TANYA WALTON PRATT, District Judge.
Plaintiff Linda L. Bowers ("Bowers") requests judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (the "Act"). For the following reasons, the Court
On April 25, 2012, Bowers filed an application for SSI, alleging a disability onset date of January 1, 2008, due to major depression, bipolar disorder, post-traumatic stress disorder ("PTSD"), schizophrenia, psychotic disorder, and osteoporosis. (
At the time of her January 2008 alleged disability onset date, Bowers was forty-two years old. She was forty-six years old at the time she filed an application for SSI. (
Bowers has a history of four in-patient psychiatric hospitalizations. Id. at 30. She was first referred by Middletown Center staff for psychiatric in-patient care in January 1997. (
In October 2001, Bowers was again admitted to a hospital on an emergency detention after she made suicidal threats and aggressive threats toward her husband. Id. Bowers was described as being confused, disoriented, talking to the television, talking to her deceased mother, and clapping her hands in a strange manner. Id. Upon discharge, Bowers was diagnosed with unspecific psychosis. Id. at 28.
Bowers was last hospitalized in June 2007 when she was admitted on an emergency detention order filed by police officers after they were notified of Bowers' strange behavior. (
In August 2007, Bowers began treatment with Meridian Services. (
In October 2009, Bowers went to Meridian Services for a medication review. Id. at 131. During that visit, she denied having any hallucinations or suicidal or homicidal thoughts. Id. at 132. The clinician noted that Bowers was stable and responding well to Invega. Id. at 133. One year later, in October 2010, Bowers again denied having hallucinations or any suicidal or homicidal thoughts and that her only side effect was slight weight gain. Id. at 83. Bowers was diagnosed with manic-depressive disorder, PTSD, and cannabis dependence. Id. In March 2012, Bowers reported that she had been stable for the past five to six years while taking Invega. (
On July 6, 2012, Bowers met with Ceola Berry, Ph.D., HSSP ("Dr. Berry"), upon referral by the disability determination office for a consultative mental status examination. (
Bowers reported to Dr. Berry that she has not sought employment, because she has been trying to receive disability income. Id. Bowers also reported that her depression was unsuccessfully mediated by her psychotropic protocol. Id. at 28. However, when asked whether she informed her physician about the inefficiency, Bowers evaded the question and was unable to recall her most recent appointment for refill of her Invega. Id. at 27. Dr. Berry noted that Bowers' mental status examination did not reveal any significant problems with concentration, short-term memory, mental calculation, abstracting ability or general knowledge. Id. at 28-29. Dr. Berry also found that although Bowers reported that she had PTSD (related to domestic abuse from her exhusband), she did not have any prominent clinical signs of PTSD. Id. at 29.
On July 13, 2012, Donna Unversaw, Ph.D. ("Dr. Unversaw") completed a Psychiatric Review Technique assessment of Bowers. Id. at 30-34. Dr. Unversaw found that Bowers had mild limitations in activities of daily living and maintaining social functioning, and moderate limitations in maintaining concentration, persistence, or pace. Id. at 31. Dr. Unversaw noted that Bowers was only partially credible when stating that her medication did not help with her depression because Bowers' psychiatric records indicate that she was stable while on Invega. Id. at 32. Dr. Unversaw opined that Bowers has the ability to complete unskilled, and semi-skilled, tasks. Id. William Shipley, Ph.D. ("Dr. Shipley") affirmed Dr. Unversaw's conclusions. Id. at 93.
At the hearing before the ALJ, Bowers testified that she was currently being treated by a doctor for bipolar disorder, PTSD, major clinical depression, and anxiety. (
Bowers stated that she can groom herself, do laundry, wash dishes, mop, dust, and vacuum. Id. at 57-58. During the day to occupy her time she will do cleaning and try to watch TV, but cannot focus on the television for too long. Id. at 59. She testified that she does not like crowds with five people or more, which limits the time of day she goes grocery shopping. Id. at 60, 65. If confronted with five or more people, Bowers testified that she goes in the opposite direction. Id. at 66. Bowers also testified that she has a really hard time keeping a job. Id. at 57. She stated that she is unable to work because she has issues concentrating on, and completing, tasks. Id. at 62. She testified that she has a problem staying focused on one thing for a very long period of time. Id. Bowers further testified that while working, she had no problem following written and verbal instructions. Id.
Dr. Olive, who was present during the hearing, heard Bowers' testimony and reviewed Bowers' medical record, testified that Bowers should be limited to simple repetitive tasks or unskilled work. Id. at 71. Dr. Olive testified that Bowers should have no more than occasional contact with the public and with peers. Id. Dr. Olive further opined that Bowers should work in a slow-paced work environment where she would do the same thing every day of the week. Id.
During the administrative hearing, the VE testified that Bowers' past employment as a cashier and food prep worker were light, unskilled work. Id. at 73. The ALJ presented a hypothetical scenario to the VE that included all of the limitations and restrictions that Dr. Olive set out for Bowers, with the additional limitation of Bowers' ninth grade education in regular courses, but no GED. Id. at 74. The VE testified that the hypothetical person could not perform Bowers' past work as a cashier or food prep worker because those jobs involved having contact with a lot of people. Id. The ALJ then tweaked the original hypothetical and asked whether there were any other light, unskilled jobs in the state or national economy that the hypothetical person could perform. Id. The VE testified that such a person could perform the jobs of a housekeeping cleaner, laundry worker, and a non-post office mail clerk. Id. at 74-75. The VE stated that the above jobs are the lesser kind that require no transfer of skills. Id. at 75.
Under the Act, a claimant may be entitled to SSI only after he establishes that he is disabled. Disability is defined as the "inability 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." 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must demonstrate that his physical or mental limitations prevent him from doing not only his previous work but any other kind of gainful employment which exists in the national economy, considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled despite his medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the claimant does not have a "severe" impairment that meets the durational requirement, he is not disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). At step three, the Commissioner determines whether the claimant's impairment or combination of impairments meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii).
If the claimant's impairments do not meet or medically equal one of the impairments on the Listing of Impairments, then his residual functional capacity will be assessed and used for the fourth and fifth steps. Residual functional capacity ("RFC") is the "maximum that a claimant can still do despite his mental and physical limitations." Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to perform his past relevant work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and final step, it must be determined whether the claimant can perform any other work in the relevant economy, given his RFC and considering his age, education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). The claimant is not disabled if he can perform any other work in the relevant economy.
The combined effect of all the impairments of the claimant shall be considered throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the court "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). In reviewing the ALJ's decision, this Court must uphold the ALJ's findings of fact if the findings are supported by substantial evidence and no error of law occurred. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. Further, this Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). While the Court reviews the ALJ's decision deferentially, the Court cannot uphold an ALJ's decision if the decision "fails to mention highly pertinent evidence, . . . or that because of contradictions or missing premises fails to build a logical bridge between the facts of the case and the outcome." Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).
The ALJ "need not evaluate in writing every piece of testimony and evidence submitted." Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the "ALJ's decision must be based upon consideration of all the relevant evidence." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004).
The ALJ began the five-step analysis and first determined that Bowers had not engaged in substantial gainful activity since April 25, 2012, the application date. At step two, the ALJ found that Bowers had the following severe impairments: major depression, bipolar disorder NOS, PTSD, schizophrenia, psychotic disorder NOS, and cannabis dependence. At step three, the ALJ concluded that Bowers does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then determined that Bowers had an RFC to perform a full range of work at all exertional levels, but with the following limitations:
(
In her request for judicial review, Bowers asserts two reasons for remand. First, Bowers alleges that the ALJ failed to present a complete picture of Bowers' RFC when questioning the VE. Specifically, Bowers argue that the ALJ failed to address Bowers' difficulties with concentration, persistence, or pace in the hypothetical questions to the VE or in the adopted RFC. Second, Bowers alleges that the ALJ erred in failing to consider her past unsuccessful work attempts and her reaction to stress in the workplace. The Court will address each of these arguments in turn.
Bowers alleges that the ALJ failed to address her issues of concentration, persistence, and pace when asking the VE the main hypothetical
Bowers argues that that the ALJ's finding that she can perform regular, repetitive, unskilled, slow-paced work does not account for her difficulties with memory, focus, and concentration. Bowers contends that the ALJ attempts to discredit her testimony that she is unable to work because she has a hard time focusing, concentrating and completing tasks by stating that Bowers has the ability to follow verbal or written instructions. Bowers asserts that her ability to follow verbal and written instructions does not equate to her ability to maintain focus and concentration when attempting to complete tasks. Bowers further argues that the ALJ had no reasonable basis to conclude that Bowers is able to perform simple and repetitive tasks with minimum public interactions.
The Commissioner responds to Bowers' argument by explaining that the ALJ adequately relied on Dr. Olive's, Dr. Shipley's, and Dr. Unversaw's medical opinions when assessing Bowers' RFC. The ALJ's RFC findings mirrored Dr. Olive's opinion and was consistent with Dr. Unversaw's and Dr. Shipley's opinions. The Commissioner asserts that these opinions are not contradicted. Dr. Olive reviewed Bowers' entire medical record and opined that Bowers was capable of performing unskilled, or even semi-skilled, tasks. Dr. Shipley agreed with Dr. Olive's finding. Dr. Olive's finding is also consistent with Dr. Unversaw's opinion. Dr. Unversaw and Dr. Shipley opined that Bowers was not disabled because she was stable and had normal mental status examinations when she taking Invega. "[An] ALJ is entitled to rely on medical experts when no contrary evidence is presented." Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (citing Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir.2004).
The Commissioner also argues that, although the ALJ did not per se state the terms "concentration, persistence, and pace," the ALJ's assessment included specific limitations to accommodate Bowers' slow-paced, unskilled, repetitive work needs, which accounted for Bowers' difficulties in maintaining concentration, persistence, and pace. The Seventh Circuit has not imposed "a per se requirement that this specific terminology (`concentration, persistence, and pace') be used in the hypothetical in all cases." O'Connor-Spinner, 627 F.3d at 619. Courts allow an ALJ to omit "the terms `concentration, persistence and pace' when 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." Id; see also Day v. Astrue, No. 4:11-CV-114-WGH-SEB, 2012 WL 1340777, at *15 (S.D. Ind. Apr. 18, 2012) (holding that an ALJ adequately accounted for a plaintiff's moderate limitations with concentration, persistence, and pace where the ALJ limited the plaintiff to simple, unskilled, non-fast paced work with a break approximately every two hours).
After reviewing the ALJ's decision and the record evidence, the Court determines that the ALJ did not fail to address Bowers' issues of concentration, persistence, and pace when asking the VE the main hypothetical scenario and determining Bowers' RFC.
Bowers next argues that the ALJ erred by not considering the stress she experienced with past employment as proof of Bowers' inability to work. Bowers performed jobs as a food prep worker, deli clerk, and a cashier prior to the disability onset date of January 1, 2008. Bowers quit her jobs as a food prep worker and deli clerk after only a couple of months because she found the jobs too stressful. Bowers has not worked since June 2007. "Where it is established that the claimant can hold a job for only a short period of time, the claimant is not capable of substantial gainful activity." Gatliff v. Comm'r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999). Bowers asserts that the ALJ's opinion is silent regarding her limitations when it comes to stress in workplaces.
In response, the Commissioner asserts that Bowers' argument is undermined by the fact that the ALJ plainly found that Bowers did not engage in substantial gainful employment, and has no past relevant work experience. The Commissioner further contends that the ALJ was not required to expressly address Bowers' testimony about her past work experience between 1995 and 2007, which was a year before her alleged disability onset and more than four years prior to Bowers' SSI application. See Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009) (citing Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) ("[T] he ALJ is not required to discuss every piece of evidence but is instead required to build a logical bridge from the evidence to her conclusions.")). The Commissioner again argues that ALJ was entitled to rely on the medical opinions when determining Bowers' RCF, as well as, on the VE's testimony that Bowers remains capable of performing a significant number of jobs despite her limitations.
The Court finds that the ALJ did not err in concluding that Bowers had no relevant employment history and further relying on the uncontested medical opinions that Bowers is capable of performing a significant number of jobs. Therefore, remand is not warranted in this case.
For the reasons set forth above, the final decision of the Commissioner is