ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on petition for judicial review of the decision of the Commissioner filed by the plaintiff, Ieasha Dotson, on April 20, 2017. For the following reasons, the decision of the Commissioner is
The plaintiff, Ieasha Dotson, filed applications for Disability Insurance Benefits and Supplemental Security Income on August 13, 2013, alleging a disability onset date of August 1, 2013. (Tr. 52). The Disability Determination Bureau denied Dotson's applications on December 11, 2013, and again upon reconsideration on July 7, 2014. (Tr. 52). Dotson subsequently filed a timely request for a hearing on August 22, 2014. (Tr. 52). A hearing was held on January 27, 2016, before Administrative Law Judge (ALJ) Laurie Wardell, and the ALJ issued an unfavorable decision on February 12, 2016. (Tr. 52-62). Vocational Expert (VE) Richard J. Hamersma testified at the hearing. (Tr. 52). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6).
Dotson met the insured status requirements of the Social Security Act through December 31, 2017. (Tr. 54). The ALJ issued an unfavorable decision on February 12, 2016, and made findings as to each of the steps in the five-step sequential analysis. (Tr. 52-62). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Dotson had not engaged in substantial gainful activity since August 1, 2013, the alleged onset date. (Tr. 54).
At step two, the ALJ determined that Dotson had the following severe impairments: scoliosis, posttraumatic stress disorder, and bipolar disorder. (Tr. 54). At step three, the ALJ concluded that Dotson 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. Part 404, Subpart P, Appendix 1. (Tr. 55). The ALJ indicated that she considered the listings in section 1.00 for musculoskeletal disorders and section 12.00 for mental health disorders. (Tr. 55). However, regarding Dotson's scoliosis, the ALJ considered Listing 1.04 but indicated that she did not find evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with ineffective ambulation in the medical record. (Tr. 55). The ALJ also considered Dotson's mental impairments, singly and in combination, according to the criteria in Listings 12.04 and 12.06. (Tr. 55). Accordingly, the ALJ determined that the severity of Dotson's mental impairments did not meet or medically equal the listings. (Tr. 55).
In finding that Dotson did not meet the above listings, the ALJ considered the paragraph B criteria for mental impairments, which required at least two of the following:
(Tr. 55). The ALJ defined a marked limitation as more than moderate but less than extreme and repeated episodes of decompensation, each of extended duration, as three episodes within one year or once every four months with each episode lasting at least two weeks. (Tr. 55).
The ALJ determined that Dotson had mild restriction in activities of daily living. (Tr. 55). The ALJ noted that the function reports completed by Dotson in September of 2013 and June of 2014 indicated that she was able to complete similar activities daily living. (Tr. 55). The ALJ noted that Dotson was able to care for her children, help her children with homework, prepare meals, clean, use public transportation, manage finances, shop, and visit with family. (Tr. 55).
Next, the ALJ concluded that Dotson had moderate difficulties in social functioning. (Tr. 55). Dotson indicated that she had extreme issues with social interaction. (Tr. 56). However, the ALJ accounted for Dotson's testimony that she lived with her two children, used public transportation, spent an hour at a time on Facebook, and shopped in stores. (Tr. 56). Therefore, ALJ found that those activities demonstrated that Dotson was able to interact with others. (Tr. 56).
Finally, the ALJ found that Dotson had moderate difficulties in concentration, persistence, or pace. (Tr. 56). The ALJ noted that Dotson's activities of daily living demonstrated that she was able to maintain attention and concentration. (Tr. 56). The ALJ found that Dotson had no episodes of decompensation which were of extended duration. (Tr. 56). Because Dotson did not have two marked limitations or one marked limitation and repeated episodes of decompensation, the ALJ determined that she did not satisfy the paragraph B criteria. (Tr. 56). Additionally, the ALJ concluded that Dotson did not satisfy the paragraph C criteria. (Tr. 56).
After consideration of the entire record, the ALJ then assessed Dotson's residual functional capacity (RFC) as follows:
(Tr. 57). The ALJ explained that in considering Dotson's symptoms she followed a two-step process. (Tr. 57). First, she determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that reasonably could be expected to produce Dotson's pain or other symptoms. (Tr. 57). Then, she evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Dotson's functioning. (Tr. 57). The ALJ indicated that after consideration of the evidence, she found that Dotson's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible with the evidence as a whole, including the medical evidence and her noted activities of daily living, did not support the allegations. (Tr. 59). The ALJ found that Dotson's type of treatment was conservative considering her alleged degree of pain and limitations. (Tr. 60). Also, the ALJ considered that Dotson's ability to work demonstrated that she was capable of more than she alleged. (Tr. 60). Finally, the ALJ noted that Dotson's activities of daily living also were inconsistent with her allegations of symptom and limitation severity. (Tr. 60).
At step four, the ALJ found that Dotson was unable to perform any past relevant work. (Tr. 60). Considering Dotson's age, education, work experience, and RFC, the ALJ concluded that there were jobs in the national economy that she could perform, including mail sorter (20,000 jobs nationally) and inspector (25,000 jobs nationally). (Tr. 61). The ALJ found that Dotson had not been under a disability, as defined in the Social Security Act, from August 1, 2013, through the date of this decision, February 12, 2016. (Tr. 62).
The standard for judicial review of an ALJ's finding that a claimant is not disabled within the meaning of the Social Security Act is limited to a determination of whether those findings are supported by substantial evidence.
Disability and supplemental insurance benefits are available only to those individuals who can establish "disability" under the terms of the Social Security Act. The claimant must show that she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
Dotson has requested that the court reverse the ALJ's decision and award benefits, or in the alternative remand the matter for additional proceedings. In her appeal, Dotson has argued that the ALJ: (1) made a mistake of fact in concluding that Dotson attended the administrative hearing in person; (2) erred in evaluating the medical opinion of Christopher Hutcheson, LSW, and Dr. Cathy Streifel, Ph.D.; (3) erred in evaluating Dotson's mental residual functional capacity; and (4) erred in evaluating Dotson's subjective allegations in accordance with SSR 96-7p and SSR 16-3p.
First, Dotson has argued that the ALJ made a mistake of fact in concluding that Dotson appeared in person at the administrative hearing. Dotson testified at the hearing via telephone. The Commissioner does not dispute that fact. Dotson's contention is that the ALJ's decision included observations that the ALJ was incapable of making considering that Dotson testified over the phone. In evaluating Dotson's subjective complaints, the ALJ found that Dotson's "demeanor at the hearing contradicted her allegations of pain and symptom severity because she appeared comfortable throughout the hearing and sat without overt pain signs. Moreover, the claimant interacted appropriately and responded to the questions with adequate memory, concentration and attention." (Tr. 60). Therefore, in light of the ALJ's mistake of fact as well as other errors in evaluating her subjective allegations, Dotson has argued that the ALJ's evaluation of her symptoms was patently wrong.
This court will sustain the ALJ's credibility determination unless it is "patently wrong" and not supported by the record.
The ALJ must determine a claimant's credibility only after considering all of the claimant's "symptoms, including pain, and the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence."
Although a claimant's complaints of pain cannot be totally unsupported by the medical evidence, the ALJ may not disregard an individual's statements about symptoms solely based on objective medical evidence. SSR 16-3p, at *5
In addition, when the ALJ discounts the claimant's description of pain because it is inconsistent with the objective medical evidence, she must make more than "a single, conclusory statement . . . The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, at *9; see
The ALJ determined that Dotson's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible with the evidence as a whole, including the medical evidence and her noted activities of daily living, and did not support the allegations. (Tr. 59). In support of her credibility determination, the ALJ indicated that given the degree of pain and limitation alleged by Dotson the record reflected conservative treatment. (Tr. 60). The ALJ indicated that Dotson testified that she only had pain 40% of the day and that she took Tylenol for the pain. (Tr. 60). Moreover, Dotson testified that she had three panic attacks per week and that she took Klonopin when she felt the beginning of a panic attack. (Tr. 60). However, the ALJ noted that contrary to Dotson's testimony, she indicated that she had not taken Klonopin in a week. (Tr. 60). The ALJ properly accounted for the dosage and effectiveness of the medications that Dotson took to alleviate her pain and for her panic attacks.
Moreover, the ALJ also supported her credibility finding by noting Dotson's testimony that she worked five hours per week cleaning banks. (Tr. 60). The ALJ concluded that this testimony demonstrated that Dotson was capable of more than she alleged and that her symptoms were not as debilitating as she alleged. (Tr. 60). The ALJ also explained how Dotson's activities of daily living were inconsistent with her allegations of symptom and limitation severity. The ALJ found that Dotson's testimony and her function reports from September of 2013 and June of 2013 were inconsistent with her alleged limitations. (Tr. 60). The ALJ discredited Dotson's testimony that she had extreme issues with social interactions because she had worked as a massage therapist. (Tr. 60). The ALJ has made more than a single conclusory statement in support of her credibility finding.
However, the ALJ erred when she relied on Dotson conservative treatment without seeking the reasoning for her conservative treatment. See
The ALJ found that Dotson's demeanor at the hearing contradicted her allegations of pain and symptom severity. (Tr. 60). However, the ALJ relied on observations that she was unable to make. The Commissioner has argued that although some of the observations in the ALJ's decision were visual in nature the purported error was harmless. An ALJ's error is harmless where, having looked at the evidence in the record, the court "can predict with great confidence what the result on remand will be."
The court finds that the ALJ's assessment of Dotson's credibility was patently wrong. The ALJ relied on unsupported evidence when she concluded that Dotson was not entirely credible. There is no dispute that the ALJ based her credibility finding on erroneous observations when she discounted the severity of Dotson's pain and symptoms. Moreover, the ALJ improperly relied on Dotson's conservative treatment without seeking the reasoning for her treatment or providing some explanation for that finding. Accordingly, the ALJ's decision is not consistent with and supported by substantial evidence. On remand, the ALJ should reevaluate Dotson's subjective symptoms in accordance with SSR 16-3p.
Next, Dotson has argued that the ALJ erred in evaluating the medical opinion of Christopher Hutcheson, LSW, and Dr. Cathy Streifel, Ph.D. A treating source's opinion is entitled to controlling weight if the "opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record.
"[O]nce well-supported contradicting evidence is introduced, the treating physician's evidence is no longer entitled to controlling weight and becomes just one more piece of evidence for the ALJ to consider."
The ALJ noted that Hutcheson had completed a mental residual functional capacity assessment in August of 2015. (Tr. 58). Hutcheson concluded from the assessment that Dotson was markedly limited in activities of daily living, social functioning, and maintaining concentration, persistence, or pace. (Tr. 58). The ALJ gave the assessment partial weight because although the assessment was co-signed by Dr. Cathy Streifel, Ph.D., the evaluation was completed by Hutcheson, a non-acceptable medical source. (Tr. 58). However, opinions from non-acceptable medical sources are weighed using the same factors as medical sources, but not every factor will apply because the evaluation of such opinion varies case by case.
The ALJ indicated that Hutcheson and Dr. Streifel's assessed limitations were inconsistent with Dotson's ability to perform her work as a home health aide. (Tr. 58). The ALJ also cited inconsistencies in Hutcheson's findings with his treatment records. For example, the ALJ's decision indicated that according to Hutcheson's May 5, 2015, treatment record Dotson was employed, enjoyed time with family, and had an interest in massage therapy. (Tr. 58). Also, the October 2015 examination report indicated that Dotson was alert and fully oriented with intact memory, intact judgment and insight, intact associations, logical and goal-oriented thought processes, and that she was able to maintain attention and focus throughout the session. (Tr. 58).
The ALJ provided some discussion of the factors set forth in 20 C.F.R. § 404.1527(c) to support the weight assigned to Hutcheson and Dr. Streifel's opinion. The ALJ is not required to discuss every piece of evidence or every factor. However, the ALJ did not acknowledge the length and nature and extent of Hutcheson's relationship with Dotson in support of or against her decision. The court is not concluding that the ALJ erred in evaluating the medical opinion of Hutcheson and Dr. Streifel. However, since this matter is being remanded on a different issue, the ALJ should reconsider the weight given to Hutcheson and Dr. Streifel's opinion.
Finally, Dotson has argued that the ALJ erred in evaluating her mental residual functional capacity. SSR 96-8p explains how an ALJ should assess a claimant's RFC at steps four and five of the sequential evaluation. In a section entitled, "Narrative Discussion Requirements," SSR 96-8p specifically spells out what is needed in the ALJ's RFC analysis. This section of the Ruling provides:
SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a difference between what the ALJ must contemplate and what she must articulate in her written decision. "The ALJ is not required to address every piece of evidence or testimony presented, but he must provide a `logical bridge' between the evidence and his conclusions."
The ALJ's RFC assessment and the hypothetical posed to the VE must incorporate all of the claimant's limitations supported by the medical record.
Courts repeatedly have held terms like "simple, repetitive tasks" alone do not exclude from the VE's consideration those positions that present significant problems with concentration, persistence, or pace.
The ALJ found that Dotson suffered from medically determinable severe mental impairments of posttraumatic stress disorder and bipolar disorder. (Tr. 54). The ALJ concluded that Dotson had moderate restrictions in concentration, persistence, or pace. (Tr. 55). In assessing Dotson's mental residual functional capacity, the ALJ limited Dotson to "simple, routine, and repetitive tasks not at production rate pace; occasional conduct [sic] with coworkers and supervisors; no tandem tasks and no work with the public; simple work decisions; only occasional changes in the work setting." (Tr. 57).
Dotson has argued that the RFC failed to account for her moderate restrictions in concentration, persistence, or pace. She contends that the ALJ only accounted for the level of complexity of tasks that she could perform, not her ability to perform work tasks that were consistent with the expectations of competitive employment. Moreover, Dotson has argued that the ALJ failed to explain how her limitation to simple, routine, and repetitive tasks not at production rate pace would accommodate her moderate limitations in concentration, persistence, or pace. Finally, Dotson has argued that that ALJ only considered the frequency of her contact with her coworkers and supervisors rather than the quality of those interactions as well. The Commissioner presented a brief statement that "the Seventh Circuit has affirmed ALJ decisions with far fewer limits in the vocational expert's hypothetical question." Therefore, the Commissioner has not explained what evidence supported the ALJ's decision.
The Seventh Circuit has been very clear that a limitation to simple instructions or simple, routine tasks does not adequately account for a moderate limitation in maintaining concentration, persistence, or pace. The court finds that the ALJ did not support her finding nor explain how she assessed Dotson's mental RFC. An ALJ is always obligated to address how she reached an RFC assessment by discussing some reasoning behind the RFC and the evidence that supports it. SSR 96-8p stresses that "[t]he RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." As SSR 96-8p explains, findings concerning a claimant's limitations in the functional areas of activities of daily living, social functioning, and concentration are not the same as an RFC. An ALJ cannot merely lift her findings from these functional areas and include them in the RFC without explaining her reasoning.
Dotson has requested that the court remand for an award of benefits. An award of benefits is appropriate "only if all factual issues involved in the entitlement determination have been resolved and the resulting record supports only one conclusion—that the applicant qualifies for disability benefits."
Based on the foregoing reasons, the decision of the Commissioner is