Ringering v. Commissioner of Social Security
Filing
21
OPINION (See Written Opinion): The Court is reversing and remanding under sentence four of section 405(g). Entered by Judge Sue E. Myerscough on 8/04/2015. (VM, ilcd)
E-FILED
Tuesday, 04 August, 2015 04:35:47 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JULIA RINGERING,
)
)
Plaintiff,
)
)
v.
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)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security, )
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Defendant.
)
Civil No. 13-3024
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court are Plaintiff Julia Ringering’s Motion for
Summary Reversal (d/e 14), Defendant Carolyn Colvin’s Motion for
Summary Affirmance (d/e 18), and Magistrate Judge Tom SchanzleHaskins’s Report and Recommendation (d/e 20) recommending that
the Plaintiff’s Motion be denied and the Defendant’s Motion be
affirmed. Because the Court finds that the Social Security
Commission’s decision was not supported by substantial evidence,
the Magistrate Judge’s Report and Recommendation is adopted in
part and rejected in part, the Plaintiff’s Motion is granted, and the
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Defendant’s Motion is denied.
I. BACKGROUND
The Court notes that no objections were filed to the Magistrate
Judge’s Report and Recommendation. The Court adopts the factual
findings of the Report and Recommendation, with one exception.
Importantly, the Report and Recommendation does not recognize
that the Plaintiff met with Dr. Malik not only from September to
November 2009, but also from September 30 to October 9, 2008.
See Rep. and Rec., d/e 20 at 12 n.3. During this period of time, the
Plaintiff was hospitalized and treated by Dr. Malik for suicidal
ideations and high levels of anxiety. R. 314-17.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 72(b)(3) states that the Court
“may accept, reject, or modify the [magistrate judge’s] recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
Generally, “[i]f no objection or only partial objection is made [to a
report and recommendation], the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Systems
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Corp., 170 F.3d 734, 739 (7th Cir. 1999). While a clearly erroneous
standard of review is the minimum standard appropriate in this
context, it is not mandatory, and a district court may instead
choose to apply a de novo standard of review to a Magistrate
Judge’s Report and Recommendation. See United States v.
Malcolm et al., 2012 WL 2428209, at *6 (N.D. Iowa 2012) (citing
Thomas v. Arn, 474 U.S. 140, 154 (1985)). The de novo standard
allows a reviewing court to make an independent review of the
entire matter. Salve Regina College v. Russel, 499 U.S. 225, 238
(1991). The Court will choose to apply the de novo standard of
review in this case.
In conducting this de novo review, the Court reviews the
decision of the Administrative Law Judge (ALJ) to determine
whether the decision is supported by substantial evidence. Delgado
v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). If the decision has such
support, the Court may not substitute its judgment for that of the
ALJ. Id. “Substantial evidence is only such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997).
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This Court will not review the credibility determinations of the ALJ
unless the determinations lack any explanation or support in the
record. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008). The
ALJ must articulate at least minimally his analysis of all relevant
evidence, Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), and
“the [ALJ’s] decision cannot stand if it lacks evidentiary support or
an adequate discussion of the issues,” Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Additionally, the ALJ
must “build an accurate and logical bridge from the evidence to his
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
III. ANALYSIS
The Court finds that the ALJ made a number of missteps in
this case, and that, as a result, the ALJ’s opinion was not
supported by substantial evidence. First, the ALJ placed too much
weight on the opinions of the reviewing doctors, Drs. Hill and
DiFonso. Both Dr. Hill’s and Dr. DiFonso’s opinions were largely
focused on Dr. Datta’s notes from his session with the Plaintiff on
March 30, 2009, in which Dr. Datta wrote that the Plaintiff’s mood
had improved and that she had not had anxiety attacks recently.
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R. 240-41. Based on the notes from this one session, Drs. Hill and
DiFonso concluded that Dr. Datta’s diagnoses of depression and
bipolar disorder were not supported by the record. See R. 266, 287.
However, these notes do not lead to that conclusion. The Plaintiff
stated that she had both manic and depressive episodes, that her
depression came in cycles, and that when she was in a depression
cycle, she was “depressed four to five days a week.” R. 49.
Therefore, the fact that the Plaintiff had one positive session with
Dr. Datta on March 30, 2009, is consistent with the Plaintiff’s
testimony about her depression symptoms, and the one session
does not indicate that the Plaintiff had been “cured” of her
depression at that point in time.
Indeed, the other evidence in the record demonstrates that the
Plaintiff’s depression issues did continue beyond March 2009. Dr.
Datta’s treatment notes from May 18, 2009, indicate that the
Plaintiff was again suffering from panic attacks and was dealing
with anger issues. R. 242. In September 2009, the Plaintiff’s
mental health problems became so severe that she checked herself
into an outpatient treatment program. R. 309-13. Furthermore,
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the Plaintiff testified at her hearing on March 3, 2011, that she was
still struggling with depression, and that due to her bipolar
disorder, she would be depressed for approximately five days a week
for a three-week cycle. R. 49-50. The Plaintiff further testified that
during her depressed days, she would not do anything: she would
not get out of bed, shower, cook, or take care of her children. R. 50.
The ALJ appears to have not credited the Plaintiff’s testimony
regarding her symptoms and limitations based on the reports of
Drs. Hill and DiFonso. However, because of the limited scope of
their review, Dr. Hill’s and Dr. DiFonso’s reports do not provide an
adequate basis for discounting the Plaintiff’s testimony. By
focusing on Dr. Hill’s and Dr. DiFonso’s opinions, which did not
examine any notes after March 31, 2009—the Plaintiff’s date last
insured (DLI)—the ALJ ignored the significance of events postMarch 2009 that demonstrated the Plaintiff’s prolonged struggle
with depression and bipolar disorder. See Pepper v. Colvin, 712
F.3d 351, 367 (7th Cir. 2013) (looking to evidence of depression
after the plaintiff’s DLI to corroborate the plaintiff’s depression
diagnosis from before her DLI); Parker v. Astrue, 597 F.3d 920, 924
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(7th Cir. 2010) (criticizing the ALJ for not relating later evidence of
the claimant’s depression to her condition before her DLI), as
amended on reh’g in part (May 12, 2010).
The ALJ also violated Social Security regulations by placing
more weight on the opinions of the reviewing doctors, Drs. Hill and
DiFonso, than the opinions of the treating doctors, Drs. Datta,
Nigam, and Malik. Under 20 C.F.R. § 404.1527(c), the ALJ was
required to weigh the opinions of the Plaintiff’s treating doctors
more heavily than the opinions of the reviewing doctors. See 20
C.F.R. § 404.1527(c) (advising that ALJs should “give more weight
to opinions from [a claimaint’s] treating sources, since these
sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [a claimaint’s] medical
impairment(s),” and mandating that if a treating source’s opinion is
well-supported, the ALJ “will give it controlling weight”).
Additionally, Social Security Ruling 96-2p advises that “[i]f a
treating source’s medical opinion is well-supported and not
inconsistent with the other substantial evidence in the case record,
it must be given controlling weight.” See SSR 96-2p, Policy
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Interpretation Ruling Titles II and XVI: Giving Controlling Weight to
Treating Source Medical Opinions. While Social Security Rulings
“do not have the force of law,” they are important “interpretive rules
intended to offer guidance to agency adjudicators” and are “‘binding
on all components of the Social Security Administration.’” Lauer v.
Apfel, 169 F.3d 489, 492 (7th Cir. 1999) (quoting 20 C.F.R.
402.35(b)(1)); see also Bray v. Comm’r Soc. Sec. Admin., 554 F.3d
1219, 1224 (9th Cir.2009) (“[Social Security Rulings] do not carry
the ‘force of law,’ but they are binding on ALJs nonetheless.”). The
Court finds that the ALJ ran afoul of SSR 96-2p and 20 C.F.R. §
404.1527 by uncritically accepting the opinions of Drs. Hill and
DiFonso and improperly dismissing the opinions of Drs. Datta,
Nigam, and Malik.
Furthermore, it appears likely that the ALJ and Drs. Hill and
DiFonso were not actually able to read most of Dr. Datta’s
treatment notes, as the notes are almost completely illegible. This
concern is supported by the fact that the ALJ and Drs. Hill and
DiFonso fixated on the treatment notes of March 30, 2009, without
discussing much of the remainder of his notes. See R. 33, 266,
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287. If the ALJ and Drs. Hill and DiFonso could indeed not read
the majority of Dr. Datta’s notes, they should not have found that
Dr. Datta’s treatment notes did not support his listing and decision.
Instead of dismissing Dr. Datta’s opinion based on the illegibility of
Dr. Datta’s notes, the ALJ should have further developed the
record, possibly by having Dr. Datta testify at the Plaintiff’s hearing
or requesting additional information from Dr. Datta. See Bishop v.
Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (finding that
“illegibility of important evidentiary material can warrant a remand
for clarification and supplementation” and remanding case due to
the illegibility of much of the claimant’s doctor’s notes); Gravel v.
Astrue, No. 11 C 1695, 2012 WL 1533390, at *1 (N.D. Ill. Apr. 30,
2012) (“Where the record is illegible because of poor copy quality or
handwriting, courts may remand the case for clarification and
supplementation.”). Because the ALJ dismissed Dr. Datta’s opinion
instead of fully developing the record to determine whether Dr.
Datta’s opinion supports the Plaintiff’s disability claim, the Court
can remand the case to allow the ALJ to further supplement the
record. See Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009)
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(“While a claimant bears the burden of proving disability, the ALJ in
a Social Security hearing has a duty to develop a full and fair
record.”); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000) (“Failure
to fulfill this obligation is ‘good cause’ to remand for gathering of
additional evidence.”); see also Richards v. Astrue, 370 F. App’x
727, 731 (7th Cir. Apr. 13, 2010) (“[A]n ALJ may not draw
conclusions based on an undeveloped record and has a duty to
solicit additional information to flesh out an opinion for which the
medical support is not readily discernable”).
The ALJ also failed to account for Dr. Malik’s treatment notes.
The ALJ mentions that the Plaintiff briefly entered into inpatient
treatment, R. 33, but he does not address Dr. Malik’s findings. Dr.
Malik met with the Plaintiff from September 30 to October 9, 2008
and September to November 2009. See R. 306, 316-17. Dr. Malik’s
findings that the Plaintiff was suffering from suicidal ideations and
high levels of anxiety support the Plaintiff’s claim for disability
benefits, and those findings should have been directly addressed by
the ALJ. See R. 314-17.
Additionally, the ALJ’s functional capacity analysis was
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essentially not supported by any evidence. The ALJ focused on the
fact that Dr. Sohn advised that the Plaintiff should stay active, R.
34, but that phrase is rather ambiguous. For a person with neck
and back problems, with which Dr. Sohn diagnosed the Plaintiff,
“staying active” likely would not mean the high level of activity that
the ALJ listed in his functional capacity analysis. Moreover, when
the Plaintiff did take up more active tasks, such as traveling and
working around her house, she reported to Dr. Sohn that she was
in significant pain afterwards. See R. 324, 357. In light of the pain
that this sort of work caused the Plaintiff, the ALJ should not have
found that the Plaintiff could be employed as a housekeeper. See R.
36. In essence, the specific functional capacity findings of the
ALJ—that the Plaintiff could stand or sit for six hours out of an
eight hour work day, with only occasional breaks—does not have
any support in the record. See R. 31; Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996) (“ALJs must not succumb to the
temptation to play doctor and make their own independent medical
findings.”). The only support for the ALJ’s description appears to
have come from the Plaintiff’s description of her activities the last
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time she was employed, at Walmart, as the ALJ’s description is
almost identical to the Plaintiff’s description of her position at
Walmart. Compare R. 31 and R. 166. However, the Plaintiff’s
injuries to her neck and back occurred after the Plaintiff stopped
working at Walmart. Because the Plaintiff’s post-Walmart injuries
limited her ability to function, the ALJ’s functional capacity analysis
should not have been based on the Plaintiff’s activities at Walmart,
leaving his analysis largely unsupported.
Lastly, the ALJ accepted the vocational expert’s findings
without scrutiny, a practice that the Seventh Circuit has criticized.
See Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015) (criticizing
the ALJ for “fully credit[ing] the vocational expert’s testimony”
without critically questioning the vocational expert about the basis
for his findings). On remand, the ALJ should follow the guidance of
the Seventh Circuit and more closely scrutinize the data put forth
by the vocational expert regarding the number of available jobs.
IV. CONCLUSION
For those reasons, Judge Schanzle-Haskins’s Report and
Recommendation (d/e 20) is ADOPTED in part and REJECTED in
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part, the Plaintiff’s Motion for Summary Reversal (d/e 14) is
GRANTED, and the Defendant’s Motion for Summary Affirmance
(d/e 18) is DENIED. Pursuant to sentence four of 42 U.S.C. §
405(g), the decision of the ALJ is reversed and the Plaintiff’s cause
is remanded to the ALJ. In addition to reconsidering the evidence
that was originally submitted by the Plaintiff, the ALJ is instructed
to consider the later-submitted reports of Drs. Malik and Sohn. See
R. 379-85. The Court recognizes that under Wolf v. Shalala, 997
F.2d 321, 323 n.3 (7th Cir. 1993), this later-submitted information
could not, on its own, warrant a remand for reconsideration under
sentence six of 42 U.S.C. § 405(g). Here, however, the Court is
reversing and remanding under sentence four of section 405(g), and
the later-submitted evidence should be considered for the sake of a
complete review of all evidence of the Plaintiff’s condition. The
Clerk is directed to close this case.
ENTER: August 4, 2015.
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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