Hampton v. Astrue
Filing
28
MEMORANDUM Opinion and Order Signed by the Honorable Daniel G. Martin on 12/13/2013. Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CONSTANCE HAMPTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
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Case No. 12 C 9300
Magistrate Judge Daniel G. Martin
MEMORANDUM OPINION AND ORDER
Plaintiff Constance Hampton (“Plaintiff” or “Hampton” ) seeks judicial review of the
final decision of the Commissioner of Social Security denying her application for disability
insurance benefits and supplemental security income. The parties have consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Hampton filed a Motion for Summary Judgment that seeks to reverse the Commissioner's
decision. The Commissioner filed a cross-motion. For the reasons stated below, Plaintiff’s
motion is granted, and the Commissioner’s motion is denied.
I. Legal Standard
A. The Social Security Administration Standard
In order to qualify for disability benefits, a claimant must demonstrate that he is
disabled. An individual does so by showing that he cannot "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. § 4243(d)(1)(A). Gainful
activity is defined as "the kind of work usually done for pay or profit, whether or not a profit
is realized." 20 C.F.R. § 404.1572(b).
The Social Security Administration ("SSA") applies a five-step analysis to disability
claims. See 20 C.F.R. § 404.1520. The SSA first considers whether the claimant has
engaged in substantial gainful activity during the claimed period of disability. 20 C.F.R. §
404.1520(a)(4)(i). It then determines at Step 2 whether the claimant's physical or mental
impairment is severe and meets the twelve-month durational requirement noted above.
20 C.F.R. § 404.1520(a)(4)(ii).
At Step 3, the SSA compares the impairment (or
combination of impairments) found at Step 2 to a list of impairments identified in the
regulations ("the Listings"). The specific criteria that must be met to satisfy a Listing are
described in Appendix 1 of the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the
claimant's impairments meet or "medically equal" a Listing, the individual is considered to
be disabled, and the analysis concludes; if a Listing is not met, the analysis proceeds to
Step 4. 20 C.F.R. § 404.1520(a)(4)(iii).
Before addressing the fourth step, the SSA must assess a claimant's residual
functional capacity ("RFC"), which defines his exertional and non-exertional ability to work.
The SSA then determines at the fourth step whether the claimant is able to engage in any
of his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can do so, he is
not disabled. Id. If the claimant cannot undertake past work, the SSA proceeds to Step
5 to determine whether a substantial number of jobs exist that the claimant can perform
in light of his RFC, age, education, and work experience. An individual is not disabled if
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he can do work that is available under this standard. 20 C.F.R. § 404.1520(a)(4)(v).
B. Standard of Review
A claimant who is found to be "not disabled" may challenge the Commissioner's final
decision in federal court. Judicial review of an ALJ's decision is governed by 42 U.S.C. §
405(g), which provides that "[t]he 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 "such evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A court
reviews the entire record, but it does not displace the ALJ's judgment by reweighing the
facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate
and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008). This requirement is designed to allow a reviewing court to "assess the
validity of the agency's ultimate findings and afford a claimant meaningful judicial review."
Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). Thus, even if reasonable minds could
differ as to whether the claimant is disabled, courts will affirm a decision if the ALJ's opinion
is adequately explained and supported by substantial evidence. Elder, 529 F.3d at 413
(citation omitted).
II. Background Facts
A.
Medical History
Plaintiff’s records present a complex picture of multiple disorders, including
substance abuse, gastroparesis, depression, hypothyroidism, Type II diabetes,
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hypertension, back pain, urine retention, foot pain, chronic constipation, and hepatis C.
The extent of these disorders is reflected by Hampton’s medications. These included over
time methadone, Glucotrol, Humulin, enalapril, trazodone, levothyroxine, folic acid,
naprosyn, thiamine, benzocaine, paroxetine (Paxil), Wellbutrin, Cymbalta, interferon,
setraline (Zoloft), metformin, copegus (Ribavirin), and clotrimazole. (R. 287, 1014-20).
Notwithstanding, the records for each of Plaintiff’s medical problems are limited. In
October 2007, Hampton’s mental status was assessed by a psychiatrist whose name is not
legible from the record. The doctor determined that Plaintiff’s thought processes were
unremarkable and showed no signs of a psychosis. The doctor diagnosed her with
polysubstance dependance and a depressive order NOS (not otherwise specified). She
was advised to attend meetings of Narcotics Anonymous, as well as individual and group
therapy. (R. 338). Hampton met with the psychiatrist throughout 2007, 2008, and 2009.
The treatment notes show that she was treated with Cymbalta and Wellbutrin, with varying
results. At times, her symptoms improved; at other times, they remained difficult.
Hampton also experienced sleep and energy problems during this period. (R. 34452). The psychiatric progress notes indicate that on occasion Hampton was so fatigued
that she fell asleep in the waiting area. Insomnia became such a problem that her
psychiatrist considered prescribing Seroquel to help Hampton sleep more than two hours
a night. As treatment progressed, however, the notes reflect that Plaintiff began sleeping
better. By May 2009, Hampton was “sleeping OK” and was “smiling” and “brighter.” (R.
353). The last note of June 2009 states that her depression had improved. (R. 354).
Most of the remaining records related to depression show that Hampton was treated
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by nurse practitioners and social workers. By March 2010, Hampton was being treated
with setraline for depression and trazadone for sleep. (R. 562). Complaints of depression
and fatigue varied significantly. Hampton denied fatigue in January 2010, but experienced
it in April 2010. (R. 558, 580). She complained of depression a year later in April 2011,
but had denied it only a month earlier, and again in February 2011. (R. 952, 992, 1000).
Relatively few medical records relate to Hampton’s treatment for diabetes, though
treatment notes document changes in her medication and treatment regimen. In October
2009, however, Plaintiff began interferon treatment for hepatitis C. (R. 363). Hampton
initially denied that she was experiencing any fatigue or pain. As the ALJ noted, however,
subsequent complaints of fatigue came and went over time. Plaintiff had also denied
having limiting pain earlier in January 2008, and stated later in February 2010 that she was
not fatigued. (R. 479, 574). By March 2010, however, Plaintiff complained that interferon
was giving rise to feelings of tiredness and depression. (R. 565). In June 2010, Hampton
was diagnosed with hypothyroidism and mild anemia. Both were treated, and she was free
from fatigue in September. (R. 898). Hampton also disclaimed fatigue in February and
March 2011, but stated again in May 2011 that she was tired. (R. 952, 1000. 1033).
B.
Hearing Testimony
1.
Plaintiff
Plaintiff appeared at a hearing before the ALJ on June 21, 2011.
Hampton
described herself as five feet and three inches tall and weighing 200 pounds. She testified
that she was unable to work because of pain in her back, legs, feet, and stomach. The
pain in her feet stemmed from swelling that prevents her from walking more than three
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blocks at a time. (R. 74). She experiences numbness in her feet and also has bunions.
(R. 69). Nevertheless, Hampton had walked a mile within the last month, though she was
required to stop every five steps. (R. 63). Prior foot surgery required Hampton to take pain
medication that led to an addiction to prescription pain pills.
She currently takes
methadone to remain off of opioid medications like Vicodin.
As for her stomach pain, Hampton stated that it was caused by chronic constipation,
which she elaborated on in some detail. Plaintiff is able to have bowel movements only
once every four to six days. She also experiences problems with urination. (R. 72-73).
Her problems are so severe that Hampton stated it rendered her unable to stand at times
and caused her to see things “popping out” of her legs. (R. 64, 77).
Plaintiff also suffers from hepatitis C. Hampton stated that she was being treated
with interferon but felt worse from the side effects. In particular, she feels fatigued and is
too tired to do housework or to wash clothes. (R. 61-62). Her memory is poor, and she
often forgets where she has put things. Plaintiff does not sweep or mop, though she
sometimes washes dishes while sitting on a stool. Hampton often wears the same clothes
for days at a time due to her fatigue. Plaintiff stated that she feels tired upon awakening
in the morning and often sleeps during the day. She awakens every hour during the night.
A diabetic, Hampton experiences high and low blood sugar spikes three times a week. (R.
65). Her vision is blurred, and she often sees double. Plaintiff stated that her problems
led her to be depressed, and she sees a therapist when she needs additional help. (R. 5556).
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2.
Dr. Sheldon Slodki
Medical expert Dr. Sheldon Slodki also testified at the hearing. After describing
Plaintiff’s disorders at length, Dr. Slodki stated that he agreed with the physical RFC
provided by Dr. Virgilio Pilapil. The terms of that RFC are discussed more fully below. Dr.
Slodki believed that Plaintiff had only a minimal amount of postural limitations. The primary
ones that applied included no use of ladders, ropes, and scaffolds, and only an occasional
requirement for balancing or climbing stairs. Dr. Slodki further noted that there was no
evidence that Plaintiff currently used Vicodin or any drugs that were not prescribed to her
by a physician. (R. 79-84).
C.
Medical and State Agency Physician Reports
1.
Dr. Roopa Karri
On January 4, 2010, Plaintiff underwent a consultative examination with Dr. Roopa
Karri. Hampton had begun treatment with interferon and Ribavirin only one month earlier
and stated that she felt “very fatigued.”
(R. 490).
Dr. Karri noted that Hampton
experienced difficulty with her “tandem gait” but did not require any assistive device to
walk. Her grip strength was normal, as was her range of motion with all of her limbs and
spine. Diffuse swelling was present in both hands, but Hampton did not experience any
tenderness in her joints. Dr. Karri concluded that Hampton’s impairments included
diabetes that was poorly controlled, a history of peripheral neuropathy, controlled
hypertension, hepatitis C, and a history of depression. (R. 489-92).
2.
Dr. Joan Hakimi
Dr. Joan Hakimi also conducted a psychological examination of Hampton. Dr.
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Hakimi noted that the deaths of Hampton’s parents had placed significant stress on her.
Living with her husband’s mentally impaired son was also difficult. Hampton told Dr.
Hakimi that after she got her stepson ready for school, she often went back to bed and
slept for much of the day. Plaintiff admitted that she was recovering from both alcohol and
drug abuse and that she had been sober for over 10 years. Hampton was able to do the
laundry and undertake minimal cooking involving pasta, cereal, and sandwiches. She did
require assistance with showering or bathing, though she only took a shower twice a week.
Dr. Hakimi concluded that Plaintiff suffered from a depressive disorder secondary
to a general medical condition. However, she also found that Hampton was a “fairly high
functioning woman,” with good cognitive functioning and some impairments in her
judgment and problem-solving abilities.
3.
Dr. Carole Rosanova
On February 16, 2010, Dr. Carole Rosanova issued a Psychiatric Review Technique
(“PRT”) assessment on Plaintiff. Dr. Rosanova determined that Hampton suffered from
affective disorders and a substance abuse disorder. The affective issue involved a
“depressive dis[order] nos [not otherwise specified], bereavement.”
(R. 501).
Dr.
Rosanova issued a mental assessment that concluded that Plaintiff suffered from mild
limitations in her activities of daily living and social functioning, and a moderate limitation
in her ability to maintain concentration, persistence, or pace. One to two episodes of
decompensation were also noted. Based on these findings and her review of the record,
Dr. Rosanova issued a detailed mental RFC. She concluded that Plaintiff had only
moderate restrictions, or in most cases no significant limitations, in all RFC areas.
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According to Dr. Rosanova, Hampton was able to sustain simple, repetitive tasks that did
not require her to carry out detailed instructions. Plaintiff was further limited to “routine
stress and change.” (R. 498-514).
4.
Dr. Virgilio Pilapil
Dr. Virgilio Pilapil issued a physical RFC on February 24, 2010. He found that
Plaintiff could lift 10 pounds frequently, and up to 20 pounds occasionally. She could
stand, walk, and sit for a total of six hours in an eight-hour workday. In making these
assessments, Dr. Pilapil noted that Plaintiff neuropathy gave rise to “sensations” in both
of her feet. He also noted that she had swelling in her hands. Dr. Pilapil further limited
Plaintiff to only occasional climbing of stairs, occasional stooping, and no balancing.
Importantly, however, Dr. Pilapil stated that Hampton’s ability to perform work at this level
would be begin on by October 27, 2010, not when he issued the RFC on February 24,
2010. (R. 523).
5.
Nurse Practitioners
Nurse practitioner Diane Judge issued a medical report for Plaintiff on April 9, 2010.
For reasons that are unclear, the report is also signed by Marcia Katz, M.D. Ms. Judge set
out a number of Plaintiff’s chronic medical conditions, including diabetes, hepatitis C,
hydronephrosis, depression, and pain and bloating in her stomach. She also stated that
Plaintiff had experienced significant amounts of pain and fatigue. Ms. Judge concluded
that the combination of these impairments significantly impaired Plaintiff’s ability to work
and would keep her from obtaining gainful employment. (R. 613).
Nurse practitioner Rachel Breivald also signed a medical report on March 25, 2010.
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She stated that Plaintiff had been under her “psychiatric care” since November 2009.
Breivald described Plaintiff’s symptoms and concluded that Hampton experienced marked
limitations in her concentration and pace, as well as in her occupational and social
functioning. (R. 614).
Nurse practitioner Mary Tornabene issued a short report on June 9, 2011. It listed
Hampton’s disorders and noted that she had been a client in Tornabene’s “medical home”
for four years. Tornabene stated that Hampton could carry out basic activities of daily
living. However, she believed that Plaintiff had a high risk for progression in her diabetes,
hepatitis, depression, and hypertension without medical assistance. (R. 1042).
D.
The ALJ’s Decision
On July 15, 2011, ALJ Robert Asbille issued a written decision that found Hampton
was not disabled. The ALJ determined at Step 1 that Hampton had not engaged in
substantial gainful activity since her alleged onset date of May 1, 2005. He found her
severe impairments at Step 2 to be diabetes with a history of peripheral neuropathy,
hepatitis C, hypertension, level I obesity, anemia, hydronephrosis (a swelling of the
kidneys), hypothyroidism, constipation, depression, anxiety, and a history of polysubstance
abuse. None of these impairments were found at Step 3 to meet or medically equal one
of the Listings. The ALJ conducted the “special technique” to assess mental impairments
at Step 3 and found that Hampton had a mild restriction in her activities of daily living and
moderate limitations in her social functioning and concentration. One to two episodes of
decompensation were also found.
Before moving to Step 4, the ALJ found that Hampton’s testimony was not entirely
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credible. He assessed her RFC as light work with only occasional postural movements.
Certain non-exertional limitations were also found.
These included only simple
instructions, occasional contact with supervisors, coworkers, and the general public.
Based on these findings, the ALJ determined at Step 4 that Hampton could not perform
her past relevant work. The ALJ heard testimony from the VE at Step 5 and concluded
that Plaintiff was not disabled because a significant number of jobs existed that she could
perform.
III. Discussion
Plaintiff challenges the ALJ’s decision on three grounds. According to Hampton, the
ALJ: (1) improperly weighed the opinion evidence of the nurse practitioners, (2) incorrectly
assessed Hampton’s credibility, and (3) incorrectly determined her RFC. The Court
addresses each of these concerns in turn.
A.
The Medical Source Issue
The ALJ gave little weight to opinions issued by nurse practitioners Mary Tornabene,
Diane Judge, and Rachel Breivald. Hampton argues that the ALJ failed to consider the
factors required for weighing medical opinions and that he mistakenly concluded that the
nurse practitioners had given opinions on issues reserved to the Commissioner. She also
points out that Judge’s report was signed by Dr. Marcia Katz, making it more than a
statement of a non-acceptable medical source.
An ALJ is required to evaluate every medical opinion in the record. 20 C.F.R. §
404.1527(d). See Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) ("Weighing
conflicting evidence from medical experts . . . is exactly what the ALJ is required to do.").
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The regulations lay out six factors an ALJ should consider as part of this analysis, including
the nature and length of the treatment relationship, the medical expert's specialization, and
the degree to which a source's opinion is supported by other evidence. 20 C.F.R. §
404.1527(d)(1)-(6). The ALJ must clearly state the weight he has given to the medical
sources and the reasons that support the decision. See Ridinger v. Astrue, 589 F.
Supp.2d 995, 1006 (N.D. Ill. 2008). “A treating physician’s opinion is entitled to controlling
weight if it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence.” Larson v. Astrue, 615
F.3d 744, 749 (7th Cir. 2010).
Instead of addressing these factors, the Commissioner defends the ALJ’s
assessment of the nurses by noting that the ALJ gave “considerable” weight to the opinion
of the state-agency physician, Dr. Pilapil. Unfortunately, that does not address Plaintiff’s
argument. “The proper frame for analysis is as follows: (1) did the ALJ commit error by not
explaining the weight given to [a nurse’s] opinion as an ‘other source,’ and (2) if so, was
that error harmless?” Compton v. Colvin, 2013 WL 870606, at *10 (N.D. Ill. March 7,
2013). The Commissioner cannot claim that the ALJ was justified in favoring Dr. Pilapil
over the nurses without first showing that he properly addressed the first prong of this
standard concerning the nurses’ opinions.1
Substantial evidence does not support the ALJ’s conclusion on the nurse reports.
Social Security Ruling 06-3p classifies nurses as “other sources” who are not “acceptable
1
The Court does not address the harmless error issue because the Commissioner
has not raised it in relation to the nurses’ reports.
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medical sources” such as physicians. The ALJ believed this justified his assessment,
stating that little weight was assigned to the nurses “insofar as these are not acceptable
medical sources.” That was an incorrect statement of the law. “Other source” opinions
"are important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file." SSR 06-3p; see also
20 C.F.R. § 404.1513(d)(1). They must also be weighed using the same factors that apply
to treating and acceptable sources. SSR 06-3p. The fact that the nurse practitioners are
other sources says nothing in itself as to why they are only entitled to little weight. Social
Security Ruling 06-3p stresses that an ALJ should "consider all of the available evidence
in the individual's case record," including sources such as nurses. Id.
An ALJ's failure to evaluate a nurse practitioner's opinion in accordance with these
guidelines can amount to reversible error. Dogan v. Astrue, 751 F. Supp.2d 1029, 1038-41
(N.D. Ind. 2010). That is because a nurse practitioner’s report can be given “great” weight,
and can even outweigh the opinion of an acceptable medical source like Dr. Pilapil. SSR
06-3p (“[D]epending on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is not an ‘acceptable
medical source’ may outweigh the opinion of an ‘acceptable medical source,’ including the
medical opinion of a treating source.”). As SSR 06-3p recognizes, the growing importance
of managed care means that nurse practitioners play an increasingly large role in treating
patients who would otherwise be seen by physicians or other acceptable medical sources.
The role played by nurse practitioners took on special significance in this case
because they provided a very large proportion of Hampton’s care. The reports made this
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fact clear by stating the length of time each nurse had treated Plaintiff: four years for
Tornabene, three years for Judge, and five months for Breivald. Moreover, the nurses had
direct, and often detailed, knowledge of Hampton’s test results, medications, and physical
and mental functioning. In many instances, the nurses themselves ordered Hampton’s
tests and managed her medications for long periods of time. The ALJ was required to
consider these important facts in weighing their reports.
The ALJ discounted the nurses’ reports, in part, because he believed they touched
on issues reserved to the Commissioner. Such issues ordinarily involve opinions on
whether a claimant is disabled and is unable to work. 20 C.F.R. § 404.1527(e). Nurses
Judge and Tornabene did state that Hampton’s mental impairments restricted her ability
to work. (R. 613, 1042). For the most part, however, the nurses’ opinions discuss
limitations in functional areas such as concentration and social functioning, or describe
specific symptoms that Hampton suffers from her medical conditions. These are not
issues reserved to the Commissioner. As the Seventh Circuit has noted, simply stating
that an issue is reserved to the Commissioner is “imprecise” and is “not the same as
stating that such a statement is improper and therefore to be ignored[.]” Bjornson v.
Astrue, 671 F.3d 640, 647 (7th Cir. 2012). The purpose of considering non-acceptable
medical sources is to give an ALJ additional insight “into the severity of the impairment(s)
and how it affects the individual’s ability to function.” SSR 06-03p.
The ALJ singled out Nurse Tornabene’s report for criticism by comparing it with a
progress note that was issued on March 5, 2010, several months before Tornabene’s June
2010 report. (R. 41, 565). The ALJ found that the progress note did not support the
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extent of the limitations described in the later report. No explanation or reasoning was
provided. This fails to build a logical bridge between the record and the ALJ’s conclusion
on this issue. It also fails to say anything about why Nurse Judge’s and Nurse Breivald’s
opinions were given only little weight.
The ALJ’s only remaining basis of criticism was that the nurses appeared to have
relied heavily on Hampton’s subjective complaints. An ALJ is free to discount a medical
source opinion when it is “based solely on the patient’s subjective complaints.” Ketelboeter
v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008) (emphasis added). See also Bates v. Colvin,
— F.3d —, 2013 WL 6228317, at * 6 (7th Cir. Dec. 2, 2013). As before, the ALJ gave no
explanation of how he reached this inference. Nurse Judge’s report was clearly based on
more than Hampton’s subjective complaints. Judge cited specific diagnoses, treatments,
and side effects with which she was personally familiar and that are documented in the
record.
As for Nurse Brievald, she treated Hampton’s mental impairments. The requirement
that medical reports not be based only on subjective complaints applies to mental and
physical impairments. With mental issues, however, subjective reports to a treating source
often play a more important role in the treatment relationship than they do with physical
issues. Hampton’s individual and group treatment for depression included “talk therapy”
as one component, together with medication. The ALJ should have explained why
Brievald’s report relied unduly on subjective complaints.
This would have included
accounting for the fact that the record shows a long history of medication treatment, much
of which was administered by Breivald herself. As noted more fully below, the ALJ’s
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opinion largely passed over Hampton’s history of antidepressant use. By failing to note
the full extent of Brievald’s treatment of Hampton, the ALJ did not adequately address how
Breivald’s opinion rested “solely” on Hampton’s subjective statements. Ketelboeter, 550
F.3d at 625. This fails to draw a logical bridge between the record and the ALJ’s
conclusion.
Citing Books v. Chater, infra, the Commissioner argues that it is up to an ALJ which
medical source to believe. The Court fully agrees. An ALJ is also free to rely on a stateagency physician like Dr. Pilapil under appropriate circumstances. Scheck v. Barnhart, 357
F.3d 697, 700 (7th Cir. 2004). However, Books also states that this flexibility is subject “to
the requirement that the ALJ’s decision be supported by substantial evidence.” Books v.
Chater, 91 F.3d 972, 979 (7th Cir. 1996) (internal quote and citation omitted). Substantial
evidence does not support the assessment of the nurses’ opinions for the reasons just
stated.
It is also highly doubtful whether it supports the weight given to Dr. Pilapil’s report.
The ALJ’s only reason for favoring Dr. Pilapil was that he “cited adequate support for his
opinion.” (R. 40). This fails to reference any of the factors relevant to evaluating medical
opinions or to link the assessment with the record. As for Dr. Slodki, the ALJ merely stated
that his opinion was “well supported by the evidence.” (R. 40). See Schmidt v. Colvin, —
Fed.Appx. —, 2013 WL 6170872, at *4 (7th Cir. Nov. 26, 2013) (criticizing similar language
as “entirely unhelpful” boilerplate). These assessments are based on even less reasoning
than that given to the nurse practitioners. In reality, more rigorous guidelines apply to the
opinions of non-treating, non-examining sources like Dr. Pilapil than to the reports of
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treating sources. An ALJ must apply “stricter standards, based to a greater degree on
medical evidence, qualifications, and explanations for the opinions” before giving weight
to physician’s like Dr. Pilapil. SSR 96-6p.
The Court remands this case based on the reasoning given for the assessment of
the nurses’ opinions. On remand, however, the ALJ shall explain more fully why he gave
considerable weight to Dr. Pilapil and Dr. Slodki. Part of that analysis will also involve the
ambiguities contained within Dr. Pilapil’s opinion, as described more fully below. Plaintiff’s
motion is granted on this issue.
B.
The Credibility Issue
Hampton next claims that the ALJ did not properly assess her credibility. If an ALJ
finds that a medical impairment exists that could be expected to produce a claimant's
alleged condition, he must then assess how the individual's symptoms affect his ability to
work.
SSR 96-7p.
The fact that a claimant's subjective complaints are not fully
substantiated by the record is not a sufficient reason to find that he is not credible. The
ALJ must consider the entire record and "build an accurate and logical bridge from the
evidence to his conclusion." Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Factors
that should be considered include the objective medical evidence, the claimant's daily
activities, allegations of pain, any aggravating factors, the types of treatment received, any
medications taken, and functional limitations. Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006); see also 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. A court reviews an ALJ's
credibility decision with deference and overturns it only when the assessment is patently
wrong. Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010).
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ALJ Asbille never clearly stated what his credibility assessment was in this case.
The Court assumes he found Hampton not to be credible. The ALJ’s only comment was
the usual boilerplate language often found in cases of this type: “The claimant’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. 35). The Seventh Circuit has severely criticized such language because
it incorrectly implies that a claimant’s RFC should be assessed before the ALJ evaluates
the credibility of the claimant’s statements. Bjornson, 671 F.3d at 645. The ALJ would
have fallen into that error if he had restricted his analysis to the bare statement that
Hampton cites. But he moved beyond this formulaic language and addressed a number
of the regulatory factors that govern a credibility analysis, such as the consistency of
Hampton’s statements, the objective record, and the nature of her treatment.
The relevant issue is whether his analysis of these factors was sufficient to find that
Hampton was not fully credible. The Commissioner contends that it was because the ALJ
gave due consideration to the objective medical record. The Commissioner points out
several examples. Hampton had a normal neurological examination and told her providers
in October 2009 and May 2010 that she was doing “okay.” Hampton also had improved
energy in August 2010 and had a normal range of motion in February 2011. In addition,
her depression-related symptoms were noted as improved in May 2009 and June 2010,
in part due to the positive effects of Cymbalta.
This argument presents two separate issues that must be distinguished from one
another. The first involves the credibility of Hampton’s claim that she could not work due
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to physical pain. The Court agrees that the ALJ provided sufficient explanation concerning
Hampton’s alleged back and joint pain. He carefully reviewed the extensive record in this
case and correctly noted that she denied significant pain on several occasions. For
example, the ALJ reviewed evidence concerning Hampton’s range of motion, neuropathic
pain, toe ulcer, and hydronephrosis. He also took note of the internal medicine report of
Dr. Karri that found Hampton’s grip strength and range of motion to be normal.
The second issue revolves around Hampton’s emotional state and, in particular, her
allegations of fatigue. This involves symptoms related to depression, hepatitis C, and the
interferon treatment given to treat that disorder. The ALJ’s consideration of these issues
presents a far more problematic picture. The ALJ concluded his review of the record by
finding that Hampton’s treatment was not the type that one would expect from a completely
disabled person. He noted, for instance, that Hampton had never been hospitalized for her
mental impairment, and that her other treatments had been relatively routine. See SSR
96-7p (requiring an ALJ to consider the level or frequency of a claimant’s treatment).
The ALJ’s reasoning on this issue does not support his credibility decision. The fact
that Hampton was never hospitalized for depression is not, in itself, a basis for discounting
her credibility. A claimant does not need to be hospitalized in order to show that she
suffers from a disabling mental impairment. See Worzalla v. Barnhart, 311 F. Supp.2d
782, 796 (E.D. Wis. 2004).
Hospitalization is not even required for an episode of
decompensation. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(4). Thus, the fact that
Hampton was treated by medication and psychotherapy is not an argument for discounting
her credibility, at least without further explanation that more carefully links the treatment
19
with Hampton’s allegations.
Hampton’s depression treatment may have been “routine,” as the ALJ stated, but
nothing in the regulations requires a claimant to undergo something more drastic in order
to be credible concerning the severity and persistence of her symptoms. What the ALJ
overlooked is the scope of the treatment she received.
Hampton’s treatment for
depression was extensive and included medication, individual therapy, and group therapy.
The first record concerning Hampton’s psychiatric treatment dates from October 2007.
Even then, it notes that she had already received prior medication treatment with Cymbalta
and Wellbutrin.
(R. 332-34).
Hampton pursued psychotherapy and medication
consultations in one form or another up through the last treatment note in the
administrative record dated May 9, 2011. (R. 1038). The long-term nature of these
treatments weighs in favor of Hampton’s credibility.
A claimant’s credibility can be qualified if an ALJ determines that the claimant has
been inconsistent in seeking treatment or has not fully complied with a physician’s
recommendations.
SSR 96-7p. The ALJ faulted Hampton on this basis for several
reasons. He noted, for instance, that she halted her psychotherapy for approximately six
months in 2008. (R. 38). But such non-compliance must be handled with caution when
assessing a claimant’s credibility. Social Security Ruling 96-7p warns that an ALJ 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
explanation that the individual may provide, or other information in the case record.” SSR
96-7p. Here, the ALJ did not make any inquiry on this topic at the hearing. This is
20
particularly troubling because the ALJ himself noted that Hampton had difficulty in
complying with therapy because of her other medical conditions and her responsibilities
for her stepson. (R. 38).
The ALJ further discounted Hampton’s credibility because she did not always take
her antidepressant medication. (R. 39). Again, the ALJ made no attempt to question
Hampton on this matter. Before finding that her sometimes spotty compliance weighed
against her, the ALJ should have considered whether that could be a function of the mental
impairment itself. The Seventh Circuit and other courts have repeatedly stressed that
“mental illness . . . may prevent the sufferer from taking [his] prescribed medicines or
otherwise submitting to treatment.” Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006).
See also Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2006) (stating that “people with
serious psychiatric problems are often incapable of taking their prescribed medications
consistently”); White v. Comm. of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009) (“For some
mental disorders, the very failure to seek treatment is simply another symptom of the
disorder itself.”); Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009).
As with Plaintiff’s temporary halt to psychotherapy, this issue was not merely
theoretical in this case. Hampton’s mental impairment was exacerbated by concerns over
her other health problems, which are amply documented in the record. (R. 1038). Several
record notes state that she was often highly preoccupied with concerns about her physical
health. Indeed, Dr. Hakimi found that her depressive disorder was “secondary to a general
medical condition.” (R. 497). The combination of depression, diabetes, and hepatitis C
and the other limitations that the ALJ found to be severe at Step 2 may have made it
21
difficult for Plaintiff to be fully complaint with her medication regime. The problem is that
the ALJ did not inquire into the issue before discounting her credibility.
The ALJ relied heavily on the fact that Hampton’s depression-related symptoms
improved with Cymbalta and that she obtained “good relief at times.” (R. 39). He also
rightly noted that her symptoms fluctuated and required additional psychotherapy in 2010
and 2011. However, it is not clear how the ALJ connected these findings to his credibility
assessment. Merely noting symptoms is not the same as explaining how they demonstrate
that a claimant’s allegations are not fully credible. The ALJ appears to have believed that
sporadic improvements showed that Hampton’s depression was not as severe as she
alleged. He noted, for instance, that she met in November 2010 with Dr. Pfeiffer and was
depressed in March 2011. He also properly stated that she was having good days and bad
days in May 2011. (R. 39). Numerous treatment notes confirm such changes in her
depression symptoms. (R. 562, 1038).
The Court cannot follow the logic that connects these fluctuations with the finding
that Hampton was not credible. The fact that Plaintiff’s mental condition varied is not
necessarily a basis for finding that she was not credible. The Seventh Circuit has
explained on many occasions that “a person who suffers from a mental illness will have
better days and worse days[.]” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). See
also Larson, 615 F.3d at 751; Phillips v. Astrue, 413 Fed.Appx. 878, 886 (7th Cir. 2010)
(“Many mental illness are characterized by ‘good days and bad days,’ rapid fluctuations in
mood, or recurrent cycles of waxing and waning symptoms.”). Social Security Ruling 96-7p
also warns ALJs that “[s]ymptoms may vary in their intensity, persistence, and functional
22
effects, or may worsen or improve with time, and this may explain why the individual dos
not always allege the same intensity, persistence, or functional effects of his or her
symptoms.” The ALJ should have addressed this issue in some way before using it
against Hampton’s credibility.
The ALJ’s oversight of this important topic in favor of Cymbalta-related
improvements falls short on several fronts. Social Security Ruling 96-7p requires an ALJ
to consider a claimant’s medication history as part of the credibility analysis. The ALJ in
this case failed to note the complex, and somewhat unclear, history of her antidepressant
treatment. Hampton only used Cymbalta sporadically. Cymbalta and Wellbutrin were first
used prior to the 2007, though the documents for that treatment history are not part of the
record. Wellbutrin was prescribed again in 2007 and 2008. (R. 356). Hampton took
Cymbalta from late 2008 until around January 2010, when she was placed on setraline
(Zoloft). (R. 357). That medication was later found in May 2011 to be ineffective, and
Hampton was switched to Paxil.2 (R. 984). The treatment note states that Plaintiff had
been taking setraline “for years without desired response.” For reasons that are not clear,
another treatment note dated the same day states that Hampton’s setraline dosage was
increased to 225 mg. daily because she was experiencing ups and downs in her
symptoms.3 (R. 1034).
2
This record may have been error, because it states that Hampton had only been
previously treated with Wellbutrin. That was clearly not the case. However, Hampton’s
name appears on the treatment note. The Court does not address the issue because ALJ
has the duty to resolve conflicts in the record. Young, 362 F.3d at 1001.
3
This was beyond Hampton’s last date insured. But the fact that Hampton
continued to experience something more than the generalized improvement that the ALJ
23
The ALJ failed to account for almost all of this medication history. In doing so, he
did not explain how Cymbalta could be an important factor in the credibility assessment
when Hampton’s medical providers took her off that medication. This, combined with the
ALJ’s failure to discuss the significance of her fluctuating symptoms, draws no meaningful
connection between Plaintiff’s periodic improvements and the credibility assessment. Even
if the overall record supports the ALJ’s conclusion, he still had a responsibility to consider
Plaintiff’s condition and medication history with greater care and to make the basis of his
conclusion clear.
The same reasoning applies even more forcefully to Hampton’s complaints of
fatigue. Fatigue is a recognized symptom of chronic hepatitis C. The Merck Manual 228
(18th ed. 2006). It is also a common side effect of interferon treatment. Id. at 230
(“[Interferon] can produce fatigue, malaise, [and] depression[.]”). The ALJ did not discuss
fatigue as it relates to hepatitis C or interferon at all. The Commissioner defends the ALJ’s
decision, in part, because he concluded that Plaintiff “generally denied symptoms including
fatigue and malaise.” (R. 36). However, this statement was made to Nurse Judge in
January 2008, nearly two years prior to the time that Hampton began using interferon. (R.
484). It explains nothing about the credibility of Hampton’s alleged fatigue in subsequent
years.
The ALJ’s primary consideration of fatigue noted that Hampton occasionally stated
that she was feeling more energetic. That was not sufficient, at least standing alone,
noted while she was on Cymbalta required a more careful explanation of why her
allegations about depression were not credible. See Halvorsen v. Heckler, 743 F.2d 1221,
1225 (7th Cir. 1984) (discussing the relevance of post-insured evidence).
24
because an ALJ is required “to determine whether there are any explanations for any
variations in the individual’s statements about symptoms and their effects.” SSR 96-7p.
The ALJ’s only approach to this issue was to speculate that Hampton’s various statements
on fatigue and pain were suspiciously motivated by the disability application itself. He
noted that Hampton told a health provider on March 5, 2010 that her attorney wanted the
provider to submit a letter assessing her medical condition. (R. 565). Hampton then told
the provider that she was fatigued and “swollen.” She had stated one month earlier that
her aches and pains were “nothing too bad.” (R. 37). The ALJ concluded from these
inconsistencies that “it is reasonable to presume that her complaints may have been
motivated in part by secondary gain issues . . ., and may not have been entirely genuine.”
(R. 37).
The Court finds this speculation unpersuasive and cannot follow the basis for the
reasoning that supports it. The record plainly shows that Hampton’s complaints of fatigue
did not begin with her request for a disability letter. She told Dr. Karri in January 2010 that
she was “very fatigued” because of the interferon. (R. 490). In February 2010, Dr. Pilapil
found that Hampton’s interferon-related fatigue was “understandable,” and therefore
presumably credible. (R. 523). Moreover, complaints of fatigue even pre-dated the start
of interferon therapy. The psychiatric treatment notes for late 2007 and 2008 are replete
with references to fatigue. (R. 347, 349, 350). Hampton was so fatigued in January 2008
that she was discovered asleep in her psychiatrist’s waiting area. (R. 345).
If Hampton had been motivated by her disability claim, it would be reasonable to
expect her to have complained about fatigue after March 2010 in a consistent manner.
25
However, she denied fatigue, or claimed increased energy, on several occasions after that
date. (R. 897, 911, 918, 935, 947). An ALJ is never required to account for all the
evidence in the record. Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). But by
selecting portions of the record that showed improvements in Hampton’s energy, the ALJ
failed to draw a logical bridge between the record and his finding that she was not credible
on this issue.
The medical evidence also suggests that some of this fatigue was related to
Hampton’s inability to sleep. The psychiatric notes confirm Hampton’s claim that she had
disturbed sleep, at least on occasion. (R. 344, 345). She also testified on that matter at
the hearing. The ALJ did not address this issue or note the medications she took for sleep.
If he believed that Plaintiff’s testimony concerning sleep was not credible, he was obligated
to address the issue and provide an explanation for that conclusion. See Cuevas v.
Barnhart, 2004 WL 1588277, at *15 (N.D. Ill. July 14, 2004).
The Commissioner argues that the ALJ was correct because he adopted the
findings of Dr. Pilapil and Dr. Slodki. Importantly, this argument fails to consider what Dr.
Pilapil actually stated in his RFC assessment. Dr. Pilapil found Hampton to be at least
partially credible on her fatigue, stating that it was “understandable” that she was tired in
light of the interferon therapy given to treat her hepatitis C. (R. 523). This finding runs
counter to the ALJ’s apparent rejection of Hampton’s allegations of being excessively tired.
The Commissioner does not explain how the ALJ could rely on Dr. Pilapil’s RFC without
first explaining how he reconciled the fatigue that Dr. Pilapil credited with his own finding
that Hampton exaggerated her symptoms.
26
The fact that Dr. Pilapil still found that Hampton had the ability to perform sustained
work only creates a further ambiguity in the record that the ALJ failed to address. Dr.
Pilapil stated: “It would seem reasonable to expect that claimant would respond over time
to her therapies, prescribed regimes of exercise and meds and be capable of performing
within the limitations of this RFC assessment by 10/27/10.” (R. 523) (emphasis added).
The problem with this conclusion is that it references a hypothetical state of affairs in the
future, not at the time that Dr. Pilapil actually issued his report on February 24, 2010. As
a result, the RFC was not based on what Plaintiff could do in spite of her fatigue, so much
as it looked forward to a time when her condition would improve to such a point that she
would be able to function in the manner that Dr. Pilapil stated.4 Cf. The Merck Manual at
229 (stating that the prognosis for chronic hepatitis “is highly variable”). If the ALJ intended
to rely on the RFC to address Hampton’s fatigue, he was obligated to discuss the issue in
a meaningful way and draw a logical bridge between the physician’s and the fatigue issue.
Much of the ALJ’s credibility decision was based on his belief that Hampton
contradicted herself on several key points. This is not without some merit. The ALJ
pointed out that Hampton told various providers that she had stopped working because she
had been laid off from her last job. By contrast, she claimed on her disability application
that she stopped working in March 2005 because of illness. The Court agrees with the ALJ
that this contradiction weighed against Plaintiff’s credibility. See SSR 96-7p (stating that
the consistency of a claimant’s statements concerning the persistence and severity of her
symptoms are important in determining credibility); see also Bates, — F.3d —, 22013
4
As for Dr. Slodki, he did not address fatigue at all in his testimony.
27
6228317, at *4 (stressing the importance of inconsistencies).
That said, the other inconsistencies that the ALJ identified rest on less secure
grounds. The strongest of these involves Hampton’s statements about her prior substance
abuse. It is undisputed that Hampton had a history of drug and alcohol use but was sober
for approximately ten years prior to her mother’s death in 2003. She then abused drugs
again until she achieved sobriety in September 2007. The ALJ cited several instances in
which Hampton was reported to have told health care providers that she had been sober
for the past ten years.
He concluded that this conflicted with her sobriety date of
September 2007 and suggested that she had “often” been less than fully credible
concerning other aspects of her disability claim. (R. 40).
The record suggests a more nuanced reality than the ALJ portrayed. The ALJ’s first
record citation supporting his analysis – a May 2010 medical note – does not state what
the ALJ claims. The note does not indicate that Hampton claimed to have been sober for
ten years prior to the day the note was entered. It merely states that Hampton was
“previously clean/sober for 10 years.” (R. 869) (emphasis added). Plaintiff was, in fact,
“previously” sober for ten years up to her relapse in 2003. (R. 332, 334).
The second citation involves the internal medicine report of Dr. Karri. The physician
noted under the heading “Substances” that Hampton had been drinking heavily 20 years
earlier. Dr. Karri concluded by noting that Plaintiff “denies any other substance abuse.”
(R. 490). Like all of the evidence the ALJ cited, this is a second-hand report that does not
record what Hampton actually stated. It is unclear in this instance whether Dr. Karri
intended to state that Hampton denied any prior substance abuse altogether, or whether
28
she merely told Dr. Karri that she was not currently using drugs. The latter would have
been a true statement. Plaintiff never denied her history of substance abuse with any other
provider. It is difficult to see what she would have gained by doing so, as her disability
claims were not related to substance abuse. Moreover, she told Dr. Hakimi about it on the
same day that she met with Dr. Karri. Dr. Hakimi wrote that Hampton “has been clean and
sober for ten years,” without specifying a particular time frame. (R. 495).
The ALJ also criticized Hampton for her hearing testimony to him concerning her
prior drug use. The relevance of this alleged consistency is even more difficult to
understand. The ALJ very briefly asked Hampton if she had ever used “street drugs”; she
answered, “Back when I was younger, yeah.” (R. 64). This was a succinct – but entirely
truthful – response. The ALJ did not appear to be troubled by this answer to his inquiry at
the hearing, as he asked no follow-up questions despite having the medical history before
him. Moreover, Hampton later stated that she was currently on methadone and had been
addicted to Vicodin after she had foot surgery. (R. 75-76). If the ALJ believed that
Plaintiff’s initial response supported a finding that she was being untruthful or evasive, he
should have questioned her about it in some manner before using it to discount her
credibility.
The ALJ’s other purported inconsistencies fare even less well.
He found
inconsistent statements about several items related to Hampton’s activities of daily living.
Plaintiff testified that her activities were limited by pain and fatigue. The ALJ noted that
the record showed that Hampton cared for her disabled stepson for several years before
he was placed in a group home. Her husband, who suffers from substance abuse and
29
cirrhosis of the liver, did not help. The ALJ used these facts to discount Hampton’s
credibility by finding that “she spends most of her leisure time at home taking care of [her
adult stepson], apparently without support from her disabled husband.” (R. 39). The ALJ
further criticized Plaintiff because she admitted that she was her stepson’s “primary
caregiver.” (R. 39).
The ALJ cited two parts of the record to support these findings. The first is a
comment on Hampton’s initial psychiatric intake form. The psychiatrist noted that “she
takes care” of her stepson and that “at time[s] it can be physically and mentally draining.”
(R. 330). The second is a psychiatric progress note indicating that she “continues to cope
with stress of caring for 20 y-o stepson without any support from husband.” (R. 353).
Contrary to the ALJ’s assumption, these statements say nothing about the amount
of time Hampton spent each day caring for her stepson. Nor do they give an indication of
what the burdens of that care involved. The fact that Hampton found these tasks draining
does not describe what she actually did. Her efforts may have been minimal and still have
rendered Plaintiff physically and mentally drained. Hampton told Dr. Hakimi, for example,
that she was so tired after getting her stepson ready for school that she found it necessary
to spend the rest of the day in bed because there was “no sense to getting up.” (R. 495).
The fact that Hampton was the “primary caregiver” of her stepson adds little to the
equation. The ALJ had no clear idea what these duties involved because Plaintiff did not
describe them.
The ALJ further doubted Hampton’s daily limitations because consulting physician
Dr. Karri noted that “she can do her chores slowly.” (R. 490). The ALJ found this to be
30
inconsistent with Hampton’s statement at the hearing that she could not sweep, mop, or
vacuum. However, it is entirely unclear what Dr. Karri meant by “doing chores.” Hampton
testified that she did perform some household duties, including washing dishes while sitting
down, bathing, and dressing. She also prepares simple meals. (R. 495). These can
reasonably be construed as “chores” that Hampton referred to in her discussion with Dr.
Karri. Without inquiring into the matter, the ALJ lacked a reasonable basis for making the
broad inference he reached.
The same is true for Hampton’s grocery shopping. The ALJ criticized Plaintiff for
telling Dr. Karri that she goes shopping with her sister. He contrasted that with a statement
she made at the hearing that she had not shopped for food in a long time. Once again, the
Court cannot follow why the ALJ found a meaningful inconsistency on this issue.
Hampton’s hearing testimony was given in June 2011, when she testified that she could
not remember the last time she shopped for food. (R. 63). Her statement to Dr. Karri was
made in January 2010. Eighteen months had elapsed between the statements the ALJ
cited. The fact that Hampton could shop in 2010 but not in 2011 does indicate that she
was untruthful when she stated that she could not recall the last time she shopped.5 That
may have been a few weeks, a few months, or the full 18 months since she shopped with
her sister. The ALJ should have clarified the evidence on this issue before construing it
against Hampton and explained the basis of his reasoning more clearly.
5
The record strongly suggests that Hampton had significant trouble even
remembering the dates of significant events in her life. Her attorney had to remind Plaintiff
that her diabetes diagnoses was made in 2007 instead of 2009 or 2010, as she initially
stated. (R. 60). Her statements on the hepatitis C diagnosis fluctuated from eight months
before the hearing date to seven or eight years earlier. (R. 69-70).
31
Finally, the ALJ concluded that Hampton’s allegations about limitations in her social
functioning were not as severe as she alleged. In support, he cited a comment under the
heading “Social Functioning” in her September 2008 psychiatric assessment update that
described Hampton’s social functions as “okay.’” (R. 327). The ALJ had no ground for
relying on this comment to find that Hampton inconsistently stated that her functioning was
not as severe as she alleged. Hampton herself stated in the form:
I have anxiety, sometimes headaches, anger, don’t want to get up and do
anything, isolation, not talk to anybody, sometimes I don’t really want to
bathe, do my hair, brush my teeth. Sometimes I turn on my TV and let me
[sic] TV watch me. It puts me in a state of isolation and feeling sorry for
myself. I’m feeling physically sick, sometimes my stomach hurts. I cry for no
reason. Sometimes I overeat, sometimes I don’t eat. It’s stemming from
what I’m going through, and how I feel about myself.
(R. 323). These comments describe something far more serious than an “okay” level of
functioning. Clearly, they provide no support at all for a finding that Hampton believed her
functioning was not problematic. The ALJ failed to note in this regard that Dr. Hakimi’s
report contains a section on Hampton’s social history. Hampton told Dr. Hakimi that she
sleeps most of the day because she feels “like there ‘is no sense to getting up. I can easily
see myself corroding.’” (R. 495).
For all these reasons, the ALJ was required to consider the record more thoroughly
before concluding that Hampton made inconsistent statements that rendered her other
allegations less than credible. Hampton’s motion is granted on the credibility issue.
C.
The RFC Issue
Plaintiff also contends that the ALJ erred in assessing her RFC because he failed
to consider her fatigue and various exertional limitations such as her capacity to sit, stand,
32
walk, and manipulate objects. The Commissioner argues that the ALJ properly relied on
the findings of Dr. Pilapil and the medical expert Dr. Slodki. Dr. Pilapil found that Hampton
could lift and carry up to 20 pounds in a normal workday, and up to ten pounds frequently.
She could sit, stand, or walk for up to six hours during the day. No manipulative
impairments were noted. Dr. Slodki concurred in those findings at the hearing.
An ALJ is entitled to rely on the opinions of state-agency physicians, who are
experts in evaluating social security disability claims. Flener ex. rel. Flener v. Barnhart, 361
F.3d 442, 447-48 (7th Cir. 2004). The Commissioner is correct in noting that Dr. Pilapil
assessed Hampton’s exertional limitations in a way that is consistent with the ALJ’s RFC
of light work. Dr. Slodki stated that he did “not disagree with that RFC.” (R. 81).
Ordinarily, the opinions of these medical experts would provide strong support for the
limitations the ALJ included in his RFC.
In this case, however, the ALJ failed to address the problem noted earlier – Dr.
Pilapil’s finding that Hampton was at least partially credible concerning her fatigue. The
issue is critical to the RFC issue because Dr. Pilapil premised his RFC findings on the
assumption that Hampton would improve over time – not on her actual ability to carry out
sustained work on the date of his evaluation. The ALJ failed to note this qualification or
to address how the subsequent record might have clarified the issue. This leaves the
question of whether or not Hampton could function in the way that Dr. Pilapil imagined
unresolved. The fact that Dr. Slodki adopted Dr Pilapil’s RFC does not solve the dilemma.
Dr. Slodki never mentioned fatigue or expressed a medical opinion on whether Hampton’s
energy level had improved from the time that Dr. Pilapil issued his RFC in February 2010.
This left the ALJ to address the issue on his own. Social Security Ruling 96-8p
33
requires the RFC assessment to “include a narrative discussion describing how the
evidence supports each conclusion.” It further states:
In assessing RFC, the adjudicator must discuss the individual’s ability to
perform sustained work activities in an ordinary work setting on a regular and
continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work
schedule), and describe the maximum amount of each work-related activity
the individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material inconsistencies
or ambiguities in the evidence in the case record were considered and
resolved.
The ALJ did not comply with this requirement. Dr. Pilapil believed that Hampton would
respond in the future to her “therapies, prescribed regimes of exercise and meds.” (R.
523). The ALJ did not address in any manner how these factors led to the improvements
that Dr. Pilapil thought could take place. This leaves unresolved, and undiscussed, how
Hampton could sustain work activities on a regular basis, as SSR 96-8p requires. Such
an omission is “in itself sufficient to warrant reversal.” Briscoe ex. rel. Taylor v. Barnhart,
425 F.3d 345, 352 (7th Cir. 2005). As a result, the ALJ drew no link between the record and
the improvements that Dr. Pilapil believed could take place for Hampton’s fatigue caused
by interferon.
The ALJ may have believed that Dr. Pilapil’s qualifying language concerning fatigue
was not serious enough to find that Hampton could not work on a sustained basis. But he
did not address the issue or explain what evidence supported setting those concerns aside.
Dr. Pilapil’s comments create an ambiguity concerning Hampton’s ability to perform fulltime work that the ALJ was required to resolve. SSR 96-8p (requiring an ALJ to resolve
all ambiguities before assessing a claimant’s RFC). To do so, he first had to note the
problem raised by the RFC report. As it stands, the ALJ provided no explanation of how
34
he reached the conclusion that Hampton could work on a sustained basis for five days a
week.
This oversight, combined with the ALJ’s flawed credibility analysis and failure to
explain the reasons for giving little weight to the nurse practitioners, requires him to
address Hampton’s RFC more carefully on remand. Plaintiff’s motion is granted on the
RFC issue.
IV. Conclusion
For the reasons stated above, Plaintiff's motion for summary judgment [19] is
granted, and the Commissioner’s motion [22] is denied. This case is remanded to the
Social Security Administration under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this opinion.
ENTERED:
__________________________________
DANIEL G. MARTIN
United States Magistrate Judge
Dated: December 13, 2013
35
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