Johnson v. Commissioner of Social Security
MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 6/2/2017. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JERRY L. JOHNSON,
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
No. 15 C 2598
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Jerry L. Johnson brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the Social Security Administration Commissioner’s decision denying his application for
supplemental security income benefits. For the reasons set forth below, the Court affirms the
Plaintiff filed an application for disability benefits on January 19, 2012, alleging a
disability onset date of January 1, 2001. (R. 272.) Plaintiff’s application was denied initially on
February 16, 2012, and on reconsideration on June 7, 2012. (R. 113-14.) An Administrative
Law Judge (“ALJ”) held a hearing on plaintiff’s application on April 22, 2013. (See R. 80-112.)
On May 30, 2013, the ALJ denied plaintiff’s application. (See R. 118-29.)
On January 23, 2017, Nancy A. Berryhill succeeded Carolyn W. Colvin as Acting Commissioner of Social
Security. See https://www.ssa.gov/agency/commissioner.html (last visited June 2, 2017). Accordingly, the Court
substitutes Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).
On January 28, 2014, the Appeals Council remanded the case to the ALJ to: (1) “obtain
additional evidence concerning plaintiff’s schizoaffective disorder, including the Veterans
Affairs Disability Rating determination”; and (2) “further evaluate [plaintiff’s] mental
impairments in accordance with the special technique described in 20 CFR 404.1520a”; (3)
“obtain evidence[, if necessary,] from a psychiatric or psychological medical expert to clarify the
nature and severity of [plaintiff’s] impairments for the period prior to [his] date last insured of
March 31, 2005”; (4) “[g]ive further consideration to [plaintiff’s] maximum residual functional
capacity during the entire period at issue and provide rationale with specific references to
evidence of record in support of assessed limitations”; and (5) “[i]f warranted by the expanded
record, obtain supplemental evidence from a vocational expert to clarify the effect of the
assessed limitations on [plaintiff’s] occupational base.” (R. 136-37.)
The ALJ held a second hearing on July 15, 2014, and on October 15, 2014, she again
denied plaintiff’s application. (See R. 17-35, 45-79.) The Appeals Council denied plaintiff’s
request for review (R. 1-4), leaving the ALJ’s decision as the final decision of the Commissioner,
reviewable by this Court pursuant to 42 U.S.C. § 405(g). See Villano v. Astrue, 556 F.3d 558,
561-62 (7th Cir. 2009).
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “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) (citation omitted).
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(a). The Commissioner must consider whether: (1) the claimant has
performed any substantial gainful activity during the period for which she claims disability; (2)
the claimant has a severe impairment or combination of impairments; (3) the claimant’s
impairment meets or equals any listed impairment; (4) the claimant retains the residual
functional capacity to perform her past relevant work; and (5) the claimant is able 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). The claimant bears the burden of proof at steps one through four.
20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the
burden shifts to the Commissioner to establish that the claimant is capable of performing work
existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity
from the alleged onset date of January 1, 2001 through his last insured date of March 31, 2005.
(R. 20.) At step two, the ALJ determined that plaintiff has the severe impairment of bipolar
disorder. (Id.) At step three, however, the ALJ found that plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments. (R. 21.) At step four, the ALJ found that plaintiff retains the residual functional
capacity (“RFC”) to “perform a full range of work at all exertional levels,” except that he
“cannot perform work involving detailed or complex instructions or tasks” and can only perform
work that “involves occasional changes in the workplace setting[,] no public interaction[,] . . .
occasional supervisor interaction,” and “can work in close proximity to coworkers, but not on
joint or shared tasks.” (R. 22-23.) At step five, the ALJ determined that plaintiff is unable to
perform any past relevant work, but that there are jobs in the national economy that he can
perform. (R. 33.) Accordingly, the ALJ concluded that plaintiff is not disabled under the Social
Security Act. (R. 34.)
In reaching this determination, the ALJ gave “very little weight” to the opinions rendered
by plaintiff’s treating psychiatrist, Dr. Polsby:
Dr. Polsby provided a statement to claimant’s representative on March 26, 2012,
seven years after the date last insured. Dr. Polsby affirmed that she had cared for
the claimant since October 2000. He had bipolar disorder with a volatile temper.
He was unable to cope with ordinary situations . . . and was not capable of
substantial gainful activity due to his psychiatric illness. Dr. Polsby provided this
statement again on January 14, 2013 . . . . [, and] again on September 3, 2013,
adding that she did not believe the claimant could complete an academic
curriculum and . . . that he experienced episodes of mania, depression and auditory
hallucinations. A month later, Dr. Polsby expanded her letter with unsupported
statements regarding episodes of mania or depression, need for help with activities
of daily living, inability to work with others and recurrent paranoia. Dr. Polsby
concluded that it was not safe for the claimant to attempt to work, as he would
likely decompensate risking injury to himself or others.
(R. 30) (footnote omitted) (citations omitted). The ALJ discounted these opinions because:
[T]hey [are] fairly conclusory[,] [were] rendered more than a decade after the
alleged onset date . . . [and] are belied by voluminous treatment notes that fail to
demonstrate any episode of “volatile temper,” violence, need of assistance with
activities of daily living, decompensation, or inability to cope with ordinary
situations. No episodes of mania or depression are noted during the relevant
period nor are any auditory hallucinations. To the contrary, auditory
hallucinations are denied. Rather, numerous instances of interaction with others
are described without any notation of any volatile behavior . . . . The only recent
instance where the claimant is described as angry and emotional concerned a visit
with his general medical doctor regarding his diabetes. This incident did not
occur until 2012, 11 years after the alleged onset date. Prior to that, the
claimant’s condition was noted to have been aggravated after he was fired from
the post office and had stopped taking his medication for 7 months. Immediate
improvement was seen once the medications were restarted. In 2007, he is noted
to be more irritable since his diabetes diagnosis (well after the period at issue) and
could become verbally rude when overwhelmed. Although this notation does not
concern the period at issue before me, the [RFC] finding accounts for the
difficulty when overwhelmed by limiting the claimant’s interaction with others
and by limiting him to simple, routine tasks.
(R. 30-31) (citations omitted).
Plaintiff contends that the ALJ erred in rejecting Dr. Polsby’s opinions because they are
not, as the ALJ concluded, contradicted by Dr. Polsby’s treatment notes. See 20 C.F.R. §
404.1527(c)(2) (a treating physician’s opinion is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record”). The Court disagrees. Dr.
Polsby’s 2001-05 treatment notes do not suggest that plaintiff had episodes of depression or
violence, show that he was independently performing activities of daily living, e.g., taking care
of his minor daughter, running errands for his grandmother, and taking kickboxing classes, had
no hallucinations, had coherent thought processes, was optimistic about his employment and
educational prospects, and behaved appropriately in an interaction with the police. (See R. 29,
460, 463, 465, 468, 470, 545-47, 554, 557-603.) These contemporaneous observations contrast
sharply with the letters Dr. Polsby wrote years later, saying that plaintiff has a “volatile temper,”
auditory hallucinations, needed help with activities of daily living, had recurrent paranoia, and
cannot safely work with others.2 (R. 943, 1638, 1764, 1907.) Thus the ALJ’s conclusion that
Dr. Polsby’s notes contradict her subsequent opinions is supported by the record.
The ALJ also said Dr. Polsby’s notes show that plaintiff was “doing well,” an observation that carries little
significance in the context of bipolar disorder. See Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008). Because,
however, that was just one of many inconsistencies between Dr. Polsby’s treatment notes and her subsequent
opinions, it is not fatal to the ALJ’s analysis.
Moreover, the letters submitted by Dr. Polsby appear to reflect on plaintiff’s condition at
the time the letters were written in the fall of 2013, rather than during the insured period. (See R.
1906-07.) Dr. Polsby’s most comprehensive summary is dated October 21, 2013, and does touch
on an event that occurred when plaintiff was employed by the U.S. Postal Service during the
relevant time period. (See R. 1907 (“Mr. Johnson was not able to sustain his former job at the
post office as he was in danger of physically hurting his former supervisor”).) However, Dr.
Polsby’s notes from the time period following plaintiff’s discharge from the Postal Service
suggest that Dr. Polsby believed plaintiff to be a viable candidate for employment. (See R. 599
(dated 4/23/01) (stating that plaintiff “plans to wait on voc rehab services to see if he can get a jo
on his own first.”); R. 602 (dated 2/13/01) (plaintiff directed to contact social worker for
vocational rehabilitation services). Because the relevant inquiry is whether plaintiff was disabled
when his insured status expired, the ALJ correctly placed greater weight on Dr. Polsby’s
treatment notes from 2001, as opposed to Dr. Polsby’s summary letter dated twelve years later
(and eight years after plaintiff’s last insured date), which did not specifically address plaintiff’s
condition during the relevant period. See Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir. 2012)
(“[W]hatever condition the claimant may be in at his hearing, the claimant must establish that he
was disabled before the expiration of his insured status”) (citing 42 U.S.C. § 423(a)(1)(A); 20
C.F.R. § 404.320(b)(2); Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011) (“the claimant had
social security disability coverage only until the end of 2003; if she was not disabled by then, she
cannot obtain benefits even if she is disabled now”)).
Alternatively, plaintiff argues that there is other evidence that supports Dr. Polsby’s
opinions that the ALJ failed to discuss, specifically: (1) a May 2000 progress report by Dr.
Hassan that says plaintiff “has often shown some hypomanic [symptoms] which may have
interfered with his occupational and social life” (R. 1629); (2) plaintiff’s testimony that he “can’t
cook” (R. 59); (3) Dr. Polsby’s increase of plaintiff’s Lithium dose in April 2001 (R. 599); (4)
plaintiff’s positive “screen” for depression in October 2002 (R. 584); (5) plaintiff’s mental health
treatment plans for 2001, 2002, 2003, and 2005 that consistently describe plaintiff’s condition as
“[b]ipolar disorder, manic (in partial remission) as manifested by,” among other things,
irritability, impaired social and work functioning, and distractibility, and identify as long term
goals “[d]ecrease thought disorder” and “[r]emain out of the hospital” (R. 564, 580-81, 594,
1618-19); and (6) a May 18, 2001 Department of Veterans Affairs’ (“VA”) decision to increase
his VA disability to seventy percent (R. 433-38).
As an initial matter, an ALJ “is not required to address every piece of evidence” in the
record. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Rather, “he must articulate some
legitimate reason for his decision” and “build an accurate and logical bridge from the evidence to
his conclusion,” id., both of which the ALJ did.
Secondly, the evidence plaintiff cites does not have the significance he ascribes to it. Dr.
Hassan, for example, attributed plaintiff’s condition to his “sporadic” attendance at appointments
and failure to “tak[e] meds as directed.” (R. 1629.) Plaintiff’s testimony about his inability to
cook occurred when he was discussing his physical, not mental, impairments. (R. 59.) The
record contains no explanation for the change in plaintiff’s Lithium dose and reflects no change
in treatment after the depression screen, and the annual treatment plans do not explain the extent
to which any of the enumerated symptoms impact plaintiff’s ability to function or work. (R. 564,
580-81, 594, 1618-19.) Moreover, the ALJ thoroughly discussed the VA disability rating and
explained why he gave it “minimal weight”3: (1) the VA rated plaintiff thirty to fifty percent
disabled throughout his fifteen-year employment with the Postal Service; (2) the VA refused to
raise plaintiff’s rating to 100 percent disabled; (3) the VA examiners did not agree on plaintiff’s
employability; and (4) the VA’s decision was not supported by Dr. Polsby’s treatment notes or
the independent medical examiner’s opinion. (R. 25, 29, 31-32.) Thus, the ALJ did not ignore
evidence that supports Dr. Polsby’s opinions.
Finally, plaintiff argues that the ALJ erred by failing to “contact Dr. Polsby for
clarification of her medical opinion.”
(Pl.’s Br. Supp. Reversing Comm’r’s
Dec. at 13.)
However, “[a]n ALJ need recontact medical sources only when the evidence received is
inadequate to determine whether the claimant is disabled.” Skarbek v. Barnhart, 390 F.3d 500,
504 (7th Cir. 2004) (per curiam). Because the ALJ here found that the evidence was insufficient
to support the disability claim, not that it was insufficient to make a disability determination, she
was not required to seek additional evidence.4
Contrary to plaintiff’s assertion, this assessment does not run afoul of the Seventh Circuit’s instruction that ALJs
give “the VA’s determination of disability some weight.” Allord v. Barnhart, 455 F.3d 818, 820 (7th Cir. 2006)
(emphasis added) (quotation omitted).
In his reply brief, plaintiff also argues that the ALJ improperly weighed the independent medical examiner’s
opinions and offered a flawed RFC. (See Pl.’s Reply Br. at 6-8.) Because these arguments were raised for the first
time on reply, they are waived. See Mendez v. Perla Dental, 646 F.3d 420, 423-24 (7th Cir. 2011) (“[I]t is wellestablished that arguments raised for the first time in the reply brief are waived.”).
For the reasons set forth above, the Court affirms the Commissioner’s decision denying
plaintiff’s application for benefits. Judgment is entered in the Commissioner’s favor and against
ENTERED: June 2, 2017
M. David Weisman
United States Magistrate Judge
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