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Thao v. Saul

United States District Court, W.D. Wisconsin

September 25, 2019

TONGKOU THAO, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         On January 18, 2013, plaintiff Tongkou Thao filed a Title II application for Disability Insurance Benefits (“DIB”) under Sections 216(i) and 223(d) of the Social Security Act, alleging that he had been disabled since July 2, 2012 from a No. of impairments, including cervical spondylosis, neck pain, migraine headaches, a mood disorder and a depressive disorder. On June 1, 2016, an Administrative Law Judge for the Social Security Administration issued a decision finding that Thao was disabled and eligible for DIB beginning on his 55th birthday, March 4, 2016, but not before that date. Thao now asks this court to reverse the adverse portion of the ALJ’s decision and remand the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). For the reasons that follow, the court rejects Thao’s arguments and affirms the Commissioner’s determination that he was not disabled prior to March 4, 2016.


         Thao applied for DIB on January 18, 2013, alleging disability since July 2, 2012. After the local disability agency denied his application initially and again on reconsideration, Thao had a hearing before Administrative Law Judge (“ALJ”) John Pleuss, who issued a decision on August 4, 2014, in which he found that Thao was not disabled at any time from his alleged onset date through the date of the decision. (AR 113-125). The ALJ found that, although Thao had severe impairments that prevented him from performing any of his past work, he retained the residual functional capacity (“RFC”) to perform a limited range of light work, and that, given his age, education and work experience, he could make a successful adjustment to a significant No. of jobs that existed in the regional and national economy. In reaching that decision, the ALJ rejected favorable reports from plaintiff’s treating physician, Dr. Frank Rubino, and treating psychiatrist, Dr. Andrew Cameron, finding for various reasons that neither opinion was entitled to much evidentiary weight.

         After the adverse hearing decision, plaintiff obtained and submitted to the Appeals Council new statements from Dr. Rubino and Dr. Cameron. (AR 894, 896.) Without finding any error in the ALJ’s decision, the Appeals Council found that these statements constituted “new and material evidence” that warranted remanding the case to the ALJ so that he could reconsider the opinion evidence and Thao’s RFC in light of the doctors’ new statements. (AR 131-32.)

         On remand, ALJ Pleuss held a second administrative hearing, at which Thao was represented by counsel and testified. William Dingess, an impartial vocational expert, also testified at the hearing. On June 1, 2016, the ALJ issued a written decision again rejecting Thao’s claim that he became disabled on July 2, 2012. (AR 17-29.) As in his first decision, he found that Thao retained the RFC to perform a limited range of light work and that the opinions of Dr. Cameron and Dr. Rubino were entitled to little weight. However, the ALJ found that Thao was disabled and entitled to Disability Insurance Benefits as of March 14, 2016. On that date, Thao turned 55, which meant he changed (for Social Security purposes) from a person “closely approaching advanced age” to a person of “advanced age.” This, in turn, meant that Thao was disabled under the agency’s Medical-Vocational Guidelines (known in Social Security parlance as “the grids”), which direct that an individual of advanced age who has a high school education but no transferable job skills and an RFC for light work is deemed “disabled” under the Social Security Act. Medical-Vocational Guidelines, 20 C.F.R, Pt. 404, Subpt. P, App. 2, Rule 202.06.

         In this action for judicial review, Thao seeks reversal and remand of the unfavorable portion of the ALJ’s decision on the following grounds: (1) the ALJ failed to provide sound reasons for rejecting Dr. Cameron’s opinion, which supports a finding that Thao suffers from a severe mental impairment; (2) the ALJ failed to properly evaluate the opinion from Thao’s treating physician, Dr. Rubino; (3) the ALJ failed to account for Thao’s severe headaches; and (4) the ALJ failed to properly determine Thao’s onset date in accordance with Social Security Ruling 83-20.


         I. Standard of Review

         The standard by which a federal court reviews a final decision by the Commissioner of Social Security is well settled. Findings of fact are “conclusive, ” so long as they are supported by “substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When reviewing the Commissioner’s findings under § 405(g), the court cannot reconsider facts, re-weigh the evidence, decide questions of credibility or otherwise substitute its own judgment for that of the ALJ. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Thus, where conflicting evidence allows reasonable minds to reach different conclusions about a claimant’s disability, the responsibility for the decision falls on the Commissioner. Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir. 1993).

         At the same time, the court must conduct a “critical review of the evidence” before affirming the Commissioner’s decision, Edwards, 985 F.2d at 336. If the Commissioner’s decision lacks evidentiary support or adequate discussion of the issues, then the court must remand the matter. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Indeed, even when adequate record evidence exists to support the Commissioner’s decision, the decision will not be affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008); Sarchet v. Chater, 78 F.3d 305, 307 (7th 2006).

         II. Mental Impairment

         Thao challenges the ALJ’s finding that he did not have a severe mental impairment.[2]Under the Social Security Regulations, a “severe” impairment is one that significantly limits the claimant’s ability to do basic work activities. 20 C.F.R. § 404.1521(a). At the time of the ALJ’s decision, the regulations required him to use a special framework to evaluate Thao’s mental impairments and their severity by rating the impact that Thao’s mental impairments had on four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).[3] Applying this framework to the evidence of record, the ALJ found that Thao had no limitations in any of these areas, with the exception of social functioning, in which Thao was mildly limited. Accordingly, the ALJ found that Thao’s mental impairment was not severe. See 20 C.F.R. § 404.1520a(d)(1) (explaining that if degree of limitations is rated in first three functional areas as “none” or “mild” and fourth area is rated “none, ” then mental impairment typically found not severe).

         In support of his claim that his mental functioning is more limited than the ALJ found, Thao relies primarily on records and office notes from his treating psychiatrist, Dr. Andrew Cameron. On June 5, 2014, Dr. Cameron completed a Mental Impairment Questionnaire on which he stated that Thao had an adjustment disorder with depressed mood and a mood disorder due to medical issues, a Global Assessment of Functioning (“GAF”) Score of 45, [4] “extreme” restrictions in his activities of daily living, and “marked” difficulties in social functioning. Assessing Thao’s work capacity, Dr. Cameron opined that Thao was largely unlimited in his ability to meet the mental demands of unskilled or even ...

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