff in 2007. In his report,
Nelson made a number of conclusions and recommendations, one of which was that
“relatively close supervision may . . . be necessary” in any job plaintiff has because of his
“impulse control issues.” AR 360. Plaintiff says that the administrative law judge’s decision
must be reversed and remanded because he did not discuss Nelson’s recommendation, much
less explain why he was not including it as one of plaintiff’s limitations. It matters, plaintiff
says, because an individual may be disabled if he can work only under “special conditions.”
20 C.F.R. § 404.1573(c) (“If your work is done under special conditions, we may find that
it does not show that you have the ability to do substantial gainful activity.”). He cites
Nazzaro v. Callahan, 978 F. Supp. 452 (W.D.N.Y. 1997), for the view that heightened
supervision may qualify as a special condition.
In response, the commissioner does not challenge plaintiff’s argument that the
administrative law judge was required to consider Nelson’s conclusions because Nelson
qualifies as a “medical source” under SSR 96-8p. Further, the commissioner does not argue
that Nelson’s conclusion regarding close supervision was too tentative to require
consideration by the administrative law judge; that plaintiff has failed to show any
connection between his medical impairments and any lack of impulse control; or that a need

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for extra supervision cannot render a person unable to work, either generally or with respect
to plaintiff’s job in the cheese factory. Accordingly, I do not consider any of those issues.
Instead, the commissioner argues that the administrative law judge gave adequate
consideration to Nelson’s report.
The commissioner’s argument is not persuasive. The administrative law judge noted
that plaintiff had been psychologically evaluated three times, including in 2007. AR 32.
The administrative law judge summarized those evaluations collectively as indicating that
plaintiff has “some difficulty with attention, concentration, stress and change and issues with
regard to interacting with others” but that he “remains capable of understand[ing],
remembering and following through with simple instructions.”

Id.

In addition, the

administrative law judge stated that he gave “[s]ome weight” to all of the evaluations but
“greater weight” to the most recent evaluation from 2012. However, he said nothing about
Nelson’s finding on plaintiff’s problems with impulse control or need for close supervision.
In responding to plaintiff’s motion, the commissioner simply ignores this omission.
Although there may be strong reasons for rejecting (or disregarding) Nelson’s conclusion, the
administrative law judge must explain those reasons. Minnick v. Colvin, 775 F.3d 929, 938
(7th Cir. 2015). Accordingly, I am remanding the case to give the administrative law judge
an opportunity to do that.
Plaintiff’s other objections are that the administrative law judge failed to adequately
explain (1) the limitations he found with respect to plaintiff’s concentration, persistence and
pace; (2) how plaintiff’s obesity affected his limitations. However, with respect to these two

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issues, plaintiff does not point to any evidence that he suffered from greater limitations than
those found by the administrative law judge, so these issues are not independent grounds for
reversal. Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015) ("[A]n ALJ's failure to explicitly
consider an applicant's obesity is harmless if the applicant did not explain how her obesity
hampers her ability to work.”) (internal quotations omitted); Rossenbach v. Colvin, No.
13-cv-435-bbc, 2014 WL 1729096, at *2 (W.D. Wis. Apr. 30, 2014) (plaintiff not entitled
to reversal because he “does not point to any evidence supporting a view that he suffers from
any limitations related to concentration, persistence or pace other than those listed in the
administrative law judge's residual functional capacity assessment”). However, on remand,
if plaintiff can identify additional evidence in the record on these issues, he is free to ask the
administrative law judge to consider that evidence.

ORDER
IT IS ORDERED that plaintiff Mark Olson’s motion for summary judgment, dkt. #8,
is GRANTED with respect to the issue whether the administrative law judge failed to
consider the opinion of psychologist Michael Jan Nelson. The decision denying plaintiff
benefits is REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g). The

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clerk of court is directed to enter judgment in favor of plaintiff and close this case.
Entered this 3d day of March, 2016.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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