Djadalizadeh v. Astrue
Filing
23
Memorandum Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/7/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NASSER DJADALIZADEH,
Plaintiff,
Case No. 12 C 6096
v.
Hon. Harry D. Leinenweber
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Nasser Djadalizadeh applied for disability insurance
benefits under the Social Security Act, 42 U.S.C. § 423.
administrative law judge found that he is not disabled.
An
Plaintiff
asks this Court to reverse that decision or remand the matter to
the Commissioner.
For the reasons stated herein, Plaintiff’s
Motion for Summary Judgment is denied, and the Commissioner’s
Motion for Summary Judgment is granted.
I.
Plaintiff
initial
Nasser
application
BACKGROUND
Djadalizadeh
for
Supplemental
benefits on June 25, 2009.
initially
and
Security
filed
Income
his
(“SSI”)
Certified Copy of Administrative
Record, ECF No. 10 (“R.”) at 159-64.
application
(“Djadalizadeh”)
on
The Commissioner denied his
reconsideration.
Djadalizadeh
requested a hearing before an Administrative Law Judge (“ALJ”),
which was held on March 1, 2011.
At the hearing, the ALJ elicited testimony from Djadalizadeh,
a psychologist expert, and a vocational expert.
Djadalizadeh
testified that he has a high school education and has been taking
some classes at a local college.
of the hearing.
He was 38 years old at the time
He has worked a number of unskilled jobs, recently
through temporary placement agencies.
He told the ALJ about his
history of alcohol and drug abuse, which led ultimately to his
dishonorable discharge from the United States Navy.
Djadalizadeh
explained that he has suffered from depression and anxiety and
struggles to organize his daily affairs; for example, he has
difficulty remembering to take his medication.
He lives in a
structured environment where staff members check on him regularly
and counsel him to complete basic tasks.
Recently, he was treated
for a sarcoma, but the treatment appears to have been successful,
as the record shows no indication of lingering effects or any need
for further treatment.
Dr.
Oberlander,
the
psychologist
expert,
Djadalizadeh’s file and listened to his testimony.
reviewed
Dr. Oberlander
testified that, according to treating sources and Djadalizadeh’s
medication
history,
depressive disorder.
Djadalizadeh
was
under
treatment
for
a
Djadalizadeh also appeared to suffer from an
anxiety disorder, although that disorder was not being addressed by
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his treating sources. Dr. Oberlander indicated that there was some
evidence that Djadalizadeh suffered from a personality disorder,
although not one that fit the Commissioner’s listing criteria.
He
also noted issues related to substance abuse and said that it
appeared that Djadalizadeh had been sober for the past two years.
In his view, Djadalizadeh was living in a group home not because of
his psychiatric disability, but for economic reasons. Based on his
review
of
the
record,
Dr.
Oberlander
did
not
think
that
Djadalizadeh’s impairments, considered alone or in combination, met
or
medically
impairments.
capacity
equaled
any
of
the
Commissioner’s
listing
of
Dr. Oberlander opined that Djadalizadeh retained the
for
understanding,
retaining,
and
executing
simple,
repetitive work activity but would need a job in a well-defined
work setting that required no more than occasional contact with the
public.
The Vocational Expert (“VE”) testified that if Djadalizadeh
were limited to unskilled work with no more than occasional contact
with large groups of people, he could perform his past work as a
store laborer.
In a written decision, the ALJ denied Djadalizadeh’s claim.
Following the appropriate five-step framework, the ALJ found at
step one that Djadalizadeh had not engaged in substantial gainful
activity since the application date.
R. at 92.
At step two, the
ALJ determined that Plaintiff suffers from four severe impairments:
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mood
disorder,
anxiety
substance
addiction
concluded
that
disorder,
disorder.
Djadalizadeh
personality
Id.
does
At
not
step
have
disorder,
three,
an
and
the
ALJ
impairment
or
combination of impairments that meets or medically equals one of
the
Commissioner’s
listed
impairments.
R.
at
93
The
ALJ
determined that Djadalizadeh has the residual functional capacity
(“RFC”) “to perform a full range of work at all exertional levels,”
subject to the limitation that “he is unable to perform more than
simple,
repetitive
work
tasks;
unable
to
tolerate
more
than
occasional interaction with large groups of people; and unable to
independently plan work tasks.”
R. at 95.
At step four, the ALJ
found that Djadalizadeh can perform his past relevant work as a
store laborer.
R. at 97.
II.
LEGAL STANDARD
To establish a disability, a claimant must demonstrate that he
has
a
medically
determinable
physical
or
mental
impairment,
expected to last at least twelve months or result in death, that
rendered him unable to engage in substantial gainful work.
U.S.C. § 423(d).
42
To determine whether a claimant is disabled, the
Commissioner utilizes a sequential evaluation process that asks
five questions:
(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment; (3) whether the
claimant's
impairment
conclusively
is
disabling;
one
(4)
that
if
the
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the
Commissioner
claimant
considers
does not
have a
conclusively disabling impairment, whether he can perform his past
relevant
work;
and
(5)
whether
the
claimant
is
capable
of
performing any work in the national economy. 20 C.F.R. § 404.1520.
The claimant bears the burden on the first four questions, but the
burden rests with the Commissioner on the fifth step.
Briscoe ex.
rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
Where, as here, the Commissioner’s Appeals Council denies
review, the ALJ’s decision stands as the Commissioner’s final
decision.
20 C.F.R. §§ 416.1455, 416.1481.
The Social Security
Act authorizes this Court to review the Commissioner’s final
decision to deny benefits.
42 U.S.C. §§ 405(g), 1383(c)(3).
The
reviewing Court will uphold the Commissioner’s decision if the ALJ
applied the correct legal standards and supported the decision with
substantial evidence.
42 U.S.C. § 405(g).
“Substantial evidence”
is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
836, 841 (7th Cir. 2007).
determine credibility.
Skinner v. Astrue, 478 F.3d
The Court does not reconsider facts or
Id.
III.
A.
ANALYSIS
Step Three
Djadalizadeh takes issue with the ALJ’s step three conclusion
that his impairments do not meet or medically equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ referenced Listings 12.04, 12.06, 12.08, and 12.09, but
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Plaintiff challenges the ALJ’s conclusion only with respect to
Listing 12.04
for
affective
disorders.
20
C.F.R.
Part
404,
Subpart P, Appendix 1, Listing 12.04 (“Listing 12.04”).
Listing 12.04, composed of three paragraphs, is satisfied when
the claimant meets the requirements of both Paragraphs A and B or
the requirements of Paragraph C.
Id.
Djadalizadeh does not
dispute the ALJ’s conclusion that paragraph B is not met. He takes
issue, however, with the ALJ’s analysis of Paragraph C.
paragraph
requires
that
the
claimant
establish
one
of
That
the
following:
1.
Repeated episodes of decompensation, each of
extended duration; or
2.
A residual disease process that has resulted
in such marginal adjustment that even a
minimal increase in mental demands or change
in the environment would be predicted to cause
the individual to decompensate; or
3.
Current history of 1 or more years’ inability
to function outside a highly supportive living
arrangement, with an indication of continued
need for such an arrangement.
Listing 12.04(c).
The ALJ’s step three analysis spans two pages and analyzes the
consulting physician’s reports, the impartial medical expert’s
testimony, Djadalizadeh’s treatment records, and Djadalizadeh’s
testimony regarding his structured living environment and impaired
social functioning.
R. at 93-95.
The ALJ found “no evidence of
any episodes of decompensation or deterioration,” R. at 95, and
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Plaintiff does not argue otherwise, ruling out Subparagraph 1. The
ALJ
attributed
Djadalizadeh’s
housing
situation,
relevant
to
Subparagraphs 2 and 3, to his “lack of income and unemployment,”
not any disabling psychiatric problems.
R. at 95.
That finding is
supported by Dr. Oberlander’s testimony that Djadalizadeh was
living in a structured environment for “economic reasons.”
77.
R. at
Evidence that Djadalizadeh’s need to live in a structured
environment derived not from his affective disorder but from his
economic circumstances would tend to show that Subparagraphs 2
and 3 are not met.
Djadalizadeh argues that the ALJ failed to discuss various
factors that prove that Listing 12.04(c) is met.
But the ALJ was
“not required to provide a complete written evaluation of every
piece of testimony and evidence.”
370 (7th Cir. 2004).
Rice v. Barnhart, 384 F.3d 363,
It was reasonable for the ALJ to credit the
psychological expert’s testimony.
Thus, the ALJ’s conclusion –
that Paragraph C is not met – is supported by substantial evidence.
B.
Djadalizadeh’s Credibility
The ALJ must support an adverse credibility finding with
“specific
reasons
that
are
supported
reviewing
Court
will
not
overturn
by
an
determination unless it is “patently wrong.”
390 F.3d 500, 504-05 (7th Cir. 2004).
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the
record,”
ALJ’s
and
a
credibility
Skarbek v. Barnhart,
After assessing Djadalizadeh’s residual functional capacity,
the ALJ explained that Djadalizadeh’s statements “concerning the
intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above
residual functional capacity assessment.”
R. at 96.
The Seventh
Circuit has described this phrasing as “meaningless boilerplate”
that “yields no clue to what weight the trier of fact gave the
testimony.” Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).
The Court explained that “the passage implies that ability to work
is determined first and is then used to determine the claimant’s
credibility,” which “gets things backwards.”
Id.
on
between
to
note
a
number
of
inconsistencies
The Court went
the
ALJ’s
credibility finding and the medical evidence, then remanded so the
ALJ could “build a bridge between the medical evidence . . . and
the conclusion” regarding the claimant’s RFC.
Id. at 649.
The Court recognizes that the ALJ’s opinion was issued in
March 2011, ten months before the Seventh Circuit’s admonishment in
Bjornson.
Nonetheless, as in Bjornson, the ALJ’s boilerplate
language gives the impression the ALJ erred by determining the
claimant’s RFC first and then adjusting the credibility finding to
match the RFC.
In addition, because the ALJ did not identify the
specific inconsistencies that led him to discredit Djadalizadeh’s
testimony, the ALJ’s reasoning on the credibility issue remains
opaque, which deprives both the claimant and this reviewing Court
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of the ability to determine the ALJ’s precise rationale.
See,
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (explaining
that the ALJ’s determination regarding claiming credibility should
“make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the
reasons for that weight”).
Despite this shortcoming, the ALJ supported his RFC assessment
with Djadalizadeh’s medical history and the expert testimony.
The
ALJ determined that Djadalizadeh, despite his impairments, has the
residual functional capacity to perform a full range of work,
subject to several limitations.
R. at 95.
That conclusion is
supported throughout the record, and Djadalizadeh does not appear
to take issue with the RFC assessment itself.
In addition, Djadalizadeh does not cite, and the Court could
not find, any inconsistencies between Djadalizadeh’s testimony at
his hearing and the ALJ’s assessment of his RFC.
lost in
the
credibility
boilerplate, the
finding
is
ALJ’s
adverse
decision
only
to
Though possibly
states
the
that the
extent
Djadalizadeh’s statements are inconsistent with his RFC.
that
If there
are no inconsistencies, then it is not clear that the ALJ actually
made an adverse credibility determination.
Thus, the inclusion of
the boilerplate is somewhat bewildering, but also harmless.
The
Seventh Circuit has explained that the inclusion of this “unhelpful
boilerplate” does not always require remand.
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Filus v. Astrue, 694
F.3d 863, 868 (7th Cir. 2012) (“If the ALJ has otherwise explained
his conclusion adequately, the inclusion of this language can be
harmless.”).
Such is the case here:
the ALJ’s assessment of
Djadalizadeh’s RFC is grounded in the evidence in the record, and
thus the ALJ’s inclusion of distracting language does not require
remand.
2009)
See also, Simila v. Astrue, 573 F.3d 503, 517 (7th Cir.
(“Though
the
ALJ's
credibility
determination
was
not
flawless, it was far from ‘patently wrong.’”).
C.
Weight Attributed to the Treating Therapist
Plaintiff argues that the ALJ erred by failing to indicate how
much weight
he
attributed
to
Plaintiff’s treating therapist.
the
opinion
of
Michael
Malone,
Malone opined that Djadalizadeh
was unable to function in a competitive work setting four eight
hours per day, five days per week.
R. at 491.
Malone indicated
his belief that Djadalizadeh’s illnesses “markedly restrict [his]
daily activities.”
Djadalizadeh
R. at 490.
argues
that
the
ALJ
should
have
accorded
controlling weight to Malone’s opinion because Malone is his
treating therapist. However, only “acceptable medical sources” can
be considered treating sources “whose medical opinions may be
entitled to controlling weight.”
*2 (Aug. 9, 2006).
SSR 06-03p, 2006 WL 2329939, at
Malone is a therapist, which is not an
“acceptable medical source” under the regulations.
§ 416.913(a).
20 C.F.R.
His opinion falls into the category of “other
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sources” listed in 20 C.F.R. § 416.913(d)(1).
The ALJ must
“consider all relevant evidence in an individual’s case record.”
SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006).
But the
regulations distinguish between what the ALJ must consider and what
the ALJ must explain in the decision:
the ALJ need only “ensure
that the discussion of the evidence . . . allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning.”
Id.
Here, the ALJ referenced Malone’s opinions in his decision and
noted the inconsistencies between Malone’s report and the rest of
the evidence.
on
his
R. at 96.
finding
that
Specifically, Malone’s opinion was based
Djadalizadeh’s
exacerbated by his cancer treatment.
anxiety
R. at 490.
symptoms
were
But the sarcoma
appears to have been treated fully, and as the ALJ explained, “the
medical record fails to document any actual treatment for cancer or
that
the
condition
and
duration requirement.”
its
limiting
R. at 96.
[e]ffects
satisfied
the
In addition, Djadalizadeh
“testified that he has no current issues related to his cancer and
has experienced no residuals or recurrence.”
R. at 96.
For that
reason, and because Malone was unable to review the entire medical
record and listen to Djadalizadeh’s testimony, the ALJ credited the
medical expert, Dr. Oberlander, instead of Malone.
required.
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No more was
D.
Past Relevant Work
At step four, the ALJ found that Djadalizadeh was “capable of
performing past relevant work as a store laborer” because the
demands of that work “are not inconsistent with [his] residual
functional capacity.”
R. at 97.
In reaching that conclusion, the
ALJ accepted the vocational expert’s testimony that Djadalizadeh
had worked as a store laborer over “a wide variety of time frames.”
R. at 58, 97.
The ALJ had asked the VE to discuss only those jobs
that do not require the worker to “do any kind of individual
planning” or have more than occasional contact with large groups of
people.
R. at 55-56.
Djadalizadeh does not oppose the ALJ’s conclusion that he can
work as a store laborer; rather, he contends that the ALJ erred in
finding that his prior work was “past relevant work,” which, at
Step Four, it must be.
20 C.F.R. § 404.1520.
“Past relevant work”
is a term of art, defined by the regulations as work that “was done
within the last 15 years, lasted long enough for [the claimant] to
learn to do it, and was substantial gainful activity [SGA].”
SSR 82-62, 1982 WL 31386, at *1 (Jan. 1, 1982).
According to the “Full DIB Review Sheet” (“DIB sheet”),
Djadalizadeh earned $9,075.69 in 1999 working for “Luxottica Retail
North America,” with a location listed as “Mason, Ohio.”
171.
R. at
In the middle of a discussion of his work as a store laborer,
Djadalizadeh
testified
that
he
worked
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for
several
temporary
employment services in North Chicago and Waukegan, Illinois. R. at
58. Thus, Djadalizadeh argues that “based on the name and location
of the 1999 work, those earnings do not appear to be the store
laborer job.”
ECF No. 13 at 14.
The Court sees no other evidence that Djadalizadeh has lived
in Ohio, and – given that “Retail” suggests working in a store –
reacts to Djadalizadeh’s argument with some skepticism.
document
lists
income
from
a
variety
of
states,
The same
including
California, Missouri, Ohio, Wisconsin, Illinois, Texas, Colorado,
Utah, Washington, and Louisiana.
R. at 171-74.
The record does
not reflect that Djadalizadeh moved all over the country to work
these various jobs for days at a time; instead, it shows that he
worked a number of temporary jobs in the greater Chicago area.
at 58, 179-84.
R.
And those locations are contradicted by other
evidence in the record.
For example, Djadalizadeh listed that he
worked at “Landry Seafood House” and described the location as
“IL.”
R. at 184.
But according to the DIB sheet, “Landrys Seafood
House” is located in Houston, Texas.
R. at 174.
Djadalizadeh was
able to work at White Castle in Illinois, R. at 181, even though
according to the DIB sheet White Castle is located in Columbus,
Ohio.
R. at 174.
Under
a
much
more
plausible
reading of
the
record,
the
location listed on the DIB sheet is some sort of corporate or other
address and not the location where Djadalizadeh performed any work.
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In addition, the vocational expert testified that Djadalizadeh
worked as a store laborer in 1999.
R. at 58.
Thus the record
supports the conclusion that in 1999 Djadalizadeh earned $9,075.69
by working at Luxottica Retail as a store laborer.
Djadalizadeh argues only that the 1999 work was not the store
laborer job. Thus the Court considers it uncontested that the 1999
work was substantial gainful activity and “past relevant work.”
The ALJ’s Step Four conclusion is supported by substantial evidence
and does not require remand.
IV.
CONCLUSION
For the reasons stated herein, Plaintiff’s Motion for Summary
Judgment [ECF No. 12] is denied, and the Commissioner’s Motion for
Summary Judgment [ECF No. 17] is granted.
The Court affirms the
Commissioner’s decision that Djadalizadeh has not been under a
disability, as defined by the Social Security Act, since June 26,
2009, the date the application for benefits was filed.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:3/7/2014
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