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Gauer v. Saul

United States District Court, E.D. Wisconsin

September 23, 2019

KENSLEY GAUER, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          William C. Griesbach, United States District Court Chief Judge

         Plaintiff Kensley Gauer filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. The Commissioner's decision was issued following a stipulated remand from this court and subsequent hearing before an administrative law judge (ALJ), which took place on January 3, 2018. R. 655, 769. Gauer challenges the ALJ's decision on several grounds, including that the ALJ erroneously rejected the opinions of her treating psychiatrist, Dr. Gerald Bannasch, and counselor, Sarah Binder, and failed to adequately account for her moderate limitations in concentration, persistence, or pace (CPP) in formulating the question to the vocational expert (VE). For the reasons that follow, the Commissioner's decision will be affirmed.

         BACKGROUND

         On May 15, 2012, Gauer filed an application for DIB and SSI, claiming disability beginning on January 1, 2008, due to mood disorder, conduct disorder, anxiety, and attention deficit hyperactivity disorder (ADHD). R. 222, 229. She was 19 years old at the time. Her claims were denied initially on October 24, 2012, and upon reconsideration on May 15, 2013. R. 21. Gauer then requested and received a hearing before an ALJ, who issued a decision denying her claims on February 27, 2015. R. 21-31. Gauer petitioned for judicial review, but before any decision was entered by this court, the parties filed a joint motion to remand the case back to the Social Security Administration (SSA) with directions that the ALJ proceed through the sequential evaluation process and issue a new decision. R. 769-71. ALJ Guila Parker held a video hearing on January 3, 2018, during which Gauer, who was represented by counsel, and a VE testified. R. 655, 680.

         At the time of the hearing, Gauer was 25 years old, lived in a house with her parents, and was working at Arby's part-time up to 30 hours per week, a job she started a year prior, in January 2017. R. 685-87. In 2011, Gauer worked a seasonal position doing warehouse work, a month at a time, but she was fired after the first week of her third stint due to cursing at the manager. R. 687-89, 1043. She also described her past work as a janitor cleaning office buildings, which required her to be on her feet all shift and occasionally lift 20 to 35 pounds. R. 690. She also previously worked part-time for 20 to 25 hours per week as a caregiver. R. 690-91. Gauer testified that she did not believe she had the mental capacity to handle full-time hours and that she suffers from 15- to 30-minute panic attacks, which become more frequent when she works in excess of 30 hours per week. R. 691-92. Though she does not miss work, Gauer testified she is late to work every day. R. 697-98. She also testified that she sometimes neglects hygiene, i.e., skips showering, brushing teeth or flossing, because of a lack of motivation. R. 698-99.

         In a fifteen-page written decision dated January 29, 2018, the ALJ concluded that Gauer was not disabled. R. 655-70. Following the SSA's five-step sequential evaluation process, the ALJ concluded at step one that Gauer had not engaged in substantial gainful activity since January 1, 2008, the alleged onset date. R. 658. At step two, the ALJ found that Gauer had the following severe impairments: depression; ADHD, post-traumatic stress disorder (PTSD); anxiety; conduct disorder; borderline personality disorder; and polysubstance abuse (marijuana and alcohol). Id. At step three, the ALJ found that Gauer's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 659. After consideration of the whole record, the ALJ concluded that Gauer has the RFC

to perform a full range of work at all exertional levels, but is limited to understanding, remembering, and carrying out simple instructions in an environment involving only occasional work-related decisions and occasional changes in the work setting. The claimant can tolerate occasional interaction with supervisors, co-workers, and the public, but should not be required to perform tandem tasks that require coordination with coworkers. The individual can work at a consistent pace throughout the workday, but not at a production rate pace where each task must be completed within a strict time deadline.

R. 661. The ALJ determined at step four that Gauer is capable of performing past relevant work as a janitor. R. 668. In addition, the ALJ made alternative findings at step five that there are other jobs in the national economy that Gauer can perform, including stock clerk/order filler, housekeeper, and building cleaning worker. R. 669. Based on these findings, the ALJ concluded that Gauer was not disabled within the meaning of the Social Security Act. R. 669-70. The ALJ's decision became final after the Appeals Council did not review the case.

         LEGAL STANDARD

         The question before the court is not whether it agrees with the Commissioner's conclusion that the plaintiff is not disabled. Judicial review of the decisions of administrative agencies is intended to be deferential. Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010). The Social Security Act specifies that the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The Supreme Court recently reaffirmed that “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Beistek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “The phrase ‘substantial evidence, '” the Court explained, “is a ‘term of art' used throughout administrative law to describe how courts are to review agency factfinding.” Id. “And whatever the meaning of ‘substantial' in other contexts, ” the Court noted, “the threshold for such evidentiary sufficiency is not high.” Id. Substantial evidence is “‘more than a mere scintilla.' . . . It means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Consolidated Edison, 305 U.S. at 229).

         “Although an ALJ need not discuss every piece of evidence in the record, the ALJ may not ignore an entire line of evidence that is contrary to the ruling.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009) (citing Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009); Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)). The ALJ must provide a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Given this standard, and because a reviewing court may not substitute its judgment for that of the ALJ, “challenges to the sufficiency of the evidence rarely succeed.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). Additionally, the ALJ is 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). 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)).

         ANALYSIS

         Gauer first challenges the ALJ's decision to give little weight to the opinion of Dr. Bannasch, her treating psychiatrist. Though the current regulation is otherwise, under the regulations applicable to Gauer's application, the ALJ must give a treating source's medical opinion on the nature and severity of the claimant's impairments “controlling weight” if the opinion “is well-supported by the medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record.” 20 C.F.R. § 404.1527(c)(2); SSR 96-2p. At the same time, “a claimant is not entitled to disability benefits simply because her physician states that she is ‘disabled' or unable to work.” Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001). The Seventh Circuit has cautioned that treating physicians may bring their own biases to the evaluation. See Id. (“The patient's regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability.”).

         Thus, the ALJ need not blindly accept a treating physician's opinion-she may discount it if it is internally inconsistent or contradicted by other substantial medical evidence in the record. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). If an ALJ gives the treating source's medical opinion lesser weight, the ALJ must articulate “good reasons” for doing so. § 404.1527(c)(2). In such a case, “the regulations require the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and the consistency ...


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