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O'Connor-Spinner v. Colvin

United States Court of Appeals, Seventh Circuit

August 9, 2016

Louquetta R. O'Connor-Spinner, Plaintiff-Appellant,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued June 8, 2016

         Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 13-cv-00186 - Tanya Walton Pratt, Judge.

          Before Bauer, Manion, and Kanne, Circuit Judges.


         Louquetta O'Connor-Spinner, who is 47, suffers from depression and several physical impairments. Several times since 2001 she has applied for Disability Insurance Benefits and Supplemental Security Income, and six years ago we invalidated the Social Security Administration's denial other 2004 request for benefits. O'Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010). We concluded that the assigned administrative law judge had committed two errors relating to O'Connor-Spinner's depression. First, the ALJ had not asked a testifying vocational expert to assess how O'Connor-Spinner's employment prospects would be affected by her moderate limitation on concentration, persistence, and pace. And, second, the ALJ had ignored a psychologist's opinion that O'Connor-Spinner also faces a moderate limitation on her ability to accept instructions from, and respond appropriately to, supervisors. We instructed the Agency to remedy these mistakes, but instead of complying with this simple directive, a different ALJ contradicted his colleague and declared that O'Connor-Spinner's depression is not, and never has been, a severe impairment. O'Connor-Spinner again has sought judicial review, and she argues that the medical evidence contradicts this assertion. We agree, and once more we must remand this case to the Agency for further proceedings.

         I. Background

         As we did in our previous opinion, we omit discussion of O'Connor-Spinner's physical impairments because the parties agree that those afflictions-degenerative disk disease, bilateral carpal tunnel syndrome, sleep apnea, "restrictive lung disease, " and obesity-are severe and would themselves limit O'Connor-Spinner to sedentary work. The effect of O'Connor-Spinner's depression on her ability to maintain employment is, as before, the sole issue on appeal.

         Evidence of O'Connor-Spinner's depression predates the December 2003 onset date that she alleged when applying for benefits in 2004. Doctors treating her physical ailments had described O'Connor-Spinner as appearing depressed, noted a history of depression, and catalogued prescriptions for antidepressants. O'Connor-Spinner had visited a community mental-health center three times during 2002. Progress notes document her reports of recurring agitation, impulsivity, fatigue, and crying spells, as well as two or three "explosive episodes" weekly involving violent behavior and memory blackouts. O'Connor-Spinner also had recounted suicide attempts and difficulty managing anger (the latter prompting a court to grant a neighbor's request for a restraining order). Clinicians had diagnosed depression and an "adjustment disorder with mixed disturbance of emotions and conduct." This type of adjustment disorder is marked by "clinically significant emotional or behavioral symptoms" of both depression and conduct disturbances such as "violation of the rights of others or of major age-appropriate social norms and rules." Am. Psychiatric Ass'n., Diagnostic & Statistical Manual of Mental Disorders 679-80 (4th ed. text revision 2000). O'Connor-Spinner was prescribed the antidepressants Elavil and Prozac. During these visits her Global Assessment of Functioning[1] had been scored at 50, 52, and 55; a score of 50 indicates serious symptoms or "serious impairment in social, occupational, or school functioning, " while scores between 51 and 60 indicate moderate functional difficulty or symptoms. Id. at 34; see also Price v. Colvin, 794 F.3d 836, 839 (7th Cir. 2015). Even so, a state-agency psychologist who reviewed O'Connor-Spinner's medical records in October 2002 (in connection with her 2001 application for benefits) had opined that she didn't have a severe mental impairment at that time.

         No mention of psychological counseling appears in O'Connor-Spinner's medical records for the three years following that psychologist's review, but medical providers treating her physical ailments in 2004 and 2005 alluded to her history of depression and noted current prescriptions for antidepressants. And in May 2004 a different state-agency psychologist, Dr. Kamla Paul, examined O'Connor-Spinner and specifically diagnosed a depressive disorder. Dr. Paul noted many of the same symptoms documented in 2002, including crying fits and violent outbursts-in one of the latter, O'Connor-Spinner had threatened her husband with a butcher knife. Although Dr. Paul rated as adequate many of O'Connor-Spinner's abilities, including abstract thinking and long-term memory, the doctor gauged her general knowledge and short-term memory as poor and remarked that "she gets confused." Dr. Paul noted that O'Connor-Spinner was dysphoric and showed a flat affect, and assigned her a GAF of 55.

         Later that same month, a third state-agency psychologist, Dr. Donna Unversaw, reviewed the medical file. She opined that O'Connor-Spinner's depression caused a moderate limitation on concentration, persistence, and pace, although she asserted (without explanation) that this limitation would not prevent O-Connor-Spinner from performing moderately complex tasks. Dr. Unversaw also opined that O'Connor-Spinner had moderate difficulty accepting instructions from supervisors and responding appropriately to their criticisms.

         At O'Connor-Spinner's hearing before the first ALJ in January 2006, she testified that she thinks frequently of suicide, sleeps for days at a time, rarely leaves home, and skips social activities that she once enjoyed. A vocational expert, responding to a "hypothetical" from the ALJ listing O'Connor-Spinner's physical limitations but not her limitation on concentration, persistence, and pace or her difficulty relating to supervisors, testified that she could perform several jobs existing in significant numbers in the national economy. In a written decision issued in June 2006, the ALJ concluded at Step 2 of the 5-step analysis, see 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii), that O'Connor-Spinner's depression was severe (as were her physical ailments). The ALJ found that she was not disabled, however, reasoning at Step 5 that she retained the ability to perform the simple, sedentary jobs identified by the vocational expert. The Appeals Council declined review.

         O'Connor-Spinner sought judicial review, see 42 U.S.C. § 405(g), and though a district judge upheld the ALJ's decision, we agreed with O'Connor-Spinner that the ALJ should have included her moderate limitation on concentration, persistence, and pace among the limitations given to the vocational expert. See O'Connor-Spinner, 627 F.3d at 618-21. In reaching this conclusion, we specifically rejected the Commissioner's argument that the ALJ necessarily had incorporated this limitation by restricting O'Connor-Spinner to simple, repetitive tasks. Id. at 621. We also concluded that the ALJ should have addressed Dr. Unversaw's opinion that O'Connor-Spinner suffered from a moderate limitation on her ability to accept instructions and criticism from supervisors since, as Social Security Administration regulations make clear, "even a moderate limitation on responding appropriately to supervisors may undermine seriously a claimant's ability to work." Id. (citing 20 C.F.R. § 404.1545(c); SSR 85-15). We directed the Agency to remedy these two shortcomings.

         Our opinion reversing the district court was issued in November 2010, but for reasons not disclosed in the record, the Social Security Administration did not act on that decision until April 2012. By then more than six years had passed since O'Connor-Spinner's hearing before the ALJ, and she supplemented the record with evidence accumulated during that period. Records show that in March 2006-after the hearing but three months before the ALJ's decision-she had returned to the community mental-health center seeking help with symptoms of depression and anxiety. This time she was diagnosed with "major depression, recurrent severe." A diagnosis of "major depression" means, by definition, that an individual's "symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." Am. Psychiatric Ass'n, supra at 356. O'Connor-Spinner's GAF score once again was recorded as 50, indicating serious symptoms or functional impairments. The diagnosis of major depression is repeated in records from 2007 and 2008. So are O'Connor-Spinner's self-reports of suicidal thoughts. One therapist documented an incident in which O'Connor-Spinner, in a fit of anger, had discarded all of her medications-prompting her husband to remove his guns from their home "for safety."

         Dr. Robert Kurzhals, a fourth state-agency psychologist, had examined O'Connor-Spinner in December 2009 (after she again applied for benefits while her previous appeal was under consideration in this court). O'Connor-Spinner had reported feeling depressed most days and said that about eight times a month she stays home because of her depression. Dr. Kurzhals had observed that O'Connor-Spinner was marginally groomed, slow-speaking, depressed, and "perhaps mildly impaired" in concentration and attention. He also had noted without comment that, when tested, she could recall only five digits forward and three digits backward (this same result prompted the earlier examining physician, Dr. Paul, to conclude that O'Connor-Spinner's short-term memory was "poor"). When asked to count down from one hundred by sevens (a common technique, called "serial sevens, " for assessing concentration and memory), O'Connor-Spinner counted on her fingers and slowly responded, "92, 84, 77, 70, 63, 56, 48." Dr. Kurzhals had written that she "presented as a depressed and somewhat irritable individual, " diagnosed O'Connor-Spinner as bipolar (based on her self-reported history of suffering from the disorder), and assigned her a GAF score of 51.

         Also in December 2009, yet another state-agency psychologist, Dr. William Shipley, had reviewed O'Connor-Spinner's medical records and opined, without an examination, that her mental impairment was not severe. Dr. Shipley checked a box on a form to indicate that O'Connor-Spinner suffered from bipolar disorder (based solely on the opinion of Dr. Kurzhals), but he failed to reconcile this conclusion with, or even acknowledge, the diagnoses of depression and, later, major depression from her treatment providers. Neither did he comment on the explicit diagnosis of a "depressive disorder" given by Dr. Paul, the first of the two state-agency psychologists who examined O'Connor-Spinner. Dr. Shipley ticked off evidence that, in his view, proved her "social functioning and concentration ... to be intact": O'Connor-Spinner still was capable ... of attending to her own personal hygiene (although that ability was "marginal, " according to Dr. Kur-zhals); she could shop in stores, manage money, and drive; and she enjoyed watching TV. He then questioned O'Connor-Spinner's credibility, and concluded that she was only mildly limited in the three categories ...

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