Opinion
1:20-cv-00011-PPS-SLC
01-27-2021
VICKY LYN KNAPP, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, sued as Andrew Saul, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SUSAN COLLINS UNITED STATES MAGISTRATE JUDGE.
Plaintiff Vicky Lyn Knapp appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (ECF 1). The appeal was referred to the undersigned Magistrate Judge on March 19, 2020, by District Judge Philip P. Simon pursuant to 28 U.S.C. § 636(b) and this Court's General Order 2018-14A for the issuance of a Report and Recommendation. (ECF 10).
Having reviewed the record and the parties' arguments, I FIND that two of Knapp's arguments warrant a remand of the Commissioner's final decision, and accordingly, RECOMMEND that the Commissioner's decision be REMANDED. This Report and Recommendation is based on the following facts and principles of law.
I. FACTUAL AND PROCEDURAL HISTORY
Knapp applied for DIB and SSI in July 2012 alleging disability as of June 29, 2012. (ECF 14; ECF 17 Administrative Record (“AR”) 84, 212, 218). Knapp's application was denied initially and on reconsideration. (AR 1169-79, 1214-20). Following a timely request and a hearing, administrative law judge Jennifer Fischer rendered an unfavorable decision on September 27, 2013, which Knapp appealed to the district court. (AR 27-38); see also Knapp v. Comm'r of Soc. Sec., 1:14-cv-00278. The parties subsequently filed a joint motion to remand the case for further proceedings, which the Court granted. (AR 1193).
The Commissioner inadvertently failed to include the transcript of Knapp's July 8, 2019, hearing before the ALJ. (ECF 14; see also ECF 16). Accordingly, the Commissioner filed a supplement to the transcript. (ECF 17). Because the AR pagination is consistent between the two filings (ECF 14, 17), the Court will continue to use the AR pagination.
On March 23, 2016, after another hearing, administrative law judge William D. Pierson (“the ALJ”) rendered another unfavorable decision, which Knapp again appealed to the district court. (AR 1047-63); see Knapp v. Comm'r of Soc. Sec, 1:16-cv-00191. On May 19, 2017, Judge William C. Lee entered an Opinion and Order affirming the ALJ's decision. (AR 195482). On July 22, 2017, Knapp appealed Judge Lee's decision to the Seventh Circuit Court of Appeals, which on July 12, 2018, vacated Judge Lee's Order and remanded the case for further proceedings. See Knapp v. Berryhill, 741 Fed.Appx. 324 (7th Cir. 2018). Accordingly, this Court remanded the matter to the administrative level (AR 1983), and the Appeals Council vacated the ALJ's prior decision. (AR 1987-88).
In the interim, in July 2016, Knapp filed a new application for disability benefits, which was also denied initially and on reconsideration. (AR 1993). After a subsequent hearing on February 7, 2018, administrative law judge Fredric Roberson again reviewed Knapp's application and rendered an unfavorable opinion on June 14, 2018. (AR 1990-2003). Following the remand of Knapp's initial case from the Seventh Circuit, the Appeals Council combined the two cases. (AR 2021-23).
On July 8, 2019, the ALJ conducted a second hearing where Knapp, who was represented by counsel, testified, as did Knapp's domestic partner and a vocational expert (“VE”). (AR 3321-81). On September 11, 2019, the ALJ rendered another unfavorable decision, concluding that Knapp was not disabled because she still could perform jobs that exist in a substantial number in the national economy. (AR 1871-95). Because Knapp did not file any exceptions to the ALJ's most recent decision, and the Appeals Council did not assume jurisdiction of the case, that decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.984, 416.1484.
Knapp filed a complaint with this Court on January 6, 2020, seeking relief from the Commissioner's final decision. (ECF 1). In her appeal, Knapp alleges that the ALJ: (1) failed to offer a significant number of jobs which she could perform in the national economy, (2) failed to properly consider the opinion of Knapp's treating physician, and (3) failed to give due weight to the Commissioner's psychological examiner. (ECF 19 at 5). Knapp also alleges that remand is necessary because she was deprived of due process by the “ALJ's unmistakable beef” with the Seventh Circuit's remand of the case. (Id. at 19-21).
At the time of the ALJ's most recent decision, Knapp was forty-seven years old (AR 212, 218, 1895), had the equivalent of a high school education (AR 1584, 1894), and had relevant work experience as a fast food manager, assembly press operator, order picker, and kitchen helper (AR 1893). In her application, Knapp alleged disability due to nerve damage and fibromyalgia caused by breast cancer, arthritis, and anxiety. (AR 84, 97, 112, 126).
Knapp lists fibromyalgia caused by breast cancer and fibromyalgia as separate conditions on her application. (See id.).
II. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . ., with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The Court's task is limited to determining whether the ALJ's factual findings are supported by substantial evidence, which means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (citation omitted). The decision will be reversed “only if [it is] not supported by substantial evidence or if the [ALJ] applied an erroneous legal standard.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000) (citation omitted). “Substantial evidence must be more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (citations omitted).
To determine if substantial evidence exists, the Court “review[s] the entire administrative record, but do[es] not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the Commissioner.” Clifford, 227 F.3d at 869 (citations omitted). “Rather, if the findings of the Commissioner . . . are supported by substantial evidence, they are conclusive.” Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence, reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the ALJ's decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
III. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB and SSI if she establishes an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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), see also 42 U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process, requiring consideration of the following issues, in sequence: “(1) whether the claimant is currently [un]employed, (2) whether the claimant has a severe impairment, (3) whether the claimant's impairment is one that the Commissioner considers conclusively disabling, (4) . . . whether she can perform her past relevant work; and (5) whether the claimant is incapable of performing any work in the national economy.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); see also 20 C.F.R. §§ 404.1520, 416.920. An affirmative answer leads either to the next step or, on steps three and five, to a finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any point other than step three stops the inquiry and leads to a finding that the claimant is not disabled. Id. The burden of proof lies with the claimant at every step except the fifth, where it shifts to the Commissioner. Clifford, 227 F.3d at 868.
Before performing steps four and five, the ALJ must determine the claimant's residual functional capacity (“RFC”) or what tasks the claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R. §§ 404.1520(e), 416.920(e).
B. The Commissioner's Final Decision
On September 11, 2019, the ALJ issued a decision that ultimately became the Commissioner's final decision. (AR 1871-95). At step one, the ALJ concluded that Knapp had not engaged in substantial gainful activity since her alleged onset date, June 29, 2012. (AR 1874). At step two, the ALJ found that Knapp had the following severe impairments: osteoarthritis of multiple joints; lumbar degenerative disc disease with stenosis, but findings of spondylosis without radiculopathy or myelopathy; neuropathy; thoracic kyphosis/degenerative changes of the thoracic spine; hypothyroidism; osteoarthritis of the hips; obesity; degenerative changes of the shoulder AC joints; history of hammer toes; major depressive disorder; and history of diagnoses of attention deficit disorder (“ADD”), insomnia, generalized anxiety disorder, and panic disorder. (Id.).
At step three, the ALJ concluded that Knapp did not have an impairment or combination of impairments severe enough to meet or equal a listing. (AR 1878). The ALJ then assigned Knapp the following RFC:
[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except: The claimant is limited to lifting, carrying, pushing, and pulling less than ten pounds frequently and ten pounds occasionally. The claimant can sit at least six hours in an eight-hour workday and stand and/or walk two hours in an eight-hour workday. The claimant should not climb ropes, ladders, or scaffolds. The claimant should not kneel, crouch, and crawl. The claimant can occasionally bend and stoop in addition to what is required to sit. The claimant can occasionally use ramps and stairs. Aside from use of ramps and stairs on an occasional basis, the claimant should not work upon uneven surfaces. The claimant should avoid working upon wet and slippery surfaces. The claimant can perform the balance required of such activities. The claimant should avoid work within close proximity to open and exposed heights and open and dangerous machinery, such as open flames and fast moving exposed blades. The claimant should not perform overhead work activity. The claimant requires a cane for prolonged ambulation and when upon uneven surfaces. The claimant is limited to tasks involving simple instructions, defined as tasks and instructions that can be learned through short demonstration, or when beyond short demonstration, up to and including one month, or in other words, SVP levels 1 and 2. The claimant is limited to work within a low stress job defined as requiring only occasional decision making and only occasional changes in the work setting. The claimant can tolerate predictable changes in the work environment. The claimant can make simple work-related decisions and remember simple work-like procedures. The claimant can meet production requirements in an environment that allows her to sustain a flexible and goal oriented pace. The claimant is limited from fast-paced work, such as assembly line production work, with rigid or strict productivity requirements. She is limited to superficial interaction with coworkers, supervisors, and the public, with superficial interaction defined as occasional and casual contact not involving prolonged conversation. Contact with supervisors still involves necessary instruction. Prolonged conversation is not necessary for task completion. When faced with such a work environment and type of tasks, the claimant can remember the associated work-like procedures. The claimant can maintain the focus, persistence, concentration, pace, and attention required to engage in such tasks for two-hour increments, and for eight-hour work days, and within the confines of normal work breaks and lunch periods.(AR 1880-81).
The ALJ found at step four that Knapp was unable to perform her past relevant work. (AR 1893). At step five, though, the ALJ found that, given her age, education, work experience, and RFC, Knapp could perform certain unskilled, sedentary jobs that exist in substantial numbers in the national economy including polishing machine operator, sorting machine operator, and wire insulator. (AR 1894). As such, Knapp's application for DIB and SSI was denied. (AR 1895).
C. The ALJ's Step 5 Determination
In her first argument, Knapp points out that while the ALJ found that Knapp could perform a substantial number of jobs in the national economy, he also found that “the total number of jobs would be approximately 120, 000.” (AR 1894; see also AR 3375). Noting that 120, 000 jobs account for less than .080% of the jobs in the national economy, Knapp alleges that the Commissioner has failed to sustain his Step 5 burden of showing that she could perform a significant number of jobs in the national economy. (ECF 19 at 12-13 (citing Sally S. v. Berryhill, No. 2:18cv460, 2019 WL 3335033, at *11 (N.D. Ind. July 23, 2019))). Accordingly, Knapp maintains that the Commissioner's Step 5 analysis is not supported by substantial evidence, necessitating remand. (Id.).
At the most recent administrative hearing, the ALJ questioned the VE whether a hypothetical individual with Knapp's RFC could perform any occupations existing in the national economy. (AR 3372-75). The VE responded that such an individual could perform the occupations that the ALJ listed in his most recent decision. (AR 1894, 3375). That is, the VE testified that such hypothetical person could perform as a polishing machine operator, sorting machine operator, or wire insulator. (AR 3375). Further, the VE testified that approximately 29, 000 polishing machine operator jobs exist in the national economy, as well as approximately 22, 000 sorting machine operator jobs and approximately 16, 500 wire insulator jobs. (Id.). The VE also estimated that there would be about 120, 000 total unskilled sedentary jobs in the national economy that a hypothetical individual with Knapp's RFC could perform. (Id.).
While Knapp is correct that it is the Commissioner's burden to show that “other work exists in significant numbers in the national economy that [the claimant] can do, ”, 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); see Britton v. Astrue, 521 F.3d 799, 803 (7th Cir.2008) (per curiam), the ALJ has clearly satisfied that burden here. While 120, 000 jobs may make up only a small portion of the total jobs in the national economy, such a number is “significant” in the context of the relevant caselaw. Indeed, “[a]s few as 174 jobs has been held to be significant, . . . and it appears to be well-established that 1, 000 jobs is a significant number.” Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (internal citation omitted) (collecting cases). Accordingly, even when considering just the three jobs identified by the VE, the ALJ provided a sufficient number of jobs through his identification of 29, 000 polishing machine operator jobs, 22, 000 sorting machine operator jobs, and 16, 500 wire insulator jobs. Accordingly, the ALJ's Step 5 determination is supported by substantial evidence.
Further, Knapp's reliance on Sally S. is misplaced. The ALJ was not required to limit his analysis solely to the region where Knapp resides. See 42 U.S.C. § 423(d)(2)(A) (“[W]ork which exists in the national economy means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” (internal quotation marks omitted)); see also 20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1). Indeed, in Primm v. Saul, the Seventh Circuit found that “110, 000 jobs nationally . . . are . . . enough to support the ALJ's finding.” 789 Fed.Appx. 539, 546 (7th Cir. 2019) (citing Liskowitz, 559 F.3d at 743). Further, “[c]ourts have frequently used national numbers to determine that a sufficiently significant number of jobs exists that a claimant can perform and deny Social Security disability benefits.” Isaacs v. Barnhart, No. 4:05-cv-0185-DFH-WGH, 2006 WL 3240114, at *8 (S.D. Ind. Oct. 13, 2006). While some courts have relied on Sally S. and discounted the precedent cited supra, see James A. v. Saul, 471 F.Supp.3d 856, 860 (N.D. Ind. July 10, 2020) (finding 14, 500 jobs in the national economy is not a significant number of jobs), others have found less jobs than those at issue here to be significant, see Dorothy B. v. Berryhill, No. 18 CV 50017, 2019 WL 2325998, at *7 (N.D. Ill. May 31, 2019) (citing Taskila v. Comm'r of Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016) (affirming a decision identifying 6, 000 jobs nationwide); Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 528 (9th Cir. 2009) (affirming a decision identifying 25, 000 nationwide)). Accordingly, the undersigned believes that the ALJ has supported his decision-at least on this point-with enough “evidence as a reasonable mind might accept as adequate to support [this] conclusion.” Schmidt, 395 F.3d at 744. Therefore, remand is not warranted by Knapp's step-five argument.
D. Dr. Kidder's Opinion
Knapp next asserts that the ALJ failed to properly consider the opinion of her treating physician, Dr. Shawn E. Kidder, D.O. More specifically, Knapp contends that the ALJ again failed to properly weigh Dr. Kidder's opinion, arguing that the opinion was formed in support of Knapp's application for Medicaid and thus amounted to an opinion that Knapp was unable to work even twenty hours per week. (ECF 19 at 15 (citing AR 904, 1432)). Knapp also contends that the ALJ failed to consider her physical and mental impairments as documented by Dr. Kidder in the aggregate as required. (Id. at 15-16 (citing 20 C.F.R. §§ 404.1523, 416.923)). Still more, Knapp argues that this case should be remanded because the ALJ failed to consider evidence that did not support his decision, and failed to follow the Appeals Council's order on remand to conform further proceedings to the Seventh Circuit's order on appeal. (Id. at 16-17).
The Seventh Circuit has stated that “more weight is generally given to the opinion of a treating physician because of his greater familiarity with the claimant's conditions and circumstances.” Clifford, 227 F.3d at 870 (citations omitted); see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Each medical opinion, other than a treating physician's opinion, must be evaluated pursuant to factors articulated in 20 C.F.R. §§ 404.1527(c) and 416.927(c) to determine the proper weight to apply to it. See White v. Barnhart, 415 F.3d 654, 658-60 (7th Cir. 2005). One factor an ALJ may consider is the extent to which an opinion is supported by the record. Long v. Comm'r Soc. Sec., No. 2:15-CV-408-JEM, 2017 WL 1161012, at *3 (N.D. Ind. Mar. 28, 2017) (quoting SSR 96-5p, 1996 WL 374183, at *3, 5 (July 2, 1996)). Finally, although an ALJ may decide to adopt the opinions in a medical source statement concerning the ability of a claimant to perform work-related activities, the RFC assessment is an issue reserved to an ALJ. SSR 96-5p, 1996 WL 374183, at *4.
On April 25, 2013, Dr. Kipper offered the following the narrative medical source opinion:
Presently [Knapp] is suffering from BREAST CANCER, HYPERTENSION, NEUROPATHY, ADULT ADD, DEPRESSION, OVERACTIVE BLADDER, ANXIETY, BACK PAIN, HYPERLIPIDEMIA, POLYCYSTIC KIDNEY DISORDER AND VERICOSE VEINS.
PRESENTLY MS. KNAPP IS UNABLE TO WORK DUE TO HER COMBINED EFFECT OF HER MEDICAL CONDITION. CONDITIONS ARE NOT EXPECTED TO IMPROVE IN THE NEXT TWO YEARS.(AR 904). In the ALJ's initial decision, while discussing Knapp's RFC, the ALJ afforded Dr. Kidder's opinion little weight, noting that Dr. Kidder is not an orthopedic or mental health specialist and that his opinion merely restated diagnoses without additional reasoning. (AR 1058). The ALJ also noted that Dr. Kidder did not cite to any supportive medical records, that Dr. Kidder's own treatment notes reported normal clinical findings, and that Dr. Kidder's assessment was inconsistent with that of the State Agency physicians. (Id.; see, e.g., AR 821 (“PSYCH: no anxiety, no depression . . .”), 825 (“Mental Status is intact. Gait is normal”), 830 (same)).
On appeal, the Seventh Circuit found that “the ALJ's reasons for discounting Dr. Kidder's opinion were invalid.” Knapp, 741 Fed.Appx. at 327. In particular, the Appellate Court held that “[w]hile Dr. Kidder's opinion that Knapp was unable to work was not entitled to controlling weight, it had to be considered.” Id. (citing SSR 96-8p, 1996 WL 374184 (July 2, 1996); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009)). The Court also faulted the ALJ for failing to consider Dr. Kidder's “decade-long treating relationship with Knapp, ” the consistent opinion of the State Agency psychologist Dan Boen, Ph.D., and for failing to “acknowledge that Dr. Kidder was the only physician who treated Knapp for both her mental and physical ailments.” Id. at 328. Still more, the Seventh Circuit found that the ALJ had impermissibly cherry-picked evidence from Dr. Kidder's treatment notes, id. at 328-29, and improperly discounted her complaints of concentration problems by suggesting there was a lack of support in Dr. Kidder's notes without allowing Knapp to address the discrepancy at the hearing, id. at 329-30 (citing Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012); Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008)).
In his most recent decision, the ALJ “continue[d] to give the opinion expressed in Dr. Kidder's narrative little weight ....” (AR 1888). In doing so, the ALJ maintained that Dr. Kidder's opinion, was “inconsistent with his own treatment notes, and . . . does not specify any impairment-related limits and their effect on [Knapp's] ability to perform work-related activities.” (Id.). Further, the ALJ noted that many of the conditions described by Dr. Kidder in his 2013 opinion seem to have improved with treatment. (AR 1887; see, e.g., AR 872 (“[Knapp] is doing quite well other than having increasing hot flashes....Patient remains without clinical evidence of disease. There is no need for intervention.”), 873 (“[Knapp] is status post bilateral mastectomy with implants in place. There is no local recurrence or palpable masses on either side of the chest wall.”)). The ALJ also asserted that it was the Appellate Court, rather than himself, who impermissibly cherry-picked evidence contrary to his initial assessment. (AR 1888). The ALJ, however, provided no additional analysis regarding the length of Dr. Kidder's and Knapp's treating relationship, or of Dr. Kidder's position as the only physician who treated Knapp for both her mental and physical ailments.
Remand is necessary at least on the last point raised by Knapp. In his most recent opinion, the ALJ continued to maintain that Dr. Kidder's opinion is inconsistent with his own treatment notes. (AR 1887). The Seventh Circuit, however, has already rejected that conclusion, ruling that when “[v]iewed in their entirety, the notes reveal Dr. Kidder's diagnoses of mental impairments and his recommendation of leg elevation for painful swelling.” Knapp, 741 Fed.Appx. at 328. Accordingly, the Seventh Circuit found that the ALJ had misapplied the factors for considering a treating medical source's opinion in accordance with 20 C.F.R. §§ 404.1527(c) and 416.927(c)-specifically by failing to consider the length of Dr. Kidder's and Knapp's treating relationship.
“The law of the case doctrine, which requires the trial court to conform any further proceeding on remand to the principles set forth in the appellate opinion unless there is a compelling reason to depart, . . .is applicable to judicial review of administrative decisions.” Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998) (internal citation and quotation marks omitted). The doctrine “requires the administrative agency, on remand from a court, to conform its further proceedings in the case to the principles set forth in the judicial decision, unless there is a compelling reason to depart.” Id. This includes instructions to more fully consider the factors governing the weight afforded to treating physicians. See Middleton v. Berryhill, No. 16 CV 11136, 2018 WL 4384566, at *6 (N.D. Ill. Sept. 14, 2018) (“Judge Kim instructed the ALJ [on remand] to discuss and analyze [the treating physician's] specialization as a neurosurgeon, along with the length and frequency of the treating relationship with Claimant, and his knowledge of her impairments. The ALJ, however, does not discuss the length and frequency of the treating relationship, even in the new portion of her analysis detailing medical evidence. The ALJ's failure to follow the law of the case requires remand.” (internal citations omitted)).
Here, the ALJ provides no compelling reason why he did not follow the principles set forth in the Seventh Circuit's opinion. While the ALJ disagreed with the Appellate Court's analysis, he was not free to disregard its instructions on remand. Accordingly, remand is again necessary based on this point alone. In the interest of completeness, however, the undersigned will address Knapp's remaining two arguments.
E. Dr. Boen's Opinion
Knapp also challenges the ALJ's weighing of Dr. Boen's opinion, relying on arguments that largely mirror those she advanced about Dr. Kidder's opinion. In particular, Knapp contends that the ALJ “further erred by failing to give due weight to the [Commissioner's] own psychological consultative examiner who opined repeatedly that Knapp would have difficulty concentrating, staying on task, and remembering what [she was] asked to do at work.” (ECF 19 at 17).
On August 14, 2012, Dr. Boen conducted a consultive examination of Knapp where he diagnosed her with generalized anxiety disorder; panic disorder without agoraphobia; and major depressive disorder, recurrent, moderate. (AR 849). Dr. Boen opined that Knapp “could understand what she was asked to do on a job but would have trouble remembering it, ” “would not be able to concentrate and stay on task, ” but “would be able to get along with her coworkers and boss.” (AR 850). Dr. Boen assigned Knapp a Global Assessment of Functioning (“GAF”) score of 45. As the Court of Appeals explained, “scores from 41 to 50 indicating serious difficulty functioning psychologically, socially, and occupationally.” Knapp, 741 Fed.Appx. at 327. On October 13, 2014, Dr. Boen conducted a second consultive examination where he made substantially the same findings, but added a diagnosis of alcohol use disorder, moderate. (AR 1585).
GAF scores reflect a clinician's judgment about the individual's overall level of functioning. Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). A GAF score of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). Id.
In his initial decision, the ALJ afforded both Dr. Boen's opinion and his assigned GAF score little weight. (AR 1053, 1060-61). As to the GAF score, the ALJ determined that it and similar GAF scores recorded by other treatment sources were entitled to little weight because “they appear[ed] out of proportion to the recorded observations by Dr. Kidder, other treating medical sources, and the findings of the reviewing State Agency psychologists.” (AR 1053). The ALJ similarly afforded little weight to Dr. Boen's opinion regarding Knapp's inability to stay on task, concentrate, and difficulty remembering tasks, stating that such opinions were inconsistent with other medical sources' records which “indicated much more normal mental functioning.” (AR 1061).
In his second decision, the ALJ-while recognizing the Seventh Circuit's opinion- adopted the same reasoning:
For the same reasons as previously outlined in the prior decision, the [ALJ] continues to find that Dr. Boen's opinions with regard to deficits in staying on task, remembering job tasks, and maintaining concentration are not supported, and as such, only limited weight has been accorded to his opinions.... The [ALJ] finds that the [GAF] evidence is inconsistent with serious symptoms (as reflected in the GAF scores) throughout the period at issue.(AR 1893).
Again, though, the ALJ ignored “principles set forth in the [appellate] judicial decision.” Wilder, 153 F.3d at 803. As the Seventh Circuit explained, “the ALJ was not permitted, without referring to medical evidence or ordering additional testing, to reject Dr. Boen's GAF ratings.” Knapp, 741 Fed.Appx. at 329 (citing Browning v. Colvin, 766 F.3d 702, 705 (7th Cir. 2014); 20 C.F.R. §§ 404.1519a(b)(3), 404.919a(b)(3)). Indeed, the Appellate Court specifically found that the record did not show “that the ALJ gave sound reasons for assigning ‘little weight' to Dr. Boen's GAF scores.” Id.
Setting aside the “law of the case” issue for the moment, the ALJ also failed to sufficiently explain his reasoning. As mentioned, Dr. Boen acted as a consultive examiner. “It is unusual . . . for an ALJ to reject an examining [agency] doctor's opinion because doctors hired by the agency are unlikely to be biased toward claimants the way treating physicians may be, and they are unlikely to exaggerate a claimant's disabilities.” Lear v. Comm'r of Soc. Sec., No. 2:14-cv-307, 2016 WL 1165682, at *3 (N.D. Ind. Mar. 24, 2016). “Although an ALJ is not required to accept the views of an agency examining physician if there is a contrary opinion from a later reviewer or other compelling evidence, the ALJ still must have a good explanation for rejecting or discounting the examining physician's opinion.” Czarnecki v. Colvin, 595 Fed.Appx. 635, 642 (7th Cir. 2015).
Here, the ALJ primarily discounted Dr. Boen's opinion and GAF score because they were inconsistent with Dr. Kidder's treatment notes which regularly reflected normal mood and alertness, and because Knapp did not raise similar complaints to other medical sources. (AR 1892-93). In Bauer v. Astrue, the Seventh Circuit remanded the case based upon the ALJ's reasons for discounting the opinion of the claimant's treating physician, who articulated that the 16 claimant's manic-depressive illness precluded her from maintaining a full-time job. 532 F.3d 606 (7th Cir. 2008). There, the ALJ observed that the claimant “dresse[d] appropriately, shop[ped] for food, prepare[d] meals and perform[ed] other household chores”; and that one of the doctor's treatment notes stated “the plaintiff's memory was ‘ok,' her sleep fair, she was doing ‘fairly well,' her ‘reported level of function was found to have improved,' she had ‘a brighter affect and increased energy,' [and] she ‘was doing quite well.'” Id. at 608-09. In remanding the case, the Seventh Circuit emphasized that “[a] person who has a chronic disease, whether physical or psychiatric, and is under continuous treatment for it with heavy drugs, is likely to have better days and worse days.” Id. at 609 (“Suppose that half the time she is well enough that she could work, and half the time she is not. Then she could not hold down a fulltime job.”). Similarly, the ALJ here failed to adequately explain why a finding that Knapp had, for example, a “normal mood” during a doctor's appointment on a given day was inconsistent with Dr. Boen's opinion that Knapp would have difficulty concentrating, staying on task, and remembering what she was asked to do at work on a full-time basis.
In summary, because the ALJ violated the law-of-the-case doctrine as it relates to his analysis of Dr. Boen's opinion, remand is necessary. On remand, the ALJ should provide additional analysis of why Dr. Boen's assessment is inconsistent with the medical record.
E. Due Process
Finally, Knapp asserts that remand is necessary due to “procedural anomalies” and “due process concerns.” (ECF 19 at 19-20). Specially, Knapp asserts that ALJ frequently cites to his previous decision and suggests that the Seventh Circuit misinterpreted the Act and exceeded its constitutionally delegated powers by “prejudge[ing]” this matter and denying her a meaningful opportunity to be heard. (ECF 19 at 19-21 (citing AR 1887, 1892-93)). Knapp similarly points to comments made by the ALJ during the most recent administrative hearing. (See AR 3324-25).
“Due process requires that a Social Security disability claimant be offered a ‘full and fair' hearing.” Davenport v. Astrue, 417 Fed.Appx. 544, 546 (7th Cir. 2011) (quoting Ventura v. Shalala, 55 F.3d 900, 902 (3rd Cir. 1995)). In general, an ALJ is presumed to be unbiased. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2016). Such presumption, however, can be rebutted by showing that the ALJ “displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 556 (1994); see also Valentine, 574 F.3d at 690. “Bias cannot be inferred from a mere pattern of rulings by a judicial officer, but requires evidence that the officer had it ‘in' for the party for reasons unrelated to the officer's view of the law, erroneous as that view might be.” McLaughlin v. Union Oil Co. of Cal., 869 F.2d 1039, 1047 (7th Cir. 1989).
Here, though the undersigned believes that the ALJ failed to follow the Seventh Circuit's ruling, nothing in the record suggests that the ALJ has “personal enmity” towards Knapp which would violate due process. See Davenport, 417 Fed.Appx. at 547. Indeed, the ALJ's reasoning and comments noted by Knapp appear to have been drawn solely from the ALJ's view of what was required of him under the Act and its accompanying regulations, as well the proper role and powers assigned to the branches of the federal government. In other words, they appear to have stemmed solely from the ALJ's view of the law. While the ALJ may have failed to follow the Seventh Circuit's ruling, or misapplied the law, these are not violations of due process. Accordingly, remand on due-process grounds is unnecessary.
Having said that, it is the undersigned's view that a new ALJ should consider the case upon remand to gain a fresh perspective, given the ALJ's failure to follow the Seventh Circuit's ruling and law of the case. See, e.g., Gister v. Massanari, 189 F.Supp.2d 930, 938 (E.D. Wis. 2001) (“[I]n light of this court's comments, and the fact that the same ALJ has reviewed the record twice, it is recommended that a new ALJ be assigned on remand.”). “This Court recognizes that it does not have the authority to order the remand to a new ALJ.” Greenan v. Colvin, No. 15 C 4544, 2016 WL 3662422, at *2 (N.D. Ill. July 11, 2016); see Travis v. Sullivan, 985 F.2d 919, 924 (7th Cir. 1993) (“Selecting a new ALJ is a decision for the Secretary to make when there has been no proof of bias or partiality by the original ALJ of the case.”). Therefore, the undersigned recommends that the Court “respectfully suggest . . . that the Commissioner assign this matter to a different ALJ on remand.” Id.; see Thompson v. Berryhill, 722 Fed.Appx. 573 582 (7th Cir. 2018) (“We encourage the agency to assign Thompson's file to a new ALJ, both because of the hostility the current ALJ has shown to previous remands and because of the benefit of a fresh perspective.”).
IV. CONCLUSION
For the foregoing reasons, I RECOMMEND that the Commissioner's decision be REVERSED and the case REMANDED to the Commissioner for further proceedings in accordance with this Report and Recommendation, and that the Court encourage the Commissioner to assign a new ALJ upon remand.
The Clerk is directed to send a copy of this Report and Recommendation to counsel for the parties. NOTICE IS HEREBY GIVEN that within fourteen days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. Fed.R.Civ.P. 72(b). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See generally Thomas v. Arn, 474 U.S. 140 (1985); Lerro v. Quaker Oats Co., 84 F.3d 239, 241-42 (7th Cir. 1996).
SO ORDERED.