Cawthon v. Commissioner of Social Security
Filing
17
OPINION: The Plaintiff's Motion for Summary Judgment 10 is ALLOWED. The Defendant's Motion for Summary Affirmance 14 is DENIED. Pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Clerk shall enter a Judgment. The decision of the Commissioner of Social Security is reversed and the case is remanded for further proceedings consistent with this Opinion. (SEE WRITTEN OPINION.) Entered by Judge Richard Mills on 3/23/2017. (GL, ilcd)
E-FILED
Thursday, 23 March, 2017 10:51:48 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
REGINA L. CAWTHON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
NO. 14-3008
OPINION
RICHARD MILLS, U.S. District Judge:
Regina L. Cawthon seeks review, pursuant to 42 U.S.C. § 405(g), of
the administrative law judge’s decision denying her application for disability
insurance benefits.
Pending are motions for summary judgment filed by both parties.
Plaintiff’s motion is allowed.
The case is remanded.
I. BACKGROUND
A. Plaintiff’s testimony
Plaintiff Regina L. Cawthon was born in 1983 and alleges an onset
date of July 16, 2008.
At the May 10, 2012 hearing before the
administrative law judge (“ALJ”), the Plaintiff testified she is 5'1" tall and
196 pounds. She is married but separated from her husband and lives with
her eight-year old son. The Plaintiff lives in a public housing apartment
and is not employed and has no current source of income. She finished the
eleventh grade and obtained her GED.
The Plaintiff testified she had last worked on July 16, 2008, when she
was injured while working at Jones Poultry, where she had worked for
approximately a year. She injured her back lifting boxes of chicken. The
Plaintiff received steroid injections, which helped, and takes hydrocodone
as prescribed. Since the injury, the Plaintiff has looked for work in the fast
food industry or as a waitress but was not hired.
Prior to working at Jones Poultry, the Plaintiff worked at the front
desk of Heritage Inn and Suites for approximately three months. She
testified she had also worked at Ozark Land gift shop for several months
where she made t-shirts using a press and worked as a cashier. The Plaintiff
also previously worked as a banquet waitress at a hotel at Lake of the
2
Ozarks Country Club serving people in the hotel restaurant. She also
testified she worked as a laborer in a factory.
The Plaintiff testified that, on an average day, she wakes up and has
to sit for at least 25 to 30 minutes because it “feels like pins and needles in
the morning.” She helps her son get ready for school and then lays down
for an hour before showering. The Plaintiff gets dressed and sits for awhile.
She pulls a chair up to the sink and does the dishes sitting down. Her son
helps with some chores and, on weekends, her husband comes over and
sweeps or mops. The Plaintiff states she cannot stand for more than seven
to ten minutes at a time.
The Plaintiff testified she has one good friend who comes over and
visits. She is able to shop at Wal-Mart because there are benches where she
can sit.
She usually sends her husband or mother to do her grocery
shopping.
The Plaintiff testified that she had problems standing at work during
her last few months at Jones Poultry. The pain in her feet, hands, legs and
arms had gotten worse. Her psoriasis had gotten worse as well.
3
The Plaintiff likes to draw, do crafts with her son, watch movies and
go fishing if it is flat enough for her to use chairs and keep her feet up. She
smoked a pack to a pack-and-a-half of cigarettes per day. She does not
drink or use drugs but did go to rehab six years ago for meth use, which she
used for about two years. The Plaintiff testified she has not used meth for
seven years.
B. ALJ’s Decision
ALJ Dina Loewy followed the five-step sequential evaluation of
disability, pursuant to 20 C.F.R. § 404.1520. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since July 16,
2008, the date the Plaintiff alleges as her onset date. At step two, the ALJ
determined that Plaintiff had a number of severe impairments, including
psoriatic arthritis, degenerative disc disease of the lumbar spine, obesity,
depression and anxiety. At step three, the ALJ determined that those
impairments did not meet or medically equal the severity of any
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Between steps three and four, the ALJ found that Plaintiff has “the
4
residual functional capacity to lift and carry 20 pounds occasionally and 10
pounds frequently, sit 6 hours in an 8-hour workday, and stand and/or walk
6 hours. She can occasionally climb ramps and stairs, and balance[,]
stoop[,] kneel and crawl.
She should never climb ladders, ropes, or
scaffolds, must avoid concentrated exposure to irritants or chemicals, and
is limited to routine tasks.” R. 22.
At step four, the ALJ determined that Plaintiff was unable to perform
her past relevant work as a poultry processor and waitress.
The ALJ
determined, at step five, upon considering the testimony of the vocational
expert, the Plaintiff could perform a significant number of jobs in the
national economy, including light machine worker, assembler and manual
worker.
Accordingly, the ALJ found that Plaintiff is not entitled to a period of
disability or disability insurance benefits and is not eligible for
supplemental security income payments, under the applicable sections of
the Social Security Act.
On November 15, 2013, the Appeals Council denied the Plaintiff’s
5
request for review. This action followed.
II. DISCUSSION
A. Standard of review
When, as here, the Appeals Council denies review, the ALJ’s decision
stands as the final decision of the Commissioner. See Schaaf v. Astrue, 602
F.3d 869, 874 (7th Cir. 2010). The Act specifies that “the findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence”
is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Yurt v. Colvin, 758 F.3d 850, 856 (7th
Cir. 2014) (citations omitted). Although the Court’s task is not to re-weigh
evidence or substitute its judgment for that of the ALJ, the ALJ’s decision
“must provide enough discussion for [the Court] to afford [the Plaintiff]
meaningful judicial review and assess the validity of the agency’s ultimate
conclusion.” Id. at 856-57.
6
B. Analysis
(1)
The Plaintiff claims the ALJ’s decision is not supported by substantial
evidence. First, the Plaintiff alleges the ALJ erred in determining the
Plaintiff’s bipolar and anxiety do not meet Listings 12.04 (affective
disorders) and 12.06 (anxiety-related disorders) and her somatization
disorder is not severe and does not meet Listing 12.07 for somatoform
disorders, “[p]hysical symptoms for which there are no demonstrable
organic findings or known physiological mechanisms.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 12.07. Second, she asserts the residual functional
capacity determination is not compliant with the mandates of SSR 96-8p,
which requires the ALJ to determine an individual’s residual functional
capacity, or the most “an individual can do despite his or her limitations or
restrictions.” SSR 96-8P, 1996 WL 374184. Finally, the Plaintiff contends
the ALJ’s credibility determination was patently erroneous.
The Commissioner contends that the ALJ reasonably found that the
Plaintiff’s limitations did not preclude her from performing all work
7
activities.
Along with the Plaintiff’s work history, moreover, the
observations of treating physician Korhan B. Raif, M.D.; recommendations
from other physicians that Plaintiff increase, rather than decrease, physical
activity; the opinions of state agency physician Henry Rohs, M.D. and state
agency psychologist Joseph Mehr, Ph.D.; the Plaintiff’s course of treatment
and the objective medical evidence all supported the ALJ’s residual
functional capacity finding.
(2)
The Court is unable to find that the ALJ’s opinion is supported by
substantial evidence. The ALJ does not mention the Plaintiff’s diagnosis of
fibromyalgia. Citing Skarbeck v. Barnhart, 390 F.3d 500, 504 (7th Cir.
2004), the Commissioner contends that by giving significant weight to the
opinion of Dr. Rohs, the ALJ accounted for the Plaintiff’s fibromyalgia. In
Skarbeck, the Seventh Circuit observed that an ALJ can account for an
impairment by adopting the limitations of specialists and reviewing doctors
who were aware of the impairment. See id. at 504 (noting that by adopting
the limitations of those who were aware of the claimant’s obesity, it was
8
factored into the ALJ’s decision even if it was not explicitly considered).
The Commissioner contends that because Dr. Rohs considered fibromyalgia
as the Plaintiff’s primary diagnosis and the ALJ’s residual functional
capacity was consistent with Dr. Rohs’s opinion, the ALJ’s residual
functional capacity finding accommodated any fibromyalgia-related
limitations.
It is not apparent how much weight the ALJ gave to Dr. Rohs’s
opinion. Although the ALJ’s residual functional capacity may be somewhat
compatible with Dr. Rohs’s opinion, he does not discuss Dr. Rohs’s
opinion. Thus, the record is unclear as to whether the ALJ’s residual
functional capacity finding is based on Dr. Rohs’s opinion or another
medical opinion in the record.
Fibromyalgia can constitute a medically determinative impairment if
a doctor’s diagnosis is supported by evidence meeting certain criteria. See
Thomas v. Colvin, 826 F.3d 953, 959 (7th Cir. 2016). “[W]ithout any
analysis from the ALJ, there is no basis for drawing any conclusions about
what evidence he considered or overlooked.” Id.
9
The Plaintiff notes that a lack of objective evidence is commonly
found with fibromyalgia patients. Symptoms or conditions associated with
fibromyalgia can include “muscle aches, fatigue and depression.” Id. The
ALJ should have considered whether fibromyalgia was a cause of the
Plaintiff’s symptoms. The Court concludes that the failure to even mention
the diagnosis and consider how the Plaintiff’s fibromyalgia affected the
residual functional capacity warrants a remand to determine what effect, if
any, it had on her ability to work.
(3)
There are also problems with the ALJ’s evaluation of the Plaintiff’s
alleged mental impairments. The ALJ concluded that the evidence showed
that Plaintiff had the mental capability to perform simple and routine tasks.
Dr. Mehr considered that Plaintiff had moderate limitations in sustained
concentration and persistence, but indicated that those limitations would
limit only the Plaintiff’s abilities to understand, remember and carry out
detailed instructions. Dr. Mehr concluded that Plaintiff’s concentration,
persistence and pace was sufficient for “simple jobs of a routine and
10
repetitive type.” The Commissioner contends this constitutes substantial
evidence supporting the ALJ’s residual functional capacity finding.
As the Plaintiff notes, however, Dr. Mehr’s opinion was issued in May
2010, before the Plaintiff was hospitalized in August and November of
2010, each time for five days. Her global assessment of functioning (GAF)
scores in August and November ranged from 35 to 50, which generally
indicates serious symptoms or worse. The ALJ’s decision emphasizes some
of the Plaintiff’s higher GAF scores and ignores some of the lower scores.
An ALJ may not cherry pick the record in considering an individual’s
mental health history. See Price v. Colvin, 794 F.3d 836, 839-40 (7th Cir.
2015).
Additionally, the Plaintiff notes that clinical psychologist Frank
Froman, Ed.D., the Social Security Administration’s consultative examiner,
opined that Plaintiff had a GAF score of 50 and is likely to have difficulty
relating comfortably with others, and seemed unlikely to be able to
withstand the stress associated with customary employment. Unlike Dr.
Mehr, however, Dr. Froman rendered an opinion after examining the
11
Plaintiff personally and after her hospitalizations in 2010.
For all of these reasons, the Court is unable to conclude that the ALJ’s
decision is supported by substantial evidence. The Court will remand the
matter to the Commissioner for further consideration of the Plaintiff’s
residual functional capacity and whether she meets the criteria of a listed
impairment.
Ergo, the Plaintiff’s Motion for Summary Judgment [d/e 10] is
ALLOWED.
The Defendant’s Motion for Summary Affirmance [d/e 14] is
DENIED.
Pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Clerk shall
enter a Judgment.
The decision of the Commissioner of Social Security is reversed and
the case is remanded for further proceedings consistent with this Opinion.
ENTER: March 23, 2017
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?