Briggs v. Astrue
Filing
29
MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 10/29/2013.(psm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PETER R. BRIGGS, JR.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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No. 12 C 6215
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Plaintiff Peter R. Briggs, Jr. brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the decision of the Commissioner of Social Security denying her application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security
Act, 42 U.S.C. §§ 421, 423. (Compl.) [Dkt 1.]1 Plaintiff has filed a motion for summary judgment
[dkt 21] and a supporting memorandum seeking an order reversing the Commissioner’s final
decision and entering a finding of disability and award of benefits or remanding for further
administrative proceedings (Pl.’s Mem.) [dkt 22]. The Commissioner has cross-moved for summary
judgment [dkt 23] and has submitted a memorandum in support of the cross-motion (Def.’s Mem.)
[dkt 24]. Plaintiff has replied. (Pl.’s Reply.) [Dkt 25.] The parties have consented to the
1
The regulations regarding DIB and SSI are substantially similar and where they do not
significantly differ, only one section will be cited. See Ashpaugh v. Apfel, No. 98 C 6561, 2000 WL
1222153 at *1 n. 3 (N.D. Ill. Aug. 22, 2000).
1
jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 7.] For the reasons set
forth below, Plaintiff’s motion is denied and the Commissioner’s motion is granted.
PROCEDURAL HISTORY
Plaintiff first applied for benefits on December 14, 2005. (R. 225.)2 His claim was denied
initially on August 18, 2006, and again upon reconsideration on January 25, 2007. (R. 102-09.)
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held
on March 16, 2009. (R. 67-94.) The ALJ issued a decision denying Plaintiff’s request for benefits
on May 27, 2009. (R. 113-22.) On January 5, 2010, finding various shortcomings with the ALJ’s
decision, the Appeals Council remanded the case back to the ALJ. (R. 125-28.) On October 21,
2010, another hearing was held (R. 34-66), and the ALJ issued a decision again denying Plaintiff’s
request for benefits on April 21, 2011. (R. 12-26.) The Appeals Council declined Plaintiff’s request
for review on October 27, 2011 (R.1-6), thereby making the ALJ’s decision the final decision of the
Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
BACKGROUND
Plaintiff was 40 years old at the time of the hearing before the ALJ. (R. 226.) He lives with
his mother and father. (R. 37.) Plaintiff has a college degree. (R. 464.) Previously, Plaintiff had
managed a restaurant and a liquor store and had done some financial trading. (R. 61.)
2
There appears to have been a printing error in compiling the administrative record, and as
a result some of the pages have two consecutive page numbers with one number printed over the
second number. The lower number is used here.
2
Medical Evidence
It is uncontested that Plaintiff has bipolar disorder and generalized anxiety disorder, which
are exacerbated by his alcohol use. What is contested in this appeal is whether, in the absence of
alcohol use, Plaintiff’s impairments would be severe enough as to prevent him from working.3
In his original application, Plaintiff alleged that the onset date of his disability was August
2, 2005. (R. 225.) At the second hearing before the ALJ, the Plaintiff offered to amend his onset
date to January 16, 2009. (R. 36-37.)4 For this reason, Plaintiff’s brief focuses on his treatment
records after January 2009. (Pl.’s Mem. at 2 n. 3.) As such, this opinion will not go into detail about
Plaintiff’s pre-2009 medical history.
From 2005 through 2008, Plaintiff was hospitalized about ten times following drinking
episodes. (R. 17.) On January 17, 2009, Plaintiff was again hospitalized after relapsing on alcohol.
(R. 933.) Dr. Song Piyaka diagnosed Plaintiff with bipolar disorder and alcohol abuse disorder. (R.
934.) He noted that Plaintiff “felt bad and guilty about [his relapse]” and observed that Plaintiff had
“suicidal thoughts, but no intent.” (R. 933.) Following his hospitalization, Plaintiff “required a
week-long stay in . . . a post-hospital residential program[] to help stabilize his mood.” (R. 937.)
3
Although Plaintiff has alleged that he has back pain, the ALJ did not find any “documentary
evidence of a medically determinable back impairment,” and Plaintiff does not raise his back pain
as an issue in his motion. (R. 16.) Plaintiff’s back pain is therefore not addressed here.
4
The ALJ seemingly accepted this amendment at the hearing, but in his decision stated that
Plaintiff’s alleged onset date was August 2, 2005. (R. 12.) As pointed out by the Plaintiff (Pl.’s
Mem. at 2 n. 2) and the Appeals Council (R. 2), the ALJ erroneously stated that Plaintiff’s date last
in insured was June 30, 2007, rather than December 31, 2010. (R. 13.) Because the ALJ found that
Plaintiff had not been disabled at any time “through the date of the hearing decision,” the Appeals
Council did not find the ALJ’s error warranted disturbing the ALJ’s decision. (R. 2.) Plaintiff does
not argue that this error is grounds for reversing or remanding the ALJ’s decision, and therefore, it
will not be addressed in this opinion.
3
In March 2009, Dr. Piyaka wrote a letter opining that Plaintiff’s “symptoms are so severe that it is
not possible at this time or in the near future for him to be employed.” (R. 935.)
Plaintiff’s treating psychologist Dr. Ann Sarpy also wrote a letter in March 2009 that
discussed Plaintiff’s history of hospitalizations and stated that Plaintiff’s bipolar disorder “has
strongly negatively affected his personal relationships, ability to run a business, or grow emotionally
as a man.” (R. 937.) Dr. Sarpy also noted that Plaintiff has “co-occurring alcohol abuse,” and that
“[i]t is often the case, that, when [Plaintiff] felt manic or depressed, he has drunk alcohol, due to his
lack of judgment.” (Id.) Treatment notes from March 2009 to through June 2009 indicate that
Plaintiff remained sober for those months, attended and chaired some Alcoholics Anonymous
meetings, and still “had bouts of depression and mania.” (R. 995-97.) In June 2009, Dr. Sarpy
opined in a letter that Plaintiff had been sober for six months, but still had depressive and manic
episodes and was “not a candidate for full or part-time employment.” (R. 1003.) From July 2009
through December 2009, Plaintiff maintained sobriety and began to work on a book detailing his
experiences with bipolar disorder. (See R. 1125-59.) He consistently reported feeling anxiety about
his white blood cell count, an unrelated lawsuit, and his social security disability case. (See id.) In
October 2009, Plaintiff reported that he was taken off his lithium medication due to his high white
blood cell count. (R. 1135.)
In December 2009, Plaintiff relapsed with alcohol and presented to the emergency room. (R.
1013.) Dr. Piyaka’s report indicated that Plaintiff was taken off lithium not for his white blood cell
count, but for his eczema. (Id.) Dr. Piyaka recommended that Plaintiff resume taking lithium. (Id.)
Treatment notes from January 2010 indicate that Plaintiff resumed his lithium therapy, and expressed
continuing anxiety over his social security disability application. (R. 1118-19.) He acknowledged
4
drinking again, and appeared to show up for one appointment under the influence of alcohol. (R.
1117.) Also in January, Dr. Sarpy wrote another opinion letter stating that Plaintiff “reports sobriety
for the last 6 months” and opining that Plaintiff was unable to work. (R. 1004.)
In March 2010, Plaintiff stopped taking his medication because he felt that he was being
“‘jerked around’” by the Social Security Administration. (R. 1100.) On March 10, 2010, Plaintiff
reported to the hospital for depression and suicidal thoughts. (R. 1021.) Plaintiff had not been
taking his medication for one week prior to the hospitalization. (R. 1022.)
Later that month, Plaintiff was examined and evaluated by Department of Disability Services
consultive examiner Dr. Chirag Reval. (R. 1009-10.) Dr. Reval found that Plaintiff had mild
restrictions in understanding and carrying out simple instructions and interacting appropriately with
the public and supervisors. (R. 1010-11.) Dr. Reval opined that Plaintiff had moderate restrictions
in making judgments on simple or complex work-related decisions, understanding and carrying
complex instructions, interacting with co-workers, and responding appropriately to usual work
situations. (Id.) In April 2010, independent psychologist Dr. Kathleen O’Brien completed a medical
interrogatory opining that, without alcohol, Plaintiff did not meet a listing level and did not have
marked impairments in functioning. (R. 1074.)
Treatment notes indicate that Plaintiff missed many appointments from April 2010 through
July 2010. (R. 1080-95.) He reported feeling manic at times, but did state that when he is with his
girlfriend, “I practically feel no anxiety.” (R. 1080, 1083.) In August 2010, Plaintiff’s treating
therapist Michael Lewis opined that Plaintiff had marked restrictions in socialization and that
Plaintiff’s “illness markedly impact[ed] [his] ability to sustain concentration and attention.” (R.
1161.) In October 2010, Dr. Sarpy wrote another letter again opining that Plaintiff was unable to
5
work, and noting that Plaintiff had “reported sobriety for the last 18 months.” (R. 1163.)
Hearing
At the second hearing on October 21, 2010, Plaintiff, independent medical expert Dr.
Kathleen O’Brien, and vocational expert Glee Ann L. Kehr testified. (R. 35.) Plaintiff testified that
in the past year and a half, he had tried to work at the restaurant he used to manage but could not
work for more than an hour due to anxiety, nervousness, and an inability to concentrate. (R. 42.)
He described how his medication for his manic episodes “shuts [him] down” for sometimes days at
a time. (R. 42-43.) Plaintiff related that he had experienced a couple manic episodes in the past
couple months. (R. 43.) He stated that he has problems sleeping “every night.” (R. 44.) He
testified that he goes to movies with his girlfriend but cannot “sit still very well” during the movie.
(Id.)
He further added that “about 50 percent of the time” he feels “good or “fine,” and when
feeling “okay” he can follow simple instructions. (R. 45.) When he is “off a little bit,” however, he
loses concentration and “forget[s] what was just told to him.” (Id.) He stated that he has problems
being around people and that he “usually last[s] about an hour at most” in social situations. (Id.)
Plaintiff explained that he had missed his treatment appointments because he was either on vacation
in Florida or was suffering from a manic or depressive episode and could not leave the house. (R.
57-58.)
Dr. O’Brien then testified. (R. 48-62.) The substance of her testimony is discussed later is
this opinion. Lastly, the vocational expert (“VE”) testified that Plaintiff could perform work as a
housekeeper, mailroom clerk, or office helper, and that there were 3,200, 6,000, and 2,100 positions
6
for those jobs respectively in the metropolitan area. (R. 63.)
Disability Determination Process
Under the Social Security Act, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations prescribe
a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520.
Under the regulations, the Commissioner must consider: (1) whether the claimant has performed any
substantial gainful activity during the period for which she claims disability; (2) if she has not
performed any substantial gainful activity, whether the claimant has a severe impairment or
combination of impairments; (3) if the claimant has a severe impairment, whether the claimant’s
impairment meets or equals any impairment listed in the regulations as being so severe and of such
duration as to preclude substantial gainful activity; (4) if the impairment does not meet or equal a
listed impairment, whether the claimant retains the residual functional capacity to perform her past
relevant work; and (5) if the claimant cannot perform her past relevant work, whether she is unable
to perform any other work existing in significant numbers in the national economy. Id.; Zurawski
v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). An affirmative answer at steps one, two or four leads
to the next step. Zurawski, 245 F.3d at 886. An affirmative answer at steps three or five requires
a finding of disability, whereas a negative answer at any step other than step three precludes a finding
of disability. Id. The claimant bears the burden of proof at steps one to four, and if that burden is
met, the burden at step five shifts to the Commissioner to establish that the claimant is capable of
7
performing work existing in significant numbers in the national economy.
20 C.F.R. §
404.1560(c)(2); Zurawski, 245 F.3d at 886.
The central issue in Plaintiff’s case is the role of his alcohol use in determining his disability
status. According to statute, “[a]n individual shall not be considered to be disabled . . . if alcoholism
or drug addiction would . . . be a contributing factor material to the Commissioner’s determination
that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). In other words, “[w]hen an applicant for
disability benefits both has a potentially disabling illness and is a substance abuser, the issue for the
administrative law judge is whether, were the applicant not a substance abuser, she would still be
disabled.” Kangail v. Barnhart, 454 F.3d 627, 628 (7th Cir. 2006). The regulations provide further
guidance:
(1) The key factor we will examine in determining whether drug addiction or
alcoholism is a contributing factor material to the determination of disability is
whether we would still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your current physical and
mental limitations, upon which we based our current disability determination, would
remain if you stopped using drugs or alcohol and then determine whether any or all
of your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not be disabling, we will
find that your drug addiction or alcoholism is a contributing factor material to the
determination of disability.
(ii) If we determine that your remaining limitations are disabling, you are disabled
independent of your drug addiction or alcoholism and we will find that your drug
addiction or alcoholism is not a contributing factor material to the determination of
disability.
20 C.F.R. § 404.1535(b).5
5
There is some debate about which party bears the burden of showing that a claimant would
be or would not be disabled absent drug use. See Whitney v. Astrue, 889 F. Supp. 2d 1086, 1093-96
(N.D. Ill. 2012) (discussing disagreement among courts). In an unpublished, non-precedential
8
The ALJ’s Decision
At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity
since August 2, 2005.6 (R. 15.) At step two, the ALJ concluded that Plaintiff had the severe
impairments of bipolar disorder, generalized anxiety disorder, and alcohol dependence. (Id.) At step
three, the ALJ found that the Plaintiff’s impairments including substance use disorder met a
disability listing. (R. 16.) The ALJ then found that if the Plaintiff “stopped the substance use,” he
would not have an impairment that met a listing. (R. 18.)
The ALJ assessed Plaintiff’s residual functional capacity as that of performing work at all
exertional levels, but limited to “unskilled work involving simple repetitive tasks, limited public
contact, and no high production demands.” (R. 19.) In reaching that conclusion, the ALJ found that
if Plaintiff stopped substance use, Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms,” but Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not credible to the extent they are
inconsistent with the residual functional assessment.” (R. 20.) As for opinion evidence, the ALJ
discounted Dr. Sarpy’s opinions, rejected Mr. Lewis’ opinion, gave some weight to Dr. Reval’s
opinion, and gave “very substantial weight” to Dr. O’Brien’s opinion. (R. 22-24.)
At step four, the ALJ found that even if Plaintiff ceased substance use, he would be unable
decision, the Seventh Circuit has stated that the claimant bears the burden. Harlin v. Astrue, 424 F.
Appx. 564, 567 (7th Cir. 2011). Neither party raises the burden of proof issue, and in any event,
even if the Commissioner bears the burden of showing that Plaintiff would be not be disabled absent
his alcohol use, it would not change the decision here as there is substantial evidence that would
support such a finding.
6
As discussed above, Plaintiff amended his alleged onset date at the hearing to January 16,
2009, but Plaintiff does not argue that any discrepancies in the onset date are grounds for remand or
reversal. See note 4 supra.
9
to perform past relevant work. (R. 24.) At step five, the ALJ concluded that if Plaintiff stopped
substance use, “there would be a significant number of jobs in the national economy that [Plaintiff]
could perform.” (R. 25.) Thus, based on that analysis, the ALJ found that Plaintiff was not disabled
as defined by the Social Security Act. (R. 26.)
STANDARD OF REVIEW
The Social Security Act provides for limited judicial review of a final decision of the
Commissioner. See 42 U.S.C. § 405(g). Where the Appeals Council declines a requested review
of an ALJ’s decision, it constitutes the Commissioner’s final decision. Villano, 556 F.3d at 561-62.
While an ALJ’s legal conclusions are reviewed de novo, her factual determinations are reviewed
deferentially and are affirmed if they are supported by substantial evidence in the record. Jones v.
Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
Evidence is substantial if it is sufficient for a reasonable person to accept it as adequate to support
the decision. Jones, 623 F.3d at 1160; Craft, 539 F.3d at 673. “Although this standard is generous,
it is not entirely uncritical,” and the case must be remanded if the decision lacks evidentiary support.
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
When evaluating a disability claim, the ALJ must consider all relevant evidence and may not
select and discuss only the evidence that favors her ultimate conclusion. See Murphy v. Astrue, 496
F.3d 630, 634-35 (7th Cir. 2007); Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Although
the ALJ is not required to discuss every piece of evidence, the ALJ must provide an accurate and
logical bridge between the evidence and the conclusion, so that a reviewing court may assess the
validity of the agency’s ultimate findings and afford the claimant meaningful judicial review. Craft,
10
539 F.3d at 673. “If the Commissioner’s decision lacks adequate discussion of the issues, it will be
remanded.” Villano, 556 F.3d at 562.
DISCUSSION
Plaintiff takes issue with four aspects of the ALJ’s decision. According to Plaintiff, the ALJ
(1) erred in not giving the opinions of Plaintiff’s treating psychologist Dr. Sarpy controlling weight,
(2) improperly relied on the opinion of the testifying medical expert Dr. O’Brien, (3) improperly
evaluated his credibility, and (4) failed to consider the medical evidence past March 2010.
1.
Dr. Sarpy
Plaintiff contends that the ALJ improperly discounted the opinion of Plaintiff’s treating
psychologist Dr. Sarpy. (Pl.’s Mem. at 9-12.) If a treating source’s opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence” in the record, the ALJ is obliged to give it “controlling weight.” 20
C.F.R. § 404.1527(c)(2). If a treating source’s opinion is not given controlling weight, the ALJ must
state what weight it is given and analyze the opinion according to the factors listed in 20 C.F.R. §
404.1527(c)(2).7 These factors include “‘the length, nature, and extent of the treatment relationship;
frequency of examination; the physician’s specialty; the types of tests performed; and the consistency
and support for the physician’s opinion.’” Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010)
(quoting Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010)).
7
Until March 26, 2012, these factors were listed in 20 C.F.R. § 404.1527(d)(2). See 77 Fed.
Reg. 10651-01, 10656 (Feb. 23, 2012).
11
Dr. Sarpy has treated Plaintiff since 2005. (Pl.’s Mem. at 12.) Over the course of her
treatment, Dr. Sarpy has written four opinion letters concluding that Plaintiff is unable to work due
to his bipolar disorder. (R. 603, 1003, 1004, 1163).8
Dr. Sarpy’s first letter, dated November 29, 2006, stated that Plaintiff “has a Diagnosis of
Bipolar Disorder” and the “history of substance induced mood disorder . . . was erroneous” because
Plaintiff “has been sober since June [2006] and has still suffered both manic and depressive
episodes.” (R. 603.) The letter further indicated that Plaintiff “has shown up for treatment
consistently” and that it was Dr. Sarpy’s “medical opinion that he would not be able to reliably
maintain employment at this [sic] due to his symptoms of Bipolar Disorder.” (Id.)
The ALJ rejected this opinion because he found it to be inconsistent with Dr. Sarpy’s
treatment notes and with the record. (R. 23.) Specifically, the ALJ pointed to an April 2006 report
where Dr. Sarpy noted that Plaintiff’s “drinking interfered with the performance of his medications,”
and when Plaintiff “is sober his medications work as they are intended.” (Id.) The ALJ also noted
that, contrary to Dr. Sarpy’s assertion, Plaintiff had neither been “complaint [with treatment] nor
sober” as Plaintiff had an episode of binge drinking in July 2006 and had missed therapy
appointments throughout the summer of 2006. (Id.) The record supports the ALJ’s conclusion; it
reflects that Plaintiff had a serious alcohol relapse in July 2006 and missed six appointments in July
and August 2006. (R. 612-13.) Lastly, the ALJ discredited Dr. Sarpy’s opinion because during that
time period Plaintiff “was working a lot at a job that exceeded the residual functional capacity
reached in [the ALJ’s] decision.” (R. 24.)
8
Dr. Sarpy also wrote a letter dated March 6, 2009, but that letter contains no opinion as to
whether Plaintiff is able to work. (R. 937.)
12
Plaintiff takes issue with the ALJ’s discussion of the November 29, 2006 letter. Plaintiff
does not contest that he had a relapse; nor does he contest that he missed appointments. Instead,
Plaintiff states that by November 2006, he had maintained three months of sobriety, and that the
missed appointments do not undermine Dr Sarpy’s assessment “that Plaintiff was compliant,
overall.” (Pl.’s Mem. at 10-11.) Further, citing Plaintiff’s hearing testimony, Plaintiff contends that
he missed appointments due to “severe symptoms.” (Id.) Plaintiff’s assertions do not undermine
the ALJ’s decision to discount Dr. Sarpy’s opinion as inconsistent with the record because contrary
to Dr. Sarpy’s letter, Plaintiff had not been sober since June 2006 and had not shown up for
treatment “consistently” as Dr. Sarpy indicated.
The ALJ also rejected Dr. Sarpy’s June 26, 2009 letter wherein Dr. Sarpy indicated that
Plaintiff “has been compliant with all treatment recommendations and appointments.” (R. 1003.)
Dr. Sarpy stated that Plaintiff “reports sobriety for the last 6 months” and that “family corroborates
his accounts.” (Id.) The ALJ pointed out that, contrary to Dr. Sarpy’s letter, the medical records
show that Plaintiff had missed “many therapy sessions during March and April” of 2009 and that
Plaintiff “showed up at many sessions under the influence.” (R. 23.)
The ALJ also discussed Dr. Sarpy’s October 19, 2010 letter, wherein Dr. Sarpystated that
Plaintiff “reports sobriety for the last 18 months” and that “[f]amily corroborates his accounts.” (R.
1163.) The ALJ discounted the opinion because it was “written less than a year after [Plaintiff’s]
December 2009 hospitalization after a drinking binge,” and thus, as with the other letters “this
opinion that the [Plaintiff] is unable to work is predicated upon information that is not accurate.”
(R. 24.)
Plaintiff argues that it was error for the ALJ to discount the October 2010 opinion, because
13
even if the Plaintiff had been drinking in December 2009, he had been sober for nine months at the
time Dr. Sarpy’s opinion was written. (Pl.’s Mem. at 12.) Further, according to Plaintiff, the
hospitalization in December 2009 “stemmed from being taken off lithium,” and Dr. Sarpy’s notes
indicate that she was aware of the hospitalization. (Id. at 11.) Plaintiff contends that the ALJ
“wholly fail[ed] to evaluate what her opinion was truly saying – that Plaintiff was still very
symptomatic, despite abstinence from alcohol.” (Id. at 12.) None of these statements, however,
change the fact that Plaintiff had not been sober for the 18 months that Dr. Sarpy indicated in her
letter, and accordingly, the ALJ validly discounted Dr. Sarpy’s October 2010 opinion because it was
inconsistent with the record.
Lastly, Plaintiff contends that the ALJ erred by not discussing the weight given to Dr. Sarpy’s
January 2010 opinion. That opinion is substantially identical to Dr. Sarpy’s October 2010 opinion
except for the fact that the January opinion stated that Plaintiff’s reported sobriety was six months
rather than 18 months. (R. 1004.) Plaintiff states that “[i]t was critical for the ALJ to consider that
opinion because, up to that point, it was the first with an extended period of sobriety, prior to it, with
no relapses.” (Pl.’s Mem. at 11.) Contrary to Plaintiff’s brief and Dr. Sarpy’s letter, Plaintiff had
not been sober for six months at the time the letter was written. In fact, he had been hospitalized the
month earlier after relapsing on alcohol. It is hard to see how the ALJ’s failure to discuss explicitly
the weight given to the January 2010 letter constitutes error when it is nearly identical to the October
2010 letter, and is once again based upon a false predicate that Plaintiff had been sober for a number
of months even though he had been hospitalized after drinking the month before the letter was
written. Further, even if that failure were error, it would be harmless as “no reasonable ALJ would
reach a contrary decision on remand.” See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
14
In sum, the ALJ sufficiently articulated his reasons for the weight given to Dr. Sarpy’s
opinions.
2.
Dr. O’Brien
Dr. O’Brien is a licensed clinical psychologist who filled out a medical interrogatory and also
testified at the second hearing as a non-examining, impartial medical expert. (R. 48.)
In her April 2010 medical interrogatory, Dr. O’Brien found that Plaintiff had bipolar disorder,
general anxiety disorder, and alcohol dependence. (R. 1074.) She found that with alcohol, Plaintiff
had moderate restrictions in activities of daily living, marked restrictions in maintaining social
functioning and maintaining concentration, persistence, or pace, and repeated episodes of
decompensation. (R. 1073.) Without alcohol, however, Dr. O’Brien found that Plaintiff’s
restrictions would be mild or moderate, and noted that Plaintiff had not experienced repeated
episodes of decompensation while sober. (Id.) She opined that absent alcohol Plaintiff did not meet
the criteria for any impairment and that Plaintiff could perform “simple, unskilled tasks.” (R. 107476.) She stated that there were no records that suggested marked impairment without alcohol. (R.
1074.)
At the hearing, Dr. O’Brien testified that alcohol would be a material factor in a finding of
disability. (R. 51.) Dr. O’Brien observed that of Plaintiff’s many hospitalizations, only the “very
last hospitalization, when he’d stopped taking his medication, was a hospitalization . . . that did not
result from a heavy drinking episode.” (R. 50.) She stated that she disagreed with Dr. Sarpy’s letters
because the letters did not accurately report Plaintiff’s sobriety and were not consistent with the
treating record. (R. 51, 54.) On cross-examination, Dr. O’Brien opined that although Plaintiff could
15
not do “fast-paced work,” he could perform “simple, easily learned tasks with minimal public
contact.” (R. 55.) She agreed with Plaintiff’s attorney that Plaintiff’s bipolar disorder had been
symptomatic, but that “[t]he only time it starts to meet a listing level is when he’s decompensating
because of alcohol use or not taking his meds.” (Id.) Dr. O’Brien further stated that when Plaintiff
was not using alcohol, he “verbalize[d] much more rational, reasonable thinking, and intelligence”
and noted that he was able to lead Alcoholics Anonymous meetings. (R. 56.)
The ALJ gave “substantial weight” to the opinions of Dr. O’Brien because Dr. O’Brien is a
“specialist, is familiar with the disability program, and has had the opportunity to review and
evaluate the entire record.” (R. 24.) Plaintiff argues that the ALJ erred in relying on Dr. O’Brien’s
opinion because Dr. O’Brien “failed to recognize” that Plaintiff’s “symptoms were not in fact,
caused by alcohol use, but rather Plaintiff used alcohol, when his symptoms were already severe, as
a way to cope and self-medicate them.” (Pl.’s Mem. at 13.) Dr. O’Brien testified that Plaintiff’s
symptoms only became severe enough to require hospitalization when Plaintiff was drinking or had
stopped taking his medications. (R. 55.) Her conclusion that Plaintiff’s affliction only became
disabling when he drank alcohol was supported by the record, and this court cannot reweigh the
evidence to reach the conclusion that Plaintiff prefers. See Cunningham v. Barnhart, 440 F.3d 862,
865 (7th Cir. 2006); White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005). The ALJ sufficiently
articulated valid reasons for relying on Dr. O’Brien’s testimony, and was entitled to give her opinion
substantial weight.
3.
Plaintiff’s Credibility
Plaintiff objects to the ALJ’s criticisms of Plaintiff’s credibility because the ALJ “fail[ed]
16
to consider the entire case record.” (Pl.’s Mem. at 14.) The Social Security Administration provides
guidelines as to how the ALJ should determine credibility:
The determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently
specific to 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.
SSR 96-7p, 1996 WL 374186 at *2. In determining a claimant’s credibility, the ALJ justify the
findings with specific reasons supported by the record. Craft, 539 F.3d at 678. In evaluating the
claimant’s complaints of pain or other symptoms, the ALJ must consider any objective medical
evidence, the claimant’s daily activities, level of pain or symptoms, precipitating and aggravating
factors, medication, treatment or other measures used to alleviate pain and any other factors
concerning limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c). As
with other determinations, an ALJ need not discuss every piece of evidence, but he must build an
accurate and logical bridge from the evidence to the conclusions. See, e.g., Villano, 556 F.3d at 562;
Craft, 539 F.3d at 673.
Because the ALJ is in the best position to determine a claimant’s credibility, Simila v. Astrue,
573 F.3d 503, 517 (7th Cir. 2009), the ALJ’s credibility finding is reviewed with “special deference.”
Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010). The ALJ’s decision need not be perfect and
is only overturned if it is “patently wrong.” Id. “It is only when the ALJ’s determination lacks any
explanation or support that we will declare it to be ‘patently wrong.’” Elder v. Astrue, 529 F.3d 408,
413-14 (7th Cir. 2008) (quoting Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003)).
The ALJ concluded that Plaintiff’s statements concerning his symptoms were not credible
and extensively discussed the reasons for that conclusion. (R. 20.) The ALJ noted that Plaintiff was
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non-compliant with taking his medications and resistant to suggestions for treatment. (R. 20-21.)
The ALJ also discussed and cited medical records that indicated that “when sober and medication
complaint, [Plaintiff’s] functioning improves.” (R. 22.) Those cited records included a March 2006
statement from Dr. Sarpy opining that when taking his medications and not drinking, Plaintiff was
stable and could work in a non-competitive environment after a few months of consistent stability.
(R. 437-38.) The ALJ also highlighted that after a six-month period of sobriety, Plaintiff was
attempting to write a book about his experiences, leading Alcoholics Anonymous meetings,
attending sporting events, and resisting the temptation to drink. (R. 22.) Plaintiff claims that this
evidence does not “equate to Plaintiff’s ability to sustain full-time employment” and that the ALJ
failed to recognize that “[t]hose with mental illness experience numerous fluctuations in their
symptoms.” (Pl.’s Mem. at 15 (citing Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Larson, 615 F.3d at 751). Contrary to the situations in
the cases cited by Plaintiff, the ALJ was not ignoring the fact that Plaintiff could fluctuate between
bad or good days. Instead, based on the medical records, the ALJ drew the conclusion that when
Plaintiff was complaint with his medications and sober, his functioning improved.
The ALJ also stated that the record indicates that the Plaintiff “lies and easily deceives
people.” (R. 21.) The ALJ noted that Plaintiff was “quite focused on obtaining Social Security
benefits.” (Id.) Specifically, the ALJ pointed to an incident where Plaintiff had declined to attend
residential treatment because he would be expected to get a job, and Plaintiff wanted to wait until
his benefits application was resolved. (Id. (citing R. 954.)) Plaintiff takes issue with the ALJ’s
statement because “the ALJ left out the fact that immediately thereafter Plaintiff expressed interest
in [an] intensive outpatient program.” (Pl.’s Mem. at 14.) Plaintiff does not contend that the
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outpatient program had a job requirement so it is hard to see how that fact undermines the ALJ’s
conclusion that Plaintiff was not working in part because he was applying for benefits rather than
because of limitations due to his disease.
Plaintiff further objects to the ALJ’s mention of Plaintiff’s February 2010 statement that he
would stop taking his medication in order to demonstrate the severity of his symptoms to the Social
Security Administration. (Pl.’s Mem. at 14 (citing R. 21).) According to Plaintiff, the ALJ did not
acknowledge that “by the end of that same session Plaintiff . . . indicated he would continue taking
his medications.” (Id.) The ALJ, however, correctly noted that Plaintiff subsequently was
hospitalized in March 2010 after he had ceased taking his medication (R. 21), and therefore, the ALJ
was not wrong in considering Plaintiff’s threat to stop taking his medication.
The ALJ also discounted Plaintiff’s claimed limitations in daily activities because the
limitations could not be “objectively verified with any reasonable degree of certainty” and “it is
difficult to attribute that degree of limitation to [Plaintiff’s] medical condition, as opposed to other
reasons, in view of the relatively weak medical evidence and other factors discussed in this
decision.” (R. 22.) Plaintiff does not take issue with this part of the ALJ’s analysis.
In sum, the ALJ supported his credibility finding with sufficient evidence from the record
and satisfied the requirement to build an accurate and logical bridge from the evidence to his
conclusions.
4.
Medical Evidence after March 4, 2010
Plaintiff argues that the ALJ failed to “discuss any of the medical evidence after March 4,
2010” in determining Plaintiff’s residual functioning capacity and that the “failure was particularly
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egregious because it covered a large portion of Plaintiff’s sustained sobriety.” (Pl.’s Mem. at 9.)
In reply, Plaintiff further specifies that the ALJ failed to discuss “at least 20 appointments” postMarch 2010. (Pl.’s Reply at 3-4.)
An ALJ “must evaluate all relevant evidence when determining an applicant’s [residual
functioning capacity].” Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2006). He is not required,
however, to “discuss every piece of evidence in the record and is prohibited only from ignoring an
entire line of evidence that supports the finding of disability.” Jones v. Astrue, 623 F.3d 1155, 1162
(7th Cir. 2010).
The Commissioner correctly points out that Plaintiff’s contention is belied by the ALJ’s
decision, which specifically cites a treatment note from Dr. Sarpy from May 2010, and opinion
evidence from August 2010 and October 2010. (Def.’s Mem. at 8 (citing R. 23-24).) Further, the
ALJ cited the exhibit number corresponding to treatment notes spanning the period from July 2009
to August 2010, and noted that Plaintiff missed many appointments. (R. 22.) The ALJ was not
required to discuss every treatment note, and in any event, those notes do not constitute an entire line
of evidence that would support a finding of disability. Hence, Plaintiff’s argument that the ALJ did
not consider or discuss any of the post-March 2010 medical evidence is not factually correct nor does
it support a basis for a finding in favor of Plaintiff.
CONCLUSION
For the foregoing reasons, the ALJ’s decision denying benefits was supported by substantial
evidence. Accordingly, Plaintiff’s motion for summary judgment [dkt 21] is denied, and the
Commissioner’s cross-motion for summary judgment is granted [dkt 23]. Judgment is entered for
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the Commissioner and against Plaintiff.
____________________________
Geraldine Soat Brown
United States Magistrate Judge
Date: October 29, 2013
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