Patty, Donna v. Barnhart, Jo Anne B. , 189 F. App'x 517 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 24, 2006
Decided July 10, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1369
DONNA PATTY, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 04-C-05
JO ANNE B. BARNHART, J. P. Stadtmueller,
Defendant-Appellee. Judge.
ORDER
Donna Patty applied for disability insurance benefits (“DIB”) under the Social
Security Act in December 2000. The Social Security Agency (“SSA”) denied her
application and an administrative law judge (“ALJ”) concurred, concluding that she
was not disabled under the Act because she could perform her past relevant work as
a quality control inspector, cashier, and grill cook. The Appeals Counsel declined to
review the decision, making the ALJ’s decision the final decision of the
Commissioner of Social Security. Patty sought judicial review, and the district
court affirmed the Commissioner’s denial of benefits. Because the residual
No. 05-1369 Page 2
functional capacity (“RFC”) finding and the hypothetical posed by the ALJ to the
vocational expert (“VE”) were inconsistent and consequently flawed, we reverse and
remand for further proceedings.
I.
Patty was born in August 1962 and did not complete high school. She first
received DIB in July 1997 for a closed period of disability ending June 30, 1997,
because of, she suggests, “pain in her right arm” (though the circumstances of that
application are not contained in the record before us). She reapplied for benefits in
December 2000—the application at issue in this appeal—alleging that depression,
gastrointestinal problems, fibromyalgia, back and right arm pain, and carpal tunnel
syndrome prevented her from working as of May 3, 1998. The medical records that
she presented to the ALJ cover the period from her alleged disability in 1998 to her
hearing before the ALJ in July 2002.
In the 15 years leading up to May 1998, Patty held a variety of jobs including
nurse’s assistant and factory worker. She reported in her application for benefits
that her illnesses first bothered her in May 1993, but she continued to work for five
more years. Even after May 1998 she worked part-time as a veterinarian’s
assistant, grill cook, cashier for two separate businesses, and an “order picker.”
But, as the ALJ observed, only the veterinarian’s assistant position qualified as
“substantial gainful activity.”
Though the ALJ’s order contains an exhaustive summary of Patty’s medical
records, we summarize her conditions and some of her doctors’ conclusions. Patty’s
medical records first focus on her gastrointestinal problems. In early 1998 she was
diagnosed with possible viral gastroenteritis, but abdominal and pelvic CT scans,
and other tests, were negative. Throughout 1998 she visited various
gastroenterology consultants. Dr. Ricardo Li noted upper-abdominal tenderness,
but an endoscopic retrograde cholangiopancreatography (a test used to diagnose
liver, pancreas, gallbladder, and bile duct conditions) and x-rays did not show signs
of disease. In January 1999 Dr. Thomas Montagne diagnosed Patty with possible
irritable bowel syndrome. He ordered a colonoscopy, which revealed the presence of
polyps. Further instances of gastrointestinal problems do not appear in Patty’s
medical records until, at the beginning of 2001, she again complained of symptoms
consistent with irritable bowel syndrome. She was treated by Dr. Harley Sobin
throughout 2001 and 2002, but none of the many tests that he ordered showed
notable abnormalities.
Patty’s complaints of back pain began in June 1999 when she injured herself
while working as a veterinarian’s assistant. X-rays and CT scans confirmed some
spinal abnormality, and Patty continued seeking treatment for back pain from June
1999 through January 2001. In April 2001 Dr. Robert Penn, a consulting examiner
No. 05-1369 Page 3
for the SSA, noted that Patty suffered from “known lumbar disk disease including a
disk herniating at L4-L5 on the right side.”
Patty’s remaining physical ailments include fibromyalgia and possible carpal
tunnel syndrome. She was first diagnosed with fibromyalgia (an incurable disease
characterized by subjective symptoms, predominantly fatigue and widespread pain,
see McPhaul v. Bd. of Comm'rs of Madison County, 226 F.3d 558, 562 (7th Cir.
2000)) in May 2000 by her general physician, Dr. Ernesto Buencamino. Later, in
March 2002, Dr. Douglas Hempel, a rheumatologist who examined Patty, concurred
with Dr. Buencamino’s diagnosis. In October 2001 Patty first complained of
symptoms consistent with carpal tunnel syndrome—including numbness in her
right hand—to Dr. Roger Daley, a hand surgeon. After several visits and an
electrodiagnostic study, Daley concluded that Patty did not suffer from carpal
tunnel syndrome.
In addition to her physical ailments, Patty suffers from depression. In
December 1999 family therapist Nancy Habrel indicated that Patty suffered from
“major depressive disorder.” A psychologist who treated Patty in conjunction with
Habrel, Dr. Mary Mungovan, opined from January through June 2000 that Patty
suffered from major depression but that prozac and valium improved her condition.
Patty did not return to the facility where both Habrel and Mungovan worked until
January 2001, when she resumed seeing therapist Habrel but also began seeing a
new psychologist, Dr. Ahmad Khan. She again complained of depression and
reported that she had not been taking her medication, in part because of financial
concerns. Khan recommended that she return to her anti-depressive medications,
which Khan’s progress notes indicate she did, though Patty was “quite concerned
about potential of weight gain.” Patty began treatment at a different facility in
November 2001. The progress notes of Bayside Clinic generally describe Patty as
depressed.
After Patty applied for DIB, the SSA referred her for physical and mental
consultative evaluations. SSA consulting physician Dr. Robert Penn examined
Patty in April 2001. He opined that her chief complaint was chronic back pain, and
concluded based on his physical examination that “she has legitimate issues here.”
He observed that Patty suffered from “radicular symptoms involving the right leg
and chronic low back pain.” SSA consulting psychologist Dr. Brian Wolfe examined
Patty in May 2001. He observed a “depressed individual who cries periodically
throughout the interview.” He diagnosed Patty with “a major depressive episode
which apparently has come about since the onset of her physical difficulties.” He
did opine, however, that her “[a]ttentional/ concentrational skills appear to be
relatively adequate.”
No. 05-1369 Page 4
The State of Wisconsin’s Department of Health and Family Services also
conducted evaluations of Patty’s physical and mental health in June 2001.
Consulting physician Dr. Robert Callear reviewed Patty’s medical record and opined
that she could occasionally lift or carry fifty pounds and twenty pounds frequently;
stand or walk about six hours in an eight-hour workday, and sit about six hours.
He also concluded that she could frequently climb, balance, kneel, crouch, and
crawl, occasionally stoop, and was “limited to frequent, but not constant, use of her
right arm and hand for feeling, grasping, and manipulating.” Dr. John McDermott,
another state physician, concurred in Callear’s assessment. State consulting
psychologist Dr. Jean Warrior reviewed Patty’s records and concluded that she
showed symptoms of depressive syndrome. She also opined that Patty was
markedly limited in “activities of daily living” and moderately limited in
“maintaining social functioning” and “maintaining concentration, persistence, or
pace.” But she concluded that Patty was “currently capable of sustaining unskilled
types of work.” Dr. Anthony Matkom, another state psychologist, agreed with
Warrior’s assessment.
In addition to the SSA’s and the state’s consultants, Patty solicited a written
statement from Dr. Sobin, one of her gastrointerologists. He completed an
“Irritable Bowel Syndrome Residual Functional Capacity Questionnaire” at her
request in June 2002, concluding that her symptoms were “severe enough to
interfere with attention and concentration” 6 to 33 percent of an 8-hour workday,
but that she was capable of low-stress jobs. He stated that, during an 8-hour
workday, she could sit one hour at a time and for a total of about four hours, stand
for 30 minutes at a time, and stand or walk for a total of less than two hours. He
also opined that she could lift 10 pounds frequently, but never lift 20 pounds, and
would be absent from work about four days per month.
Patty and her husband Roger both testified before the ALJ. Patty recounted
her medical conditions and stated that she recently underwent surgery related to
her gastrointestinal problems (which did not relieve her symptoms) and had her
gallbladder removed. She reported recent part-time work as a cashier and grill
cook, but also that she had not worked since May 2002 because of her surgeries.
She stated that she could lift no more than 20 pounds, that her irritable bowel
syndrome continued to require her to use the bathroom 3-4 times per day for 10 to
30 minutes each time, and that she continued to be depressed, though her
depression improved when she worked. Her husband corroborated her testimony.
Two experts also testified before the ALJ. Psychologist Dr. Darryl Hischke
testified that “there is good evidence in the record for a major depressive disorder”
resulting in “mild limitations in activities of daily living.” He also noted mild
limitations in social functioning, concentration, persistence, and pace, but did not
find evidence of “decompensation.” Though Hischke concluded that Patty could
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work, he also recognized that she would be limited in her ability to remember
instructions and might display “anger occasionally in the workplace.”
Testifying vocational expert Leslie Goldsmith concluded that Patty could
perform her past relevant factory work in quality control and as a grill cook, and
possibly her work as a cashier, depending on the “ebbs and flows.” Additionally, the
ALJ inquired how many jobs existed in Wisconsin for a person of Patty’s age and
education, who could lift 20 pounds occasionally, lift 10 pounds frequently, required
a sit-or-stand option, and had limited use of her right hand. Goldsmith testified
that such an individual could qualify for approximately 2,500 security guard or
gatekeeper jobs, 1,250 messenger or courier jobs, and 70,000 general office positions
in the Wisconsin economy. Goldsmith did note, however, that each job typically
allowed only one, or at most two, days leave per month and would not tolerate the
long bathroom breaks (of 10 to 30 minutes) that Dr. Sobin included in his RFC
assessment.
The ALJ found that Patty was not disabled under the SSA. Characterizing
the case as “largely revolv[ing] around the issue of pain and credibility,” the ALJ
assigned little weight to Dr. Sobin’s RFC assessment because it was “inconsistent
with the medical evidence” and “conflict[s] to some extent with Dr. Sobin’s own
contemporaneous progress notes.” The ALJ went on to find the rest of Patty’s
medical evidence consistent with an ability to perform light work, with a restriction
on the use of her right arm. Finally, he agreed with the testifying psychologist and
other mental health professionals who determined that Patty’s mental health
allowed her to complete unskilled and low level semiskilled work. Consequently the
ALJ, conducting the five-part analysis prescribed by 20 C.F.R. § 404.1520(a), found
that Patty had not engaged in substantial gainful activity since 1998, but that her
impairments were not listed in, or medically equivalent to the conditions listed in,
Appendix 1, Subpart P, Regulations No. 4. He found that Patty’s pain was not as
severe as she claimed, that she retained the physical and mental RFC to perform
some of her past relevant work, and therefore he determined that she was not
disabled under the SSA. The ALJ omitted a finding that Patty could also perform
other jobs in the economy, though the VE testified that such jobs were within her
RFC. The district court affirmed.
II.
We review the legal determinations of an ALJ de novo, but review factual
determinations deferentially, upholding any decision that is supported by
substantial evidence. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
Patty raises four alleged errors by the ALJ, but the argument at the center of her
appeal is whether the ALJ properly evaluated her mental RFC and incorporated it
into the hypothetical he posed to the VE. Regarding her mental RFC, Patty argues
No. 05-1369 Page 6
that the ALJ erred by not explicitly analyzing the effect of her depression in the
“four broad function areas” described in 20 C.F.R. § 404.1520a(c)(3) (outlining the
process an ALJ must follow to determine a claimant’s mental impairment). See 20
C.F.R. § 404.1520(e)(2) (ALJ “must incorporate the pertinent findings and
conclusions based on the technique.”).
Patty contends that, as a result of the ALJ’s failure to properly analyze the
limitations imposed by her depression, the hypothetical he posed to the VE excluded
a discussion of those limitations. The ALJ’s written order finds:
Claimant has the residual functional capacity to perform work-related
functions except for work involving more exertional types of tasks
beyond a light level, with lifting limited to 20 pounds, carrying to 10-20
pounds and no prolonged standing or walking nor any repetitive use of
the right hand, claimant also having a mental capacity for simpler,
routine types of tasks of a low level, semiskilled to unskilled nature.
But, the hypothetical that the ALJ posed to the VE made no reference to Patty’s
mental limitations:
If I were to propose for the hypothetical a person of the claimant’s age
and education, who can lift 20 pounds occasionally and 10 pounds
frequently, and needs a sit/stand option in terms of the kind of work
they do, and experiences only limited use of this right hand. Just
looking at those restrictions, could such a person do any of claimant’s
past work?
Patty argues that this variance is fatal to the hypothetical, notwithstanding the
accuracy of the RFC, and thus the ALJ could not have relied on the VE’s testimony
that she could preform her past relevant work.
The hypothetical that an ALJ poses to a VE “ordinarily must include all
limitations supported by medical evidence in the record,” including limitations
imposed by depression. Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002); see
also Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004); Johansen v. Barnhart,
314 F.3d 283, 289 (7th Cir. 2002). The hypothetical, though, need not include all of
a claimant’s alleged impairments. See Jones v. Shalala 10 F.3d 522, 525 (7th Cir.
1993); Ehrhart v. Sec’y of Health and Human Servs., 969 F.2d 534, 540-41 (7th Cir.
1992). An ALJ may rely on VE testimony, even if it is in response to an incomplete
hypothetical, “[w]hen the record supports the conclusion that the vocational expert
considered the medical reports and documents.” Ehrhart, 969 F.3d at 540.
We have expressed concern when an ALJ fails to inquire about the
limitations imposed by depression. In Steele we remarked that a hypothetical posed
No. 05-1369 Page 7
to a VE was flawed because it did not address how “depression restricted [Steele’s]
daily activities and social functioning, nor how depression affected his ability to
timely complete tasks by interfering with his concentration, persistence, and pace.”
Steele, 290 F.3d at 942. In that case numerous errors plagued the ALJ’s denial of
benefits. We noted that “it is also true that the jobs identified for Steele to work
(such as housekeeper and security guard) might not demand levels of sociability or
concentration beyond his capabilities” and thus our concern that depression was not
discussed by the VE was “not acute.” Id. at 942.
Here, we are not confident that the ALJ’s omission of Patty’s depression from
the hypothetical posed to the VE was harmless. See, e.g., Young, 362 F.3d at 1004-
05. The VE was present for the testimony regarding Patty’s mental health and
reviewed the record, but that is not always a sufficient guarantee that the VE will
consider all of a claimant’s limitations. See id. at 1003. In this case the VE
responded to a hypothetical posed by the ALJ that did not include all of the
limitations that even the ALJ’s written RFC included. And, the ALJ instructed the
VE to consider only those limitations included in the hypothetical. We will
therefore not impute to the VE knowledge of the limitations imposed by Patty’s
depression and accordingly cannot find that the flaw in the ALJ’s hypothetical was
harmless.
We cannot overlook the variance between the RFC recorded in the ALJ’s
written order and the hypothetical he posed to the VE, which lacked a discussion of
the limitations imposed by Patty’s depression. Because the ALJ’s decision at step
four was based on a flawed hypothetical and the consequently questionable
testimony of the VE, the denial of benefits was not supported by substantial
evidence. We remand this case to the SSA for further proceedings consistent with
this order.
REVERSED and REMANDED.