United States District Court, E.D. Wisconsin
DECISION AND ORDER
JOSEPH UNITED STATES MAGISTRATE JUDGE
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),
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.)
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.
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.)
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.)
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.)
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).
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)).
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.
Treating Source Statements
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.
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.
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.
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.)
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.)
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.
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 ...