Meyers v. Colvin

Filing 25

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 5/9/2017. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THERESA ANN MEYERS,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Commissioner of Social Security,
Defendant.

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15 C 3710
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff appeals the Commissioner=s decision to deny her application for disability
insurance benefits. For the reasons set forth below, the Court affirms the Commissioner=s
decision.

Background
Plaintiff filed her application for disability insurance benefits on January 17, 2012, alleging
that she had chronic back pain, migraines, and depression that rendered her unable to work. (R.
17, 182; see R. 385-87, 405-18, 421-23.) Her application was denied on July 27, 2012, and on
reconsideration on February 15, 2013. (R. 71, 88.) She requested a hearing, which was held
before an administrative law judge (AALJ@) on October 30, 2013. (See R. at 30-64.)
On February 20, 2014, the ALJ denied plaintiff=s application. (R. 17-24.) The Appeals
Council denied plaintiff=s request for review of the decision (R. 1, 8-13), making the ALJ=s

1On 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 February 28, 2017). Accordingly, the Court
substitutes Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).

decision 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).

Discussion
The Social Security Act defines disability as the Ainability 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. The
Commissioner must consider: (1) whether the claimant has performed any substantial gainful
activity during the period for which she claims disability; (2) if not, whether she has a severe
impairment or combination of impairments; (3) if so, whether her impairment meets or equals any
impairment listed in the regulations; (4) if not, whether she retains the residual functional capacity
to perform her past relevant work; and (5) if not, whether she 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. 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. Id.
At step two, the ALJ found that plaintiff=s depression was not a severe impairment (R. 19),
a conclusion that plaintiff says is contrary to the evidence. Specifically, plaintiff argues that the
ALJ=s conclusion is contradicted by the report of Dr. Borosh, a psychologist who examined

plaintiff.2 Dr. Borosh said that plaintiff Aendorsed a moderate and severe level of anxious and
depressive symptomology on the BDI-II [Beck Depression Inventory-II]3 and BAI [Beck Anxiety
Inventory],

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respectively@ and concluded that plaintiff had a Asevere impairment@ in

Amood/behavior.@

(R. 422-23.)

However, Dr. Borosh also found that plaintiff=s

Aplanning/reasoning@ and Alanguage@ abilities were within expectation, her Aattention@ and
Avisual-spatial@ abilities were Ajust below expectation,@ and her Aprocessing speed@ and Amemory@
were only mildly impaired:
. . . . [T]he profile on testing is most notable for mild impairments in speed of
processing information and working memory. Anterograde memory is reduced
primarily at the levels of initial encoding and retrieval, which is consistent with her
attentional difficulties. There is no clear indication of a retentive memory deficit
or primary visual spatial deficit. Visual spatial construction falls just below
expectation. Basic language functions are intact. Executive functions including
reasoning, problem solving and mental flexibility are intact. Insight and societal
aspects of comportment are intact. With the exception of employment, patient says
she remains independent carrying out typical [activities of daily living].
(R. 423.) In other words, though Dr. Borosh characterized plaintiff=s mood impairment as severe,
she said that impairment did not greatly diminish plaintiff=s intellectual functions. (Id.) Thus,
contrary to plaintiff=s assertion, the ALJ=s conclusion that plaintiff=s depression Adoes not cause

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As plaintiff admitted during the hearing, Dr. Borosh, who performed a one-time examination of plaintiff, is
not a treating source. (See R. 62 (stating that Dr. Borosh was Aan examining source . . . . [who] met [plaintiff] once@));
see also White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005) (ADr. Zondag was not a treating source as that term is
defined by the regulations because he did not have an ongoing relationship with White.@); 20 C.F.R. ' 404.1502
(ANontreating source means a physician, psychologist, or other acceptable medical source who has examined you but
does not have, or did not have, an ongoing treatment relationship with you.@).
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AThe Beck Depression Inventory (BDI) is a 21-item, self-report rating inventory that measures characteristic
attitudes and symptoms of depression . . . .@ http://www.apa.org/pi/
about/publications/caregivers/practice-settings/assessment/tools/beck-depression.aspx (last visited June 29, 2016).
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The Beck Anxiety Inventory is a twenty-one item self-assessment of anxiety symptoms. See
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3879951/ (last visited June 29, 2016).

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more than minimal limitation in [her] ability to perform basic mental work activities and is
therefore nonsevere@ (R. 19), is consistent with, not contradicted by, Dr. Borosh=s opinion.
Plaintiff also argues that the ALJ ignored the limitations on plaintiff=s ability to work
imposed by Dr. Borosh. In fact, however, Dr. Borosh did not set any such limitations. Rather,
she enumerated Ageneral behavioral strategies@ that plaintiff might find Ahelpful@ to Afacilitate
increased efficiency in attention and memory,@ such as taking frequent breaks from tedious work,
working in a distraction-free environment, using written reminders, and taking notes.

(R.

423-24.) Accordingly, the ALJ=s failure to interpret these Astrategies@ as limitations on plaintiff=s
ability to work was not erroneous.
Plaintiff fares no better with her challenge to the ALJ=s determination of her credibility.
The Court notes that defendant recently issued new guidance for evaluating symptoms in disability
claims, which supersedes SSR 96-7p and “eliminate[es] the use of the term ‘credibility’” to
“clarify that subjective symptom evaluation is not an examination of an individual’s character.”
See SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16, 2016). Though SSR 16-3p was issued after
the ALJ’s decision in this case, it is appropriate to apply it here because: (1) the new regulation is
a clarification of, not a change to, existing law, see Pope v. Shalala, 998 F.2d 473, 483 (7th Cir.
1993) (stating that clarifying rules can be applied retroactively, and courts give “great weight” to
an agency’s expressed intent to clarify a regulation), overruled on other grounds by Johnson v.
Apfel, 189 F.3d 561 (7th Cir. 1999); and (2) it is substantially the same as the prior regulation,
compare SSR 96-7p, 1996 WL 374186 (July 2, 1996), with SSR 16-3p, 2016 WL 1119029 (Mar.
16, 2016).
The ALJ said that he gave little weight to plaintiff=s testimony that she Ahas poor memory[,]
. . . . dyslexia . . . . [,] a dull ache in the back, neck, hips and knees . . . . [,] anxiety and
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depression[,]@ has a problem with Aconcentration and focus,@ and Acan break into tears at anytime@
because A[t]he evidence of record fail[ed] to substantiate the degree of impairment related
subjective limitations.@ (R. 22.) Specifically, the ALJ said: (1) the medical records showed
that plaintiff was Astable psychiatrically,@ received therapy only sporadically, did not take her
depression medication, had full range of motion in her lumbar and cervical spine, and could
independently perform her activities of daily living; (2) Dr. Borosh=s report stated that plaintiff
displayed a full range of affect, demonstrated good task persistence and attention span, and did not
clearly display a retentive memory deficit; (3) there was evidence that plaintiff had Amultiple
felonies which makes it hard for her to find a job@;5 and (4) plaintiff testified that Ashe should not
stand long, but could not say how long.@ (Id.) Because the ALJ gave specific, evidentiary bases
for his credibility determination/symptom evaluation, the Court will not disturb it. See Moss v.
Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (“We will uphold an ALJ’s credibility determination if
the ALJ gave specific reasons for the finding that are supported by substantial evidence.”).6

5 The Court notes that, in the same paragraph, the ALJ noted that he “did not give any appreciable weight to
[claimant’s] testimony,” and that she “has multiple felonies which makes it hard for her to find a job.” (R. 22.) As
structured, one could argue that the ALJ discounted plaintiff’s testimony because of the felony convictions.
However, for the reasons noted herein, we believe the ALJ discounted plaintiff’s testimony as to her limitations
because her subjective descriptions were not consistent with the other objective evidence contained in the record.
The ALJ was not making a credibility determination based on plaintiff’s character.
6Though the new policy statement applies, “the Court is also bound by case law concerning the same regulatory
process under the ‘credibility’ analysis of the former SSR 96-7p.” Farrar v. Colvin, No. 14 C 6319, 2016 WL
3538827, at *5 (N.D. Ill. June 29, 2016).

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Conclusion
For the foregoing reasons, the Court grants the Commissioner=s motion for summary
judgment [20], denies plaintiff=s motion for summary judgment [11], and affirms the
Commissioner=s decision.
SO ORDERED.

This case is terminated.
ENTERED: May 9, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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