Minger v. Berryhill
Minger v. Berryhill
Opinion of the Court
*867Kelli Minger seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). 42 U.S.C. § 1382c(3)(A). Ms. Minger filed her application for benefits on January 15, 2014. She claimed she has been unable to work since February 2002 due to migraines, ADHD, depression, and joint pain. (Administrative Record (R.), 225, 312). Over the course of the ensuing three years and three months, Ms. Minger's application was denied at every level of administrative review: initial, reconsideration, administrative law judge (ALJ), and appeals council. It is the ALJ's decision that is before the court for review. See
I.
Ms. Minger comes to federal court having amassed a medical record of more than 500 pages of medical treatment, in the main for psychological impairments. Treatment has included a few multi-day, partial psychiatric hospitalizations for symptoms ranging from suicidal ideation to wanting to hurt her baby. (R. 339, 348, 350-53). Ms. Minger has a sporadic work history, with brief periods of employment at mostly fast food emporiums; places like Burger King, Steak and Shake, Jamba Juice, and the like. For one reason or another-altercations with fellow employees, absenteeism, pregnancy, whatever-these jobs were short-lived. (52-58, 64-65). At the time of her hearing, she was on suspension from a house-cleaning job after a set of reindeer antlers went missing. (R. 66-68). She was also homeless, living in her car, and had given up care of her two children to her mother. (R. 73, 77-78). Her mother thought she was just lazy, but Ms. Minger's treating psychologist explained that her daughter had "several significant mental illnesses and that some of what her mother views as [Ms. Minger] being lazy is more related to her mental illnesses ...." (R. 674).
After an administrative hearing-at which Ms. Minger, represented by counsel, and a vocational expert testified-the ALJ determined she was not disabled. He started off on the wrong foot, by asserting that Ms. Minger claimed she was disabled from birth (R. 23, 50). That's not the case; she clearly claimed her disability began on February 1, 2002. (R. 225). It's unclear whether this error played a role in how the ALJ thought about Ms. Minger's claim. In any event, the ALJ went on to find that Ms. Minger had a number of severe impairments: bipolar disorder, panic disorder, attention deficit hyperactivity disorder, and borderline personality disorder. (R. 25). These mental impairments resulted in moderate restrictions in social functioning and maintaining concentration, persistence, and pace, and a mild restriction on daily activities. (R. 29). The ALJ found that a number of other impairments-migraines, obesity, asthma, and sacroiliitis -were not severe. (R. 26-28). None of Ms. Minger's impairments, singly or in combination, amounted to a condition that met *868or equaled an impairment assumed to be disabling in the Commissioner's listings. (R. 28).
The ALJ then determined that Ms. Minger had no physical limitations on her ability to work, meaning she could perform even very heavy work requiring her to lift more than 100 pounds at a time and frequently lift and carry over 50 pounds at a time. (R. 31);
Relying on the testimony of the vocational expert from the administrative hearing, the ALJ determined that plaintiff could perform work that exists in significant numbers in the national economy: cleaner II (Dictionary of Occupational Titles (DOT) 919.687-014), industrial cleaner (DOT 381.687-018), and laboratory equipment cleaner (DOT 381.687-022). (R. 36). As a result, the ALJ concluded that Ms. Minger was not disabled and not entitled to SSI. (R. 37).
II.
If the ALJ's decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See
But, in the Seventh Circuit, the ALJ also has an obligation to build what Judge Posner called a "logical bridge" between the evidence and the result to afford the claimant meaningful judicial review of the administrative findings. Varga v. Colvin ,
*869III.
We begin with problems that were raised earlier in the court's initial review of the record. Ms. Minger is obese and, more recently, morbidly obese. (R. 28, 358, 507). As was noted in the initial review, the ALJ felt this was not a severe impairment, which is at least a questionable characterization as non-severe impairment is a designation reserved for "de minimis" impairments or "slight abnormalities that only minimally impact a claimant's basic work activities." O'Connor-Spinner v. Colvin ,
Throw in migraines and asthma and the ALJ's finding that these impairments have absolutely no effect on Ms. Mingle's ability to work, even in combination, and that bridge gets even shakier. See Murphy v. Colvin ,
Then there is the ALJ's attempt to account for Ms. Minger's moderate limitation *870on her ability to maintain concentration, persistence, and pace with a restriction to "simple tasks ... where she would not be subject to fast-paced production requirements." (R. 31). This issue was raised in both the initial review order and Ms. Minger's brief. As the initial review order pointed out, the Seventh Circuit is on record that there is no authority, and that it is no more than speculation, "that eliminating jobs with strict production quotas or a fast pace may serve as a proxy for including, as part of the claimant's mental residual functional capacity, a moderate limitation on concentration, persistence, and pace." O'Connor-Spinner v. Colvin ,
But the ALJ in O'Connor-Spinner did not find moderate concentration, persistence or pace limitations in that case-he found mild limitations, and referenced only a hypothetical RFC if the claimant had instead suffered moderate limitations. Notably, the ALJ made no effort in that case to explain the support for an RFC finding he never made to accommodate moderate limitations he never found.
In this matter, the ALJ found moderate limitations and gave a detailed rationale, including multiple reference [sic] to records from and findings by treating and examining medical sources, supporting his RFC finding.
[Dkt. # 16, at 9]. Again, the Seventh Circuit, in the passage quoted in the initial review order, is clearly discussing a moderate limitation-like the one the ALJ found here-and the fact that a restriction to work without fast-paced production quotas-like the one the ALJ applied here-fails to account for it. So, it's not clear at all why the Commissioner thinks it's fine in this case. The Seventh Circuit is clearly harkening back to its more than seven-year-old word to the wise in the original O'Connor-Spinner decision that "the most effective way to ensure that the VE is apprised fully of the claimant's limitations is to include all of them directly in the hypothetical." O'Connor-Spinner v. Astrue ,
To illustrate the limitations of the ALJ's "no fast-paced production" limitation, let's say, for the sake of argument, that a laboratory equipment cleaner is not subject to any fast-paced production quota. One can see how telling the VE to eliminate work with fast-paced production quotas might, in some cases, account for a problem with maintaining pace, if that terms were defined; more on that later. In any event, here, the VE thought a person who couldn't handle a fast-paced production quota could still be a laboratory equipment cleaner. But, given that the tasks a laboratory equipment cleaner must perform include cleaning delicate equipment like glassware, slides, and instruments, see https://occupationalinfo.org/38/381687022.html, it would seem that a worker, while perhaps not having to work at a fast pace, would still have to maintain a high level of concentration and care on a regular basis. So, telling the VE to rule out fast-paced production quotas doesn't account for a problem with concentration-at least it didn't in this case. But, again, that's because the ALJ never informed the VE that Ms. Mingle had any trouble concentrating.
*871And then there is the question of just what the ALJ meant by "fast-paced production requirements." He didn't define the term. The Seventh Circuit has called this "problematic" and explained that "[w]ithout such a definition, it would have been impossible for the VE to assess whether a person with [plaintiff's] limitations could maintain the pace proposed." Varga v. Colvin ,
Ms. Minger also finds several faults with the ALJ's credibility finding-as of March 28, 2016, referred to as "Evaluating the intensity and persistence of the claimant's symptoms." SSR 16p-3; Cole v. Colvin ,
I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statement s concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
(R. 32). It is, as Ms. Minger notes, yet another example of the continuous, confusing and meaningless boilerplate that is all too common in these decisions and that stubbornly persists in spite of the efforts of the Court of Appeals. See, e.g., Stark v. Colvin ,
Sadly, this current example doesn't even match what the Commissioner's own regulations say the standard for evaluating allegations about symptoms is: that the ALJ must determine whether those allegations "can reasonably be accepted as consistent with the objective medical evidence and other evidence."
The Commissioner doesn't bother to address this trouble with the ALJ's opinion in her brief; instead, she couches her own arguments in the "entirely consistent" standard as opposed to the applicable one. [Dkt. # 20, at 3]. That is a foolish tactic and generally a fatal one. See Law v. Medco Research, Inc. ,
In considering Ms. Minger's daily activities, the ALJ said that "one cannot ignore that [Ms. Minger] has displayed a routine that would be compatible with and indicate an ability to maintain a routine schedule inherently required of substantial gainful activity." (R. 32). Yet, at the same time, the ALJ said he was aware that Seventh Circuit case law states that ALJs may not equate one's daily activities to performance of substantial gainful activity. (R. 32) ); see, e.g., Bjornson ,
But there are issues with the ALJ's consideration of Ms. Mingle's activities-they hardly qualify as "daily" as we shall see-that go beyond that. What an ALJ can do in reference to a claimant's daily activities is explain why those activities are inconsistent with the claimant's allegations of limitations. Cullinan v. Berryhill ,
The ALJ also pointed to Ms. Minger's sporadic work record as support for rejecting Ms. Minger's allegations about her symptoms and limitations. There are certainly any number of SSI applicants with no, or only a passing, familiarity with the demands of work, so, in some cases, it's understandable that an ALJ might wonder how an applicant could credibly allege that she was unable to work when the applicant had no experience with it. Here, the record certainly indicates that Ms. Minger doesn't hold onto jobs very long, but does it logically support the ALJ's assessment that she's simply not motivated? (R. 32). There is a report from Ms. Minger's treating psychologist that places the blame for Ms. Minger's poor work history at the door of her mental illness. In July of 2015, Dr. Brucker met with Ms. Minger and her mother and wrote:
Her mother has again told her she has to move out of the house due to her disrespectful and rude behavior towards her and others in the house. Her mother continues to have problems with Kelli's lack of helping out around the house as much as her mother would like her to help out and to the quality level her mother would like.... I also spoke with her mother about the fact that Kelli has several significant mental illnesses and that some of what her mother views as Kelli being lazy is more related to her mental illnesses and not her being lazy. Her mother is going to be getting involved in the local NAMI and that should help her gain a better understanding of Kelli's symptoms and what to expect. Kelli is medication compliant with the medications she has available.
(R. 674)(emphasis supplied).
While the ALJ discussed a few of Dr. Brucker's findings, this one-significant as it relates to the adverse effect Ms. Minger's mental illness has on her capacity to hold down a job-was not. The ALJ's assessment that Ms. Minger's problem is not mental illness but lack of motivation smacks of the ALJ playing psychologist, which he is not allowed to do. See, e.g., Browning v. Colvin ,
*874Rohan v. Chater ,
CONCLUSION
For the foregoing reasons, this case is remanded to the Commissioner for further proceeding consistent with this opinion, and the defendant's motion for an affirmance of the ALJ's decision [Dkt. # 19] is DENIED.
The phrase (and the reasoning) was first used in a Social Security case in Judge Posner's Opinion in Sarchet v. Chater ,
In response to the initial review order of October 20, 2017, the Commissioner asserted, in the hopes of distinguishing Moon v. Colvin ,
New regulations, effective March 2017-well after the ALJ's decision in this case-describe a moderate limitation as meaning a plaintiff's functioning in the particular area is "fair." According to the Commissioner's discussion of the new definition, it is not a change, but "consistent with how [ALJs] have understood and used those words in our program since we first introduced the rating scale in 1985." Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66138-01, 66147. That means "fair" continues to represent a broad spectrum of functioning, "rang[ing] from limitations that may be close to "marked" in severity to limitations that may be close to the "mild" level." Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66138-01, 66146. Whether "moderate" or "fair", or tending toward "marked" or "mild" an ALJ still has to inform a VE of the level of functioning of a plaintiff in order for a VE to testify about what kind of jobs that plaintiff can do.
Footnote Text Missing
In his assessment of Ms. Minger's activities and how they undermined her allegations about her symptoms, the ALJ also noted that "at the time the claimant filed her application for benefits she was six months pregnant. The claimant delivered on April 25, 2014 by Caesarean section. (R. 32). One can only guess what the ALJ might have been driving at here, but without any explanation, it's no support for a rejection of Ms. Mingle's allegations. Cf. Cullinan v. Berryhill ,
Plaintiff asks that the ALJ's decision be reversed and an award of benefits ordered. [Dkt. # 18, at 16]. "It remains true that an award of benefits is appropriate only if all factual issues have been resolved and the record supports a finding of disability." Allord v. Astrue ,
Reference
- Full Case Name
- Kelli L. MINGER v. Nancy A. BERRYHILL, Acting Commissioner of Social Security
- Cited By
- 54 cases
- Status
- Published