Opinion
Case No. 21-cv-01160-JES-JEH
2023-03-24
Robin D. POWELL, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendants.
David F. Chermol, Chermol & Fishman LLC, Philadelphia, PA, for Plaintiff. Kimberly A. Klein, U.S. Attorney, Peoria, IL, Brian James Alesia, Social Security Administration Office of the General Counsel, Baltimore, MD, for Defendants.
David F. Chermol, Chermol & Fishman LLC, Philadelphia, PA, for Plaintiff. Kimberly A. Klein, U.S. Attorney, Peoria, IL, Brian James Alesia, Social Security Administration Office of the General Counsel, Baltimore, MD, for Defendants. ORDER AND OPINION James E. Shadid, United States District Judge
This matter is now before the Court on Plaintiff's Motion for Summary Judgment (Doc. 9) and Memorandum in Support (Doc. 10); and the Commissioner's Motion for Summary Affirmance (Doc. 11) and Memorandum in Support (Doc. 11-1); and Plaintiff's Reply (Doc. 12). Magistrate Judge Hawley issued his Report and Recommendation (Doc. 13) recommending the Court grant Plaintiff's Motion for Summary Judgment. The Commissioner timely filed an Objection (Doc. 14) in response and Plaintiff filed his Response (Doc. 15) to Defendant's Objections. For the reasons set forth below, the Court ADOPTS the Magistrate Judge's Report and Recommendation (Doc. 13); Plaintiff's Motion for Summary Judgment (Doc. 10) is GRANTED and the Commissioner's Motion for Summary Affirmance (Doc. 11) is DENIED. This matter is remanded for further proceedings consistent with this opinion.
Background
The facts of this case have been sufficiently detailed in the Magistrate Judge's Report and Recommendation (Doc. 13), which the Court now adopts. The Court thus recounts the facts here in summary fashion. Additional facts will be incorporated as necessary in the discussion section.
Consistent with the Magistrate Judge's Report and Recommendation (Doc. 13), references to pages with the administrative record (Doc. 5)
Robin D.P. ("Robin" or "Plaintiff") filed an application for disability insurance benefits (DIB) on May 10, 2019, alleging disability beginning on December 1, 2018. AR. 15. His DIB claim was denied on November 7, 2019, and upon reconsideration was again denied on April 29, 2020. Id. After a request for a hearing before an administrative law judge, a hearing was held on November 17, 2020, before the Honorable David W. Thompson ("ALJ") at which time Robin requested to amend his alleged onset date to December 28, 2018. Id. At the hearing, Robin was represented by an attorney, and Robin and a vocational expert testified. Id. Following the hearing, the ALJ issued a Decision denying Robin's DIB claim on January 19, 2021. AR 15-24. The ALJ determined that Robin suffered from the severe physical impairments of: "pseudogout, degenerative joint disease of the left knee status post surgical replacement, degenerative disc disease of the cervical, thoracic, and lumbar spine, and essential hypertension." AR 18. The ALJ determined that Robin's mental impairments, anxiety and depression, were non-severe. Id. The ALJ found that he did have mild limitations in three of the four areas of mental functioning set out by disability regulations, commonly known as Paragraph B criteria. AR 18-19. The ALJ found that Robin experienced no limitations in understanding, remembering, or applying information; and experienced mild limitations in interacting with others; concentrating, persisting, and maintaining pace; and adapting and managing himself. AR 19. The ALJ stated that the mental limitations identified in the paragraph B criteria were not an RFC assessment and acknowledged that a more detailed assessment was needed. AR 19. The Decision that went on to say that the following RFC assessment "reflects the degree of limitation the undersigned has found in the 'paragraph B' mental function analysis." AR 19. The ALJ's evaluation of Robin's RFC did not incorporate any accommodations based on the mild limitations caused by his mental impairments. Robin's request for review by the Appeals Council was denied on April 1, 2021, making the ALJ's Decision the final decision of the Commissioner.
Robin timely filed the instant civil action seeking review of the ALJ's Decision on May 22, 2021. On January 21, 2022, Robin filed a Motion (Doc. 10) for Summary Judgment. On February 28, 2022, the Commissioner filed a Motion (Doc. 11) for Summary Affirmance. On August 4, 2022, the Magistrate Judge issued a Report & Recommendation (Doc. 13) recommending that Plaintiff's motion be granted and the case remanded for further proceedings. The Commissioner timely filed an Objection (Doc. 14) to the Report & Recommendation, to which plaintiff filed a Response (Doc. 15).
The parties' arguments center on whether the ALJ's Decision adequately explained his reasoning for not including any limitations on Robin's residual functional capacity due to Robin's mental impairments.
Standards of Review
"When a party makes objections to a magistrate judge's recommendations, 'the district court is required to conduct a de novo determination of the magistrate judge's report and recommendations to which objections have been filed.' " Davis v. Saul, 446 F.Supp.3d 406, 408 (N.D. Ind. 2020) (citing Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)). De novo review "requires the district judge to decide the case based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion." Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013).
In contrast, the Court's review of the Commissioner's or ALJ's factual findings is deferential. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). When reviewing a decision to deny benefits, the Court "will uphold the Commissioner's decision if the ALJ applied the correct legal standards and supported his decision with substantial evidence." Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (internal quotations omitted). "When reviewing for substantial evidence, [the Court] do[es] not displace the ALJ's judgment by reconsidering facts or evidence or making credibility determinations." Id. If reasonable minds could differ as to whether the plaintiff is disabled, the Court must uphold the ALJ's decision to deny benefits. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012). In the Seventh Circuit, the Commissioner's reasoning must "build an accurate and logical bridge between the evidence and the result." Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
Standard for Disability Claims
To prove that they are disabled, a DIB claimant must show he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). Robin is disabled if his impairments are of such severity that he is not able to perform the work he previously engaged in and, if based on his age, education, and work experience, he cannot engage in any other kind of substantial gainful work that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration has implemented these statutory standards by prescribing a five-step sequential evaluation process for determining disability. 20 C.F.R. § 404.1520(4).
In the following order, the ALJ must determine whether the claimant
1) is performing substantial gainful activity;
2) suffers from an impairment that is severe and satisfies the durational requirement, or suffers from a combination of impairments that are severe and satisfy the durational requirement;
3) suffers from an impairment whose severity equals or exceeds the severity of any impairment listed in the appendix and satisfies the durational requirement;
4) is unable to perform her past relevant work, which requires assessing
the claimant's residual functional capacity ("RFC"); andButler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021). An affirmative answer at Steps Three or Five results in a determination that the claimant is disabled. Id. The key dispute in this case is about the ALJ's RFC determination in Step Four.
5) is unable to perform any other work existing in significant numbers in the national economy.
Discussion
The Commissioner objects to the Magistrate Judge's Report and Recommendation and its finding that the ALJ Decision failed to adequately explain his assessment of Robin's RFC. The Commissioner asks this court to decline to adopt the Report and instead affirm the ALJ's decision. The Commissioner argues that the ALJ properly evaluated Robin's non-severe mental impairments and sufficiently explained his decision not to incorporate them into his evaluation of Robin's residual functioning capacity. The Court now turns to this issue.
ALJ's RFC Assessment
This case turns on whether the ALJ's Decision adequately explained why he incorporated no mental accommodations based on the mental impairments. The residual functional capacity ("RFC") is "an assessment of an individual's ability to do sustained work. It is the most an individual can work despite his or her limitations or restrictions." Jarnutowski v. Kijakazi, 48 F.4th 769, 773 (7th Cir. 2022) (citing SSR 96-8p, 61 Fed. Reg. 34474, 34475). While an ALJ need not use any "magic words" when formulating a claimant's residual functional capacity, his "RFC assessment must incorporate all of the claimant's limitations supposed by the medical record, including even moderate limitations in concentration, persistence, or pace." Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019). The "residual functional capacity analysis must say enough to enable a review of whether the ALJ considered the totality of a claimant's limitations." Lothridge v. Saul, 984 F.3d 1227, 1233 (7th Cir. 2021).
The Commissioner, relying on the Supreme Court's decision in Garland v. Ming Dai, argues that we must uphold the ALJ's decision if his reasoning was reasonably discernable and must consider whether the ALJ "implicitly" made the relevant findings. Garland v. Ming Dai, — U.S. —, 141 S.Ct. 1669, 1679, 210 L.Ed.2d 11 (2021). The Commissioner emphasizes that the ALJ's Decision noted that Robin's anxiety was controlled with medications; that the ALJ relied on the opinions of three psychologist; and that he reiterated in his RFC discussion that Robin's mental impairments were not severe.
The Court is unpersuaded by these arguments for several reasons. First, the Supreme Court's holding in Ming Dai is consistent with well-established Seventh Circuit law on SSI and DIB cases. In Ming Dai, the Court rejected the Ninth Circuit's "deemed-true-or-credible rule", which required reviewing courts to deem a witness's statements of fact as true unless the reviewing agency explicitly deemed them not credible. Ming Dai, 141 S.Ct. at 1676. The Court held that this rule failed to give proper deference to agency factual determinations and ignored the possibility that they made implicit factual findings. Id. at 1680. The Supreme Court instructed reviewing courts to uphold agency decisions "of less than ideal clarity if the agency's path may be reasonably discerned." Id. This is consistent with the caselaw of the Seventh Circuit on SSI and DIB evaluations, in which we do not require ALJ's to use any "magic words" when evaluating a claimant's impairments or RFCs. Crump, 932 F.3d at 570. The requirement that an ALJ's SSI or DIB determination build an adequate logical bridge between the evidence and the conclusions is not inconsistent with the 'reasonably discernable' standard set out in Ming Dai.
The Court finds that the ALJ's Decision fails to build that adequate logical bridge between the credible, though mild, mental impairments evaluated at Step Two and the lack of mental limitations in the RFC at Step Four. At Step Two, the ALJ considered Robin's medically determinable mental impairments of depression and anxiety. AR 18-19. He determined that they were not severe as they did not amount to more than a minimal limitation in Robin's ability to perform basic mental work activities. AR 18. The ALJ's Decision on this point is detailed and persuasive. He discusses Robin's psychological examinations and treatment history and how he arrived at his determination that the evidence does not support a finding that Robin's mental impairments were severe. This area of his decision is supported by substantial evidence, and neither party disputes that fact. The ALJ did not, however, find that Robin's mental impairments caused him no limitation at all. He determined that the evidence supported a finding that Robin experienced no limitation in the area of understanding, remembering, or applying information, but found that Robin experienced mild limitations in the following three areas: interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing himself. AR 19. These findings are supported by substantial evidence and are not challenged by either party on review.
Based on this conclusion, the Commissioner argues that we must affirm the ALJ's Decision because he was not required to impose any RFC limitations based on these mild impairments. While that is true, it is not dispositive as the ALJ is required to consider the totality of a claimant's limitations when determining their RFC, even those limitations that the ALJ determined were credible but non-severe. Lothridge, 984 F.3d at 1233. This is required by the SSA's own guidance-in "assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not 'severe.' " SSR 96-8P, 1996 WL 374184 at *5.
The portions of the ALJ's RFC assessment identified by the Commissioner fail to adequately articulate why he did not include any limitations based on Robin's medically determinable mild mental impairments. As he himself noted at the end of his Step Two analysis, the "mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment." He failed to do so. The Court considers the ALJ's opinion as a whole, Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004), and the Seventh Circuit has said that it is a "needless formality to have the ALJ repeat substantially similar factual analyses" at different sequential steps. Jeske v. Saul, 955 F.3d 583, 590 (7th Cir. 2020). However, there are meaningful differences between the Step Two and Step Four analysis required for mental impairments. The limitations in the Paragraph B and C criteria "are not an RFC assessment" and at Step Four the ALJ is required to provide "a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF." SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
The ALJ's discussion in Steps Two and Four fail to meet this standard. Any discussion of Robin's mental impairments is buried within the paragraphs about his physical impairments and are rarely addressed on their own. In a paragraph discussing Robin's knee problems, a single sentence states that a previous doctor had determined that Robin's hypertension and anxiety were controlled by medication. AR 21. He briefly discusses Robin's treatment by Dr Thomas Rhode, who according to the decision opined that Robin "had no difficulties concentrating or paying attention as a result of his impairments." AR 22. This mention is undercut by both the fact that the ALJ explicitly found Dr. Rhode's opinion unpersuasive in his Step Four analysis and the fact that he had already determined that Robin did in fact experience mild difficulties concentrating or paying attention. These internal consistencies require more explanation, not less, and do not work on their own as an explanation for not including any mental limitations.
In the final paragraph, the ALJ reiterates that the anxiety and depression were not severe as part of his RFC assessment but says nothing further as to why these non-severe impairments warrant no limitations at all. These stray comments do not build an adequate bridge between the finding that these impairments were non-severe and the conclusion that no limitations were warranted.
The ALJ's Decision in Step Two notes that "the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the 'paragraph B' mental function analysis." AR 19. As Plaintiff and the Magistrate Judge detail, numerous courts in the Seventh Circuit have found that these kinds of boilerplate conclusory statements at Step Two are insufficient to explain the RFC determination at Step Four. See Anthony W. v. Kijakazi, 2022 WL 1062334 (N.D. Ill. 2022) (collecting cases). The Court reaches the same conclusion here. The Court cannot read into this statement a sufficient articulation for why these mental impairments do not warrant any limitations in the RFC.
The Court cannot say that this omission was harmless error. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (explaining that administrative error may be harmless and therefore a court ought not remand a case to the ALJ where it is convinced that the ALJ would reach the same result). Based on the RFC assessment, the ALJ determined that Robin could still perform his past relevant work as an accounts payable bookkeeper and a motorcycle sales person and was therefore non-disabled. AR 23-24. The Seventh Circuit has "repeatedly cautioned that 'someone with problems concentrating might not be able to complete a task consistently over the course of a workday, no matter how simple it may be.' " Lothridge, 984 at 1233 (quoting Martin v. Saul, 950 F.3d 369, 373-74 (7th Cir. 2020) (collecting cases). As the ALJ did not expressly and properly assess why he included no mental limitations in the RFC, the ALJ did not sufficiently support his finding that Robin retained the mental capacity to perform this past skilled work. See 20 C.F.R. § 404.1568(c) (recognizing that other "skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity."). The Court cannot say with confidence that the ALJ would not have included mental limitations in the RFC if he had conducted the required detailed analysis of Robin's mental impairments at Step Four. If the ALJ had included mental limitations in the RFC, then Robin may not have been able to perform his past skilled work. If so, Robin would be eligible for benefits unless the Commissioner could show that there was other work existing in significant numbers in the national economy that Robin was capable of performing. If not for the ALJ's error, then, the ALJ could have reached a different result.
Upon de novo review, the Court agrees with the Magistrate Judge that the ALJ committed reversible error. We therefore adopt the Magistrate Judge's Report and Recommendation. Plaintiff's motion for summary judgment is granted and the Commissioner's motion for summary affirmance is denied.
Conclusion
IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Summary Judgment (Doc. 9) is GRANTED, and the Commissioner's Motion for Summary Affirmance (Doc. 11) is DENIED.
2. The Clerk is to enter judgment reversing the Commissioner's decision under sentence four of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), with remand to the Commissioner for further administrative proceedings consistent with this opinion.
3. Upon receipt of the Court's order, the Appeals Council will remand the matter to an Administrative Law Judge (ALJ) who will reevaluate the claimants RFC in light of Plaintiff's mental impairments; take any further action needed to complete the administrative record; and issue a new decision.
Report and Recommendation
Jonathan E. Hawley, UNITED STATES MAGISTRATE JUDGE
Now before the Court is the Plaintiff's Motion for Summary Judgment (Doc. 9), the Commissioner's Motion for Summary Affirmance (Doc. 11), and the Plaintiff's Reply (Doc. 12). This matter has been referred for a Report and Recommendation. The Motions are fully briefed, and for the reasons stated herein, the Court recommends the Plaintiff's Motion for Summary Judgment be granted, the Defendant's Motion for Summary Affirmance be denied, and the matter be remanded.
References to the pages within the Administrative Record will be identified by AR [page number]. The Administrative Record appears at (Doc. 5) on the docket.
I
Robin D.P. filed an application for disability insurance benefits (DIB) on May 10, 2019, alleging disability beginning on December 1, 2018. His DIB claim was denied initially on November 7, 2019 and upon reconsideration on April 29, 2020. After a request for hearing before an administrative law judge, a hearing was held on November 17, 2020 before the Honorable David W. Thompson (ALJ) at which time Robin requested to amend his alleged onset date to December 28, 2018. At the hearing, Robin was represented by an attorney, and Robin and a vocational expert (VE) testified. Following the hearing, Robin's DIB claim was denied on January 19, 2021. His request for review by the Appeals Council was denied on April 1, 2021, making the ALJ's Decision the final decision of the Commissioner. Robin timely filed the instant civil action seeking review of the ALJ's Decision on May 22, 2021.
II
Robin challenges the ALJ's Decision for the following reasons: 1) the ALJ failed to include mental limitations he found credible in his residual functional capacity finding or explain why he was omitting these credible limitations; and 2) the appointment of Andrew Saul as a single Commissioner of SSA who was removable only for cause and would serve a longer term than that of the President violated separation of powers such that the Decision in this case by an ALJ and Appeals Council judges who derived their authority from Mr. Saul is constitutionally defective.
III
The Court's function on review is not to try the case de novo or to supplant the ALJ's findings with the Court's own assessment of the evidence. See Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir. 1989). Indeed, "[t]he 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). Although great deference is afforded to the determination made by the ALJ, the Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). The Court's function is to determine whether the ALJ's findings were supported by substantial evidence and whether the proper legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support the decision. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
In order to qualify for disability insurance benefits, an individual must show that his inability to work is medical in nature and that he is totally disabled. Economic conditions, personal factors, financial considerations, and attitudes of the employer are irrelevant in determining whether a plaintiff is eligible for disability. See 20 C.F.R. § 404.1566. The establishment of disability under the Act is a two-step process.
First, the plaintiff must be suffering from a medically determinable physical or mental impairment, or combination of impairments, which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Second, there must be a factual determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). The factual determination is made by using a five-step test. See 20 C.F.R. § 404.1520. In the following order, the ALJ must evaluate whether the claimant:
1) is performing substantial gainful activity;Id. An affirmative answer at Steps Three or Five leads to a finding that the plaintiff is disabled. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
2) suffers from an impairment that is severe and meets a durational requirement, or suffers from a combination of impairments that is severe and meets the durational requirement;
3) suffers from an impairment which meets or equals any impairment listed in the appendix and which meets the duration requirement;
4) is unable to perform her past relevant work which includes an assessment of the claimant's residual functional capacity; and
5) is unable to perform any other work existing in significant numbers in the national economy.
The plaintiff has the burdens of production and persuasion on Steps One through Four. Id. However, once the plaintiff shows an inability to perform past work, the burden shifts to the Commissioner to show ability to engage in some other type of substantial gainful employment. Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011).
In the instant case, Robin claims error on the ALJ's part at Step Four.
A
At Step One, the ALJ determined Robin had not engaged in substantial gainful activity since December 28, 2018, the alleged onset date. AR 17. At Step Two, the ALJ determined Robin had the following severe impairments: pseudogout; degenerative joint disease of the left knee status post surgical replacement; degenerative disc disease of the cervical, thoracic, and lumbar spine; and essential hypertension. AR 18. At Step Three, the ALJ determined Robin did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. AR 19. At Step Four, the ALJ made the following residual functional capacity (RFC) finding: "[T]he claimant has the RFC to perform light work as defined in 20 CFR 404.1567(b) except he can occasionally climb ramps or stairs, stoop, kneel, crouch, or crawl, and never climb ropes, ladders, or scaffolds." AR 20. The ALJ determined, based upon the VE's testimony, that Robin was capable of performing his past relevant work as an accounts payable bookkeeper and a motorcycle sales person and the work did not require the performance of work-related activities precluded by Robin's RFC. AR 23. Accordingly, the ALJ determined Robin had not been under a disability from December 28, 2018 through the date of the Decision. AR 24.
B
Robin states that under SSA policy, and as recognized by the ALJ in his Decision, it is unquestionable that an ALJ must account for all of the functional limitations caused by both a claimant's severe and non-severe impairments, and it is beyond dispute that mental limitations found credible at Steps Two or Three are functional limitations that must be considered in assessing the claimant's RFC. Thus, Robin argues that where the ALJ found at Step Two that he had "mild" limitations in three of the four broad functional areas of mental functioning set forth in the regulations and listings for mental disorders ("paragraph B" criteria) - interacting with others; concentrating, persisting, and maintaining pace; and adapting or managing oneself - the ALJ was required to but failed to perform a more detailed assessment as to those "mild" limitations when formulating the RFC. The Commissioner counters that Robin has shown no error in the ALJ's consideration of his mental impairments, arguing that Robin incorrectly seems to think that the found "mild" limitations automatically translate to work limitations due to mental impairments. The Commissioner says the ALJ more than sufficiently articulated and supported his finding that no mental limitations were necessary in the RFC.
At Step Two, the ALJ considered Robin's medically determinable mental impairments of depression and anxiety and found they did not cause more than minimal limitations in his ability to perform basic mental work activities, whether considered singly or in combination, such that they were non-severe. After setting forth the evidence he considered in finding "mild" limitation in three of the four "paragraph B" criteria, the ALJ explicitly stated:
The limitations identified in the "paragraph B" criteria are not a [RFC] assessment but are used to rate the severity of mental impairments at steps 2 and
3 of the sequential evaluation process. The mental [RFC] assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment. The following [RFC] assessment reflects the degree of limitation the undersigned has found in the "paragraph B" mental function analysis.AR 19. The ALJ's application of the psychiatric review technique and his ultimate determination at Step Two that Robin's mental impairments were non-severe are not contested and are, in fact, above reproach. The ALJ's statements as to his responsibility to rate the severity of Robin's mental impairments at Steps 2 and 3 versus his responsibility to assess them with more detail at Steps 4 and 5 is accurate. But from there he faltered per 20 C.F.R. § 404.1545 and SSR 96-8p.
20 C.F.R. § 404.1545(a)(2) provides that an ALJ will consider all of a claimant's medically determinable impairments, including those that are not "severe" when the ALJ assesses the claimant's RFC. SSR 96-8p provides that the mental RFC assessment at Steps 4 and 5 requires "a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments" and which are summarized on the Psychiatric Review Technique Form used at earlier steps. SSR 96-8p at *4. After finding, at Step Two, that Robin's mental impairments were non-severe and finding "mild" limitation in three of the four "paragraph B" criteria, the ALJ's Step Four RFC finding was devoid of any mental functional limitations and his articulated assessment was silent as to how he considered Robin's mild limitations for purposes of the RFC.
At Step Four, the ALJ only went so far as to note Robin alleged disability due to anxiety and depression, to mention that a doctor noted he had only treated Robin for anxiety which was controlled by medication, to note Robin's primary care provider indicated he treated Robin for anxiety and Robin had no clinical symptoms at the time the medical opinion was drafted, and to note that he was granted a 50% VA disability rating based on anxiety. The bulk of the ALJ's RFC assessment was focused upon the evidence pertaining to Robin's physical impairments. Nowhere in the RFC assessment did the ALJ provide an assessment, let alone a "more detailed assessment," as to why the "mild" mental limitations were not reflected in his ultimate RFC finding.
Indeed, as Robin points out, there is clearly a difference between "mild" and "none" which the ALJ himself recognized by assigning "no" limitations to Robin's ability to understand, remember, or apply information. See 20 C.F.R. § 404.1520a(c)(4) ("When we rate your degree of limitation in these areas (understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself), we will use the following five-point scale: None, mild, moderate, marked, and extreme"). To the extent the ALJ determined Robin's "mild" limitations did not necessitate accommodation in his RFC, the ALJ was required to sufficiently articulate how and why he made that determination. Not only was that articulation required by SSR 96-8p at Step Four, but it was also necessary pursuant to the ALJ's obligation to "sufficiently articulate his assessment of the evidence to assure [the reviewing court] that the ALJ considered the important evidence . . . and to enable [the reviewing court] to trace the path of the ALJ's reasoning." See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (stating that an ALJ must "sufficiently articulate his assessment of the evidence to assure us that the ALJ considered the important evidence . . . and to enable us to trace the path of the ALJ's reasoning"). So it is not enough for the Commissioner to say mild ratings do not inevitably require accommodation in an individual's RFC. That may be, but the accommodation omission must be explained.
Because the ALJ failed to explain the accommodation omission, the Court is simultaneously unconvinced that the ALJ considered the combination of all of Robin's limitations - severe and non-severe - as required. The ALJ's silence as to Robin's mild limitations as to his mental impairments and their non-severity after Step Two can only be perceived as the ALJ's failure to consider "the aggregate effect of [the claimant's] entire constellation of ailments." Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (faulting the ALJ for failing to consider the total effect of all the claimant's medical problems, "including those impairments that in isolation are not severe"). It is not enough that the Commissioner says that in the ALJ's RFC analysis he noted Robin's anxiety was controlled with medications, he relied on the opinions of three psychologists, and he reiterated that Robin's mental impairments were not severe. If anything, it appears the ALJ used his non-severity finding at Step Two as a basis to reject the possibility that Robin's mental impairments caused any limitation whatsoever. See, e.g., AR 23 ("The undersigned finds the claimant's allegations are not consistent with the medical evidence, particularly in that . . . his anxiety and depression are not severe . . . .").
As for the ALJ's concluding sentence at Step Two, that the "following [RFC] assessment reflects the degree of limitation the undersigned has found in the 'paragraph B' mental function analysis," that does not remedy the ALJ's error at Step Four. The Court agrees with other courts in this circuit that have found such language at Step Two causes confusion. In Muzzarelli v. Astrue, the Northern District of Illinois court explained:
It is unclear what the ALJ meant by saying that the RFC "reflects" his Step 2 findings concerning [claimant]'s mental limitations. He could have intended this to mean that the RFC was designed to incorporate the mild impairments identified at Step 2, even though they were not specifically mentioned in the RFC. He could also have meant that he considered the Step 2 limitations as part of the RFC analysis but found them to be too mild to warrant additional non-exertional restrictions.No. 10 C 7570, 2011 WL 5873793, at *23 (N.D. Ill. Nov. 18, 2011); see also David K v. Kijakazi, No. 20-cv-1743, 2022 WL 2757695, at *4-5 (N.D. Ill. July 14, 2022) (quoting Muzzarelli and similarly finding indiscernible "what the ALJ meant by her statement that the RFC analysis reflects the degree of limitations she found in her discussion of the paragraph B categories"); Anthony W. v. Kijakazi, No. 20 C 6209, 2022 WL 1062334, at *3 (N.D. Ill. Apr. 8, 2022) (noting that courts in the Seventh Circuit have found the language at the end of Step Two causes confusion). While the Court may read an ALJ's Decision as a whole, the Court finds it inappropriate to do so here in order to find the ALJ's discussion at Step Two as satisfying his obligations at Step Four. Compare Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004) (stating it is proper to read the ALJ's decision as a whole). The ALJ was specifically tasked with providing a more detailed assessment at Steps Four and Five pursuant to SSR 96-8p.
The Court cannot say the ALJ's error was harmless where the ALJ determined Robin could perform his past, skilled work. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (explaining that administrative error may be harmless and thus a court ought not remand a case to the ALJ where it is convinced that the ALJ would reach the same result). Without explicitly and properly assessing why he did not include any mental limitations in the RFC, the ALJ did not sufficiently support his finding that Robin retained the mental capacity to perform his past skilled work as accounts payable bookkeeper or motorcycle sales person. See 20 C.F.R. § 404.1568(c) (providing that "[o]ther skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity").
C
Because the Court has already determined the ALJ committed legal error that warrants remand, the Court need not address Robin's constitutional argument. The Court notes, however, that Social Security claimants' separation of powers arguments such as the one Robin makes have in the last several months repeatedly been rejected by federal courts throughout the country. See, e.g., Kaufmann v. Kijakazi, 32 F.4th 843, 850 (9th Cir. 2022) ("In sum, we hold that the removal provision in 42 U.S.C. § 902(a)(3) violates separation of powers; that the provision is severable; and that, unless a claimant demonstrates actual harm, the unconstitutional provision has no effect on the claimant's case. Because Claimant has not shown actual harm, we uphold the Commissioner's decision"); Green v. Kijakazi, No. 21-C-678, 2022 WL 1644936, at *25 (E.D. Wis. May 23, 2022) (finding claimant was not entitled to remand on argument that statute which provides Commissioner of Social Security can only be removed for cause violates separation of powers); Linnear v. Kijakazi, No., 2022 WL 1493563, at *10 (S.D. Ga. May 11, 2022) (finding the claimant was not entitled to remand on the basis that the President's restriction on removal of the Commissioner of Social Security violated separation of powers). In fact, the separation of powers argument made by Robin's counsel in this case has been rejected in at least one other case. Susan V. v. Kijakazi, No. 21cv364, 2022 WL 2982925, at *5-7 (D.N.M. July 28, 2022).
IV
For the reasons set forth above, it is recommended that: 1) the Plaintiff's Motion for Summary Judgment (Doc. 9) be granted; 2) the Defendant's Motion for Summary Affirmance (Doc. 11) be denied; and 3) this case be remanded to the Commissioner of Social Security for further proceedings consistent with this Opinion Pursuant to 42 U.S.C. § 405(g), Sentence Four.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk within fourteen (14) days after service of this Report and Recommendation. FED. R. CIV. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Failure to object will constitute a waiver of objections on appeal. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).
It is so recommended.