Taylor v. Berryhill
Opinion
Elaine E. Bucklo, United States District Judge
Plaintiff Denise Taylor ("Taylor") brought this action against Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (the "Commissioner"), *887for review of the denial of her applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, and supplemental security income benefits ("SSI") under Title XVI of the Social Security Act. Taylor now moves to reverse the Commissioner's decision. She claims that the Commissioner's determination that she is not disabled, and thus is not entitled to DIB or SSI, was not supported by substantial evidence and is contrary to the law. For the following reasons, Taylor's motion is granted in part and denied in part. This case is remanded to the Social Security Administration for proceedings consistent with this opinion.
I.
On April 15, 2015, Taylor filed her applications for DIB and SSI. R. 21. In these two applications, Taylor claimed that she had been disabled since February 14, 2015, around when she underwent surgery and developed a spinal epidural abscess. Id. at 21, 71. Taylor's medical records indicated that she also had neuropathy, a fractured toe, osteoarthritis of the thumb, an ACL tear, hypertension, anemia, and depression. Id. at 24. Taylor worked as an operating room technician for approximately 23 years before her February 2015 surgery. Id. at 21, 51. During 2016, she worked part-time in a medical sterile processing department. Id. at 50-54.
Taylor's applications were denied on November 4, 2016, and upon reconsideration on January 29, 2016. R. 21. Taylor thereafter requested a hearing, which took place on January 26, 2017 before an administrative law judge (the "ALJ"). Id. She testified at that hearing as did a vocational expert. Id. The ALJ denied Taylor's claims on June 22, 2017, finding she was not disabled as defined in the Social Security Act. Id. at 31.
In reaching her decision, the ALJ employed the five-step inquiry set out in
At step one, the ALJ determined that Taylor had not engaged in substantial gainful activity since February 14, 2015, her claimed onset date. R. 23. Taylor had some earnings in 2016 but was not then employed as defined in
At step two, the ALJ found that Taylor had one severe impairment: status post spinal cord injury. R. 23-24. Taylor's other physical impairments were found to be non-severe: neuropathy, status post fractured toe, joint osteoarthritis, an ACL tear, hypertension, and anemia.
*888In assessing Taylor's depression at step two, the ALJ considered four functional areas, also known as the four "Paragraph B" criteria for mental functioning. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The ALJ determined that Taylor had: (1) "no limitations in understanding, remembering, or applying information", (2) "no limitations in interacting with others," (3) "no limitations in concentrating, persisting, or maintaining pace," and (4) "mild limitations in adapting or managing oneself." R. 24. The ALJ explained that these determinations were not themselves an assessment of Taylor's residual functional capacity ("RFC") to perform her past work, but that her assessment at step four would reflect these determinations.
The ALJ supported these functional area determinations with a summary of Taylor's reported symptoms and relevant medical opinions. In June 2015, Taylor reported that she finished things she started to do, followed written instructions well, followed spoken instructions very well, and read three times a week.
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Elaine E. Bucklo, United States District Judge
Plaintiff Denise Taylor ("Taylor") brought this action against Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (the "Commissioner"), *887for review of the denial of her applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, and supplemental security income benefits ("SSI") under Title XVI of the Social Security Act. Taylor now moves to reverse the Commissioner's decision. She claims that the Commissioner's determination that she is not disabled, and thus is not entitled to DIB or SSI, was not supported by substantial evidence and is contrary to the law. For the following reasons, Taylor's motion is granted in part and denied in part. This case is remanded to the Social Security Administration for proceedings consistent with this opinion.
I.
On April 15, 2015, Taylor filed her applications for DIB and SSI. R. 21. In these two applications, Taylor claimed that she had been disabled since February 14, 2015, around when she underwent surgery and developed a spinal epidural abscess. Id. at 21, 71. Taylor's medical records indicated that she also had neuropathy, a fractured toe, osteoarthritis of the thumb, an ACL tear, hypertension, anemia, and depression. Id. at 24. Taylor worked as an operating room technician for approximately 23 years before her February 2015 surgery. Id. at 21, 51. During 2016, she worked part-time in a medical sterile processing department. Id. at 50-54.
Taylor's applications were denied on November 4, 2016, and upon reconsideration on January 29, 2016. R. 21. Taylor thereafter requested a hearing, which took place on January 26, 2017 before an administrative law judge (the "ALJ"). Id. She testified at that hearing as did a vocational expert. Id. The ALJ denied Taylor's claims on June 22, 2017, finding she was not disabled as defined in the Social Security Act. Id. at 31.
In reaching her decision, the ALJ employed the five-step inquiry set out in
At step one, the ALJ determined that Taylor had not engaged in substantial gainful activity since February 14, 2015, her claimed onset date. R. 23. Taylor had some earnings in 2016 but was not then employed as defined in
At step two, the ALJ found that Taylor had one severe impairment: status post spinal cord injury. R. 23-24. Taylor's other physical impairments were found to be non-severe: neuropathy, status post fractured toe, joint osteoarthritis, an ACL tear, hypertension, and anemia.
*888In assessing Taylor's depression at step two, the ALJ considered four functional areas, also known as the four "Paragraph B" criteria for mental functioning. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The ALJ determined that Taylor had: (1) "no limitations in understanding, remembering, or applying information", (2) "no limitations in interacting with others," (3) "no limitations in concentrating, persisting, or maintaining pace," and (4) "mild limitations in adapting or managing oneself." R. 24. The ALJ explained that these determinations were not themselves an assessment of Taylor's residual functional capacity ("RFC") to perform her past work, but that her assessment at step four would reflect these determinations.
The ALJ supported these functional area determinations with a summary of Taylor's reported symptoms and relevant medical opinions. In June 2015, Taylor reported that she finished things she started to do, followed written instructions well, followed spoken instructions very well, and read three times a week.
At step three, the ALJ determined that Taylor did not have an impairment or combination of impairments that were conclusively disabling.
At step four, the ALJ concluded that Taylor could perform light work: frequent lifting of up to 10 pounds, maximum lifting of not more than 20 pounds, and a good deal of walking or standing.
The ALJ assigned partial weight to the March 30, 2016 opinion of Dr. Bakhtiar Yamini, Taylor's neurosurgeon, that Taylor could return to work part-time with limits on the weight she was lifting. The ALJ listed four reasons for giving Dr. Yamini's opinions partial weight.
In assessing Taylor's RFC, the ALJ stated that she gave "great weight" to the state agency psychologists' "assessments for no more than mild limitations in the paragraph B criteria."
The ALJ recognized that, in September 2015, Taylor reported her medications made her drowsy, caused memory loss, and frequent urination.
At step five, the ALJ concluded that Taylor can perform her past job as an operating room technician and that that job was not precluded by Taylor's RFC.
Taylor requested review of the ALJ's decision. The Appeals Council denied her request on January 25, 2018. The ALJ's decision then became the final decision of the Commissioner. Haynes v. Barnhart ,
II.
In reviewing the Commissioner's final decision that Taylor is not disabled, I must determine "if the ALJ applied the correct legal standards and supported her decision with substantial evidence." Bates v. Colvin ,
III.
Taylor challenges the Commissioner's decision on four grounds: First, Taylor argues that the ALJ failed to analyze Taylor's functional concentration, persistence or pace when determining Taylor's RFC. Second, Taylor argues that the ALJ improperly found that Taylor's diagnosed major depression was not severe. Third, she argues the ALJ improperly analyzed her self-reported medication side effects and her need for a cane. Fourth, she argues the ALJ improperly evaluated opinion evidence from Taylor's treating physicians.
*890A.
Taylor claims that the ALJ's analysis of Taylor's RFC was in error because the ALJ failed to explain why she found that Taylor's depression caused no limitation in concentration, persistence or pace and because the ALJ did not adopt the opinion of state agency consultants that Taylor had mild limitations in that functional area. Taylor further argues that the ALJ should have found that Taylor had mild limitations in her concentration, persistence or pace. This argument thus extends beyond the ALJ's RFC analysis at step four to challenge the functional area findings made at step two.1
Contrary to Taylor's assertions, the ALJ supported her functional areas findings at step two with specific citations to relevant medical evidence. Concentration, persistence or pace refers to a claimant's "abilities to focus attention on work activities and stay on task at a sustained rate." See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00E3. The ALJ noted that Taylor reported she finished things she started to do and followed instructions well in June 2015. R. 24, 267-73. The ALJ acknowledged that Taylor later reported that she did not finish things she started to do or follow instructions well, but she also reported additional external stressors. Id. at 24, 283. The ALJ considered Taylor's October 2015 diagnosis of major depression in the context of subsequent psychiatric examinations that showed a normal mood and affect. Id. at 24. The ALJ also considered that Taylor has never been hospitalized or medicated for mental issues. Id. While the ALJ's analysis of Taylor's mental limitations at step two is admittedly "sketchy," it provides a "minimal level of articulation" that allows me to "trace the path of the ALJ's reasoning." Stephens v. Heckler ,
Taylor also argues that the ALJ erred by failing to discuss Taylor's concentration, persistence or pace in her assessment of Taylor's RFC at step four. To be sure, "[i]n determining an individual's RFC, the ALJ must evaluate all limitations that arise from medically determinable impairments, even those that are not severe, and may not dismiss a line of evidence contrary to the ruling." Villano v. Astrue ,
*891Taylor also argues that the ALJ erred at step four by giving "great weight" to state agency consultants' assessments of Taylor's functional limitations while failing to explain why she did not adopt those state agency consultants' opinions that Taylor had mild limitations in her functional area of concentration, persistence or pace. See R. 73, 85, 98-99, 110-11. Taylor is correct that if an ALJ wishes to afford significant weight to a portion of a state agency psychologists' findings, the ALJ is "obliged to explain why [she] rejected certain limitations set forth therein." Green v. Colvin , No. 13-C-1218,
In arguing that the ALJ's RFC analysis should have resulted in mild limitations in concentration, persistence or pace, Taylor asks me to reweigh the evidence and substitute my judgment for that of the ALJ. I cannot do either. Burmester,
B.
Taylor next argues that the ALJ improperly disregarded evidence to find that Taylor's depression was non-severe at step two. Taylor primarily argues that the ALJ afforded too little weight to her diagnosis of major depression. The Commissioner responds that the ALJ properly evaluated the four "Paragraph B" criteria for mental functioning and concluded that Taylor's depression was non-severe as it caused no more than a mild limitation of any functional area.
Taylor points to O'Connor-Spinner v. Colvin, where the Seventh Circuit stated that an ALJ's determination that diagnosed major depression was non-severe was "nonsensical," because, by definition, such a diagnosis "reflects a practitioner's assessment that the patient suffers from 'clinically significant distress or impairment in social, occupational, or other important areas of functioning.' "
More recently, in Meuser v. Colvin , the Seventh Circuit criticized an ALJ's step two determination that claimant's diagnosed schizophrenia was non-severe.
*892
Considering this precedent, I am persuaded by Taylor's argument that the ALJ erroneously found her depression was non-severe at step two. The ALJ examined the severity and symptoms of Taylor's depression but did not point to any diagnosis that conflicts with major depression. Nor does the record reveal any such conflicting diagnosis. Taylor's diagnosis thus established a more-than-minimal limitation in her ability to do basic activities and met the de minimis inquiry of step two. See
However, this error does not automatically warrant remand. In Davis v. Berryhill , the Seventh Circuit determined that an ALJ erred in determining that a claimant's depression was not severe at step two, but that error was harmless because the ALJ proceeded with her analysis and found plaintiff had only mild limitations in the four "Paragraph B" criteria for mental functioning.
C.
Taylor argues that the ALJ erred in assessing her self-reported symptoms. Specifically, she argues the ALJ failed to analyze the side effects from Taylor's medication and disregarded substantial evidence supporting Taylor's reported need for a cane or walker.
To assess a claimant's self-described symptoms, an ALJ must undertake a two-step process. SSR 16-3p, at *2; see also
I disagree that the ALJ neglected to assess the side effects from Taylor's medication. The ALJ recognized that, in September 2015, Taylor stated that her medications made her drowsy, caused memory loss, and frequent urination. R. 26 (citing *893R. 289-92). The ALJ later recognized that Taylor's October 2015 psychiatric examination showed that she was alert, could relate recent news events, and perform simple memory tests. R. 28-29. The ALJ also noted that, in March 2016, Taylor denied having bladder problems. R. 29.
True, the ALJ did not parse her written analysis to separately address the side-effects of Taylor's medication. However, Taylor does not identify other objective evidence consistent with her reports, such as physician records of side effects. Rather, as the ALJ notes, Taylor's doctors later recorded the absence of Taylor's various reported side effects. Without additional supporting evidence, the ALJ had no reason to make specific written findings on Taylor's reported side effects. Cook v. Astrue ,
Likewise, the record does not show that the ALJ disregarded Taylor's reported need for a cane or walker. The ALJ acknowledged that Taylor reported using a cane or walker at multiple points from 2015 to 2017. R. 26, 28. The ALJ contrasted those reports against November 2016 physical therapy progress notes that Taylor's ambulation status was "complete independence." Id. at 28. The ALJ also noted that Taylor had then met her physical therapy goals, reported she was "80% back to normal," and her functional gait status and lower extremities strength had returned. R. 28.
Taylor argues that the ALJ's reliance on that November 2016 evidence is misplaced considering the "long history" of pain, ambulation problems, and decreased mobility supporting her alleged need for a cane or walker. To support this argument, Taylor points to a score of physical therapy and physician records that predate November 2016. (e.g. , R. 278, 295, 351, 354, 1018, 1022, 2264, 2422-25, 2495, 2515, 2531). But, I cannot reweigh this line of evidence. Nor was the ALJ required to address every ambulation issue reported on the record.
Taylor is correct that a doctor's finding that a patient can walk 50 feet without a cane does not alone address her ability to walk for long period of time at work. Scott v. Astrue ,
D.
Taylor argues that the ALJ improperly evaluated treating physicians'
*894opinions that Taylor could only work part-time because the ALJ failed to apply the factors listed in
Ms. Taylor is doing extremely well. She will return to work 2 to 3 days a week for 4 to 6 hours and she will have a maximum lifting of 25 pounds. She will come back to see me in August for further evaluation.2
R. 2552. Taylor also claims that the ALJ ignored the opinion of Taylor's family medicine practitioner, Dr. Andi Arnautovic. On January 8, 2016, Dr. Arnautovic was presented with a request for a letter clearing Taylor to return to work. He wrote:
Cleared by Neurosurgery to go back to work with light duty/part time (Neurosurgery letter scanned). Decision to go back to full duty will be determined by Neurosurgery. F/U with Neurosurgery and PT as scheduled.
R. 2507.
A treating physician's opinion is entitled to controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence." Campbell v. Astrue ,
The ALJ did not err in analyzing Dr. Yamini's March 2016 opinion. The ALJ listed four reasons for giving Dr. Yamini's opinions partial weight: Dr. Arnautovic's 2015 progress notes that Taylor's anemia and peripheral neuropathy were under control; Dr. Yamini's own notes that Taylor was ready for work, moved her extremities well, and was improving; Taylor's earnings from part-time work in 2016; and physical therapy records stating Taylor's ambulation status was "complete independence." R. 29. The ALJ's discussion of Dr. Yamini's opinion indicates that she considered its supportability and consistency with the record, which are factors set out in
Contrary to Taylor's assertions in her reply brief, this is not a case where the ALJ relied on a non-treating doctor's opinion to overcome a treating doctor's opinion. See Gudgel v. Barnhart ,
Nor is this a case where an ALJ erroneously relied on a claimant's ability to walk a short distance to undercut the claimant's credibility in describing an impairment, as Taylor suggests. See Carradine v. Barnhart ,
Taylor is correct that an ALJ should not "draw conclusions about a claimant's ability to work full time based on part-time employment...." Weaver v. Berryhill ,
The ALJ erred by not providing any analysis of Dr. Arnautovic's January 2016 opinion that Taylor could go back to work part-time. The ALJ's decision does not make any mention of or citation to this opinion. The Commissioner responds that the ALJ cited to Dr. Arnautovic's treatment records at various points in her RFC analysis. R. 27-29. The issue is not the ALJ's failure to consider any of Dr. Arnautovic's treatment records or his later opinions, it is that the ALJ's decision does not indicate how she weighed the opinion of a treating physician on Taylor's ability to return to full-time work. I cannot discern whether the ALJ considered Dr. Arnautovic's January 2016 opinion in conjunction with or apart from his other treatment notes, let alone whether she considered the requisite factors in assigning weight thereto. See
I cannot agree with the Commissioner that this error was harmless because the ALJ discussed Dr. Arnautovic's other treatment records and Dr. Arnautovic has essentially the same opinion on Taylor's ability to work as Dr. Yamini. In January 2016, Dr. Arnautovic opined that Taylor could go back to work part-time but the "[d]ecision to go back to full duty will be determined by Neurosurgery." R. 2507. This seems to be a deferral to Dr. Yamini on Taylor's ability to work full-time. However, the ALJ relied on Dr. Arnautovic's November and December 2015 progress notes to partially credit (or discredit) Dr. Yamini's opinion on Taylor's ability to work. I cannot "say with great confidence" what weight would be assigned to Dr. Arnautovic's opinions on remand or what the ALJ would do on remand. McKinzey v. Astrue ,
Accordingly, because the ALJ did not address Dr. Arnautovic's January 2016 opinion, the case must be remanded.
IV.
For the foregoing reasons, Taylor's motion is denied in part and granted in part. This case is remanded to the Social Security *896Administration for further proceedings consistent with this opinion.
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