Clark v. Colvin

Filing 29

MEMORANDUM Opinion and Order: For the reasons set forth in the attached Memorandum Opinion and Order, Claimant's motion is granted and the Commissioner's motion is denied. This matter is remanded to the agency for further proceedings consistent with this Opinion. See attached Memorandum Opinion and Order for further details. Civil case terminated. Signed by the Honorable Jeffrey T. Gilbert on 11/2/2016. Mailed notice(ber, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SAUNDRA L. CLARK,
Claimant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Respondent.

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No. 15-cv-2501
Magistrate Judge Jeffrey T. Gilbert

MEMORANDUM OPINION AND ORDER
Saundra Clark (“Claimant”) seeks review of the final decision of Respondent Carolyn W.
Colvin, the Acting Commissioner of Social Security (“the Commissioner”), denying in part
Claimant’s Disability Insurance Benefits (“DIB”) application under Title II of the Social Security
Act (“the Act”). Pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, the parties have consented
to the jurisdiction of a United States Magistrate Judge for all proceedings, including entry of
final judgment.

[ECF No. 8.]

Claimant has filed a motion for summary reversal of the

Commissioner’s decision or remand, and the Commissioner filed a motion for summary
judgment under Federal Rule of Civil Procedure 56. [ECF Nos. 16, 27.] For the following
reasons, Claimant’s motion is granted, and the Commissioner’s motion is denied. This matter is
remanded to the agency for further proceedings consistent with this Memorandum Opinion and
Order.
I.

PROCEDURAL HISTORY

On May 27, 2010, Claimant filed her DIB application alleging a disability onset date of
May 27, 2010, due to major depression disorder, recurrent degenerative joint disease, anxiety,
and sleep apnea. (R. 167-69, 187, 196-205.) She also survived breast cancer. (R. 197.) After

an initial denial on March 12, 2012, and a denial on reconsideration on September 11, 2012,
Claimant filed a request for an administrative hearing before an Administrative Law Judge
(“ALJ”) on December 28, 2012.

(R. 115-16, 130-31.)

Claimant, represented by counsel,

appeared and testified at the hearing, which took place on September 3, 2013. (R. 35-114.) A
Vocational Expert (“the VE”) was also present and also offered testimony. (Id.)
On September 27, 2013, the ALJ issued a written decision partially denying Claimant’s
application. As an initial matter, the ALJ found that Claimant met the insured status requirement
of the Act through December 31, 2013. (R. 16.)

The ALJ found that Claimant was disabled

within the meaning of the Act from July 20, 2009, through October 12, 2011, but that since
October 13, 2011, Claimant has demonstrated medical improvement relating to her ability to
work. (R. 9-30.)

At step one, the ALJ determined that Claimant has not engaged in Substantial

Gainful Activity (“SGA”) since July 20, 2009. (Id.) At step two, the ALJ found that Claimant
had the severe impairments of osteoarthritis, obesity, breast cancer status post lumpectomy, and
major depressive disorder. (Id.) At step three, the ALJ found that Claimant did not have an
impairment or combination of impairments that meet or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, App’x 1. (R. 19.)
Before step four, the ALJ determined that Claimant has the Residual Functional Capacity
(“RFC”) to perform sedentary work, can lift and carry 10 pounds occasionally and 10 pounds
frequently, can stand or walk about two hours and sit for about six hours in an eight-hour
workday, and would require a cane to ambulate. (R. 18.) The ALJ further determined that
Claimant would be unable to work at heights, climb ladders, or frequently negotiate stairs. (Id.)
She could only occasionally crouch, kneel, or crawl and would not be suited to work with intense
focus and concentration for extend periods of time. (Id.) In so finding, the ALJ found that

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Claimant’s impairments, particularly her osteoarthritis, obesity, and her breast cancer status post
lumpectomy, limited her ability to engage in SGA. (R. 19-20.) The ALJ further determined that
Claimant’s depression further limited her ability to work. (R. 20.) At step four, the ALJ found
that Claimant was unable to perform her past relevant work from July 20, 2009 through October
12, 2011. At step five, the ALJ found that Claimant could not perform any jobs existing in
significant numbers in the national economy from July 20, 2009 through October 12, 2011.
However, from October 13, 2011, the ALJ found that Claimant experienced medical
improvement and her impairments became non-severe, therefore allowing her to engage in SGA.
(R. 21-22.) The ALJ found evidence that indicated Claimant’s mental health became stable
beginning in June 2011. (R. 24.) The record shows that Claimant returned to work in October
2012 and stopped working again in April 2013. (Id.) The ALJ further determined that Claimant
had the RFC to perform a full range of sedentary work, can carry and lift 10 pounds occasionally
and frequently, can stand or walk for about two hours and sit for about six hours in an eight-hour
workday, but that she would be unable to work at heights, climb ladders, or negotiate stairs, and
can only occasionally crouch, kneel, or crawl. (R. 25.) In so finding, the ALJ noted that
Claimant’s allegations were not wholly credible and that she engaged in many normal activities
of daily living. (R. 28.) The ALJ further noted that Claimant experienced periods of “doing
well” with medication and therapy. (Id.) The ALJ also found that Claimant was non-compliant
with her treatment and that the record did not fully support the severity of Claimant’s allegations.
(R. 28-29.) The ALJ concluded that beginning October 13, 2011, Claimant was no longer
disabled and was capable of performing her past relevant work as a case worker. (R. 29-30.)
On January 22, 2015, the Appeals Council denied Claimant’s request for review,
rendering the ALJ’s determination as the Commissioner’s final decision. (R. 1-3.)

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II.

STANDARD OF REVIEW

A decision by an ALJ becomes the Commissioner’s final decision if the Appeals Council
(“AC”) denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Judicial review
of the ALJ’s decision is limited to determining whether the decision is supported by substantial
evidence in the record and whether the ALJ applied the correct legal standards in reaching his
decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A “mere
scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). Even
when there is adequate evidence in the record to support the decision, however, the findings will
not be upheld if the ALJ does not “build an accurate and logical bridge from the evidence to the
conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). If the Commissioner’s
decision lacks evidentiary support or adequate discussion of the issues, it cannot stand. Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
The “findings of the Social Security Commissioner as to any fact if supported by
substantial evidence shall be conclusive.” 42 U.S.C. § 405(g). Though the standard of review is
deferential, a reviewing court must “conduct a critical review of the evidence” before affirming
the Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may
not, however, “displace the ALJ’s judgment by reconsidering facts or evidence, or by making
independent credibility determinations.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008); Jens
v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). The reviewing court may enter a judgment
“affirming, modifying, or reversing the decision of the [Commissioner], with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

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III.

ANALYSIS

The essence of Claimant’s argument is that substantial evidence does not support the
ALJ’s finding that her impairments were medically improved as of October 13, 2011.
Specifically, Claimant argues that the ALJ failed to discuss Dr. Barbara Samuels’s treatment
notes, which show an ongoing, severe mental impairment that significantly limits her ability to
return to work in any capacity. Pursuant to 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i),
medical improvement is “any decrease in the medical severity of [the claimant’s] impairment(s)
which was present at the time of the most recent favorable medical decision that [the claimant]
w[as] disabled or continued to be disabled. A determination that there has been a decrease in
medical severity must be based on changes (improvement) in the symptoms, signs and/or
laboratory findings associated with [the claimant’s] impairment(s).” Mulligan v. Astrue, 336 F.
App’x 571, 577 (7th Cir. 2009). The courts require that an ALJ substantiate his assessment of a
claimant’s RFC, see Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009), a process often
referred to as “build[ing] an accurate and logical bridge from the evidence to the conclusion.”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
While the ALJ considered Claimant’s major depressive disorder to be a severe
impairment from June 20, 2009 through October 12, 2011, the ALJ found that “beginning
October 13, 2011, the severity of the claimant’s mental impairment does not meet or medically
equal the criteria of listings 12.04…claimant’s…depressive disorder does not cause more than
minimal limitations in [her] ability to perform basic mental work activities and is, therefore, nonsevere.” (R. 22.) The ALJ gave several reasons to support that finding.

First, the ALJ

referenced Dr. Marilyn Aden’s treatment notes from 12 visits from November 2011 through July
2013 in which Claimant gave a negative response to such prompts as she “had little interest or

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pleasure in doing things” and was not “feeling down, depressed, or hopeless.” (R. 511, 514, 517,
520, 523, 527.) The ALJ further noted that during a May 2013 follow-up visit with Dr. Aden,
Claimant was noted as being “talkative.” (R. 552.) However, the ALJ’s treatment of Dr. Aden’s
notes is precisely the type of cherry-picking of the medical record that the Seventh Circuit
repeatedly has forbidden. See Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014); see also Bates
v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013) (“An ALJ cannot rely only on the evidence that
supports h[is] opinion.”)
A complete reading of Dr. Aden’s notes paints a picture of Claimant’s unsuccessful
attempt to return to work full-time. Claimant reported being off work for over a year due to
depression. (R. 521.) On June 27, 2012, Claimant’s depression was reportedly improved and it
was noted that she would be able to return to work with the installation of a Dragon dictation
machine. (R. 524.) However, during her next visit with Dr. Aden, Claimant reported that she
was unable to return to work despite having the dictation machine set up at her work station. (R.
527.) On November 27, 2012, Dr. Aden noted that Claimant was given a day off work but slept
for two whole days. (R. 539.)

Claimant continued with her follow-up appointments and on

February 11, 2013, after reporting that she was stressed out because she was overworked and did
not get along with her supervisor, Dr. Aden noted that Claimant may be suffering from bipolar
disorder that was never treated. (R. 546-47.) Dr. Aden also opined that Claimant should have
“better mood meds” and that though Claimant had regular psychiatric appointments, there was
“not much improvement.” (R. 553.)
What the ALJ failed to recognize is that, in every instance in which the ALJ noted
Claimant was not feeling down or hopeless and did not lose interest in her hobbies, Claimant
also was continually reporting the difficulties she faced while attempting to return to work.

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Many mental illnesses are characterized by “good days and bad days,” rapid fluctuations in
mood, or recurrent cycles of waxing and waning symptoms. See Phillips v. Astrue, 413 F. App’x
878, 886 (7th Cir. 2010) citing Spiva v. Astrue, 628 F.3d 346, 351–52 (7th Cir. 2010); Larson v.
Astrue, 615 F.3d 744, 751 (7th Cir. 2010); Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008);
Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006). Here, the ALJ even acknowledged that
Claimant’s depression waxed and waned. (R. 22.) However, the ALJ erroneously considered
the medical evidence because he stressed only the few hopeful observations and ignored the
medical evidence that seemed to favor a disability finding. See Denton v. Astrue, 596 F.3d 419,
425 (7th Cir. 2010) citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (An ALJ has the
obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that
support a finding of non-disability while ignoring evidence that points to a disability finding.)
The ALJ’s conclusion that Claimant’s depression was no longer severe is not supported by
substantial evidence.
Next, the ALJ attempted to support his findings by noting that Claimant was found to be
stable on her medication during a November 2011 visit with Dr. Theodore Handrup. But the
ALJ did not consider that on March 14, 2012, Dr. Handrup noted that Claimant’s depressive
symptoms were increasing, as was her anxiety. (R. 484.) Dr. Handrup also noted that Claimant
fears “going back to work to a new depressed state,” has been crying a lot, and is no longer
sleeping well. (Id.) The ALJ also referenced the treatment notes of five visits with Dr. Handrup
that show Claimant’s mental status was “appropriate.” (R. 23.) The ALJ also noted that during
these visits, Claimant was found to be cooperative, made good eye contact, had normal motor
behavior, had regular speech, had a goal-directed thought process, and had an affect that was
congruent to her mood. (R. 23.)

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That Claimant’s evaluation returned some normal results does not mean that she is
capable of performing work in a full-time capacity. As indicated by the treatment notes that the
ALJ neglected, Claimant’s attempts to return to work have not been successful. Moreover, “a
person who has a chronic disease, whether physical or psychiatric, and is under continuous
treatment for it with heavy drugs, is likely to have better days and worse days.” Bauer v. Astrue,
532 F.3d 606, 609 (7th Cir. 2008). This is certainly the case for Claimant. “Suppose that half
the time she is well enough that she could work, and half the time she is not. Then she could not
hold down a full-time job.” Bauer, 532 F.3d at 609.
The ALJ also noted that Dr. Handrup wrote that Claimant was “psychologically stable to
return to work” on October 12, 2011. (R. 23.) The ALJ found no other contradictory psychiatric
opinions in the record. (Id.) A review of the treatment notes of Claimant’s therapist Barbara
Samuels, however, shows that Ms. Samuels continually questioned Claimant’s ability to return to
work.

Ms. Samuels has provided therapy to Claimant since November 2009.

(R. 672.)

Beginning November 2011, when Claimant expressed a desire to return to work, Ms. Samuels
was not confident that Claimant would be able to deal with the ongoing stress. (R. 719, 723.) In
fact, Ms. Samuels noted that while she understands Claimant’s desire to return to work, “she
shouldn’t go back if she is not well, or not sleeping, or having migraines, or bad knees, or any
other serious problem that will keep her away from work or from doing well.” (R. 729.)
As Claimant correctly argues, the ALJ completely ignored Ms. Samuel’s treatment notes.
The Commissioner responds by arguing that the ALJ did not err because Ms. Samuel’s was not a
medical source and her notes do not support Claimant’s argument that she has a mental
limitation. However, this argument fails. Though social workers are not considered acceptable
medical sources, their opinions are relevant as additional evidence. See 20 C.F.R. § 416.913(a)

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& (e); Baran v. Chater, 99 F.3d 1142 (7th Cir. 1996). “Other professionals, including social
workers, can provide information to show the severity of the impairment and how it affects the
claimant’s functioning.” 20 C.F.R. § 416.913(d); Duncan v. Apfel, 248 F.3d 1157 (7th Cir. 2000)
(unpublished opinion). An ALJ’s decision must take “account of the other medical evidence in
the record,” especially the evidence supplied by the professionals who treated and examined
Claimant. Groves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998). Because the ALJ did not do that
here, he has not built an accurate and logical bridge between the evidence and result. See Getch
v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008) (But an ALJ need not mention every piece of
evidence, so long as he builds a logical bridge from the evidence to his conclusion.)
Claimant further argues that the ALJ’s failure to consider her mental impairment renders
the RFC determination deficient. After the ALJ determined that Claimant experienced medical
improvement as of October 13, 2011, he determined that she had the RFC to perform a full range
of sedentary work with certain physical limitations. (R. 25.) The ALJ did not factor in any
mental limitations, presumably because he thought that it was not necessary since he determined
her mental impairments to be non-severe. Here, the ALJ failed because when determining a
claimant’s RFC, “the ALJ must consider the combination of all limitations on the ability to work,
including those that do not individually rise to the level of a severe impairment.” See Denton v.
Astrue, 596 F.3d 419, 423 (7th Cir. 2010) citing 20 C.F.R. § 404.1523; see also Terry v. Astrue,
580 F.3d 471, 477 (7th Cir. 2009); Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
A failure to fully consider the impact of non-severe impairments requires reversal. See
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003). Regardless of whether the ALJ
believed Claimant’s mental impairments were severe or non-severe, he should have considered
her depression when crafting the RFC. As stated previously, treatment notes from Dr. Aden and

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Ms. Samuels indicate that Claimant was still dealing with major depression and its symptoms.
As noted previously, Claimant’s various treating physicians noted that she suffered from a lack
of energy, difficulty sleeping, crying spells, irritability, and trouble controlling her anger—all
symptoms that certainly would bear on her ability to work. See Richards v. Astrue, 370 F. App’x
727, 731 (7th Cir. 2010). And yet, a reasonable reading of the ALJ’s decision indicates that the
ALJ assigned a rating of “mild” in each of the areas of daily living, social functioning, and
concentration, persistence, and pace, without any medical professional having rated Claimant’s
limitations in each of these categories. In fact, a Psychiatric Review Technique Form signed by
Dr. David Voss was largely incomplete, and the sections pertaining to the above areas are blank.
(R. 458-71.) In the absence of any expert foundation for these ratings, the court cannot discern
the necessary logical bridge from the evidence to the ALJ’s conclusions. See Richards, 370
F.App’x 727 at 731.
For all of these reasons, the ALJ’s decision is not supported by substantial evidence and
remand is required so that the ALJ can review all of the medical record and then explain his
decision.
IV.

CONCLUSION

For the foregoing reasons, Claimant’s motion is granted and the Commissioner’s motion
is denied. This matter is remanded to the agency for further proceedings consistent with this
Opinion.
It is so ordered.
____________________________
Jeffrey T. Gilbert
United States Magistrate Judge

Dated: November 2, 2016

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