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Yang v. Berryhill

United States District Court, D. Minnesota

March 12, 2018

Su Yang, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          Stephanie Ann Christel, Livgard and Lloyd PLLP, for Plaintiff Su Yang

          Bahram Samie, United States Attorney for Defendant Nancy A. Berryhill



         Pursuant to 42 U.S.C. § 405(g), Plaintiff Su Yang seeks judicial review of a final decision by the Acting Commissioner of Social Security denying her applications for supplemental security income (SSI) and disability insurance benefits (DIB). The matter is now before the Court on the parties' cross-motions for summary judgment [Doc. Nos. 16, 18]. For the reasons set forth below, the Court grants Yang's summary judgment motion, denies the Commissioner's motion, reverses the Commissioner's decision, and remands the matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Order.

         I. Procedural Background

         Yang filed applications for SSI and DIB on November 7, 2013, alleging a disability onset date of March 31, 2013. (R. 193-206).[1] Yang claimed she was disabled by depression, back and spinal impairments with pain, and neuropathy/radiculopathy. (R. 223.) Her applications were denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ).

         The ALJ convened a hearing on November 20, 2015, at which Yang, psychologist Dr. Karen Butler, and vocational expert Norman Nussbaum testified. (R. 40-41.) Yang, whose primary language is Hmong, testified through an interpreter. (R. 43.) She testified that she moved to the United States many years ago and has a fifth grade education. (R. 47.) She worked as a seamstress in the approximately fifteen years before her disability onset date. (R. 47-48.) Before that, she assembled medical ear devices at Starkey Labs. (R. 48.) Yang stopped working as a seamstress because of back, hip, and leg pain. (R. 49.) She also suffered from dizziness and depression. (R. 52.) Yang testified that she was depressed because of her limitations and did not want to live anymore. (R. 52.) At the time of the hearing, she no longer cooked or cleaned and had trouble staying focused and concentrating. (R. 53.)

         Yang testified that back surgery had not alleviated her back pain. (R. 49.) She declined a second surgery suggested by her doctor because she had not benefited from the first. (R. 51.) Physical therapy increased the pain. (R. 51-52.) Yang used a four-pronged cane when walking to alleviate her low back pain. (R. 50.) Yang had stopped driving to her medical appointments about two years before the hearing because her doctor told her she should no longer drive and her children forbade her from it. (R. 46-47.) Since January 2014, a personal care attendant (PCA) assisted her each morning and night with various daily activities, going to the bathroom, bathing, dressing, medication, and nutrition. (R. 53-54.)

         Testifying as an independent medical expert, Dr. Butler testified that Yang had mental impairments of depression and pain disorder. (R. 55.) According to Dr. Butler, Yang's depression waxed and waned and did not meet the twelve-month durational threshold for a listing-level impairment.[2] (R. 59.) Dr. Butler noted only isolated instances of anxiety, panic disorder, and auditory hallucinations. (R. 55, 61.) Dr. Butler opined Yang was moderately impaired in activities of daily living, social functioning, and concentration, persistence, and pace. (R. 56.) Dr. Butler recommended work-related limitations of simple, unskilled work that could be visually demonstrated, and brief and superficial contact with others. (R. 59.) On questioning from Yang's attorney, Dr. Butler conceded that accounting for Yang's pain and physical symptoms would be outside her area of expertise, but “clearly, that would impose additional limitations.” (R. 60.)

         The ALJ asked Nussbaum, the vocational expert, to consider a hypothetical individual of the same age, education, vocational, and academic background as Yang, with the following limitations: able to lift and carry ten pounds occasionally and less than ten pounds frequently; able to sit for six hours in an eight-hour day; able to stand or walk for two hours in an eight-hour day; able to push and pull the same as lift and carry; able to climb ramps and stairs occasionally; not able to climb ladders or scaffolds; not able to balance; able to stoop, kneel, crouch, and crawl occasionally; not able to work at unprotected heights or exposed moving mechanical parts; limited to simple routine tasks with instructions that are visibly demonstrated; and able to respond appropriately to supervisors, coworkers, and the public on an occasional basis. (R. 62-63.) Nussbaum testified that an individual with those characteristics and restrictions could perform the medical device assembly work Yang had performed previously. (R. 63.) If the individual required the use of a cane to ambulate to or from the workstation, however, work would be precluded due to the need to simultaneously carry a tray. (R. 64-65.) The ALJ then modified the hypothetical question to add the following limitations: sitting no more than two hours in an eight-hour day, requiring a cane to ambulate to and from the workstation, and absent from work four days per month. (R. 63-64). Nussbaum testified that work would be precluded under that hypothetical situation. (R. 64.)

         On December 11, 2015, the ALJ issued a written decision denying Yang's SSI and DIB applications. (R. 19-33.) Pursuant to the five-step sequential process outlined in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ first determined that Yang had not engaged in substantial gainful activity since March 31, 2013. (R. 24.) At step two, the ALJ determined that Yang had severe impairments of degenerative disc disease of the lumbar spine with radiculopathy, status-post right lumbar microdiscectomy in 2006, sacroilitis and hip pain, vertigo and dizziness, and major depressive disorder with psychotic features. (R. 24.) The ALJ found at the third step that none of Yang's impairments, considered singly or in combination, met or equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 24-25.) With respect to Yang's mental impairments, the ALJ determined that Yang did not meet or equal the criteria of Listing 12.04 (affective disorders). (R. 25.) The ALJ found Yang mildly restricted in activities of daily living, moderately limited in social functioning, and moderately limited in concentration, persistence, or pace. (R. 25-26.) Yang had no episodes of decompensation of at least two weeks in duration. (R. 26.)

         At step four, the ALJ concluded that Yang retained the residual functional capacity (RFC)[3] to perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the following restrictions: lifting, carrying, pushing, and pulling limited to ten pounds frequently and less than ten pounds occasionally; sitting for six hours; standing for two hours and/or walking for two hours in an eight-hour day; occasional climbing of ramps or stairs; no climbing ladders or scaffolds; no balancing; occasional stopping, kneeling, crouching, and crawling; no exposure to unprotected heights; no exposure to moving mechanical parts; limited to simple, routine tasks with instructions that are visually demonstrated; and occasional ability to respond appropriately to supervisors, coworkers, and the public. (R. 27.) In arriving at this RFC, the ALJ found that Yang's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (R. 28-30.) In addition, the ALJ gave little weight to the opinions of Yang's treating psychiatrist Dr. Joseph M. Bebchuk, primary care physician Dr. Deborah Mielke, and treating therapists Willie B. Garrett and Kathie Bailey. (R. 31-32.) The ALJ gave substantial or significant weight, however, to the opinions of state agency consulting physicians Dr. Shanti Tanna and Dr. Cliff Phibbs, state agency consulting psychologist Dr. Maura Clark, and Dr. Butler. (R. 30-31.)

         The ALJ found significant that some treatment modalities, namely epidural steroid injections and surgery, had been at least somewhat effective in managing or alleviating Yang's back pain, but Yang had declined additional injections and surgery, both of which were recommended by her doctors. (R. 28-29.) In addition, clinical findings and observations were frequently unremarkable, Yang's symptoms waxed and waned, and her providers' treatment regimens were conservative and routine. (R. 29-30.)

         The ALJ concluded that Yang had retained the RFC to perform her past relevant work as an assembler at the sedentary, unskilled level, both as the work was actually performed and generally performed. (R. 33.) The ALJ categorized her past work as an assembler under the Dictionary of Occupational Titles (DOT) 712.687-034 Consequently, the ALJ determined that Yang was not under a disability, as defined by the relevant regulations between March 31, 2013, and the date of the decision. (R. 33.)

         The Appeals Council denied Yang's request for review, which made the ALJ's decision the final decision of the Commissioner. Yang then filed this action for judicial review. She identifies four issues in her motion for summary judgment: (1) whether the ALJ did not give proper weight to the opinions of her treating physicians and therapists, (2) whether the ALJ erred in failing to consider the combined effect of her physical and mental impairments in assessing whether Yang medically equaled Listing 12.04, (3) whether the ALJ erred in assessing Yang's RFC, and (4) whether the ALJ erred in finding that Yang could perform her past relevant work.

         The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties' motions.

         II. Standard of Review

         Judicial review of the Commissioner's denial of benefits is limited to determining whether substantial evidence on the record as a whole supports the decision. 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine “evidence that detracts from the Commissioner's decision as well as evidence that supports it.” Id. (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). The Court may not reverse the ALJ's decision simply because substantial evidence would support a different outcome or the Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         A claimant has the burden to prove disability. See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the definition of disability for DIB, the claimant must establish 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.” 42 U.S.C. § 423(d)(1)(A). The same standard applies to SSI. See 42 U.S.C. § 1382c(a)(3)(A). The disability, not just the impairment, must have lasted or be expected to last for at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

         III. Discussion

         A. Opinions of Treating Providers

         Yang argues that the ALJ erred by failing to give proper weight to the opinions of treating psychiatrist Dr. Joseph M. Bebchuk, primary care physician Dr. Deborah Mielke, and treating therapists Willie B. Garrett[4] and Kathie Bailey. (Pl.'s Mem. Supp. Mot. Summ. J. at 28 [Doc. No. 17].)

         A treating source's opinion on the nature and severity of a claimed impairment is entitled to controlling weight if the opinion “is well-supported by medically acceptable clinical and laboratory techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).[5] The ALJ need not give controlling weight to an opinion that is not well-supported by clinical findings or laboratory techniques or is inconsistent with other substantial evidence. Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009). If the opinion of a treating source is not afforded controlling weight, the ALJ must consider the following factors in deciding what weight is due: (1) the existence of an examining relationship; (2) the nature of the treatment relationship, such as length of treatment and frequency of examination; (3) the degree to which the opinion is supported by medical evidence such as medical signs and laboratory findings; (4) consistency with the record; (5) the source's specialty; and (6) any other relevant factors. 20 C.F.R. §§ 404.1527(c), 416.927(c).

         The ALJ is not required to explicitly discuss each and every §§ 404.1527(c) and 416.927(c) factor. See Combs v. Colvin, No. 8:12-cv-429, 2014 WL 584741, at *11 (D. Neb. Feb. 12, 2014); Derda v. Astrue, No. 4:09-cv-1847 AGF, 2011 WL 1304909, at *10 (E.D. Mo. Mar. 31, 2011). It is sufficient that an ALJ considered the listed factors, see §§ 404.1527(c) and 416.927(c), and that the ALJ indicated in his written decision that he has done so.

         1. Dr. Bebchuk

         Dr. Bebchuk completed a mental impairment questionnaire on June 9, 2015. (R. 602-06.) He recorded a diagnosis of major depressive disorder, recurrent with psychotic features; and described Yang's symptoms as a depressed mood, auditory hallucinations, anhedonia, fatigue, poor concentration, and hopelessness. (R. 602.) He indicated that Yang had responded minimally to treatment and medications, and that her depression exacerbated her back pain. (R. 602.) Dr. Bebchuk declined to assess Yang's work-related activities, explaining that he did not assess his patients' abilities as part of his clinical practice. (R. 604.) He did indicate, however, that Yang would be extremely limited in activities of daily living, extremely limited in maintaining social functioning, and markedly limited in maintaining concentration, persistence, or pace. (R. 605.) Dr. Bebchuk also indicated that Yang had suffered four or more episodes of decompensation in the past twelve months[6] and met the paragraph C.2 criteria of Listing 12.04, [7] and he predicted that she would miss more than four days of work a month. (R. 605.)

         The ALJ noted that Dr. Bebchuk was Yang's treating psychiatrist but gave the opinion little weight for several reasons. (R. 32.) The ALJ wrote that Dr. Bebchuk's opinion was “not at all supported by the overall mental status examinations” and was inconsistent with Yang's conservative course of treatment and Yang's activities. (R. 32.) The ALJ also found the opinion inconsistent with evidence that Yang's mental symptoms waxed and waned and did not meet the twelve-month durational requirement. (R. 32.) Finally, the ALJ found that “not a shred of evidence” supported Dr. Bebchuk's assertion that Yang had four or more extended episodes of decompensation. (R. 32.)

         The Court finds that substantial evidence supports the ALJ's decision to give little weight to Dr. Bebchuk's opinion, and that the ALJ gave good reasons for discounting the opinion. The ALJ declined to give controlling weight to Dr. Bebchuk's opinion because it was inconsistent with other substantial evidence. The ALJ did not err in this respect. (See, e.g., R. 500-01 (noting no impairment with attention, concentration, or memory); R. 514-16 (documenting a generally normal mental status examination, “unremarkable” concentration and attention, normal memory, and “open and engaging” behavior); R. 520 (finding normal concentration, attention, and memory; average intelligence); R. 544 (recording no hallucinations, normal affect); R. 718 (reporting less anxiety, no previous psychiatric hospitalizations); R. 722 (noting increased stress and hopelessness due to temporary financial situation); R. 726 (recording improvement with depressive symptoms but feeling overwhelmed by caring for son with special needs); R. 819-20 (reporting normal mental state and normal dizziness test results); R. 828 (documenting moderate depression).)

         The ALJ indicated at the beginning of the RFC discussion in his written decision that he had considered all opinion evidence in accordance with §§ 404.1527 and 416.927. (R. 27.) In deciding the weight due to Dr. Bebchuk's opinion, the ALJ noted that Dr. Bebchuk was a psychiatrist and Yang's treating source, but found that the opinion was not supported by mental status examinations and was not consistent with the conservative course of treatment Dr. Bebchuk administered. These findings are well-documented in the record. Yang's mental status examinations frequently revealed normal attention and concentration, no memory impairment, average intelligence, good judgment and insight, and a history of (but no current) auditory hallucinations. (E.g., R. 728-29, 732-33, 736-37, 740-71, 744-45.) The mental status examinations were certainly not consistent with being markedly restricted in activities of daily living, maintaining social functioning, or maintaining concentration, persistence, or pace, for a twelve-month period. In addition, Yang's depression and other mental impairments were conservatively managed with medication, monthly medication evaluations with Dr. Bebchuk, and biweekly therapy sessions.

         The ALJ also reduced the weight of Dr. Bebchuk's opinion because the limitations suggested by Dr. Bebchuk were inconsistent with some of Yang's activities. Treatment records from Yang's providers contain very little detail about her activities, but Yang completed a function report in December 2013, indicating that she could cook simple meals, wash small loads of laundry, occasionally go to the doctor by herself, occasionally shop for groceries, and garden. (R. 233-36.) She socialized primarily with her children, conversing and having dinner with them after they came home from work. (R. 236, 239.) A function report completed in August 2014 reveals that Yang's daily activities were more restricted, but she could still prepare simple lunches, and drive and shop occasionally. (R. 261-68.) Yang said that her daughter PaChia, with whom she lived, was her PCA at that time. (R. 262.) Importantly, because the ALJ found Yang only partially credible-a finding Yang does not challenge-that finding may be applied to other evidence of record based on subjective complaints or self-described symptoms and limitations.[8] See Vance v. Berryhill, 860 F.3d 1114, 1120 (8th Cir. 2017); McCoy v. Astrue, 648 F.3d 605, 617 (8th Cir. 2011). Thus, while some of the symptoms and limitations described on Yang's function reports are consistent with Dr. Bebchuk's opinion, the ALJ did not err in disregarding those self-reported symptoms and limitations.

         Finally, the ALJ correctly observed that “not a shred of evidence” supports Dr. Bebchuk's finding that Yang has had four or more extended episodes of decompensation. Indeed, the record does not contain evidence of even one such episode. Such a significant error-whether due to a misunderstanding of the definition of the term “episode of decompensation” or to a mischaracterization of the record-reasonably called into doubt the validity of Dr. Bebchuk's entire opinion.

         2. Garrett

         Garrett completed mental impairment questionnaires in May and September 2015, both of which the ALJ discussed in his written decision. (R. 32, 588-98.) In the earlier questionnaire, Garrett indicated that Yang could not perform at a consistent pace without an unreasonable number and length of rest periods, remember work procedures, maintain attention for two hours at a time, maintain attendance and punctuality, follow an ordinary routine without supervision, make simple work-related decisions, or deal with normal work stresses, among other restrictions. (R. 596.) Garrett opined that Yang was markedly limited in activities of daily living and in maintaining concentration, persistence, or pace. (R. 597.) Garrett also opined that Yang met the paragraph C.2 criteria of Listing 12.04 and predicted she would miss more than four days of work a month. (R. 597.) He attributed her limitations to major depression, which he classified as “Recurrent Moderate, ” positional vertigo, and chronic pain. (R. 594, 596.) He further indicated that her symptoms of depression had been reduced with treatment. (R. 594.) Garrett indicated even greater restrictions on the September 2015 questionnaire. (R. 590-91.)

         The ALJ discounted Garrett's opinions as inconsistent with treatment records that reflected only temporary exacerbations of symptoms and a conservative course of treatment, and for the other reasons he gave for discounting Dr. Bebchuk's opinion. (R. 32.) This Court's finding that substantial evidence supports the ALJ's decision to give little weight to Dr. Bebchuk's opinion applies with equal force to Garrett's opinion. Moreover, unlike Dr. Bebchuk, Garrett rarely noted on his treatment records specific findings concerning Yang's abilities to concentrate, pay attention, function socially, or maintain persistence or pace. Garrett's progress notes consisted of two or three sentences describing Yang's subjective complaints, noting that she appeared sad and anxious, assessing her with major depression, and directing her to return in two to three weeks. (E.g., R. 581, 582, 859, 876, 883.) There are no detailed clinical findings or mental status examination results comparable to the information contained in Dr. Bebchuk's treatment records.

         In sum, the ALJ did not err in assigning little weight to the opinions expressed by Garrett on the mental impairment ...

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