Saunders, Michael v. Berryhill, Nancy
Filing
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OPINION AND ORDER affirming Commissioner decision regarding Social Security benefits RE: 16 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 8/23/18. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL JOHN SAUNDERS,
Plaintiff,
OPINION AND ORDER
v.
17-cv-616-bbc
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
Plaintiff Michael John Saunders is seeking review of a final decision by defendant
Nancy A. Berryhill, Acting Commissioner of Social Security, denying his claim for disability
insurance benefits and supplemental security income under the Social Security Act. 42
U.S.C. § 405(g). Dkt. #9. Plaintiff seeks an award of benefits or, alternatively, a remand
of that decision, on the grounds that the administrative law judge who decided the case (1)
did not account adequately for his moderate limitations in concentration, persistence or
pace; and (2) should have given more weight to the opinions of the state consulting
psychologists who examined him.
For the reasons explained below, I find that the
administrative law judge did not err in reaching her decision. Accordingly, plaintiff’s claim
will be denied.
The following facts are drawn from the administrative record (AR).
FACTS
A. Social Security Applications and Background
Plaintiff Michael Saunders was born on May 26, 1970. AR 100. He first filed for
disability insurance and supplemental security benefits in September 2005, contending that
he had been disabled since July 28, 2004 because of a variety of physical and cognitive
impairments. AR 100, 156. Plaintiff’s claim for benefits has been denied by four different
administrative law judges, who issued unfavorable decisions on January 28, 2009, September
3, 2010, January 24, 2014 and most recently on June 23, 2017. AR 12-23, 218-27, 505-16,
706-22.
The 2009 decision was remanded primarily because plaintiff lacked a mental health
assessment and the 2010 decision was remanded for further consideration of the residual
functional capacity assessment in light of the opinions of treating and non-treating medical
sources. AR 505. In 2014, plaintiff amended his alleged onset date to August 31, 2009 and
filed additional applications. AR 505, 706.
Addressing plaintiff’s claim in 2014, the administrative law judge found that although
his case had been remanded for further assessment of plaintiff’s mental health impairments,
plaintiff had failed to show that he had at least 12 continuous months of significant and
ongoing mental health symptoms and the record included no evidence that plaintiff had
undergone any psychiatric or psychological treatment or taken any psychotropic medication.
Id. When plaintiff sought review of that decision in this court in 2015, the parties filed a
joint stipulation for remand to the commissioner, which I granted on May 6, 2016. Dkt.
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3##13-14, case no. 15-cv-627. In its remand order, the Appeals Council noted that the
administrative law judge’s 2014 finding that plaintiff did not have a severe mental
impairment was inconsistent with the medical expert testimony provided by Dr. Miriam
Sherman in December 2013, Dr. Shakil Mohammed in July 2013 and Dr. Melancharbol in
February 2010, and the consultative examinations and psychological testing performed by
Dr. Marcus Desmonde in 2009 and Dr. Kurt Weber in 2013. AR 706.
On May 2, 2017, Administrative Law Judge Debra Meacham held a hearing at which
plaintiff and a vocational expert testified. AR 707, 938-73. Plaintiff was represented by
counsel at the hearing. On June 23, 2017, the administrative law judge concluded that
plaintiff was not disabled. AR 706-22. The Appeals Council denied plaintiff’s request for
review, making the hearing decision the final decision of the commissioner.
B. Relevant Medical Evidence
At issue in this case are plaintiff’s mental impairments, particularly his ability to
maintain concentration, persistence and pace. Critical to plaintiff’s appeal are the opinions
of three medical experts who testified at plaintiff’s previous administrative hearings and two
consultative psychiatrists who examined plaintiff.
The findings of these experts are
summarized below. The parties agree that plaintiff has not had any mental health treatment.
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1. Dr. Marcus Desmonde
Dr. Desmonde is a state consultative examiner who performed a mental status
evaluation of plaintiff on August 31, 2009. He wrote that plaintiff should be able to
understand simple verbal instructions but may have some difficulty carrying out tasks with
reasonable persistence and pace. AR 315-17. Plaintiff’s cognitive test results ranged from
extremely low to borderline. AR 316-17. On a standard mental residual functional capacity
assessment form, Dr. Desmonde checked “mild” to “moderate” for plaintiff’s ability to
understand, remember and carry out simple instructions; “marked” for his ability to
understand, remember and carry out complex instructions; “moderate” to “marked” for his
ability to make judgments on simple work-related decisions; and “moderate” for his ability
to make judgments on complex work-related decisions. AR 329.
2. Dr. Melancharbol
Dr. Melancharbol testified as a medical expert at plaintiff’s February 17, 2010
administrative hearing.
From his review of the record, including the report of Dr.
Desmonde, Dr. Melancharbol determined that plaintiff had an organic mental disorder,
borderline intellectual functioning and a personality problem with low frustration tolerance
that caused moderate limitations in concentration, persistence or pace. He testified that
plaintiff was restricted to simple, repetitive tasks with up to four-step instructions in a
habituated setting, no complex problem solving or work-related decisions and object-oriented
work with things and not people. AR 476-80.
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3.
Dr. Kurt Weber
At the request of Disability Determination Services, Dr. Weber conducted a
consultative examination and administered psychological testing to plaintiff on February 6,
2013. He found that plaintiff had low average to average intellectual functioning, could
concentrate long enough to hold a conversation, read and work on the computer and was
“somewhat” able to perform his daily activities in a timely manner. Dr. Weber noted that
plaintiff was suffering from depression but that he was not taking any psychoactive
medication.
It was opinion that plaintiff had moderate limitations in the ability to
understand, remember and carry out simple and complex instructions and in maintaining
concentration, attention and work pace. AR 639-46, 650. (Although Dr. Weber made other
findings related to withstanding work stress and adapting to changes in the workplace,
plaintiff has not challenged the administrative law judge’s assessment of his abilities in these
areas.)
4. Dr. Shakil Mohammed
At plaintiff’s July 12, 2013 administrative hearing, Dr. Shakil Mohammed testified
as a medical expert that he had reviewed the findings of Dr. Desmonde and Dr. Weber and
determined that plaintiff had moderate limitations in concentration, persistence and pace
and suffered from adjustment disorder, depressive disorder and cognitive disorder. He also
testified that plaintiff’s concentration was only mildly limited and that he was capable of
“very mildly complex tasks.” AR 666-71.
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5. Dr. Miriam Sherman
At plaintiff’s December 19, 2013 hearing, Dr. Miriam Sherman testified as a medical
expert that, in her opinion, plaintiff suffered from major depressive disorder and dysthymic
disorder and had moderate difficulty maintaining concentration. She had reviewed Dr.
Desmonde’s and Dr. Weber’s findings but was not sure what to make of Dr. Desmonde’s
“marked” assessments because neither Dr. Weber nor plaintiff’s occupational medicine
doctor had noted similar findings. AR 693. Dr. Sherman testified that plaintiff appeared
capable of performing simple, repetitive tasks of a nonpublic nature. AR 686, 692.
C. 2017 Administrative Proceedings
At the May 2, 2017 telephonic administrative hearing, plaintiff testified that for the
past two and a half years, he has been working about 20 hours a week as a fry cook in a
supper club owned by a family friend. He cannot work more hours because of his back pain.
Plaintiff has to ask the wait staff a lot of questions about the food orders to make sure that
he understands them, and he cannot remember new recipes unless they are written down.
AR 945-48, 956-57. He struggles with reading and cannot concentrate on more than one
thing at a time. During the course of a television show, he picks up his phone to play a game
every few minutes.
AR 951-52.
He is not on any medication for his mental health
symptoms. AR 953. Plaintiff has trouble processing information and has to take two 15 to
20-minute breaks during his five hour shift. AR 956. He cannot handle a fast-paced
environment. The supper club serves between 25 and 110 customers a night but plaintiff
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always has someone working with him on the busier nights (Friday and Saturday). AR 95859.
On June 23, 2017, the administrative law judge issued a written decision, finding that
plaintiff was severely impaired by degenerative disc disease, spine disorders, major joint
dysfunction, major depressive disorder and borderline intellectual functioning. AR 715. She
noted that even though the previous administrative law judge accurately noted that plaintiff
had not received mental health treatment, evidence from impartial medical experts and
consultative mental health examiners showed that plaintiff had severe mental impairments
that caused moderate functional limitation. AR 716. However, the administrative law judge
concluded that none of plaintiff’s impairments, alone or in combination, met or equaled the
criteria for any listed impairment. AR 713. In reviewing the “B criteria” of the mental
impairment listings, the administrative law judge found that plaintiff had moderate
limitations in concentration, persistence or pace, in accordance with the opinions of Dr.
Desmonde, Dr. Melancharbol, Dr. Weber and Dr. Sherman. AR 713-15.
The administrative law judge further determined that plaintiff retained the residual
functional capacity to perform unskilled light work limited to simple, routine and repetitive
tasks; no fast-paced or production line or tandem tasks; no more than occasional changes in
workplace setting; GED levels of one or two; and occasional interactions with others. AR
715. (The administrative law judge also assessed some other physical limitations that are
not relevant to plaintiff’s appeal.) In reaching this decision, the administrative law judge
stated that she gave “great weight” to Dr. Melancharbol’s opinion and incorporated all but
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one of his findings in her residual functional capacity assessment for plaintiff. She did not
adopt Dr. Melancharbol’s recommendation that plaintiff could perform only object-based
work because no other medical source stated a similar opinion. AR 719. She gave some
weight to Dr. Desmonde’s opinion but did not adopt his “marked” findings because she
found that the record did not support them. Id. The administrative law judge gave limited
weight to Dr. Weber’s findings that plaintiff had moderate limitations in every area of
mental functioning because the findings were inconsistent with the doctor’s own testing.
However, she noted that her residual functional capacity assessment was consistent with Dr.
Weber’s finding that plaintiff had low average to average attention, memory and intellect.
AR 720. Finally, the administrative law judge gave some weight to the testimony of Dr.
Mohammed and Dr. Sherman, particularly with respect to plaintiff’s ability to maintain
concentration, persistence and pace and ability to sustain simple, repetitive tasks. Id.
Relying on the testimony of a vocational expert who testified in response to a
hypothetical question based on plaintiff’s residual functional capacity assessment, the
administrative law judge found that plaintiff could not perform his past relevant work but
that he could perform jobs that exist in significant numbers in the national economy,
including laundry worker, router, sweeper and ampule sealer.
AR 720-21.
The
administrative law judge did not otherwise discuss plaintiff’s mental health with the
vocational expert. AR 966-68.
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OPINION
Plaintiff’s primary argument is that the administrative law judge’s residual functional
capacity assessment and hypothetical question to the vocational expert did not account
adequately for her finding that plaintiff had moderate limitations in concentration,
persistence or pace. He also contends that the administrative law judge misstated the record
with respect to the consultative examiners’ opinions on concentration, persistence and pace
and should have given more weight to their findings than she gave to the testimony of the
medical experts, who did not examine plaintiff. 20 C.F.R. § 404.1527 (“Generally, we give
more weight to the medical opinion of a source who has examined you than to the medical
opinion of a medical source who has not examined you.”). Although the arguments are
related, I will address them separately.
A. Residual Functional Capacity Assessment and Hypothetical Question
As plaintiff points out, the Court of Appeals for the Seventh Circuit has made clear
that an administrative law judge must orient the vocational expert to all of a claimant’s
limitations, including those in concentration, persistence or pace. O’Connor-Spinner v.
Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010) (“[T]he 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.”). Although the administrative
law judge does not need to use the magic words “concentration, persistence or pace,” the
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record must show that the vocational expert was aware of the claimant’s particular
limitations. Yurt v. Colvin, 758 F.3d 850, 857-58 (7th Cir. 2014). The court of appeals has
held that an administrative law judge must explicitly address the limitations in the
hypothetical unless one of three exceptions applies:
(1) the vocational expert was
independently familiar with the claimant’s medical file; (2) the hypothetical adequately
apprised the vocational expert of the claimant’s underlying mental conditions; or (3) the
hypothetical otherwise accounted for the limitations using different terminology. Lanigan
v. Berryhill, 865 F.3d 558, 565 (7th Cir. 2017).
As to the first two exceptions, although the vocational expert was present at the
hearing, there is no evidence in the record suggesting that he was informed of the full scope
of plaintiff’s mental impairments and concentration, persistence or pace limitations. Plaintiff
argues that the commissioner may not rely on the third exception because the terms used by
the administrative law–“simple, routine and repetitive tasks” and “no fast-paced or
production line or tandem tasks”--fail to account for plaintiff’s specific limitations in
concentration, persistence or pace. Plaintiff is correct that the court of appeals has held that
the types of limitations the administrative law judge included in her residual functional
capacity assessment and the hypothetical question are general functional limitations related
to unskilled work that do not address a claimant’s general deficiencies in concentration,
persistence or pace. O’Connor-Spinner, 627 F.3d at 620. See also Varga v. Colvin, 794 F.3d
809, 815 (7th Cir. 2015) (failure to define “fast paced production” was problematic); Stewart
v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009) (“simple, routine tasks” did not account for
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limited ability to understand instructions); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.
2004) (“simple, routine” tasks did not adequately account for “impairment in
concentration”); Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (“simple, unskilled
work” does not account for difficulty with memory, concentration or mood swings).
In this case, however, the administrative law judge did not merely assume that the
term “simple, routine and repetitive tasks” would account for plaintiff’s limitations in
concentration, persistence or pace.
Rather, she relied on the expert testimony of Dr.
Melancharbol, who reviewed plaintiff’s medical record, and Dr. Desmonde’s evaluation and
concluded that plaintiff was capable of performing simple, repetitive tasks in a habituated
setting. Although the administrative law judge gave only some weight to the opinions of Dr.
Sherman and Dr. Mohammed, their opinions are generally consistent with her assessment
as well.
Dr. Sherman testified that plaintiff had moderate difficulty maintaining
concentration but appeared capable of performing simple, repetitive tasks. Dr. Mohammed
testified that plaintiff had moderate limitations in concentration, persistence or pace but
concluded that plaintiff’s concentration was only mildly limited and that he was capable of
“very mildly complex tasks.”
As the commissioner points out, the Court of Appeals for the Seventh Circuit has held
in both published and unpublished opinions that an administrative law judge is entitled to
rely on a medical expert who “effectively translate[s] an opinion regarding the claimant’s
mental limitations into an RFC assessment.” Milliken v. Astrue, 397 Fed. Appx. 218, 221
(7th Cir. 2010). See also Varga, 794 F.3d at 816 (“[A]n ALJ may rely on a doctor’s narrative
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RFC, rather than the checkboxes, where that narrative adequately encapsulates and translates
those worksheet observations.”); Capman v. Colvin, 617 Fed. Appx. 575, 579 (7th Cir. 2015)
(administrative law judge may reasonably rely on psychologist’s “bottom line-assessment” in
narrative section of residual functional capacity assessment, at least where it is not
inconsistent with checklist findings in other section of worksheet); Johansen v. Barnhart, 314
F.3d 283, (7th Cir. 2002) (in formulating hypothetical for vocational expert, administrative
law judge reasonably relied on physician’s opinion that plaintiff could perform loss-stress,
repetitive work); Wade v. Colvin, No. 12–8260, 2014 WL 349261, at *12 (N.D. Ill. Jan. 31,
2014) (“[A]s many other courts have found, the ALJ need only look to Section III for the
RFC assessment as directed by the POMS.”) (citing cases from other circuits).
In a misplaced argument, plaintiff seems to contend that Dr. Melancharbol improperly
translated his own assessment of plaintiff’s moderate concentration, persistence or pace
limitations into “simple, repetitive tasks,” in violation of the mandate of the court of appeals
in O’Connor-Spinner. However, in Varga and Capman, the court of appeals was concerned
with the way in which the administrative law judge accounted for concentration, persistence or
pace limitations. The court of appeals has not held that a medical professional may not
translate his or her own findings into the ability to perform simple, repetitive tasks. Because
Dr. Melancharbol and Dr. Sherman, and to a lesser extent, Dr. Mohammend, testified as
experts that simple, routine and repetitive tasks would account for all of plaintiff’s limitations
in concentration, persistence or pace, it was not reversible error for the administrative law
judge to rely on those medical opinions in formulating her residual functional capacity
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assessment and hypothetical questions to the vocational expert. Wolf v. Colvin, 214 F. Supp.
3d 736, 742 (W.D. Wis. 2016) (finding same).
In a brief argument, plaintiff contends that the other limitations assessed by the
administrative law judge related to “occasional decision making,” “occasional changes in work
setting” and “no fast-paced” tasks also fail to address concentration, persistence or pace.
However, plaintiff fails to provide any explanation or otherwise develop his argument.
Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“[P]erfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are waived.”)
(internal citation omitted). In any event, “placing restrictions as to consistency of tasks,
speed of work and requiring breaks do address a CPP limitation, or at least the court finds
no error in the ALJ’s approach.” Hale v. Berryhill, 2017 WL 4180160, at *6 (W.D. Wis.
Sept. 21, 2017) (addressing similar argument).
Finally, plaintiff criticizes the administrative law judge for failing to define “fast paced”
tasks, which the Court of Appeals for the Seventh Circuit has said may prevent the vocational
expert from assessing whether a person with plaintiff’s limitations could maintain the pace
proposed. Varga, 794 F.3d at 814-15. However, in this case, there is no evidence showing
what specific pace plaintiff could tolerate. Dr. Desmonde stated only that plaintiff would
have some difficulties carrying out tasks with “reasonable pace.” AR 317. Although plaintiff
testified about having trouble when things got busy at his job, he spoke only about not being
able to handle “fast-paced” work and needing what qualifies as routine and repetitive
instructions with respect to food orders and recipes. In any event, Dr. Melancharbol made
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clear that performing simple, repetitive tasks in a habituated setting—like the one plaintiff
later described needing in his current work—would accommodate plaintiff’s mental
impairments.
The fact that the administrative law judge included additional or more
restrictive limitations in the residual functional capacity assessment does not make either it
or the corresponding hypothetical question erroneous.
B. Evaluation of Expert Opinions
Plaintiff argues that the administrative law judge based her decision about plaintiff’s
mental health limitations on a misunderstanding of the expert opinions and should have
given greater weight to the opinions of Dr. Desmonde and Dr. Weber, who examined
plaintiff. As an initial matter, plaintiff contends that Dr. Desmonde was the only expert to
address concentration, persistence or pace, but this was not the case. With the exception of
Dr. Sherman, who addressed only plaintiff’s concentration, all of the medical experts
discussed plaintiff’s concentration, persistence and pace to some degree. Most important, the
administrative law judge relied primarily on Dr. Melancharbol who stated specifically that
plaintiff’s mental impairments caused moderate limitations in concentration, persistence or
pace and that confining him to simple, repetitive tasks in a habituated setting would address
those limitations. AR 476-79.
Although plaintiff challenges some of the reasons that the administrative law judge
gave for giving only partial weight to Dr. Desmonde’s and Dr. Weber’s opinions, it is not
clear what plaintiff believes the administrative law judge ignored that would have made a
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difference in the residual functional capacity assessment with respect to concentration,
persistence or pace.
Plaintiff contends that the administrative law judge rejected Dr.
Desmonde’s report based solely on a finding that Dr. Desmonde said that he did not “over
interpret” plaintiff’s test results because plaintiff did not have his reading glasses with him
during the testing. Although the administrative law judge mentioned that comment as one
reason she discounted Dr. Desmonde’s report, she found that the record as a whole did not
support the severity of some limitations he assessed for plaintiff. However, the administrative
law judge’s objections to Dr. Desmonde’s findings do not appear to relate to concentration,
persistence or pace.
Even though Dr. Desmonde checked off boxes showing that plaintiff had “moderate
to marked” limitations in the ability to make judgments on simple work-related decisions, the
remainder of his opinion with respect to other areas relevant to concentration, persistence or
pace is generally consistent with the administrative law judge’s assessment. Apart from
checking off boxes on a form, Dr. Desmonde did not provide any detailed comments on
plaintiff’s abilities in this area, except for noting that plaintiff was able to understand simple
verbal instructions and may have some difficulty carrying out tasks with reasonable
persistence and pace. Moreover, Dr. Desmonde’s moderate to marked finding as to simple
decisions seems inconsistent with his finding that plaintiff had only moderate limitations in
his ability to make judgments on complex work-related decisions. Nothing in the record
supports a finding that plaintiff had a greater ability to deal with complex decisions than
simple decisions.
Without more, I cannot conclude that the administrative law judge
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committed reversible error in adopting a moderate rather than a marked limitation in the
overall area of concentration, persistence or pace.
Plaintiff’s arguments with respect to Dr. Weber are equally unpersuasive. Dr. Weber
found that plaintiff had moderate limitations in the ability to understand, remember and
carry out simple and complex instructions and in maintaining concentration, attention and
work pace. Dr. Weber also found that plaintiff had moderate limitations in other areas–a
finding with which the administrative law judge disagreed. However, plaintiff has not argued
that the administrative law judge erred in failing to incorporate any of the other moderate
findings in her residual functional capacity assessment or in her hypothetical to the vocational
expert, so they are irrelevant to this appeal. Finally, even though plaintiff contends that the
administrative law judge misinterpreted Dr. Weber’s evaluation as being limited to plaintiff’s
intellectual functioning, he does not explain why he believes this to be the case.
The
administrative law judge did not say this in her opinion or otherwise indicate that this was
her perception. Accordingly, plaintiff has not shown that the administrative law judge erred
in failing to give greater weight to Dr. Desmonde’s and Dr. Weber’s opinions with respect to
plaintiff’s concentration, persistence or pace.
ORDER
IT IS ORDERED that plaintiff Michael John Saunders’s motion for summary
judgment, dkt. #9, is DENIED. The final decision of defendant Nancy Berryhill, Acting
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Commissioner of Social Security, denying plaintiff benefits, is AFFIRMED. The clerk of
court is directed to enter judgment in favor of defendant and close this case.
Entered this 23d day of August, 2018.
BY THE COURT:
/s/
_______________________
BARBARA B. CRABB
District Judge
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