Spencer v. Colvin
Filing
16
ORDER & OPINION entered by Judge Joe Billy McDade on 2/17/2015: IT IS ORDERED that the Commissioner's decision denying disability benefits is affirmed. IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment 11 is denied, and Defendant's Motion for Summary Affirmance 14 is granted. CASE TERMINATED. (SEE FULL WRITTEN ORDER & OPINION)(JRK, ilcd)
E-FILED
Tuesday, 17 February, 2015 04:48:31 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ROSE SPENCER
Plaintiff,
v.
CAROLYN COLVIN,
Commissioner of Social Security
Defendant.
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Case No. 13-cv-1487
ORDER & OPINION
This matter is before the Court on Plaintiff’s Motion for Summary Judgment
(Doc. 11) and Defendant’s Motion for Summary Affirmance. (Doc. 14). For the
reasons explained below, Plaintiff’s motion is denied and Defendant’s motion is
granted. The decision of the Administrative Law Judge (ALJ) to deny Plaintiff
Social Security Disability benefits is affirmed.
BACKGROUND
I. Procedural History
On November 16, 2009, Plaintiff Rose Spencer applied for disability
insurance benefits and Supplemental Security Income (“SSI”) under Titles II and
XVI of the Social Security Act, claiming that she had become disabled as of October
2006. (R. at 149-54).1 She said that she became disabled because of “bipolar
disorder, learning disability, and blackout spells resulting in a fear of people, anger
Citation to R. at ___ refers to the page in the certified transcript of the entire
record of proceedings provided by the Social Security Administration.
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issues, difficulty sleeping, difficulty concentrating, and difficulty completing tasks.”
(R. at 83). The Social Security Administration initially denied her application on
March 30, 2010. (R. at 79-83). Plaintiff filed for reconsideration on May 15, 2010 (R.
at 84), and was again denied on August 4, 2010. (R. at 85-92). On September 3,
2010, Plaintiff requested a hearing before an ALJ. (R. at 95). ALJ Stephen M.
Hanekamp held a hearing on April 12, 2012, in which Plaintiff, represented by her
attorney, appeared and testified. (R. at 40-74). On June 26, 2012, the ALJ issued an
opinion finding that Plaintiff was not disabled and thus not eligible for disability
insurance benefits or SSI. (R. at 20-33). On August 21, 2012, Plaintiff requested
that the Appeals Council review the ALJ’s decision. (R. at 10). The Appeals Council
denied Plaintiff’s request for review on September 6, 2013, thereby making the
ALJ’s decision the final decision of the Commissioner of Social Security. (R. at 1-3).
Plaintiff then filed her Complaint (Doc. 1) with this Court on October 17, 2013.
II. Relevant Medical History
Plaintiff is currently a twenty-nine year old woman with a ninth or tenth
grade education, which she received through a special education program. (R. at
44). Her relevant medical history consists primarily of treatment at North Central
Behavioral Health Systems, Inc. (“North Central”), where she was a patient of Dr.
Scott Wright and Dr. Atul Sheth, and as of the filing of this lawsuit, has been a
client of Licensed Clinical Professional Counselor Pam Helms. (R. at 432, 469, and
741-67). According to Plaintiff’s treatment notes from North Central, Plaintiff has
also received treatment from Gretchen Fawcett, a physician’s assistant. (See, e.g., R.
at 716, 722). However, the record does not contain records of Plaintiff’s treatment
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from Ms. Fawcett.
The record also contains treatment records from McDonough
District Hospital, where Plaintiff was admitted on December 2, 2009 after she
walked in front of a large truck while under the influence of alcohol. (R. at 507-62).
Plaintiff was also evaluated by four non-treating sources who are relevant to
this action: Mario Di Biase, Psy. D., Frank Froman, Ed. D., Jeanne Yakin, Ph.D.,
and Joseph Mehr, Ph.D.
For ease of review, this Order and Opinion reviews records from Plaintiff’s
treating sources before reviewing records from Plaintiff’s non-treating sources, even
though this slightly disrupts the chronological order of Plaintiff’s treatment history.
A. Plaintiff’s Treating Sources
Beginning in April of 2008, Plaintiff began receiving treatment from North
Central Behavioral Health Systems, Inc., (R. at 414), where she continued meeting
with clinical staff through the pendency of her social security application and
appeal. (See R. at 741-767 (medical records from North Central from June 27, 2011
through March 2, 2012)). Plaintiff had been sentenced to thirty-months of probation
for possession of cocaine (R. at 416), and began receiving treatment at North
Central at the request of her probation officer. (R. at 414).
Pam Helms conducted Plaintiff’s initial psychosocial assessment. (R. at 419).
Plaintiff stated to Helms that “she has a problem with marijuana,” and said she
smokes it because “it helps her relax and she has a lot of anger and anxiety.” (R. at
414). At the time, she reported that her children were living with her father. (R. at
415). During the assessment, Plaintiff “was very guarded.” (R. at 421). She reported
“that she has always been in trouble with the law and feels authority figures pick
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on her.” She said that she felt that “if she ha[d] the right medication she would not
need to smoke pot.” Helms noted that during the intake, Plaintiff was oriented to
time, place, person, and situation, and had an appropriate facial expression, dressed
appropriately, and appropriate affect. (R. at 420). She had increased motor activity
with pressured speech, and had fair insight but poor judgment. (Id.).
Plaintiff returned to North Central on July 28, 2008 for a psychiatric
evaluation conducted by Dr. Scott Wright. (R. at 432). Plaintiff complained about
the fact that she “can’t hold down a job because she has anger outbursts and then
quits abruptly, ” among other things. (Id.). She complained that she has “more bad
days than good days,” and said her moods are more “irritable and angry than sad,
and more sad than nervous.” (Id.). Dr. Wright diagnosed her with bipolar affective
disorder, intermittent explosive disorder, marijuana abuse, and alcohol abuse. (R. at
433). He prescribed Lamictal, to be taken twice a day. (R. at 434).
Plaintiff stopped treatment in September 2008 after attending two counseling
sessions because she was incarcerated. (R. at 438). Her case notes indicate that she
had stopped taking Lamictal. (Id.).
She returned for treatment in July of 2009. (R. at 450). At that time, she was
not under a doctor’s care and was not taking medication. (R. at 451). The intake
notes indicate that Plaintiff received support from her family and was able to
maintain a residence and obtain or maintain employment. (R. at 452-53). She
experienced discomfort in social situations and difficulty in forming and
maintaining relationships. (R. at 453). According to the report, she said “she would
like to find a medication and treatment that will help her with her anger and mood
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swings.” (R. at 455). Helms noted that Plaintiff “seems more mature and ready for
treatment.” (Id.).
On August 27, 2009, Plaintiff had an initial psychiatric visit with Dr. Atul
Sheth at North Central. (R. at 469-78). He diagnosed Plaintiff with mood disorder,
intermittent explosive disorder, signs of bipolar disorder, and borderline personality
disorder. (R. at 477). He prescribed a daily 15 milligram dose of Abilify, an antipsychotic meant to treat symptoms of schizophrenia and bipolar disorder, and a
daily 100 milligram dose of Trazodone, an anti-depressant meant to treat
depression and sleep disturbances. (R. at 479-80).
Plaintiff returned to North Central on October 19, 2009 for a routine followup. The treatment notes reflect that she blamed all of her symptoms on Abilify. (R.
at 488). At that time, Dr. Sheth reported that her “symptoms are somewhat better.”
(R. at 489). Dr. Sheth prescribed Depakote, an anti-convulsant, to be taken twicedaily – 250 milligrams in the morning and 500 milligrams in the evening – for mood
stabilization. (R. at 492). She began taking clonidine on October 28, 2009. (R. at
498). At an appointment on November 16, 2009, Dr. Sheth reported that Plaintiff
was not compliant with her medication, “blames all symptoms on Abilify,” “took one
dose of depakote,” and was “not taking clonidine.” (R. at 499). Even so, he noted that
her symptoms were somewhat better. (R. at 500). Dr. Sheth took Plaintiff off of
Abilify, prescribed Elavil, and kept Plaintiff on Clonidine, and Trazodone. (R. at
503-504).
On December 2, 2009, Plaintiff was admitted to McDonough District
Hospital, where she was discharged on the same day. (R. at 508). At discharge, the
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hospital diagnosed her with alcohol intoxication and a possible suicide attempt.
(Id.). Plaintiff arrived at the hospital with a blood alcohol level of 0.27%. Police told
hospital staff that she “tried to walk out in front of a semi and they felt that she was
doing this on purpose.” (Id.). The hospital admitted Plaintiff into the Intensive Care
Unit and monitored her until her blood alcohol level was 0.0%. (Id.). Once Plaintiff
was sober, she denied that she was trying to hurt herself. (Id.).
Plaintiff returned to North Central on March 4, 2010 to meet with Helms. (R.
at 601-02). Helms noted that “Rose continues to have mood swings, issues with
anger, and is easily frustrated. This makes it very difficult for Rose to maintain
employment . . .” (R. at 602). She noted that several of the medications Plaintiff’s
doctors prescribed cause side effects. (Id.). Plaintiff met with Dr. Sheth on April 19,
2010. (R. at 603-08). At that time, Dr. Sheth took Plaintiff off of Elavil, Clonidine,
and Trazodone, and prescribed Remeron. (R. at 604, 612-13). Again, he noted that
Plaintiff’s symptoms were somewhat better. (R. at 605). Plaintiff had a routine
follow-up with Dr. Sheth on July 19, 2010. Dr. Sheth noted that Plaintiff was still
having trouble sleeping, but also noted that Remeron helped her mood. (R. at 658).
He prescribed Vistaril (R. at 664).
On July 12, 2010, Helms completed a Psychosocial Assessment. (R. at 64153). The assessment noted that Plaintiff’s “current living situations/strengths”
included caring for her own nutritional needs, cooking, using the post office, caring
for her own grooming or hygiene, caring for her own medical needs, housekeeping,
shopping, and using the telephone. (R. at 644).
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On August 26, 2010, Helms noted that “Rose continues to have mood swings,
issues with anger, and is easily frustrated. This makes it very difficult for Rose to
maintain employment. She has difficulty getting aloing [sic] with others and has
short term relationships. I have closed Rose to substance abuse but she is
remaining in treatment for bipolar disorder.” (R. at 663).
On October 11, 2010, Plaintiff met with Dr. Sheth for a routine follow-up.
During this appointment, both Plaintiff and Dr. Sheth noted that her symptoms
were somewhat better. (R. at 665). He increased her dosage of both Remeron and
Vistaril. (Id.). Plaintiff stopped taking her medications in November 2010, once she
learned that she was pregnant. (R. at 670). Her OB/GYN prescribed Wellbutrin
“and something to help her sleep” shortly thereafter. (R. at 671).
Plaintiff continued to meet with Helms during her pregnancy. On December
29, 2010, Helms conducted a Level of Care assessment and concluded that Plaintiff
had a serious impairment in her level of care with respect to her functional status.
Specifically, the report noted “[s]erious deterioration of interpersonal interactions
with consistently conflictual or otherwise disrupted relations with others,” and
“inability to perform close to usual standards in school, work, parenting, or other
obligations.” (R. at 684-85). Later, in July 2011, Helms upgraded Plaintiff’s
functional ability from serious to moderate, and noted “significant deterioration in
ability to fulfill responsibilities and obligations to job . . .” (R. at 694).
Plaintiff began seeing Gretchen Fawcett, a physician’s assistant, in
September 2011 (R. at 716). At that time, she was still only taking Wellbutrin.
Helms consulted with Fawcett about Plaintiff’s medication on December 12, 2011.
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(R. at 722). Helms’s notes reflect that Plaintiff began taking Effexor on December
21, 2011. (R. at 723). Although these notes to do not reflect that Fawcett also
prescribed Xanax, later notes suggest that she did. (See R. at 754). The notes also
reflect that Dr. Sheth was no longer treating Plaintiff at that time. (Id.). Helms’s
case notes reflect that Plaintiff benefited the Xanax and Effexor. (Id.). In January
2012, Plaintiff said she was compliant with her medications and they were “really
helping her stay calm.” (Id.).
As part of Plaintiff’s application for benefits, Helms submitted two identical
Medical Source Statements – the first dated December 13, 2010 (R. at 673-75), and
the second on March 2, 2012. (R. 679-81). In them, Helms opined that Plaintiff’s
ability to understand, remember, and carry out instructions and her ability to
interact appropriately with supervisors, co-workers, and the public were affected by
her impairments in a number of marked and extreme ways. (Id.). Helms identified
Plaintiff’s diagnoses of intermittent explosive disorder, bipolar disorder, and manic
borderline personality disorder, explained that Plaintiff is easily frustrated, has
anger outbursts, does not trust others, and has an inability to both take orders and
work alone. (Id.). She based her opinion on “numerous therapy sessions.” (Id.).
B. Plaintiff’s Non-Treating Sources
Plaintiff was also evaluated by four relevant non-treating sources as part of
her various applications for benefits.
1. Mario Di Biase, Psy. D.
Plaintiff was evaluated by Mario Di Biase, Psy. D. on March 14, 2003, as part
of a previous application for benefits. (R. at 304-310). She reported to Dr. Di Biase
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that she had “long standing problems with attention and concentration, and she
noted that she carries a diagnosis of Attention Deficit Hyperactivity Disorder.” (R.
at 304). She also said that she “feels depressed a lot” and “experiences problems
with sad mood, tearfulness, sleeping, low self-esteem, decreased energy, poor
appetite, and social isolation.” (Id.). At the time, she was not taking any medication,
although she had previously taken Ritalin. (Id.). She reported that she was
“independent for her activities of daily living.” (R. at 305). She said she spent most
of her time caring for her son and some of her time watching television. She also
said she helps her mother with grocery shopping. (Id.).
Dr. Di Biase conducted a number of tests, and concluded that her “overall
level of intellectual functioning [fell] within the Low Average Classification.” He
also concluded that her presentation was “suggestive of Dysthymic Disorder.” (R. at
309-310).
2. Frank Froman, Ed. D.
As part of a more recent previous application for benefits, in which she
complained of depression and learning disabilities, Frank Froman, Ed. D. conducted
a Mental Status Examination of Plaintiff. (R. at 378). Plaintiff complained “about
feeling anxious around others,” and said she often feels paranoid. (R. at 380). At the
time, she was not taking medication. Dr. Froman noted that she was “casually and
neatly attired . . .Hygiene was adequate.” (R. at 378). During the consultation,
Plaintiff reported periodic episodes of feeling like she was going to pass out, and
also reported one seizure. (Id.). Dr. Froman observed that she “related in a
somewhat anxious manner.” She had a “fairly good” ability to relate and had “a
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sense of hypomania about her. Her speech was voluminous, with a great many
asides.” (R. at 379).
Plaintiff reported to Dr. Froman that she often cut herself when she was
younger and still feels tempted to do the same. (Id.). She said she socializes “with
some friends, all of whom are ‘bipolar.’” (Id.). She said that she sleeps “a great deal,”
including sleep at unusual times. (Id.). At the time she said that she was working at
the Village Inn in Quincy, Illinois, but feared she would lose her job because she lost
her car and had no way of traveling to work. (Id.). During the day, she said she does
routine chores. (Id.).
Dr. Froman oriented Plaintiff three times and concluded that she was “in
good contact with reality.” (Id.). She was able to conduct certain math processes,
but not others, and she could explain analogies and idioms. (R. at 379-80).
Dr. Froman diagnosed Plaintiff with Social Anxiety Disorder, ADHD, and
Borderline Personality Disorder. (R. at 380). He identified Plaintiff’s current
stressors as “lack of transportation; money; unresolved mental health issues –
moderately severe.” (Id.). He concluded that she was “quite able to perform one and
two step assemblies at a competitive rate,” but limited her to “being only with a
few” co-workers and supervisors because “[s]he becomes readily overwhelmed when
she is around too many people.” (Id.) He wrote that “[s]he seems able to withstand
the stress associated with customary employment of the kind that she has had in
the past.” (Id.).
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3. Jeanne A. Yakin, Ph.D.
Jeanne A. Yakin, Ph.D. conducted a psychological review of Plaintiff on
March 8, 2010. (R. at 563). In her report, Dr. Yakin reviewed Plaintiff’s history of
illness, her personal and family history, and her activities of daily living. She then
conducted a mental status examination of Plaintiff, before assessing her ability to
function in a workplace (R. at 563-68). Plaintiff described her “current problem or
condition” by telling Dr. Yakin, “I don’t know if it’s that I can’t work but my mind
plays tricks on me and tells me to leave the job because people don’t like me.” (R. at
563). Dr. Yakin identified major symptoms as “difficulty securing and sustaining
employment, distorted thoughts, [and] difficulty sleeping.” (R. at 563-64).
Dr. Yakin reviewed Plaintiff’s work history. Plaintiff identified five periods of
employment from 2005 through 2008. (R. at 564). Plaintiff said her last job was at
Bowers, an assembly factory, where she assembled and fixed machines. She said
she worked there for approximately one month, but left during her shift on day and
“went home and cried.” (Id.). Plaintiff said that although she “liked the job,” her
mind told her to “leave – everybody’s staring at you.” (Id.). However, Plaintiff told
Dr. Yakin that she would like to work again, but was hindered by her criminal
record. (Id.). She said, “I’m a three-time felon . . . and it’s hard for a felon to get a
job. I’ve applied at a lot of places but they never call me back.” (Id.). She told Yakin
that although she gets “weird thoughts and quit even if I want to keep the job,” she
plans to return to work and was applying for jobs. (Id.).
Dr. Yakin also recorded Plaintiff’s activities of daily living. (R. at 565).
Plaintiff reported that she gets up each morning at 7:00 AM, and begins the day by
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“playing games on the internet, getting her son up for school, making breakfast and
sending him to school, then cleaning the house.” (Id.). She watches TV at lunch, and
then waits for her son to return from school, helps him with homework, and cooks
dinner. During the evening, she watches TV, cleans the house, makes sure her son
showers, and goes to bed. Plaintiff told Dr. Yakin that she goes to bed by 10 PM but
doesn’t sleep more than “two or three hours” a night. (Id.).
Dr. Yakin described Plaintiff as “pleasant and stable,” and said her affect
“was appropriate and consistent with the content of the conversation.” (Id.).
Plaintiff told her, “If I’m by myself or with my kids, I’m ok cause I’m at home with
my kids, but if I go somewhere I just feel like I don’t belong there, like people are
whispering behind my back and I get angry and leave.” (Id.).
Dr. Yakin concluded that Plaintiff was “oriented to person, place, time, and
purpose of visit to office,” had a poor digit span, poor short-term memory, a limited
vocabulary, and good judgment regarding “a variety of comprehension probes.” (R.
at 566). She was able to “draw various geometric shapes,” including simple and
more complex shapes, but “failed to correctly draw the face of a clock” at directed
hour and minute hand positions. (Id.).
Ultimately, Dr. Yakin concluded that Plaintiff was “cognitively capable of
performing” simple one or two-step instructions. (R. at 567). Yakin relied upon
Plaintiff’s “[g]ood judgment and comprehension and fair performance on drawing
exercises.” She specifically noted that Plaintiff “reported no history of losing
employment due to an inability to carry out instructions.” Dr. Yakin discounted
Plaintiff’s contention that she cannot sustain employment because of “distorted
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thoughts about [others’] impressions of her.” (Id.). She wrote, “It is this provider’s
opinion that the claimant does have low frustration tolerance but that she is able to
control her anger when necessary.” (Id.). Dr. Yakin suggested that if Plaintiff
suffered from an inability to tolerate other people of the intensity she reported to
her, it would “generalize across situations” and also affect her relationship with her
family and children in a manner that Plaintiff did not report. (Id.). Dr. Yakin wrote
that Plaintiff exhibited “some social traits that may interfere with interactions to a
mild to moderate degree,” but concluded on the basis of Plaintiff’s positive
relationships with her family members and friends that she has “an ability to
interact appropriately when motivated to do so.” (Id.).
4. Joseph Mehr, Ph. D.
Plaintiff’s last relevant consultative exam was conducted by Dr. Joseph Mehr
on March 25, 2010. (R. at 570). Mehr based his medical disposition on category
12.04 (Affective Disorders) and 12.09 (substance abuse disorders). He did not base
his medical disposition on category 12.08 (personality disorders).2 (Id.). Dr. Mehr
concluded that Plaintiff’s activities of daily living were moderately restricted, that
she had moderate difficulties in maintaining social functioning, and had moderate
difficulties in maintaining concentration, persistence, or pace. (R. at 580). His
opinions were based on a review of records from McDonough hospital and the North
Central, Plaintiff’s school records, and consultative reports from Dr. Yakin, Dr.
DiBlase, and Dr. Froman. He also conducted a telephonic interview with Plaintiff.
(R. at 582).
Categories for various disorders are taken from 20 C.F.R. § 404, Subpart P,
Appendix 1.
2
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Plaintiff told Dr. Mehr that, as part of her activities of daily living, she takes
care of her children, stays awake for days, requires reminders for appointments and
medications, does not prepare meals, cleans her room, goes out only for
appointments, drives, shops, manages money, watches TV and writes poems, does
not spend time with others recreationally, and indicated difficulty with memory,
completing tasks, concentration, and getting along with others.” (R. at 582). Dr.
Mehr indicated that he did not find claimant credible. He specifically noted
inconsistencies in Plaintiff’s account of her activities of daily living, and noted that
her statements contradicted past statements of activities of daily living made to
other consulting sources. (Id.).
Ultimately, he concluded that Plaintiff “retains the cognitive capacity needed
to understand and remember instructions for simple jobs of a routine and repetitive
type,” and that she retains the ability to complete a normal work day at a “regular,
minimally acceptable rate.” Moreover, he concluded that she “retains the capacity to
accept instructions, to tolerate supervision, and to get along with coworkers and
peers.” (R. at 586). He notes that Plaintiff “has limited social tolerance and would do
best in a socially undemanding and restricted setting with reduced interpersonal
contact away from the general public.” (Id.).
5. Hearing Testimony
Plaintiff’s hearing with the ALJ was held on April 12, 2012 in Hannibal,
Missouri. (R. at 40). Plaintiff was represented by her attorney. A vocational expert
also testified. (Id.). Plaintiff testified that she was born on February 8, 1985 and
completed ninth or tenth grade. (R. at 44). She left school when she was sixteen,
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after becoming pregnant for the first time. (R. at 45). She reported that she receives
income through TANF and previously received child support. (Id.).
After asking introductory questions, the ALJ asked Plaintiff about her past
interactions with the Illinois Department of Children and Family Services. Plaintiff
told the ALJ that DCFS has gotten involved with her and her three children “like
four times.” (R. at 45-46). However, DCFS never removed her children. (R. at 47).
The first time DCFS was involved was after Plaintiff was arrested. She reported
that after her boyfriend cut off his house arrest bracelet and visited her, she lied to
the police. (R. at 46). After they charged her with a felony for harboring a fugitive,
her father reported her to DCFS. (Id.). DCFS concluded that the allegation of abuse
or neglect was unfounded. (Id.). The second time, Plaintiff’s home did not have
running water for a time and her son’s school called the DCFS. (R. at 47). DCFS
also concluded that this complaint was unfounded. (Id.). The last two times, DCFS
came because Plaintiff’s boyfriend was a registered sex offender and she was living
with him. (Id.). At the time of her hearing, Plaintiff was voluntarily no longer living
with him. (Id.).
Plaintiff testified that she has had legal problems. (Id.). Although she
testified that she has not been in prison, she testified that she has been on
probation twice. (R. at 48).
During the hearing, the ALJ and Plaintiff discussed her work history since
1997. (R. at 48). Plaintiff said she worked at IHOP in 2004 for four months as a
server, and she was fired “for calling in.” (Id.). She described the work as stressful,
said she needed to miss work because she needed to pick up her child, and said she
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had been absent on two other occasions. (R. at 48-49). In 2005, she worked at
McDonald’s as a prep cook and cook for six months. (R. at 49). She lost that job after
she was arrested. (Id.). In 2006, Plaintiff worked at Macomb Dining, where she “set
up the salad bar and bussed tables and dishes.” (Id.). She worked for a few months,
took time off when she gave birth to her second son, and returned for a month
before quitting. (Id.). She says she quit because “[t]he kitchen manager was
propositioning” her. (Id.).
She testified that in 2007 she worked at IHOP, Steak and Shake for three
months, and the Village Inn for three months. (R. at 50-51). Her job at the Village
Inn ended because she “just didn’t go back to work and . . . moved back home.” (R. at
51). In 2008, Plaintiff worked at a factory called Whalen’s, where she assembled
blades for a month or two. (R. at 51). She left because she could not get along with
the people on her line. (Id.).
Plaintiff testified that she leaves jobs because she feels “like all the people
there are like judging me and I get, I feel like I’m in a box and I have to, I have to
escape, like I have to go.” (R. at 63).
Plaintiff reported that she moves frequently. She was in jail, “probably in
2009,” after she was arrested for getting into a bar fight with her cousin. (R. at 53).
After she left jail, she rented a home in Macomb, Illinois for a year. (R. at 52). Once
that lease ended, she moved in Blandinsville, Illinois for four months. (Id.). She left
that home because she could not afford to fix a damaged water heater, and moved to
a home in Bardolph, Illinois. (Id.). Ten months later, just days before the hearing
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with the ALJ, she left Bardolph because she “just had to move.” (Id.).
At the time
of the hearing, she was living in a trailer. (R. at 51).
Next, Plaintiff’s counsel questioned her about her psychological treatment.
Plaintiff reported that her doctor is Gretchen Fawcett, whom she had been seeing
for approximately six months at the time of the hearing. (R. at 54). She reported she
had been seeing her counselor, Pam Helms, for three years, because she needed
help with her anger. (Id.). She began seeing Helms because she was “fighting people
and getting mad all the time and it was court ordered.” (R. at 55). She would “just
get angry” when she looked at people and would “just get bad thoughts when
certain people would come around.” (Id.).
Plaintiff testified that she saw two doctors who treated her for her anger
issues. One prescribed her medicine that made her angrier, so she stopped seeing
him and began seeing another doctor who prescribed “a mood stabilizer” and
“something for anxiety.” (Id.). She testified that the mood stabilizer helps with her
anger, although “it doesn’t take it completely away.” (Id.). She said that Effexor
“makes me feel like I’m not going to explode, like I can actually cope with some
things.” (Id.). She said that she has a difficult time staying in relationships and
dealing with her family, but the medication helps her with both. (R. at 57).
Plaintiff testified that she was diagnosed with bipolar disorder, which makes
her either sleep for long periods of time or stay awake for long periods of time. (Id.).
She said that the medicine is helping with symptoms and that it is not as bad as it
once was but that she sometimes stays awake for a day or two or has days when she
just stays in bed. (R. at 57-58). On days when she does not want to be around
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anybody, she shuts her door and gets a babysitter (usually her mother or
grandmother). (R. at 58-59). She estimated that she does this once or twice a month,
and that it persists for “two, maybe three” days in a row when it happens. (R. at 58).
Plaintiff testified that she has three children, who were ten, five, and ninemonths at that time. (R. at 45). She said her goal in life is to raise her children “to
be something some day.” (R. at 65). She testified that the oldest child is in fifth
grade and was an A, B student and the middle child is five and attends head start.
(R. at 65-66). She testified that her children have been in her mother’s and
grandmother’s custody “off and on for the last ten years.” (R. at 67). She testified
that they had been in her custody for the past two years. (Id.).
After Plaintiff testified, the ALJ examined a vocational expert. (R. at 68). The
vocational expert testified that Plaintiff could have learned how to do her past three
jobs – working on an assembly line, as a busser, and as a waitress – in the time in
which she had them. (R. at 69-70).
The ALJ then posed a hypothetical question to the vocational expert:
[A]ssume a younger individual under the age of 50 with a . . . limited
ninth or tenth grade education, no GED, past work history [as an
assembler, busser, and waitress], medium work, 50 pounds
occasionally; 25 pounds frequently; standing and walking a total of six
hours in eight; sitting a total of six; the person would need to change
positions for, say, a minute or two every hour; no ladders, ropes, or
scaffolds; and then the postural, all of these would be occasional,
balancing, kneeling, crouching, crawling, stooping, and climbing ramps
and stairs. Then the work should be simple, routine tasks that can be
done independently that involve working primarily with things rather
than people. Then beyond that, to the extent any social interaction
would be required, it should be only with supervisors and co-workers
and superficial, no negotiation confrontation, arbitration, mediation, or
supervision of others; and no direct interaction with the general public.
And let’s start with that. Would such a person be able to do any of the
past jobs?
18
(R. at 70-71).
The vocational expert responded that a person would be able to do either the
assembly work or the bussing work. She estimated there are 4,200 bussing jobs in
the St. Louis metro area and 402,000 nationally, and 7,000 assembling jobs in the
metro area and 700,000 nationally. (R. at 71).
Next, the ALJ added to the hypothetical a requirement that the work be in a
non-public setting. The vocational expert testified that such a requirement would
eliminate the bussing position but leave the assembly job available. (Id.). The
vocational expert then identified additional jobs that a person in the hypothetical
could do, of which 2,500 exist in the St. Louis metro area and 211,000 exist
nationally. (R. at 71-72). The vocational expert testified that these jobs would
typically include a thirty-minute lunch break and two fifteen-minute breaks. (R. at
73). A person who had one could not be absent “more than once a month,” and could
not be regularly absent every month. (Id.). The vocational expert testified that a
hypothetical person could not get into a physical or verbal confrontation at work
and still keep the job. (Id.).
6. The ALJ’s Decision
The ALJ issued his decision to deny Plaintiff’s disability claims on June 26,
2012. (R. at 33). He concluded that Plaintiff met the insured status requirements;
had not engaged in substantial gainful activity since May of 2008; and suffered from
a number of severe impairments, including degenerative disc disease, obesity,
bipolar disorder, intermittent explosive disorder, and borderline personality
disorder. (R. at 22-23). However, the ALJ concluded that Plaintiff’s impairments did
19
not meet or medically equal any of the listed impairments in the Code of Federal
Regulations, and concluded that Plaintiff possessed the residual functional capacity
necessary to perform medium work that consists of “simple routine tasks that can
be performed independently and that involve working primarily with things rather
than with other people.” (R. at 23-24). The ALJ concluded that Plaintiff is unable to
perform any of her past relevant work as an assembler, busser, or waitress.
However, he also concluded that there are a significant number of jobs in the
national economy that Plaintiff can perform. (R. at 31-32).
The ALJ considered Plaintiff’s mental impairments under listings 12.04 and
12.08. See 20 C.F.R. § 404, Subpart P, Appendix 1, Listings 12.04, 12.08; (R. at 23).
The ALJ concluded that Plaintiff met the Paragraph A criteria for each listing, and
went on to consider whether Plaintiff met the Paragraph B criteria of each listing.
Pursuant to regulations, the ALJ considered whether Plaintiff’s disabilities caused
four possible limitations: marketed restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation, each of
extended duration. (Id.). The ALJ concluded that Plaintiff’s disability caused mild
restrictions on her activities of daily living, moderate difficulties in maintaining
social functioning, moderate difficulties with concentration, and no episodes of
decompensation. (R. at 23). The ALJ based these conclusions on the fact that (1)
Plaintiff lives with her three children and has not demonstrated that she has a
difficult time caring for them, takes care of her own needs and hygiene, and can
complete household chores; (2) Plaintiff gets along with her children and is able to
20
shop; and (3) Plaintiff watches television during the day, spends time on the
computer, and can shop by herself. (Id.).
The ALJ concluded that Plaintiff had the residual functional capacity to
conduct certain work. (R. at 25). After reviewing the evidence, he reasoned that
although Plaintiff’s impairments “could reasonably have been expected to produce
the alleged symptoms,” the “alleged intensity, persistence, duration, and impact on
functioning are not credible or consistent with the totality of the evidence.” (Id.).
The ALJ reasoned that statements that Plaintiff gave to various consultative
sources were inconsistent with her testimony at the hearing. For example, Plaintiff
told Dr. Froman that she was likely to lose a job because she did not have a car and
told Dr. Yakin that her status as a convicted felon made it difficult for her to find a
job. (R. at 25, 27). Both were unrelated to her alleged symptoms. Plaintiff’s reports
of daily activities to consultative sources were also inconsistent with her testimony.
(Id.). The ALJ also noted that Plaintiff’s health records from North Central reflected
an improvement of symptoms and noted success with medicine. (R. at 28, 30).
Finally, the ALJ noted that Plaintiff’s lack of inpatient hospitalization, the fact that
she only saw her treating physician every three months, and the fact that she had
not been prescribed the “psychotropic medications commonly known to be among
the strongest,” suggest that Plaintiff’s symptoms were not as severe as she reported.
(R. at 29).
The ALJ discounted the medical source statements provided by Pam Helms.
(R. at 30). He noted that Helms is not an acceptable medical source and that no
psychiatrist had co-signed the statement. (Id.). He also concluded that the
21
statement was inconsistent with mental status exams conducted by consultative
psychologists and inconsistent with Plaintiff’s medical records that showed some
improvement in her symptoms and improvements with medication. He reasoned
that the statements’ conclusions are inconsistent with Plaintiff’s lack of
hospitalizations, lack of incidents of being jailed or incarcerated due to
interpersonal difficulties, the lack of state involvement in Plaintiff’s care and
custody of her children, the daily activities of a single mother of three, and
Plaintiff’s testimony that she had never been fired from a job. (Id.). Finally, the ALJ
concluded that the report was not reliable because Helm’s demonstrated a
willingness to speculate when she concluded that Plaintiff has been disabled since
October 31, 2006 even though she did not begin treatment at North Central until
2008. (Id.). The ALJ also discounted statements provided by Plaintiff’s grandmother
and friend because they contradicted the medical evidence presented by the
consultative sources. (Id.).
LEGAL STANDARDS
I. Standard of Review
The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
“The standard of review that governs decisions in disability-benefit cases is
deferential.” Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). When a
claimant seeks judicial review of an ALJ’s decision to deny benefits, this Court must
only “determine whether [the ALJ’s decision] was supported by substantial evidence
or is the result of an error of law.” Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.
2004). “The findings of the [Commissioner] as to any fact, if supported by
22
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence,
‘although more than a mere scintilla of proof, is no more than such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001) (citations omitted).
To determine whether the ALJ’s decision is supported by substantial
evidence, this Court will review the entire administrative record, but will not
“reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute
[its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863,
869 (7th Cir. 2000). While this Court must ensure that the ALJ “build[s] an
accurate and logical bridge from the evidence to his conclusion,” he need not address
every piece of evidence. Clifford, 227 F.3d at 872. The Court will remand the case
only where the decision “lacks evidentiary support or is so poorly articulated as to
prevent meaningful review.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
II. Disability Standard
To qualify for disability insurance benefits and/or SSI under the Social
Security Act, claimants must prove that they are unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment.” 42 U.S.C. §§ 416(i)(1), 1382c(a)(3)(A). Additionally, the
impairment must be of a sort “which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. §§ 416(i)(1),
1382c(a)(3)(A). With respect to a claim for a period of disability and disability
insurance benefits, claimants must also show that their earnings record has
acquired sufficient quarters of coverage to accrue disability insurance benefits and
23
that their disability began on or before the date that insurance coverage ended. 42
U.S.C. §§ 416(i)(3), 423(c)(1)(B).
The Commissioner engages in a factual determination to assess claimants’
abilities to engage in substantial gainful activity. McNeil v. Califano, 614 F.2d 142,
145 (7th Cir. 1980). To do this, the Commissioner uses a five-step sequential
analysis to determine whether claimants are entitled to benefits by virtue of being
disabled. 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1); Maggard v. Apfel, 167 F.3d 376,
378 (7th Cir. 1999).
In the first step, a threshold determination is made as to whether the
claimant is presently involved in any substantial gainful activity. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in such activity, the
Commissioner then considers the medical severity of the claimant’s impairments.
Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairments meet the twelve-month
duration requirement, the Commissioner next compares the claimant’s impairments
to a list of impairments contained in Appendix 1 of Subpart P of Part 404 of the
Code of Federal Regulations and deems the claimant disabled if the impairment
matches the list. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments do not match the list, then the Commissioner considers the claimant’s
Residual
Functional
Capacity
(“RFC”)3
and
past
relevant
work.
Id.
§§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If claimants are still able to perform their past
relevant work, then they are not disabled and the inquiry ends. Id. If they are
unable to perform their past relevant work, then the Commissioner considers the
Residual Functional Capacity is defined as “the most [claimants] can still do
despite [their] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
3
24
claimants’ RFC, age, education, and work experience to see if they can transition to
other work. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If a transition is not possible,
then the claimant is deemed disabled. Id.
The plaintiff has the burden of production and persuasion on the first four
steps of the Commissioner’s analysis. McNeil, 614 F.2d at 145. However, once the
plaintiff shows an inability to perform any past relevant work, the burden shifts to
the Commissioner to show an ability to engage in some other type of substantial
gainful employment. Id. (citing Smith v. Sec’y of Health, Educ. & Welfare, 587 F.2d
857, 861 (7th Cir. 1978)).
DISCUSSION
In her Motion for Summary Judgment, Plaintiff raises two arguments. First,
she argues that the ALJ erred in refusing to give the opinion of Pam Helms
controlling weight. Second, she argues that the ALJ erred in finding that Plaintiff’s
mental impairments do not meet a listing of impairment under listings 12.04 or
12.08. For the reasons explained below, each contention is insufficient to remand
this case to the ALJ.
I. Weight of Evidence from Plaintiff’s Treating Counselor
Plaintiff first argues that the ALJ erred by according more weight to the
opinion of the consulting psychologist than to her counselor, Pam Helms. (Doc. 11 at
8). Specifically, Plaintiff argues that the ALJ should have given Helms’s opinion
controlling weight. (Id. at 10).
The fact that Helms has a more developed relationship with Plaintiff than
consultative sources is not reason to give her opinion controlling weight. Guidance
25
from the Social Security Administration recognizes that due to “the growth of
managed health care in recent years and the emphasis on containing medical costs,
medical sources who are not ‘acceptable medical sources,’ such as . . . licensed
clinical social workers have increasingly assumed a greater percentage of the
treatment and evaluation functions previously handled primarily by physicians and
psychologists.” SSR 06-03p, 2006 WL 2329939, *3 (Aug. 9, 2006). Therefore, it notes
that opinions from these sources “are important and should be evaluated on key
issues such as impairment severity and functional effects.” Id.
Contrary to
Plaintiff’s contention, however, SSR 06-03p does not instruct ALJs to give
controlling weight to the opinions of other sources that provide primary treatment
to claimants. In fact, it says exactly the opposite, reiterating that only acceptable
medical sources can provide medical opinions that might be entitled to controlling
weight. Id.
As the regulations make clear, the ALJ could not give Helms’s opinion
controlling weight. The governing regulations require ALJs to give controlling
weight to a treating source’s opinion when the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). However, only “acceptable medical sources” can provide medical
opinions, see 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2), and only the medical
opinions of “acceptable medical sources” are entitled to controlling weight. See 20
C.F.R. §§ 404.1527(c), 416.927(c); see also SSR 06-03p.
26
Plaintiff concedes that Ms. Helms is not an “acceptable medical source,” as
defined by regulation, but is instead an “other source.”
(Doc. 11 at 8). “Other
sources” include medical sources that are not considered “acceptable medical
sources,” such as “nurse-practitioners, physicians’ assistants, . . . and therapists.” 20
CF.R. §§ 404.153(d), 416.913(d). Therefore, the ALJ did not err in refusing to give
Helms’s opinion controlling weight.
However, ALJs are not permitted to simply disregard evidence even if it is
not controlling. SSR 06-03p reiterates requirements in 20 C.F.R. §§ 404.1527(b) and
416.927(b) that ALJs consider “all relevant evidence in the case record,” and
suggests that ALJs might apply factors ordinarily reserved for acceptable medical
sources in evaluating opinion evidence from “other sources.” See SSR 06-03p at *4-6;
20 C.F.R. §§ 404.1527(d), 416.927(d). Having done so, the ALJ may decide that the
opinion of a therapist like Helms outweighs the opinion of acceptable medical
sources, including treating sources. SSR 06-03p at *6. ALJs should consider a
number of factors, including the length of time a source has known a social security
claimant and seen the claimant, the consistency of the source’s opinion with other
evidence, the degree to which a source presents relevant evidence to support an
opinion, how well the source explains the opinion, whether the source has a
specialty or area of expertise that is relevant to the claimant’s impairments, and
any other facts that tend to support or refute the source’s opinion. See id.
Although Plaintiff has challenged the ALJ’s decision to not accord Helms’s
opinion controlling weight, she has not challenged the particular reasons that the
27
ALJ provided when deciding to give Helms’s report little weight.4 Because Plaintiff
has failed to develop an argument that the ALJ erred in his reasons for discounting
Helms’s opinion, she has waived that argument. See Webster v. Astrue, 580 F. Supp.
2d 785, 794 (W.D. Wis. 2008); Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001).
The Court, however, notes that the ALJ provided a number of compelling
reasons for failing to credit Helms’s report. (See R. at 30). For example, the ALJ
noted that Helms’s opinions were inconsistent with the opinions of the consultative
psychologists, Plaintiff’s treatment records and Plaintiff’s own claims which
indicate that her symptoms have improved with medication, Plaintiff’s lack of
inpatient hospitalizations, the lack of state involvement in her care and custody of
Plaintiff does suggest that the ALJ erred by taking notice of the fact that Plaintiff
frequently missed scheduled appointments with Helms. (See Doc. 11 at 14). Plaintiff
argues that her “inability to keep appointments is both a symptom of her mental
illness and an aggravating factor.” (Id., citing Punzio v. Astrue, 630 F.3d 704,711
(7th Cir. 2011)). This argument is undeveloped, however, and appears to challenge
the ALJ’s assessment of Plaintiff’s limitations rather than challenge the ALJ’s
assessment of Helms’s opinions. Moreover, the case she cites is inapposite to this
one. In Punzio, an ALJ concluded that an examining physician’s opinion that a
claimant’s “mental limitations will cause frequent absenteeism” had no support in
the record. 630 F.3d at 711. The Seventh Circuit, however, concluded that there was
support for this conclusion, as “the psychiatric treatment notes [were] replete with
references to missed appointments.” Id. In this case, the ALJ wrote that “[i]t is also
noteworthy that the claimant has not been regularly attending her scheduled
appointments.” (R. at 30). However, unlike in Punzio, this observation was not
made in an effort to discount specific findings made by Helms. See id. Although
Plaintiff’s missed appointments might be relevant to her impairments, Helms did
not opine on any ways in which they could be. (See R. at 673-75, 679-81). Plaintiff’s
missed appointments are also relevant to the amount of weight that ALJs should
accord to treating physicians and other sources. See SSR 06-03p at *4 (identifying
the length of time a source has known a claimant and the frequency with which the
source has seen the claimant as a relevant factor when considering opinion
evidence). Therefore, the Court cannot conclude that the ALJ erred in considering
Plaintiff’s treatment history with Helms when he chose to discount Helms’s opinion.
4
28
her children, her reported daily activities, and her testimony that she had never
been fired from a job. (See R. at 30).
To be sure, some of the ALJ’s reasons for failing to credit Helms’s report do
not find support in the record. For example, there is evidence that Plaintiff was
jailed or incarcerated due to interpersonal difficulties, as she testified that she was
incarcerated after she got into a bar fight with her cousin. (R. at 53). However, the
vast majority of the ALJ’s analysis finds support in the record. The ALJ indicated
that the most important reasons that he discounted Helms’s opinion are that it was
inconsistent with Plaintiff’s case notes at North Central and inconsistent with that
of consultative sources. (R. at 30). Importantly, Plaintiff’s case notes include
Plaintiff’s own, most recent, report to Helms from January 2012 that she was
compliant with her medications and that Xanax and Effexor really help her stay
calm. (See R. at 745).
This analysis would be enough to overcome Helms’s opinion
even if she was an acceptable medical source whose opinion might be entitled to
controlling weight.
See Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)
(explaining that an ALJ “may discount a treating physician’s medical opinion if the
opinion is inconsistent with the opinion of a consulting physician or when the
treating physician’s opinion is internally inconsistent, as long as he minimally
articulates his reasons for crediting or rejecting evidence of disability.”). For that
reason, the Court concludes that any error the ALJ may have made in assessing
Helms’s credibility was harmless. See Schomas v. Colvin, 732 F.3d 702, 707 (7th
Cir. 2013)(explaining that a federal court should not “remand a case to the ALJ for
29
further explanation if [it] can predict with great confidence that the result on
remand would be the same.”).
The ALJ did not discredit Helms’s opinion by relying upon a subset of hopeful
remarks contained in the medical records. In the past, the Seventh Circuit has
criticized ALJs for discounting the opinions of treating physicians on the basis of “a
number of hopeful remarks” contained in treatment notes. See Bauer v. Astrue, 532
F.3d 606, 609 (7th Cir. 2008). In Bauer, an ALJ discounted a treating physician’s
opinion simply on the basis of those treatment notes, explaining that reports that a
patient is “doing ‘fairly well’” or that her “reported level of function was found to
have improved,” cannot on their own demonstrate that a patient is functional
because “[a] person who has a chronic disease . . . and is under continuous
treatment for it with heavy drugs, is likely to have better days and worse days.” Id.
Here, however, the ALJ’s analysis focused on the overall record rather than
relying upon stray remarks. See id. The ALJ did identify a number of statements
indicating that Plaintiff’s symptoms had improved as a way of discounting Helms’s
opinion. For example, Helms’s colleague, Dr. Sheth, regularly reported that Plaintiff
was doing somewhat better and Plaintiff also reported the relative effectiveness of
her medication, noting when it was working and when it was not working. (See R. at
28, 489, 499-500). Perhaps the hopeful notes contained in Plaintiff’s medical records
do not, alone, provide good reason to discredit Helms’s opinion. See Bauer, 532 F.3d
at 609. However, the hopeful notes in Plaintiff’s medical records are consistent with
Plaintiff’s reported daily activities, the conclusions of non-treating sources who
concluded that Plaintiff’s symptoms were not so severe, the frequency of Plaintiff’s
30
office visits with her treating physicians, and the types of medication her physicians
had prescribed. (R. at 27-30).
These factors, when viewed together, provide an
adequate explanation for discounting Helms’s statement. See Schreiber v. Colvin,
519 F. App’x 951, 958 (7th Cir. 2013)(concluding that ALJ provided adequate reason
for discounting treating physician’s opinion on the basis that the assessment was
inconsistent with positive treatment notes, the level of treatment provided, the
claimant’s reported activities of daily living, and opinions of other physicians).
For these reasons, the Court concludes that the ALJ did not err when he did
not give Pam Helms’s opinion controlling weight or err in his decision to accord
little weight to her opinion.
II. Plaintiff’s Mental Impairments
Plaintiff’s second contention is that the ALJ erred at step three of the
sequential evaluation process by finding that Plaintiff does not have an impairment
or combination of impairments that meet or equal a listed impairment. Plaintiff
asserts that her impairments were medically equivalent to the listing for affective
disorders and personality disorders. See 20 C.F.R. § 404, Subpart P, App. 1, Listings
12.04, 12.08. As relevant to this case, to satisfy these listings claimants must have a
medically documented impairment (known as the “A” criteria) that results in two of
four functional limitations (known as the “B” criteria): marked restriction of daily
living activities, marked difficulties in maintaining social functioning, marked
difficulties in maintaining concentration, persistence, or pace; or repeated episodes
of decompensation. See id.
31
In this case, the ALJ concluded that Plaintiff’s ailments meet the A criteria,
but the severity of her ailments do not meet any of the limitations listed in
paragraph B. (R. at 23). The ALJ concluded that Plaintiff had mild restrictions in
daily living, moderate difficulties in social functioning, and moderate difficulties
with regard to concentration. (Id.).
Plaintiff argues that the ALJ erred in three ways in concluding that she did
not satisfy the criteria of paragraph B: first, the ALJ employed faulty logic; second,
the ALJ cherry-picked evidence; and third, the ALJ did not accept the opinion of
Pam Helms. Defendant counters by arguing that Plaintiff failed to present “specific
medical findings that satisfy all of the criteria of the particular listing.” (Doc. 15 at
5). Defendant argues that because Plaintiff failed to “meet her burden to
demonstrate with acceptable medical evidence that she met all of the requirements
of either Listing 12.04 or 12.08,” she cannot as a matter of law establish that she
was disabled under step three. (Id. at 6).
Defendant’s argument is contrary to the Social Security Administration’s
regulations and guidance. In considering whether a claimant’s impairment
“medically equals a listing,” the Social Security Administration must “consider all
evidence in [the claimant’s] case record about [her] impairment and its effect on
[her] that is relevant to this finding.” 20 C.F.R. 404.1526(c). The listings at issue in
this case can only be met if a claimant provides evidence of both an impairment and
evidence of the impairment’s functional limitations. See 20 C.F.R. § 404, Subpart P,
App. 1, Listing 12.00. Paragraph A of listings 12.04 and 12.08 require that a
claimant “substantiate medically the presence of a particular mental disorder,”
32
while paragraphs B and C “describe impairment-related functional limitations that
are incompatible with the ability to do any gainful activity.” See id.
A claimant must provide “medical evidence consisting of signs, symptoms,
and laboratory findings” to establish the listing’s Paragraph A criteria. See 20
C.F.R. §§ 404.1508, 404.1528. However, claimants need not provide medically
acceptable evidence to establish that they meet the criteria of Paragraphs B and C.
Because Paragraphs B and C concern the severity of a claimant’s impairment and
the ways in which a claimant’s impairment affect the claimant’s ability to function,
the Social Security Administration can consider evidence from other sources. See
SSR 06-03p at *2.
Therefore, the Court must consider Plaintiff’s arguments concerning the
ALJ’s logic in determining that she did not meet either listing 12.04 or 12.08.
A. The ALJ’s logic
Plaintiff argues that none of the purported reasons for concluding that she
does not meet the paragraph B criteria are legitimate. The ALJ concluded that
Plaintiff only has mild limitations in daily living because she is a single mother who
can do household chores; only has moderate limitations in social functioning
because she gets along with her kids and admits to shopping; and only has
moderate limitations in concentration because she is able to engage in simple,
routine tasks like watching television, spending time on the computer, and
shopping. (R. at 23). He incorporated his findings regarding Plaintiff’s residual
capacity function at step four into his findings with respect to the B paragraph
criteria. (R. at 24). Plaintiff argues that the ALJ should not have relied upon the
33
fact that Plaintiff could shop and care for her household, care for her children, and
get along with her children. (Doc. 11 at 10-11).
Each of Plaintiff’s arguments either misstates evidence or misapplies law.
Plaintiff first argues that the ALJ improperly generalized certain activities, like
shopping and taking care of household chores, and did not properly limit evidence of
shopping and taking care of household chores to activity that occurs during her good
days. (Doc. 11 at 10). In concluding that Plaintiff’s daily chores and the fact that she
shops were evidence that her impairments did not markedly affect her functionality,
the ALJ did not rely upon “a snapshot of any single moment,” but rather relied upon
statements that Plaintiff made to consultative sources regarding her activities of
daily living. See Punzio, 630 F.3d at 710. In Punzio, the Seventh Circuit criticized
an ALJ for discrediting the opinion of a claimant’s treating physician by “cherrypicking [the doctor’s] file to locate a single treatment note that purportedly
undermines her overall assessment of [the claimant’s] functional limitations. . .” Id.
Here, rather than relying upon a single note that Plaintiff engaged in these
activities in order to discredit a treating physician, the ALJ relied upon reports
made by a number of consultative sources that spoke in general terms about
Plaintiff’s abilities. For example, the ALJ specifically relied upon Dr. Yakin and Dr.
Mehr’s reports. (R. at 27-28, 29). Plaintiff told Yakin that she “gets up at 7:00 a.m.
each morning,” that she is “able to” cook, wash dishes, clean, vacuum, do laundry,
take care of her children, and go shopping alone.” (R. at 27-28; 565). She reported
more limited daily activities to Dr. Mehr, but again noted that she could take care of
her children, clean her room, drive, and shop. (R. at 582). Moreover, these
34
observations supported Dr. Mehr’s conclusion that Plaintiff did not suffer from
marked functional limitations (R. at 586), and do not contradict the opinion of
Plaintiff’s treating physician, as Plaintiff has not provided any. Therefore, the ALJ
did not commit the sort of error that the ALJ committed in Punzio, and Plaintiff’s
criticisms are misplaced. See Punzio, 630 F.3d at 710.
Plaintiff next argues that it was improper to equate the fact that Plaintiff can
do housework or the fact that she takes care of her children with the idea that she is
capable of doing work in the labor market. In Gentle v. Barnhart, the Seventh
Circuit criticized an ALJ who concluded that a woman who suffered from a physical
disability could work because she conducted household work. 430 F.3d 865, 867 (7th
Cir. 2005). In that case, a woman with a spinal injury took care of her children, a
fact that Judge Posner characterized as both necessary and heroic. Id. Judge Posner
also concluded that such a comparison was improper because of the help that the
plaintiff received. Id.
In this case, however, the ALJ marshalled this evidence differently than the
ALJ in Gentle. Here, the ALJ concluded that the fact that Plaintiff could care for
her three children would require interaction with myriad outsiders, and also shop,
another task that inevitably would require interaction with outsiders. (R. at 29).
The ALJ did not conclude that the housework that Plaintiff is able to do is somehow
equivalent to work in the labor market. See Gentle, 430 F.3d at 867. Rather, the
ALJ relied upon this evidence to conclude that Plaintiff is capable of interaction
with others, including co-workers or supervisors. (R. at 29). Such a conclusion is
35
categorically different than the conclusion that the ALJ reached in Gentle. See 430
F.3d at 867.
Plaintiff also criticizes the fact that the ALJ did not discount the fact that she
can take care of her children by recognizing that she requires assistance in taking
care of them. A determination that lacks support in the record is patently wrong.
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). In her brief, Plaintiff points to
evidence that her father cared for her children on many occasions, (Doc. 11 at 10,
citing R. at 415), and also criticizes the ALJ for failing to mention that Plaintiff’s
mother and grandmother also often care for her children. (Doc. 11 at 11).
Although the ALJ did not mention this evidence in his decision, he did
consider Plaintiff’s testimony that she sometimes had difficulty caring for her
children on her own, including testimony that she would “get[] a babysitter
sometimes for a week or a couple days, 2 times per month, for 2-3 days.” (R. at 25).
There is also ample evidence in the record that Plaintiff could care for her children.
She herself said so to consulting sources, including Dr. Yakin (R. at 565), and she
also testified that the state had never intervened in her custody of her children. (R.
at 45-47). In reaching his conclusion that Plaintiff could care for her children, the
ALJ relied upon this evidence. (See R. at 27-28, 29).
This evidence is substantial enough that a reasonable mind might accept [it]
as adequate to support a conclusion.” Kepple, 268 F.3d at 516. Here, Plaintiff is
asking the Court to reweigh the evidence, resolve conflicts, and substitute its own
judgment for that of the Commissioner. That’s something that the Court will not do.
See Clifford, 227 F.3d at 869. Rather, the Court’s task is to ensure that the ALJ
36
built an “accurate and logical bridge from the evidence to his conclusion.” Id. at 872.
Here, the ALJ’s conclusion that Plaintiff was able to adequately care for her
children without difficulty is supported by the evidence in the record and this
evidence logically supports his conclusion that Plaintiff’s functionality was not
markedly limited by her impairments. See Steele, 290 F.3d at 940.
Finally, Plaintiff argues that it is inappropriate to analogize her relationship
with her children to her ability to get along with people who are not her children. In
Larson v. Astrue, 615 F.3d 744 (7th Cir. 2010), Judge Wood concluded that an ALJ
erred by discrediting a plaintiff’s claim that she was afraid to go out in public on the
basis that that she had a few close friendships. Id.at 752. As discussed above,
however, this is not the way in which the ALJ marshalled the evidence that
Plaintiff got along with her children. Rather than pointing to a few close
relationships, the ALJ considered both Plaintiff’s relationship with her children and
also considered the various social interactions that Plaintiff would need to have
with other people in order to care for her children. See id. at 752, (R. at 29). This
includes her children’s “teachers, bus drivers, other school officials, or treating
medical sources for her children.” (R. at 29). Collectively, the ALJ suggested that
this evidence “does not support a conclusion that the claimant can only be in work
or other settings that involve no interaction whatsoever . . . to any other
individuals.” (Id.).
For these reasons, the Court is unable to conclude that the ALJ employed
faulty logic in concluding that Plaintiff’s functional limitations did not meet Listings
12.04 and 12.08. Rather, the ALJ built a logical bridge from the evidence in the
37
record to his conclusion. Therefore, these reasons are insufficient for the Court to
remand this matter to the ALJ.
B. Cherry-Picked Evidence
Plaintiff next argues that the ALJ cherry-picked evidence that tended to
show that she was not eligible for benefits while giving little weight to evidence that
was favorable to her case. (Doc. 11 at 13). In support of this evidence, Plaintiff
identifies a string of Plaintiff’s Global Assessment of Functioning (GAF) scores over
a four year period that the ALJ did not discuss.
In his decision, the ALJ paid very little attention to Plaintiff’s GAF scores.
The ALJ noted that in May of 2007, Dr. Froman “rated her [GAF] at 60, which is
indicative of only moderate limitations in social functioning.” (R. at 26). However,
the ALJ did not address any of Plaintiff’s other GAF scores, many of which were
included in the medical records from North Central. Between April 2008 and
December 2011, Pat Helms assessed Plaintiff’s GAF on at least seven occasions.
Each time, she assessed it at between 46 and 48. (See R. at 431,441, 468, 663, 728,
758, 765). Two physicians at North Central also assessed Plaintiff’s GAF. Dr.
Wright assessed it at 53 on July 3, 2008 (R. at 433), and Dr. Sheth assessed it at 48
in August and October of 2009. (R. at 478, 497). Scores between 41 and 50 reflect
either serious symptoms or any serious impairment in social, occupational, or school
functioning. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders 34 (Text Revision, 4th ed. 2000).
GAF scores are “useful for planning treatment,” and are measures of a
person’s severity of symptoms and functional level. Denton v. Astrue, 596 F.3d 419,
38
425 (7th Cir. 2010)(citing Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of
Mental Disorders 32-34 (Text Revision, 4th ed. 2000)).5 GAF scores reflect the worse
of a person’s severity of symptoms and functional level. Denton, 596 F.3d at 425. For
that reason, a GAF score “does not reflect the clinician’s opinion of functional
capacity.” Id.
“A low GAF score alone is insufficient to overturn an ALJ’s finding of no
disability.” Bates, 736 F.3d at 1099.
However, an ALJ’s failure to consider
conflicting GAF scores may be problematic. See Walters v. Astrue, 444 F. App’x 913,
918 (7th Cir. 2011). In Denton, the Seventh Circuit held that an ALJ did not err by
refusing to consider an “unexplained numerical [GAF] score assigned by [a
physician]” and instead relying upon a “narrative finding” by the same physician
that “substantially supported” the ALJ’s conclusion that the claimant had no
significant impairments. Denton, 596 F.3d at 425. However, in Yurt v. Coleman, 758
F.3d 850 (7th Cir. 2014), the Seventh Circuit held that an ALJ erred by adopting
the findings of a non-examining psychologist who relied upon a single GAF score in
concluding that the claimant had minimal impairments. Id. at 859. In that case, the
non-examining physician considered the fact that the claimant’s examining
physician assigned a GAF of 60, but ignored the fact that another examining
physician assigned two GAF scores – one of 25 to 30 and the other of 35-50 – just
two weeks later. Id. The court faulted the ALJ for adopting the non-examining
The American Psychiatric Association no longer uses the GAF as a metric. See Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 16 (5th ed.
2013). However, professionals used GAF scores during Plaintiff’s treatment, so they
are relevant to the ALJ’s decision. See Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir.
2013).
5
39
psychologist’s opinion, which “[s]eized upon” the higher GAF, not because of the
“failure to individually weigh the low GAF scores,” but instead because of a “larger
general tendency to ignore or discount evidence favorable to [the claimant’s] claim,
which included GAF scores from multiple physicians suggesting a far lower level of
functioning.” Id. at 859-60.
The ALJ did not commit clear error in this case. First, although the ALJ
referenced Dr. Froman’s assessment of Plaintiff’s GAF, he did not “seize upon it” to
conclude that Plaintiff did not have marked impairments at the expense of other
indicators suggesting otherwise. See id. at 859. Instead, the ALJ used Dr. Froman’s
report as one piece of evidence that contradicted Plaintiff’s claims of her functional
limitations. (See R. at 25-26). The ALJ also considered the opinions of Dr. Yakin (R.
at 27-28) and Dr. Mehr (R. at 29), each of whom reviewed Plaintiff’s medical records
from North Central that contained lower GAF scores. (See R. at 563, 582).
Moreover, the ALJ also considered the treatment notes from Dr. Wright, Dr. Sheth,
and Pam Helms. (See R. at 26, 27, 28, 30). Although these notes included GAF
scores, the scores were presented without any explanation. (See, e.g., R. at 433).
Rather than relying upon unexplained GAF scores that were included as part of
those treatment notes, the ALJ focused his analysis on the recorded clinical
observations. (See R. at 26, 27, 28, 30.). Therefore, the ALJ’s omission of these GAF
scores is not indicative of an ALJ who failed to consider evidence. See Bates, 736
F.3d at 1099; Walters, 444 F. App’x at 918 (criticizing ALJ for cherry picking high
GAF scores and noting that “nothing in the RFC leads us to believe that the ALJ
accounted for” the opinion of the doctor providing a lower GAF). Rather, the ALJ’s
40
treatment of Plaintiff’s GAF scores resembles the treatment in Denton, where the
ALJ’s finding was “substantially supported by [a physician’s] narrative finding,”
even though the recorded GAF scores might have suggested otherwise. See 596 F.3d
at 425. For that reason, the Court concludes that the ALJ did not err by not
mentioning or individually weighing low GAF scores assigned by Wright, Sheth, or
Helms.
C. Helms
Finally, Plaintiff argues that the ALJ should have credited Helms’s medical
source statements, and adopted her opinion that Plaintiff met listings 12.04 and
12.08. However, as discussed above, the ALJ concluded that these medical source
statements were not credible and he provided a thorough explanation for electing to
accord them little weight. (R. at 30). Specifically, the ALJ concluded that the reports
were contradicted by the opinions of other professionals, were inconsistent with the
record, and undermined by Helms’s purported willingness to speculate. (See id.).
By asking the Court to accept Helms’s opinion over the other evidence,
Plaintiff is essentially asking that the Court “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. However, courts “will not upset
credibility determinations on appeal so long as they find some support in the record
and are not patently wrong.” Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994).
As explained above, Plaintiff has not challenged the bases of the ALJ’s credibility
determinations and the Court concludes that the ALJ’s logic was not patently
wrong. See supra at 28-32.
41
CONCLUSION
For the foregoing reasons, the Commissioner’s decision denying disability
benefits is affirmed. IT IS THEREFORE ORDERED that Plaintiff’s Motion for
Summary Judgment (Doc. 11) is denied, and Defendant’s Motion for Summary
Affirmance (Doc. 14) is granted.
CASE TERMINATED.
Entered this 17th day of February, 2015.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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