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Couillard v. Berryhill

United States District Court, E.D. Wisconsin

March 27, 2019

TONIA K. COUILLARD, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.

         PROCEDURAL HISTORY

         Plaintiff Tonia Couillard alleges she has been disabled since January 21, 2011, due to “mental health impairments including among others, a conversion disorder, bipolar disorder and anxiety, degenerative disc disease, interstitial cystitis, headaches, and other severe impairments.” (ECF No. 14 at 1.) In April 2011 she applied for disability insurance benefits (Tr. 328-34) and supplemental security income (Tr. 320-25). After her applications were denied initially (Tr. 124-25) and upon reconsideration (Tr. 126-27), a hearing was held before an administrative law judge (ALJ) on February 25, 2013 (Tr. 66-123). On April 8, 2013, the ALJ issued a written decision concluding that Couillard was not disabled. (Tr. 131-42.) On May 30, 2014, the Appeals Council vacated the ALJ's decision. (Tr. 149-50.) On remand, the Appeals Council instructed the ALJ to: (1) reevaluate and explain the weight given to the nontreating source opinion of Kalpana Rao, Ph.D.; (2) reevaluate Couillard's maximum residual functional capacity (RFC); and (3) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on Couillard's occupational base. (Id.)

         A second hearing was held before an ALJ on February 18, 2015 (Tr. 11-53), and on March 13, 2015, the ALJ issued a written decision, again concluding that Couillard was not disabled (Tr. 155-68). The Appeals Council denied Couillard's request for review on May 18, 2016. (Tr. 1-4.) Couillard filed suit in this court in June 2016. (Tr. 1641.) On December 14, 2016, the Honorable Pamela Pepper signed an order approving the parties' joint stipulation to remand for further administrative proceedings. (Tr. 1644.) On remand, the Appeals Council instructed the ALJ to: (1) further evaluate the allegations and discussion in the medical record of the potential impairments of conversion disorder and fibromyalgia; (2) further evaluate Couillard's alleged symptoms and provide a rationale in accordance with the disability regulations pertaining to evaluation of symptoms; (3) give further reconsideration to Couillard's maximum RFC during the entire period at issue; and (4) if warranted by the expanded record, obtain supplemental evidence from a vocational expert. (Tr. 1687-88.) Because Couillard filed subsequent, duplicative claims for disability insurance benefits and supplemental security income on June 22, 2016, the Appeals Council also instructed the ALJ to consolidate the claim filed, create a single electronic record, and issue a new decision on the consolidated claims. (Tr. 1688.)

         A third hearing was held before a new ALJ on October 4, 2017. (Tr. 1532-97.) On January 8, 2018, the ALJ issued a written decision concluding that Couillard was not disabled (Tr. 1457-76), which became the final decision of the Commissioner. See 20 C.F.R. § 404.984 (“[W]hen a case is remanded by a Federal court for further consideration, the decision of the administrative law judge will become the final decision of the Commissioner after remand on your case unless the Appeals Council assumes jurisdiction of the case.”). This action followed. All parties have consented to the full jurisdiction of a magistrate judge (ECF Nos. 4, 7), and the matter is now ready for resolution.

         ALJ'S DECISION

         In determining whether a person is disabled, an ALJ applies a five-step sequential evaluation process. At step one, the ALJ determines whether the claimant has engaged in substantial gainful activity. The ALJ found that Couillard “has not engaged in substantial gainful activity since January 21, 2011, the alleged onset date[.]” (Tr. 1460.)

         The analysis then proceeds to the second step, which is a consideration of whether the claimant has a medically determinable impairment or combination of impairments that is “severe.” 20 C.F.R. §§ 404.1520(c), 416.920(c). “In order for an impairment to be considered severe at this step of the process, the impairment must significantly limit an individual's ability to perform basic work activities.” Moore v. Colvin, 743 F.3d 118, 1121 (7th Cir. 2014). The ALJ concluded that Couillard has the following severe impairments: “bipolar disorder II; mood disorder; panic disorder; personality disorder; conversion disorder with possible pseudoseizures; post-traumatic stress disorder (PTSD); degenerative disc disease of the lumbar spine; interstitial cystitis; and headaches[.]” (Tr. 1460.)

         At step three the ALJ is to determine whether the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of the impairments listed in 20 C.F.R. Part 4, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.1526, 416.920(d) and 416.926) (called “The Listings.”) If the impairment or impairments meets or medically equals the criteria of a listing and also meets the twelvemonth duration requirement, 20 C.F.R. § 416.909, the claimant is disabled. If the claimant's impairment or impairments is not of a severity to meet or medically equal the criteria set forth in a listing, the analysis proceeds to the next step. The ALJ found that Couillard “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]” (Tr. 1461.)

         In between steps three and four the ALJ must determine the claimant's residual functional capacity (RFC), which is the claimant's ability to perform both physical and mental work-related activities on a regular and continuing basis despite her impairments. Moore, 743 F.3d at 1121. In making the RFC finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. 20 C.F.R. §§ 404.1529, 416.929; SSR 96-4p. In other words, the RFC determination is a “function by function” assessment of the claimant's maximum work capability. Elder v. Asture, 529 F.3d 408, 412 (7th Cir. 2008). The ALJ concluded that Couillard has the RFC

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she has additional limitations. She can occasionally climb ramps and stairs. She can never climb ladders, ropes, or scaffolds. [Couillard] cannot work at unprotected heights or around moving mechanical parts. She cannot operate a motor vehicle in the workplace. She cannot have exposure to concentrated amounts of dust, odors, fumes, and/or pulmonary irritants. With regard to understanding, remembering and carrying out instructions, [Couillard] can perform simple, routine, and repetitive tasks, and not at a production rate pace (e.g., assembly line work). With regard to the use of judgment in the workplace, she can make simple work-related decisions. [Couillard] can frequently interact with supervisors, occasionally interact with coworkers, and never interact with the public. She can tolerate occasional changes in a routine work setting. In addition to normal breaks, [Couillard] will be off task less than 10 percent of the time in an 8-hour workday.

(Tr. 1464.)

         After determining the claimant's RFC, the ALJ at step four must determine whether the claimant has the RFC to perform the requirements of her past relevant work. 20 C.F.R. §§ 404.1526, 416.965. Couillard's past relevant work was as a nursing assistant. (Tr. 1474.) The ALJ concluded that she is unable to perform any past relevant work. (Id.)

         The last step of the sequential evaluation process requires the ALJ to determine whether the claimant is able to do any other work, considering her RFC, age, education, and work experience. At this step the ALJ concluded that, considering Couillard's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Couillard can perform. (Tr. 1475.) In reaching that conclusion, the ALJ relied on testimony from a vocational expert, who testified that a hypothetical individual of Couillard's age, education, work experience, and RFC could perform the requirements of a laundry worker, mail clerk, and cleaner. (Id.) After finding that Couillard could perform work in the national economy, the ALJ concluded that she is not disabled. (Tr. 1475-76.)

         STANDARD OF REVIEW

         The court's role in reviewing an ALJ's decision is limited. It does not look at the evidence anew and make an independent determination as to whether the claimant is disabled. Rather, the court must affirm the ALJ's decision if it is supported by substantial evidence. Moore, 743 F.3d at 1120. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 1120-21 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Thus, it is possible that opposing conclusions both can be supported by substantial evidence. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).

         It is not the court's role to reweigh evidence or substitute its judgment for that of the ALJ. Moore, 743 F.3d at 1121. Rather, the court must determine whether the ALJ complied with his obligation to build an “accurate and logical bridge” between the evidence and his conclusion that is sufficient to enable a court to review the administrative findings. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014); Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). “This deference is lessened, however, where the ALJ's findings rest on an error of fact or logic.” Thomas, 745 F.3d at 806. If the ALJ committed a material error of law the court cannot affirm the ALJ's decision regardless of whether it is supported by substantial evidence. Beardsley, 758 F.3d at 837; Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012).

         ANALYSIS

         Couillard contends that (1) the ALJ erred at step three of the sequential evaluation process; (2) the ALJ's RFC determination was not supported by substantial evidence; (3) the ALJ improperly evaluated her testimony; (4) the ALJ improperly weighed the medical opinion evidence; and (5) the ALJ erred in his step-five findings. (ECF No. 14.)

         I. Step Three of the Sequential Evaluation Process

         A. Listing 11.02

         At step three of the sequential evaluation process the ALJ concluded that Couillard's headaches and seizures do not meet the severity requirements of Listing 11.02B or D. (Tr. 1461.) Listing 11.02B requires evidence of dyscognitive seizures occurring at least once a week for at least three consecutive months despite adherence to prescribed treatment. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02B. Listing 11.02D requires evidence of dyscognitive seizures occurring at least once every two weeks for at least three consecutive months despite adherence to prescribed treatment, and a marked limitation in one of the following: (1) physical functioning; (2) understanding, remembering, or applying information; (3) interacting with others; (4) concentrating, persisting, or maintaining pace; or (5) adapting or managing oneself. Id. at § 11.02D.

         Couillard argues:

[T]he ALJ says there is no evidence of migraines or seizures occurring for three consecutive months at a rate sufficient to meet Listing 11.02B or D. This is incorrect. Beginning February 4, 2011 through June 4, 2011, Couillard received treatment for headaches (some of which lasted for as many as 11 days) or tremors/seizures on February 4, 9, 11, 17, 25, March 2, 16, 24, April 12, 13, May 3, 9, 11, 25, June 3, 4, 17, 2011. [(Tr. 502, 511, 513, 515, 518, 551, 563, 572, 583, 589, 762-63, 765, 1157, 1410, 1412, 1414, 2398.)] There are many other references to intractable headache in the record, but this time period appears to meet the listing requirements.

(ECF No. 14 at 25.) Although there is evidence that during this time period Couillard suffered from tremors, some of which brought on headaches (Tr. 563, 819, 909), there is no evidence that she experienced dyscognitive seizures at least once a week, or at least once every two weeks, for at least three consecutive months. Dyscognitive seizures are characterized by an alteration of consciousness, see 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.00H1b, and, while Couillard complained of tremors, weakness, and numbness in her arms and legs, she never complained of an alteration in her consciousness from February to June 2011. (See, e.g., Tr. 564 (“She is completely alert when this occurs.”).) As such, the ALJ did not err in finding that Couillard's migraines and seizures do not meet the severity requirements of Listing 11.02B or D.

         B. Listings 12.04, 12.06, 12.07, 12.08, and 12.15

         The ALJ also concluded that the severity of Couillard's “mental impairments, considered singly and in combination, do not meet or medically equal the criteria of Listings 12.04, 12.06, 12.07, 12.08, and 12.15.” (Tr. 1461.) In making that conclusion, the ALJ considered whether the “Paragraph B” criteria were satisfied. “To satisfy the ‘Paragraph B' criteria, the mental impairments must result in at least one extreme or two marked limitations in a broad area of functioning which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves.” (Tr. 1462.) The ALJ found that Couillard has no extreme or marked limitations, finding only moderate limitations in each area of functioning. (Tr. 1462-63.) As to her limitation with concentration, persistence or maintaining pace, he explained:

[Couillard] has reported that her ability to pay attention is variable, as she has difficulty concentrating when anxious. However, the record reflects that she has engaged in activities requiring a degree of concentration and persistence, particularly contributing to the care of her children and driving them to school forty-five minutes from her home, taking online classes, taking nature photographs and having them developed through an online service, watching episodes of television, scrapbooking, and doing puzzles consisting of 500 to 750 pieces over multiple sittings. Further, at a July 2011 consultative psychological examination, [Couillard] engaged in goal-oriented and meaningful conversation, showed adequate motivation, and showed no significant deficit in attention, concentration, or mental control. Similarly, at a September 2016 consultative psychological examination, [Couillard] was able to do serial 7s and 3s, spell “world” forward and ...

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