United States District Court, W.D. Wisconsin
NEAL DONNER on behalf of J.D., J.D. III, and L.D., minor children, on behalf of James Donner (deceased), Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
Plaintiff Neal Donner seeks judicial review of a final decision of defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, finding her son, James Donner, was not disabled within the meaning of the Social Security Act. Tragically, Donner died just two days after receiving notice that his disability claim had been denied. (AR. 157, 160-63.) Donner's mother continues to seek disability benefits on behalf of his children. The parties are well aware of the underlying facts and the procedural history in this case (dkt. #15 at 1-3; dkt. #25 at 1-3; AR 6-14, 89-93),  which need not be repeated in detail to address the issues on appeal: (1) whether the ALJ erred in discounting the opinions of Donner's treating physician; and (2) whether the ALJ properly evaluated the testimony of Donner's mother at the ALJ hearing. While the court will not reverse and order an award benefits for the relevant period, the court's remand for the ALJ's reconsideration of these issues could well lead to this result for the reasons that follow.
James Donner claimed that he was unable to work because of a range of physical and mental impairments. Following a full hearing, the ALJ found Donner had severe impairments related to his lumbar spine, obesity, depression, anxiety disorder and attention deficit syndrome (ADD). (AR 6.) Nevertheless, the ALJ found that Donner retained the residual functional capacity to perform sedentary work as defined in 20 CFR § 416.967(b), with the additional limitations that he be allowed to sit and stand at will provided he was not off task more than 10% of the workday. (AR 9.) The ALJ also noted the additional, non-exertional limitations that "work involving no more than simple, routine, repetitive tasks in a work environment free of fast paced production requirements, involving only simple, work related decisions with few if any workplace changes; and with only occasional interaction with the public, co-workers or supervisors." ( Id. )
The vocational expert testified that Donner's past relevant work included a bench carpenter, garbage collector/driver, landscape laborer, warehouse supervisor, food deliverer, cook's helper and auto mechanic. Based on Donner's limitations, he concluded that the requirements of that work exceeded his residual functional capacity. However, the vocational expert also testified that several jobs existed in the national economy that an individual with Donner's age, education, work experience and residual functional capacity could perform. (AR 13-14.) Ultimately, the ALJ credited these opinions and found Donner not disabled, which was eventually adopted as the Commissioner's final decision.
A. Treating Physician
An ALJ must provide a "sound reason" for discounting a treating source opinion as controlling. Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). If a controlling opinion is discounted, a court must then consider whether the ALJ properly addressed the factors laid out in 20 C.F.R. § 404.1527(c)(2) in weighing the treating physician's credibility. Even if an ALJ discredits treating source opinions as controlling, SSR 96-2p states that "[t]reating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527" (emphasis added).
To summarize, the factors in 20 C.F.R. § 404.1527(c) include:
(a) whether the doctor has an examining relationship with the plaintiff;
(b) whether the doctor has a treating relationship with the plaintiff, which also incorporates the length, nature, and extent of the relationship;
(c) how well supported the doctor's opinion is by relevant evidence;
(d) how consistent the doctor's opinion is with the ...