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Rosario v. Saul

United States District Court, E.D. Wisconsin

August 22, 2019

ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         Pedro Rosario seeks judicial review of the final decision of the Commissioner of the Social Security Administration (SSA) denying his claim for supplemental security income under the Social Security Act, 42 U.S.C. § 405(g). Because the ALJ failed to support his decision with substantial evidence or to properly assess the record in light of Rosario's primary impairment of bipolar disorder, the decision will be reversed and remanded for expedited proceedings consistent with this decision pursuant to 42 U.S.C. § 405(g), sentence four.


         On April 3, 2012, Rosario filed applications for disability income benefits (“DIB”) and supplemental security income (“SSI”) alleging disability with a date of onset of May 1, 2006 due to bipolar disorder and other impairments. (Tr. 247-59.) The applications were denied initially and on reconsideration. (Tr. 144-98.) Rosario requested a hearing before an Administrative Law Judge (“ALJ”), which was held on December 16, 2014 before ALJ Jordan Garelick. (Tr. 45-93.) ALJ Garelick issued a decision finding Rosario not disabled on March 11, 2015. (Tr. 22-39.) The Appeals Council denied Rosario's request for review on July 28, 2016. (Tr. 4-10.) Rosario appealed to the U.S. District Court for the Eastern District of Wisconsin. (Tr. 723-24.) On March 1, 2017, pursuant to a stipulation of the parties, U.S. Magistrate Judge David E. Jones reversed the decision and remanded for further proceedings. Rosario v. Colvin, No. 16-CV-1168 (E.D. Wis.), ECF No. 18. (Tr. 679-80.)

         On remand, the Appeals Council vacated the decision and remanded to an ALJ with specific instructions. (Tr. 686-88.) The Appeals Council explained that the decision had failed to contain sufficient rationale with specific references to the record in support of the assessed limitations, failed to include a social limitation in the RFC despite finding mild difficulties in maintaining social functioning, and failed to provide sufficient rationale for rejecting the social limitations found in the State Agency opinions or for giving little weight to the opinion of Rosario's counselor, Sheila Bowman. (Tr. 686-87.) The Appeals Council also explained that the decision had relied on one statement by Rosario to a consultative psychologist that he got along with others, but did not acknowledge that Rosario also stated that he had problems with irritability or that the psychologist concluded that Rosario's mood variability had significantly affected Rosario's interpersonal relationships. (Tr. 687.) Finally, the Appeals Council criticized the decision for finding the consulting psychologist's opinion more reliable than Bowman's opinions without considering Bowman's specialty and the length and frequency of her relationship with Rosario: she had treated Rosario weekly for three months prior to issuing her opinions. (Id.) The Appeals Council instructed the ALJ on remand to give further consideration to non-treating and other medical source opinions and explain the weight given to each, give further consideration to Rosario's maximum RFC, and provide appropriate rationale with specific references to evidence in the record. (Id.)

         On remand, Rosario abandoned his DIB claim and amended his alleged onset date to March 22, 2012. (Tr. 952.) The amended application for SSI benefits was denied in June 2017 and upon reconsideration in October 2017. (Tr. 837-57.) Rosario testified at a hearing before ALJ Jeffrey Gauthier on November 17, 2017, as did a vocational expert, Carly N. Coughlin. (Tr. 576-638.)

         In a decision issued February 26, 2018, ALJ Gauthier (“the ALJ”) found that Rosario had the severe impairments of obesity, neuropathy, and bipolar disorder. (Tr. 548.) The ALJ also found that Rosario had the non-severe impairments of obstructive sleep apnea, diabetes mellitus, hypertension, gastroesophageal reflux disease (GERD), grade one diastolic dysfunction, chronic lymphedema, knocked-knee, flatfoot deformity, and muscular strain of the back. (Id.) The ALJ found that Rosario did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (the “listings”). (Tr. 549-51.) The ALJ found that Rosario had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b) except he can occasionally climb ramps and stairs; he can never climb ladders, ropes or scaffolds; he can never work at unprotected heights or around moving mechanical parts; he can never operate a motor vehicle in the workplace; he can perform simple, routine, and repetitive tasks but not at a production rate pace (e.g., no assembly line work); he can make simple work-related decisions; he can interact with supervisors no more than frequently and he can interact with coworkers and the public no more than occasionally; and he can tolerate occasional changes in a routine work setting. (Tr. 551.)

         The ALJ found that considering Rosario's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that he can perform. (Id.) Therefore, the ALJ found Rosario not disabled. (Tr. 565.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Rosario's request for review on November 9, 2018. (Tr. 520-24.) Rosario appealed the decision to this court on November 29, 2018. (Docket # 1.)


         The Commissioner's final decision will be upheld if the ALJ applied the correct legal standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is not conclusive evidence; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (internal quotation and citation omitted). Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the SSA's rulings and regulations in making a determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006). In reviewing the entire record, the court does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).


         Rosario argues that the ALJ erred in assigning little weight to the opinions of Rosario's treating providers, discounting Rosario's alleged symptoms, and failing to account for Rosario's social limitations in the RFC. (Docket # 14.) The Commissioner responds that the ALJ's decision is supported by substantial evidence and should be upheld. (Docket # 18.) I will address each argument in turn.

         1. Treating Source Statements

         Rosario asserts that the ALJ improperly gave little weight to the opinions of his treating therapist and a treating nurse practitioner. (Docket # 14 at 8-18.) I agree.

         An ALJ must consider all medical opinions in the record, but the method of evaluation varies depending on the source. Under SSR 06-3p, in place at the time Rosario filed his application, only opinions from “acceptable medical sources” are entitled to controlling weight. Information from “other sources, ” including therapists and nurse practitioners, is not entitled to controlling weight. Nevertheless, the opinions of other sources must be considered and should be evaluated on key issues such as the severity of a claimant's impairment and how it affects the individual's ability to function. In deciding what weight to give a treating therapist or nurse practitioner's opinion, the ALJ considers factors such as the treatment relationship between the individual and a treating source, including its length, nature, and extent as well as frequency of examination; and how consistent the medical opinion is with the record as a whole.

         In this case, the record contains seven treating source statements: five from Rosario's regular psychotherapy provider, Sheila Bowman, MS (Tr. 509-11, 512-15, 1030-33, 1219- 23, 1739-40), and two from his treating nurse practitioner Staci O'Dell, APNP (Tr. 1027-28, 1076-80). All the statements opine to limitations more severe than those found by the ALJ.

         1.1. Sheila Bowman

         Bowman provided psychotherapy to Rosario once or twice per week from October 2012 onward, and the record contains dozens of treatment notes documenting her sessions with Rosario. Between 2013 and 2017, Bowman submitted five treating source statements for Rosario's application for benefits. (Tr. 509-11, 512-15, 1030-33, 1219-23, 1739-40.) The ALJ summarized all five of these statements in his decision (Tr. 560-61), but explained that he gave them little weight because he found them inconsistent with other medical evidence, including Bowman's treatment notes and mental status exams by O'Dell and the consultative examiner showing mostly unremarkable cognitive measures. (Tr. 561.) The ALJ also discounted the opinions as based at least in part on subjective reports from Rosario. (Id.) Finally, the ALJ rejected Bowman's opinions about decompensation, absenteeism, fatigue, off-task behavior, and the need for extra supervision because he believed the record demonstrated “adequate functioning during a number of examinations, ” Rosario's “mood was stable when he followed the medication regimen, ” “he had no issues with sleep, and he was not tired in the morning, ” and Bowman's assessments were based on subjective reporting and were potentially “speculative in nature.” (Tr. 562.)

         1.2. Staci O'Dell

         Staci O'Dell, APNP, saw Rosario approximately every two months from January 2015 onward for medication management of his mental health symptoms. She submitted treating source statements in 2016 and 2017. (Tr. 1027-28, 1076-80.) Like Bowman, O'Dell opined to symptoms and limitations more severe than those found by the ALJ. In explaining the little weight given to O'Dell's statements, the ALJ explained that the statements were inconsistent with O'Dell's treatment records. (Tr. 563.) The ALJ characterized O'Dell's treatment notes as documenting “some good function” and pointed to some specific notes for support. (Id.) The ALJ also explained that O'Dell did not adequately support her opinions with clinical findings or objective evidence. (Id.)

         1.3. Consistency

         The ALJ discounted both providers' opinions on the basis that they were not consistent with treatment notes and mental status exams showing some adequate functioning. The ALJ's finding of inconsistency is patently wrong because the ALJ (1) relied on cherry-picked evidence, (2) failed to account for characteristic fluctuations in symptoms and the difference between the treatment context and full-time work, (3) improperly discounted opinions as based on subjective rather than objective evidence, and (4) erroneously interpreted Rosario's response to medication. Accordingly, there is no logical bridge between the evidence and the ALJ's conclusion that Rosario's impairments were not as severe as his providers opined.

         1.3.1.Cherry-Picked Evidence

         The ALJ's finding that the restrictions Bowman and O'Dell opined to were inconsistent with treatment records reflects an improperly skewed evaluation of the evidence. For example, the ALJ discounted O'Dell's opinions on the basis that treatment records show “some good function, ” “stable” mood, and lack of fatigue. (Tr. 563.) This is a selective reading of ...

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