Fountain v. Astrue

Filing 24

MEMORANDUM Opinion signed by the Honorable Samuel Der-Yeghiayan on 10/30/2012. (vmj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEONARD KIDD,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

No. 11 C 7436

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the parties’ cross motions for summary
judgment. For the reasons stated below, Plaintiff Gladys Fountain’s (Fountain) and
Defendant Social Security Administration’s (SSA) motions for summary judgment
are denied, and Fountain’s alternative motion to remand is granted. This matter is
remanded to the SSA for further proceedings consistent with this opinion.

BACKGROUND
Fountain contends that her alleged onset date of disability is December 9,
2006 (AOD), and that her medical impairments include heart problems, high blood
pressure, depression, anxiety, schizophrenic behavior, back pain, and arthritis in her

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legs, knees, and arms. Fountain indicates that on the AOD, she was 50 years old,
and that prior to the AOD, she had worked as a Machine Operator for approximately
sixteen years. Fountain filed concurrent applications for Social Security Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) on September 7,
2007. Fountain’s applications for DIB and SSI were both denied on January 25,
2008, and again upon reconsideration on July 8, 2008. Fountain timely requested a
hearing, and on January 7, 2010, a hearing was held before an administrative law
judge (ALJ), at which Fountain testified. On February 25, 2010, the ALJ denied
Fountain’s DIB and SSI claims, finding that Fountain was not disabled and that she
retained the residual functioning capacity (RFC) to perform light work. Fountain
timely filed a Request for Review with the SSA’s Appeals Council, which was
denied on August 19, 2011. On October 19, 2011, Fountain filed the instant appeal
from the ALJ’s ruling. The parties have now filed cross-motions for summary
judgment.

LEGAL STANDARD
Pursuant to 42 U.S.C. § 405(g), a party can seek judicial review of
administrative decisions made under the Social Security Act. When an ALJ’s
decision is deemed to be “the final action of the Social Security Administration, the
reviewing district court examines the ALJ’s decision to determine whether
substantial evidence supports it and whether the ALJ applied the proper legal
criteria.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011).
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DISCUSSION
An ALJ examines a claim of disability under a five-step process. Craft v.
Astrue, 539 F.3d 668, 673-74 (7th Cir. 2008). In step one, the ALJ “considers
whether the applicant is engaging in substantial gainful activity.” Id. In step two,
the ALJ “evaluates whether an alleged physical or mental impairment is severe,
medically determinable, and meets a durational requirement.” Id. In step three, the
ALJ “compares the impairment to a list of impairments that are considered
conclusively disabling.” Id. If the applicant’s impairment satisfies “or equals one of
the listed impairments, then the applicant is considered disabled” and the inquiry
ends. Id. If the inquiry continues, in step four, the ALJ “assesses an applicant’s”
RFC “and ability to engage in past relevant work.” Id. In step five, the ALJ
“assesses the applicant’s RFC, as well as his age, education, and work experience to
determine whether the applicant can engage in other work” and “[i]f the applicant
can engage in other work, he is not disabled.” Id.
In the instant action, Fountain argues that the ALJ erred: (1) by failing to
acknowledge at step two of the inquiry that Fountain’s mental health problems are a
severe impairment, (2) by making an improper credibility determination, and (3) by
making an improper RFC determination.

I. Assessment of Mental Impairment
Fountain argues that the ALJ erred by failing to recognize that Fountain’s
mental impairment constitutes a severe impairment, and by failing to render an
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appropriate RFC based on the combination of Fountain’s severe physical and mental
impairments. The Supreme Court has recognized that the impairment severity
regulation in step 2 is “a de minimis screening device. . . .” Johnson v. Sullivan, 922
F.2d 346, 347 (7th Cir. 1990)(citing Bowen v. Yuckert, 482 U.S. 137 (1989)); see
also Hughes v. Astrue, 2011 WL 5867978, at *10 (N.D. Ill. 2011)(stating that “[t]he
severe impairment requirement has been termed a de minimis requirement designed
to weed out frivolous claims”). In the instant action, the ALJ found that Fountain has
the following severe impairments: arthralgia with joint discomfort and back pain;
hypertension, controlled on medication, not always compliant; and obesity. . . .” (AR
17, 24). The ALJ did not list Fountain’s mental impairment as a severe impairment.
(AR 17, 24). Nor did the ALJ provide an adequate justification in step two of the
analysis explaining why she determined Fountain’s mental impairment to be
nonsevere. (AR 24).
In finding Fountain’s mental impairment to be nonsevere, the ALJ indicated
that she substantially relied on the “Paragraph B” criteria, found at 20 C.F.R. Part
404, Subpart P, Appendix 1 § 12.00 et seq. (AR 24). With respect to such criteria,
the ALJ stated that “the evidence shows that [Fountain] has only mild limitations in
her activities of daily living, social functioning, and concentration, persistence or
pace,” and that Fountain “has experienced no episodes of decompensation of
extended duration.” (AR 24). In coming to such conclusions, the ALJ merely noted
that Fountain “testified that she did not seek follow up treatment for her mental
impairments because she was feeling better,” and that Fountain’s “mini mental status
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examination at her consultative examination was within normal limits.” (AR 24).
In the first instance, the court notes that Fountain’s actual testimony indicates
that she did not return to Stroger Hospital for mental health treatment after June 2009
for a variety of reasons, including that the psychiatrist she was seeing left the
hospital, that Fountain “thought [she] was doing better, because [she] had stopped [or
reduced] the medication,” and that she instead returned to her treating physician, Dr.
Antonio Senat, M.D. (Senat), to further address her mental health problems. (AR 6263)(emphasis added). The record does not reflect that the ALJ adequately considered
all of the reasons presented by Fountain for her failure to seek follow-up mental
health treatment before concluding, largely on that basis, that Fountain’s mental
impairment was nonsevere. See SSR 76-7p (stating that “the adjudicator must not
draw any inferences about an individual’s symptoms and their functional effects
from a failure to seek or pursue regular medical treatment without first considering
any explanations that the individual may provide, or other information in the case
record”). Although the SSA now offers post hoc justifications relating to why the
ALJ may have rejected Fountain’s explanations for failing to seek further mental
health treatment, the ALJ gave no such justifications with respect to the issue.
In addition, the “mini mental health status examination” substantially relied
upon by the ALJ at Step 2 was performed in November 2007 by Dr. Chirag Patel,
M.D. (Patel), who observed Fountain on one occasion for approximately thirty
minutes, focused his examination on Fountain’s physical complaints, and merely
noted that Fountain’s “orientation, memory, appearance, behavior, and ability to
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relate during the examination were entirely within normal limits.” (AR 268-271). In
contrast to that evaluation, the record indicates that Senat, Fountain’s treating
physician for many years, indicated in 2007 that Fountain suffered from Depression
and that Fountain has been on anti-depression medication since 2005. (AR 256).
Senat also reported in 2007 that Fountain suffers from a depressed mood, exhibits
schizophrenic behavior, may experience a flat affect when depressed, has problems
with focus, memory, and cognitive tasks, and that she may not be able to cope well
with work-related activities. (AR 259-261). Although the ALJ explained in some
detail her rationale for rejecting Senat’s opinion relating to Fountain’s schizophrenia
or schizophrenic behavior, the ALJ failed to adequately address Senat’s statements
relating to Fountain’s depression and anxiety, or to address other parts of the record
relating extensively to Fountain’s mental impairment.
For example, as noted above, Senat indicates that Fountain was being treated
for depression as early as 2005. (AR 256). In addition, the medical records indicate
that in May and June 2009, Fountain was referred to Stroger Hospital Psychiatry
Department based on her history of depression and anxiety. (AR 320-21). Further,
during a May 11, 2009 examination, Dr. Brenda Jefferson-Byrd, M.D. (Byrd),
performed a mental status examination of Fountain, including a depression screening,
and indicated that Fountain had recently been bothered by depression, anxiety,
suicidal ideation, mental disturbance, hallucinations, and paranoia. (AR 325). Byrd
also noted that Fountain was requesting medication “to help her sleep” and indicated
that Fountain’s depression was deteriorating. (AR 324). The medical record also
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indicates depression, crying spells, anxiety, difficulty focusing, difficulty making
decisions, problems with sleep and appetite, decreased interest, decreased
motivation, and decreased energy. (AR 390). Although the ALJ attributed many of
the above symptoms to the death of some of Fountain’s family members, the ALJ did
not adequately address Fountain’s long history of mental health problems or Dr.
Byrd’s finding that Fountain was suffering from mental disturbance, hallucinations,
and paranoia. Further, Fountain testified to stress-related cardiovascular and
respiratory distress, emotional problems that caused her to stop driving, and sleep
problems, (AR 45-47, 51, 64), which the ALJ did not discuss. Based upon all of the
above, the ALJ failed to adequately address relevant evidence in the record and the
ALJ failed to properly explain the basis for her findings at step 2 of her inquiry. See
Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)(indicating that an ALJ must “build
the requisite ‘logical bridge’ between the evidence and her conclusion”)(quoting
Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009)); see also Golembiewski v.
Barnhart, 322 F.3d 912, 917 (7th Cir. 2003)(stating that “although the ALJ need not
discuss every piece of evidence in the record . . . the ALJ may not ignore an entire
line of evidence that is contrary to the ruling,” and that “[o]therwise it is impossible
for a reviewing court to tell whether the ALJ’s decision rests upon substantial
evidence”).
The SSA argues that even if the ALJ erred, the error was harmless since the
ALJ found that Fountain had other severe impairments. However, as Fountain
correctly points out, Fountain’s RFC reflected an accommodation by the ALJ only
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for “grief and sadness” due to Fountain’s loss of various family members, and did
not take into consideration Fountain’s mental health history or other psychological
complaints. (AR 27). Thus, any error relating to Fountain’s mental impairment was
not harmless. The ALJ had a duty to “develop a full and fair record” in regard to
Fountain’s mental impairment. See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.
2000)(stating that “[f]ailure to fulfill th[e] obligation” to develop a “full and fair
record” constitutes “‘good cause’ to remand for gathering of additional evidence”);
Craft v. Astrue, 539 F.3d 668, 675 (7th Cir. 2008)(indicating that at Step 2, the ALJ’s
“decision must elaborate on significant medical history, including examination and
laboratory findings, and the functional limitations that were considered in reaching a
conclusion about the mental impairment’s severity”). On remand, the ALJ and the
parties should more fully develop the record regarding the extent and severity of
Fountain’s mental impairment.

II. Credibility Determinations
Fountain also argues that the ALJ erred in making certain credibility
determinations. Although an ALJ’s credibility determinations are given deference,
that deference is “not unlimited. . . .” Shauger, 675 F.3d at 696 (stating that “[t]he
ALJ must consider a number of factors imposed by regulation . . . and must support
credibility findings with evidence in the record”); see also Powers v. Apfel, 207 F.3d
431, 435 (7th Cir. 2000)(stating that a court will reverse “[a]n ALJ’s credibility
determination only if the claimant can show it was ‘patently wrong’”). The ALJ
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found that Fountain’s “statements concerning the intensity, persistence and limiting
effects of [her] symptoms are not credible. . . .” (AR 26).
In support of her finding, the ALJ noted Fountain’s last employment position
as a heavy laborer and that Fountain testified that she “stopped working because
business was slow at the company,” not because “she could no longer perform her
job duties.” (AR26). However, Fountain’s honest testimony regarding the reason
she was given for her termination actually weighs in favor of finding her testimony
credible. In addition, as the ALJ noted, Fountain indicated in her testimony that
toward the end of her employment she frequently had to take time off work for
doctors appointments. (AR 26). The ALJ should have inquired into the frequency,
severity, and nature of Fountain’s medical problems during that time before
determining that Fountain’s termination was solely due to a slow down at the
company, as opposed to an inability to perform her job, and before making an
unfavorable credibility determination.
The ALJ also indicated that she believed that Fountain “exaggerates the
difficulty she experiences performing household chores” and that Fountain “refused
to cooperate with a treadmill exercise test.” (AR 26). The ALJ based these findings
on the 2007 examination by Patel. (AR 27). However, the ALJ failed to address
Patel’s findings in 2007 that Fountain was limited in her ability “to ambulate or stand
for any prolonged periods of time” and “to hold heavy objects for long periods of
time,” or the fact that Fountain’s impairments may have worsened over time. (AR

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271-72).
In addition, in assessing Fountain’s credibility, the ALJ relied upon “the
absence of ongoing treatment by a mental health professional.” (AR 27). As
discussed above, the ALJ should explore all the potential reasons Fountain failed to
seek ongoing mental health treatment before using such a fact to support a negative
credibility finding. The ALJ’s credibility determinations are not patently wrong,
however they are not fully developed. Since this action will be remanded, the ALJ
should take the opportunity to reevaluate the evidence as it relates to Fountain’s
credibility, to further develop the record, and to collect new evidence as needed.

III. RFC Determination
Fountain argues that the ALJ also erred by making an improper RFC
determination. The ALJ found the following RFC: “lift/carry 10 pounds frequently
and 20 pounds occasionally; sit for 6 hours in an 8 hour workday and stand/walk for
6 hours in an 8 hour workday with a sit/stand option; unlimited pushing and pulling;
occasional climbing of stairs, and stooping, crouching, crawling and kneeling; no
ladders; difficulty grasping moving objects; sit/stand option; off task 10-15% of the
workday; and absent one day per month.” (AR 25). As with an ALJ’s other
findings, in determining an applicant’s RFC, the ALJ must adequately explain the
basis underlying the ALJ’s findings. See Young v. Barnhart, 362 F.3d 995, 1002
(7th Cir. 2004)(concluding that the ALJ “failed to build the accurate and logical
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bridge from the evidence to his conclusion” in regard to the RFC “so that, [a
reviewing court could] assess the validity of the agency’s ultimate findings and
afford a claimant meaningful judicial review”)(internal quotations omitted)(quoting
Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)). As discussed above, on
remand, the ALJ should revisit her findings regarding the severity of Fountain’s
mental impairment and Fountain’s credibility, as such findings relate to the RFC
determination.
In addition, in the instant action, the ALJ stated that she gave the opinion of
Dr. Hugh Savage, M.D. (Savage), the testifying medical expert, “great weight
because it is consistent with the medical evidence of record and thoroughly
explained,” and that she did not give Senat’s opinions controlling weight for various
reasons. The ALJ also indicated that she gave the Disability Determination Services
(DDS) physical RFC findings “substantial weight because they are consistent with
the medical evidence of record,” and that she gave the DDS psychiatric review
technique findings “substantial weight because they are consistent with the medical
evidence of record and [Fountain’s] lack of consistent treatment.” (AR 28). The
ALJ fails, however, to adequately explain her cursory statements as to the weight she
assigned to Savage’s opinion and the DDS opinions. The ALJ must offer more than
conclusory statements such as that the opinions of Savage and the DDS are
“supported by the objective medical evidence.” (AR 28). On remand, the ALJ must
adequately discuss the opinions of Savage and the DDS and adequately justify the

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extent of her reliance upon such opinions.
Based on the above, although Fountain has not shown that the record
conclusively establishes that her claims should be granted, Fountain has shown that
the ALJ failed to properly address all aspects of the five-step analysis in her decision
and failed to adequately develop the record. Therefore, Fountain’s motion for
summary judgment is denied, her alternative motion to remand is granted, and SSA’s
motion for summary judgment is denied.

CONCLUSION
Based on the foregoing analysis, Fountain’s and SSA’s motions for summary
judgment are denied and Fountain’s alternative motion to remand is granted. This
matter is remanded to the SSA for further proceedings consistent with this opinion.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: October 30, 2012

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