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Laporte v. Saul

United States District Court, W.D. Wisconsin

September 27, 2019

TROY J. LAPORTE, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          William M. Conley District Court Judge.

         Plaintiff Troy J. LaPorte seeks judicial review of a denial of his Title II application for disability and disability insurance benefits by the Commissioner of Social Security under 42 U.S.C. § 405(g). Plaintiff argues that the administrative law judge (“ALJ”) erred by failing to properly evaluate his: (1) mental impairments, (2) subjective testimony, and (3) residual functional capacity (“RFC”). Because the court agrees with plaintiff that remand is required for a more detailed analysis of his mental impairments, the Commissioner’s decision will be reversed and remanded.

         BACKGROUND

         On November 4, 2013, LaPorte filed a Title II application for a period of disability beginning September 26, 2012. His claim was denied on January 23, 2014, and upon reconsideration on June 5, 2014. A video hearing was held before Administrative Law Judge John H. Pleuss on February 9, 2016.

         The ALJ found that LaPorte suffered from degenerative disc disease of the cervical and lumbar spine, constituting a severe impairment. (AR 27.) The ALJ found other health issues were not severe impairments, including affective disorder and other acute ailments. (AR 27.)

         The ALJ denied LaPorte’s claims on March 30, 2016, finding that he was capable of light work as defined by 20 CFR § 404.1567(b) with additional restrictions on activities, including limitations for standing no more than thirty minutes without changing positions and for no more than frequent gross and fine manipulation with either hand or arm. (AR 27.)

         OPINION

         This court must defer to an ALJ’s decision to deny benefits unless found to be unsupported by substantial evidence or based on an error of law. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). 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). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner’s] designate, the ALJ).” Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). A reviewing court will not “reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Still, the ALJ must create an “accurate and logical bridge” between the evidence and the conclusion that the claimant is not disabled, McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)), and the court must conduct a “critical review of the evidence” before affirming a decision to deny benefits. Id. at 889.

         I. Mental Impairments

         Plaintiff argues that the ALJ erred in evaluating his mental impairments, including an affective disorder under the “special technique” detailed in 20 C.F.R. § 404.1520a. While the ALJ credited plaintiff’s affective disorder, he classified it and his other mental impairments as non-severe because the plaintiff “did not allege . . . any limitations attributable to these impairments in excess of the limitations outlined here at the hearing” and because “[t]he record does not establish that these impairments caused significant limitations and met the durational requirements of severe within the meaning of the regulations.” (AR 27.)

         The special technique initially requires an ALJ to determine if a claimant has one or more medically determinable mental impairments. 20 C.F.R. § 404.1520a(b)(1). This requires an evaluation of “pertinent symptoms, signs, and laboratory findings.” Id. If there is a medically determinable impairment, the ALJ must then assess its limiting effect on the four “functional areas” of activities of daily living: processing and applying information; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. at § 1520a(c)(3). The first three of these “B criteria” are rated on a five-point scale and the final on a four-point scale. Id. at § 1520a(c)(4). If the impairment is severe, it must be assessed under § 1520a(d)(2), and if it is not severe, the ALJ must then assess the claimant’s RFC per § 1520a(d)(3).

         An ALJ is also required by § 1520a(e)(4) to document his application of this technique and incorporate his findings and conclusions into his decision. After a “not severe” finding at step two, as here, the special technique requires the ALJ “to assess the mental impairment when determining the RFC at step four.” Pepper v. Colvin, 712 F.3d 351, 366 (7th Cir. 2013).

         Aside from a conclusory observation that the mental impairment was non-severe, the ALJ did not document his reasoning or ensure that plaintiff’s affective disorder was considered in the RFC determination. Defendant concedes as much, but argues that the special technique was applied by state agency psychologist, Dr. Frank Orosz, who found plaintiff’s affective disorder only caused mild restrictions on activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence or pace. (AR 82.) Ignoring the fact that it is the ALJ who must make these determinations, defendant argues that a claimant’s mental impairment is generally considered non-severe under 20 C.F.R. § 1520a(d)(1) when a claimant possesses only mild limitations in those three areas, and that remand would be pointless because the ALJ would merely articulate his implicit reliance on Dr. Orosz, arguing that “any error was, at most, harmless.” (Def.’s Opp’n (dkt. #13) 3.)

         Even when a mental impairment is non-severe, however, it must be considered in crafting the claimant’s RFC. Pepper, 712 F.3d at 366. Here, the ALJ found that plaintiff was capable of his past work as a hotel owner or manager, but without appearing to consider that even mild limitations on social functioning may be too significant a detriment in that line of work. Indeed, even with Dr. ...


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