Patrick Dunn v. Andrew M. Saul ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 13, 2019
Decided November 26, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-1399
PATRICK J. DUNN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v. No. 17-cv-8068
ANDREW M. SAUL, Jeffrey T. Gilbert,
Commissioner of Social Security, Magistrate Judge.
Defendant-Appellee.
ORDER
Patrick Dunn seeks Social Security disability benefits, claiming that he became
disabled from memory loss in September 2012 at age 58. Before 2012, he worked at
various jobs, including as a bank manager and in retail sales. But his employment
records show that he struggled with memory loss and headaches that impeded his job
performance until he could no longer work. An administrative law judge denied
Dunn’s application for disability benefits on the ground that his cognitive limitations
were not “severe,” and the district court affirmed. We cannot conclude that substantial
evidence supports the ALJ’s decision. Foremost, the ALJ altogether failed to consider
No. 19-1399 Page 2
Dunn’s employment records and did not explain why he rejected testimony about how
Dunn’s memory struggles affected his daily activities and social interactions.
I
Dunn attributes the start of his cognitive decline to a traumatic head injury he
experienced in 1990, when he fell down a flight of stairs. He sustained a head contusion
and concussion, and a physician diagnosed him with “post-concussion syndrome”
shortly after. Dunn did not receive further brain evaluation or treatment until
April 2014, when he injured his head again. A CT scan of his brain revealed “[a]bnormal
density … involving the inferior aspect of the right frontal lobe as described likely
[result] of remote trauma” and “show[ed] evidence of old traumatic injury … consistent
with [Dunn’s] history of remote head trauma.” Treating physicians diagnosed him with
a forehead abrasion and head contusion.
Later that month, Dunn applied for disability benefits, claiming that he had not
been able to work since 2012. Dr. Glen Wurglitz, a state-retained physician, performed a
psychological exam. Dunn told Dr. Wurglitz that he suffered from chronic headaches
and worsening memory problems. He explained that he tried to manage his headaches
with non-prescription pain medicine, but then had to stop working in 2012 because of
worsening memory loss. At home, Dunn could manage only light housework.
Dr. Wurglitz nonetheless concluded that Dunn could “readily concentrate on a task
until it is finished,” had no problems expressing himself, and had “excellent”
short-term memory. The agency denied his application for disability benefits, and Dunn
requested a hearing before an ALJ.
Before the hearing, Dunn sought an evaluation and treatment from a neurologist,
Dr. Zoran Grujic, for progressive cognitive decline. Dr. Grujic examined Dunn and
found that he had encoding and retrieval difficulties. He diagnosed Dunn with “mild
cognitive impairment,” chronic daily headaches, and a history of traumatic brain injury.
He also opined that “[a]ging on top of an old brain injury may account for the
progressive nature of [Dunn’s] symptoms” and ordered a brain MRI, which revealed
“right frontal encephalomalacia.” (Encephalomalacia is an abnormal softness or loss of
brain tissue after a head injury.) After reviewing the MRI results, Dr. Grujic confirmed
his diagnosis of “mild cognitive impairment.” He added that Dunn’s low vitamin B12
level and insomnia might have contributed to his cognitive difficulties.
At the hearing before the ALJ, Dunn testified that he suffered from memory
shortfalls at home and work. He explained, for example, that he destroyed several pots
No. 19-1399 Page 3
and pans because he would forget that he was cooking and burn the bottoms. His
daughter had to call him daily to remind him to take his medications and to eat. He also
often forgot where he was going, so much so that he missed appointments. At work, his
memory problems caused his performance to gradually deteriorate until he was fired
from his job at Harris Bank in 2005. Between 2005 and 2012, Dunn worked other jobs
but struggled to maintain long-term employment because he could not remember his
schedule. He was disciplined repeatedly because his forgetfulness continued to
interfere with his job performance. Eventually, in 2012, he stopped working.
To corroborate his testimony about memory deficits, Dunn submitted his
employment records from 2010 to 2012—the last two years of his employment history,
when he worked as a retail sales supervisor at Bon-Ton. The records show tardiness and
absenteeism for which Dunn received 30 reprimands in 18 months, as well as failures to
follow instructions and complete tasks. So, too, do the records trace a decline in work
performance, culminating in a rating of “unacceptable” performance in 2012.
Two other witnesses testified at the ALJ hearing. Dunn’s daughter explained that
he moved in with her because he was struggling to live on his own. Although she had
hoped Dunn would be able to care for her children, he often lost their clothes, forgot to
bathe them and change their diapers, and missed their medical appointments. She also
confirmed Dunn’s account that he forgot to eat and take his medicine without daily
reminders, and that, unless she took him to medical appointments, he missed them. A
vocational expert opined that a person with Dunn’s asserted limitations and record of
absenteeism and tardiness would be unemployable.
Applying the five-step analysis mandated by agency regulations for assessing
disability, see 20 C.F.R. § 404.1520, the ALJ determined that Dunn was not disabled.
Dunn’s application failed at step two, where the ALJ found that Dunn’s cognitive
impairment was not “severe.” After characterizing Dunn’s testimony about the
intensity, persistence, and limiting effects of his symptoms as “not entirely consistent”
with the record, the ALJ rated him in the four functional areas for assessing the severity
of a mental disorder. See 20 C.F.R. § 404.1520a. The ALJ found that Dunn had (1) “no
limitation” in the area of daily living because he could bathe, dress, make meals, and
care for his grandchildren; (2) “no limitation” in the area of social functioning because
he enjoyed activities with family and friends and had no history of depression or
suicidal ideation; (3) “mild limitations” in the area of concentration, persistence, or pace
because he had excellent short-term memory, could readily concentrate on a task until
completion, and was able to manage his own money; and (4) no decompensation. To
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reach this assessment, the ALJ gave “great weight” to Dr. Grujic’s diagnosis of a mild
cognitive impairment because he was a treating physician and his diagnosis was
consistent with the record. The ALJ gave only “some weight” to Dr. Wurglitz’s
assessment because he did not see the full medical record and only “some weight” to
Dunn’s daughter’s testimony because she was not a medical professional.
Dunn sought review of the ALJ’s decision in district court, where a magistrate
judge presided by consent. He argued that the ALJ failed to properly assess his
employment records, his medical evidence, and his testimony about his symptoms. The
district court affirmed the ALJ’s denial of his disability benefits.
II
We will vacate a decision to deny disability benefits if it is not supported by
substantial evidence or if the ALJ did not adequately discuss the issues and evidence
involved in the claim. See Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011); Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
2008).
Dunn first contends that, in finding that he did not have a “severe” cognitive
impairment, the ALJ impermissibly disregarded his employment records from Bon-Ton.
We agree. These records span almost two years, show chronic tardiness, absenteeism,
and incomplete work, and support Dunn’s testimony that his failing memory inhibited
his ability to continue working. Yet the ALJ did not mention them. Although under no
obligation to address every piece of evidence in the record, see Villano, 556 F.3d at 562,
an ALJ may not ignore an entire line of evidence contrary to his ruling. See Meuser,
838 F.3d at 912. The ALJ here was free to consider Dunn’s employment records and
expressly decide that they deserved little weight, but to disregard them completely was
impermissible. Because the records appear to confirm Dunn’s testimony that his
cognitive decline rendered his ability to work “unacceptable,” the ALJ needed to at least
address and evaluate them. See, e.g., Villano, 556 F.3d at 563; Meuser, 838 F.3d at 912.
The Commissioner urges that no law required the ALJ to discuss these
employment records, and that the ALJ could not have used them to infer that cognitive
impairments caused Dunn’s workplace problems. But the regulations require the
agency to consider an applicant’s employment records in assessing the severity of a
claimant’s mental impairment. See 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(C)
(explaining that the Administration evaluates evidence from work and work-related
programs in assessing the severity of mental impairments). Ruling SSR 16-3p likewise
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requires an ALJ to consider “the entire case record, including … information provided
by medical sources and other persons; and any other relevant evidence in the individual’s case
record” in determining the severity of an impairment. SSR 16-3p, 2016 WL 1119029, at *4
(Mar. 16, 2016) (emphasis added); see also 20 C.F.R. § 404.1529(a) (explaining that the
agency considers both “objective medical evidence and other evidence” in evaluating
whether an impairment affects activities of daily living and the ability to work). Even
more, Dr. Grujic noted that Dunn’s impairments “affected his work.” From this
statement, the ALJ could have inferred that Dunn’s “unacceptable” work record
resulted from his memory loss. On this evidence, the ALJ was not free to deny Dunn’s
application for benefits without addressing the information in and takeaways available
from his work records.
Dunn also argues that, in assessing his functional limitations as required by the
Social Security regulations, the ALJ erred by ignoring any evidence contrary to his
decision. Here, too, we agree with Dunn. The functional assessment insufficiently
addressed three areas. First, in concluding that Dunn had “no limitation” in the area of
daily living, the ALJ did not explain why he rejected the testimony from both Dunn and
his daughter that Dunn missed medical appointments, forgot about pots and pans on a
burning stove, and overlooked household chores, meals, and daily medications. Second,
in finding that Dunn had “no limitation” in the area of social functioning, the ALJ did
not assess his daughter’s testimony that Dunn had no friends and could not adequately
care for her children. Third, in ruling that Dunn had only “mild limitation” in the area of
concentration, persistence, and pace, the ALJ did not address whether Dunn’s
employment records confirmed his testimony that his cognitive decline rendered his
work unacceptable.
To be sure, the ALJ acknowledged that Dunn’s “statements concerning the
intensity, persistence, and limiting effects” of his symptoms were “not entirely
consistent” with other evidence in the record. But we discourage the use of boilerplate
without a more thorough explanation of which evidence is inconsistent with the
applicant’s testimony and why. See Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir. 2013).
Likewise, under the agency’s own policy statements, an ALJ cannot simply say that
“statements about the individual’s symptoms are (or are not) supported or consistent”
with the record. SSR 16-3p, 2016 WL 1119029, at *9. Here the ALJ did not explain which
aspects of Dunn’s testimony he rejected and why. Moreover, the ALJ‘s explanation that
he discounted the daughter’s testimony because she was not a medical professional
does not adequately explain his decision to give little weight to her testimony. Her
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observations that Dunn forgot his meals, medicine, appointments, and caregiving
duties concern daily living and did not require a professional degree.
One more aspect of the ALJ’s decision warranted further elaboration. In
determining whether an impairment is severe, the agency uses five terms to describe
functional limitations: “none, mild, moderate, marked, and extreme.” See 20 C.F.R.
§ 404.1520a(c)(4). Recall that Dr. Grujic had also used the term “mild” in diagnosing
Dunn’s cognitive impairment. But “mild” in that context means something different.
Dr. Grujic relied on the Diagnostic and Statistical Manual of Mental Disorders, which
classifies “neurocognitive disorder due to traumatic brain injury” with only two ratings,
“mild” or “major.” Neurocognitive Disorders, DSM-V (2013). Even in its “mild” form, the
disorder causes “reduced cognitive efficiency, difficulty concentrating, and lessened
ability to perform usual activities.” Id. Furthermore, Dunn’s underlying traumatic brain
injury was not rated but may have caused additional functional limitations. Id. The ALJ
omitted any explanation of how Dr. Grujic’s terminology connected to the agency’s
definitions in Dunn’s case, as the regulations require. See 20 C.F.R. § 404.1527(d)(2).
In combination, these errors warrant remanding for further proceedings. The ALJ
omitted any mention of Dunn’s employment records and cited only the portions of his
and his daughter’s testimony that downplayed his daily impediments. According to the
vocational expert, someone with Dunn’s asserted impairments is unemployable.
Because the ALJ did not address or weigh this evidence, Dunn’s disability benefits
application merits reconsideration.
We therefore VACATE the judgment and REMAND to the agency for further
proceedings.