McDonnell v. Colvin
MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 2/14/2017. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JOHN A. MCDONNELL,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
No. 15 C 5230
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
John A. McDonnell brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the Social Security Administration Commissioner’s decision denying his applications for
disability insurance benefits and supplemental security income. For the reasons set forth below,
the Court reverses the Commissioner’s decision.
Plaintiff applied for benefits on March 29, 2007, alleging a disability onset date of
January 1, 2003. (R. 148, 150.) His applications were initially denied on August 22, 2007, and
again on reconsideration on June 19, 2008.
(R. 75, 91.) Plaintiff requested a hearing, which
was held by an Administrative Law Judge (“ALJ”) on August 11, 2009. (R. 14-52.) On
September 2, 2009, the ALJ issued a decision finding plaintiff disabled but only as of March 15,
2007, almost three months after his last insured date of December 31, 2006. (R. 61-72.) The
Appeals Council declined to review the decision, and plaintiff appealed to this Court, which
remanded the case to the Commissioner for further proceedings. (R. 1-5, 648.) The ALJ held a
second hearing on March 24, 2015 (R. 556-634), and on April 10, 2015, she again found that
plaintiff’s disability onset date was March 15, 2007 (R. 525-46). The Appeals Council declined
review, 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.
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).
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. 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
since the alleged disability onset date of January 1, 2003. (R. 528.) At step two, the ALJ
determined that, as of the alleged disability onset date, plaintiff had the severe impairments of
“left hand amputated fingers; obesity; and right inguinal hernia,” and as of the determined
disability onset date, March 15, 2007, he had the severe impairments of “major depressive
disorder (MDD); post-traumatic stress disorder (PTSD); left hand amputated fingers; obesity;
history of right inguinal hernia with recurrence; [and] degenerative joint disease (DJD) of the
lumbar spine and the left knee.” (Id.) At step three, however, the ALJ found that, as of January
1, 2003, plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. (R. 531.) At step four, the ALJ
found that, prior to March 15, 2007, plaintiff had the residual functional capacity (“RFC”) “to
perform light work . . . in that he could sit for six to eight (6-8) hours, and stand or walk at least
six (6) hours . . . in an eight-hour workday, with normal breaks, and could lift and carry up to
twenty (20) pounds occasionally and ten (10) pounds frequently, except: [he] could never grasp,
perform fine manipulations, or finger with his left non-dominant hand.” (R. 535.) After March
15, 2007, the ALJ found, plaintiff had the RFC
to perform light work . . . in that he could sit six to eight (6-8) hours, and stand or
walk at least six (6) hours, in an eight-hour workday, with normal breaks, and can
lift and carry up to twenty (20) pounds occasionally and ten (10) pounds
frequently, except: [he] can never grasp, perform fine manipulations, or finger
with his left non-dominant hand; . . . can never climb ladders, ropes or scaffolds; .
. . can occasionally climb stairs and ramps, and stoop, crawl, crouch, kneel, or
balance; . . . should avoid concentrated exposure to activities involving
unprotected heights and being around moving and hazardous machinery; . . . is
limited to unskilled work with a specific vocational preparation of two; . . . would
be off task 20 percent of the workday, and miss two or more days of work per
At step five, the ALJ determined that plaintiff had been unable to perform any past
relevant work since January 1, 2003. (R. 543.) She also determined that before March 15, 2007,
“there were jobs that existed in significant numbers in the national economy that [plaintiff] could
have performed,” but after that date there were not. (R. 544-45.) Accordingly, the ALJ found
that plaintiff was disabled as of March 15, 2007, but not before, and thus was not disabled as of
his last insured date of December 31, 2006. (R. 545.)
Plaintiff says the ALJ erroneously concluded that his depression was not disabling before
March 15, 2007. In determining the disability onset date, an ALJ must consider “[the claimant’s]
allegations, work history, if any, and the medical and other evidence concerning impairment
severity.” See SSR 83-20, 1983 WL 31249, at *2 (1983). “The starting point” of the analysis “is
the individual’s statement as to when disability began,” and that date “should be used if it is
consistent with all the evidence available.” Id. at *2-3. “However, the established onset date
must be fixed based on the facts and can never be inconsistent with the medical evidence of
record.” Id. at *3. “This does not mean that a claim is doomed for lack of medical evidence
establishing the precise date an impairment became disabling.”
Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 353 (7th Cir. 2005) (emphasis in original). Rather, “the ALJ must ‘infer
the onset date from the medical and other evidence that describe the history and symptomatology
of the disease process’ and should seek the assistance of a medical expert to make this
inference.” Id. (quoting SSR 83-20, 1983 WL 31249, at *2).
The ALJ found that plaintiff had the medically determinable mental impairment of
depression as of January 2006, but that the symptoms were only mildly limiting before March
15, 2007 because: (1) plaintiff did not seek treatment until May 2007; (2) Dr. Henson, an agency
psychologist who examined plaintiff in August 2007, opined that plaintiff had had a Global
Assessment of Functioning (“GAF”)1 score of 65 for the previous twelve months; and (3) there
were no “clinical [or] laboratory findings” that established the existence of severe depressive
disorder before that date. (R. 529-30; see R. 339, 351.)
In reaching this determination, the ALJ rejected the opinion of Dr. Couch, a psychiatrist
who examined plaintiff in May 2007 and assigned him a GAF of 50, because Dr. Couch “never
mentioned applicability of the assigned GAF score before May 2007.”
ambiguity, however, should have prompted the ALJ to seek clarification from Dr. Couch, not to
reject the opinion. See Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (“An ALJ has a
duty to solicit additional information to flesh out an opinion for which the medical support is not
readily discernable.”); SSR 96-2p, 1996 WL 374188, at *4 (“[I]n some instances, additional
development required by a case—for example, to obtain more evidence or to clarify reported
clinical signs or laboratory findings—may provide the requisite support for a treating source’s
medical opinion that at first appeared to be lacking . . . .”). Moreover, even without clarification,
Dr. Couch’s opinion conflicts with Dr. Henson’s conclusion that plaintiff had a GAF of 65 from
August 2006 through August 2007, a conflict the ALJ neither acknowledged nor resolved. Also
absent from the ALJ’s analysis is discussion of a social worker’s April 2007 diagnosis of
plaintiff as having “major depression, recurrent, severe” (R. 383), a diagnosis that assumes
The GAF scale, which goes from 0-90, “is a hypothetical continuum of mental health-illness used to determine
psychological, social, and occupational functioning.” Bartrom v. Apfel, No. 00-149, 2000 WL 1412777, at *1, n.3
(7th Cir. Sept. 20, 2000) (quotation omitted). As relevant here, a score of 61-70-indicates mild symptoms; a score of
41-50 indicates serious symptoms. Id.
plaintiff had at least two depressive episodes of at least two weeks’ duration that occurred at least
two months apart. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 160-62 (5th ed. 2013). The ALJ also failed to explicitly consider that plaintiff told the
social worker he had been treated with anti-depressants by “Community Health on Chicago
Avenue about two years ago,” i.e., in 2005 (R. 371), and apparently made no effort to obtain the
records of that treatment.
Given these evidentiary voids and analytical lapses, the ALJ’s
determination of plaintiff’s disability onset date is not supported by substantial evidence.
Plaintiff further contends that the ALJ erred in determining the onset date of his back and
knee impairments, and thus his RFC on his date last insured. The Court agrees. The ALJ said
these impairments were not severe until “later than March 2007,” citing a June 2007 report
completed by plaintiff’s treating physician, Dr. Munoz. (See R. 531.) In that report, Dr. Munoz
says x-rays show that plaintiff has degenerative joint disease (“DJD”) in his lower back and
knees. (See R. 281.) Dr. Munoz opines that plaintiff’s conditions make him able to sit, stand, or
walk for less than two hours in an eight-hour work day and require him to take unscheduled
breaks every twenty minutes. (R. 282-84.) The June 2007 report does not, however, state when
the disease processes began or when they became disabling. Instead of seeking this information
from Dr. Munoz or another medical expert or performing the disability onset analysis set forth in
SSR 83-20, the ALJ simply concluded that these conditions were not medically determinable
impairments before March 15, 2007 because they had not yet been diagnosed. (R. 531 (“[T]he
undersigned reasonably infers that progressive conditions such as [DJD] were in existence, but
not established to be severe, prior to the DLI [date last insured] based on the lack of diagnosis or
treatment . . . .”).) That was error. See Briscoe, 425 F.3d at 352 (“Where, as here, a claimant is
found disabled but it is necessary to decide whether the disability arose at an earlier date, the
ALJ is required to apply the analytical framework outlined in SSR 83-20 to determine the onset
date of disability.”); Barnett, 381 F.3d at 669 (noting the ALJ’s “duty to solicit additional
information to flesh out” a medical opinion).
Plaintiff also contends that the ALJ failed to consider the combined effect of plaintiff’s
depression, obesity, and DJD and his need to lie down during the day in making the disability
determination. The Court agrees: The ALJ addressed plaintiff’s obesity (see R. 531-32), but
said nothing about: (1) the opinion of Dr. Munoz, plaintiff’s treating physician, that “emotional
factors contribute[d] to the severity of [plaintiff’s] symptoms and functional limitations” (R.
282); (2) the opinion of the independent medical expert, Dr. Rozenfeld, that “the emotional
factor [has] exacerbated [plaintiff’s] experience of pain” (R. 40); or (3) plaintiff’s need to lie
down to ease his fatigue and pain (R. 284). On remand, the ALJ must address these issues.
The Court also agrees that the ALJ’s credibility determination is flawed. As the Appeals
Council instructed, the ALJ evaluated plaintiff’s credibility in accordance with the factors set
forth in SSR 96-7p. See id., 1996 WL 374186, at *3 (when assessing claimant credibility an ALJ
must consider “in addition to the objective medical evidence”:
“1. The individual’s daily
activities; 2. The location, duration, frequency, and intensity of the individual’s pain or other
symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage,
effectiveness, and side effects of any medication the individual takes or has taken to alleviate
pain or other symptoms; 5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; 6. Any measures other than treatment the
individual uses or has used to relieve pain or other symptoms . . . ; and 7. Any other factors
concerning the individual’s functional limitations and restrictions due to pain or other
symptoms.”); (R. 535-38, 653).
The ALJ reasoned:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible prior to March 15, 2007, for the reasons explained in this decision.
(R. at 536.)
This reasoning has several flaws. First, the ALJ does not identify any particular reason to
question the claimant’s credibility, and there is no discussion elsewhere in the decision that sheds
light on the ALJ’s reasoning. (Cf. R. at 533 (describing claimant’s description of disability as
“implausible” but not explaining why).)
Second, the ALJ’s decision that the claimant’s
subjective description is not “entirely” credible does not justify wholesale discount of the
claimant’s statements. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (characterizing
the language used here by the ALJ as “meaningless boilerplate” because it “yields no clue to
what weight the trier of fact gave the testimony”). Finally, because we find error in some of the
ALJ’s reasoning, we cannot know if the reason(s) the ALJ relies on to wholly discount the
claimant’s descriptions are reasons that we have rejected. Therefore, the ALJ’s wholesale
discount of the claimant’s subjective claims cannot be upheld on the current state of the record.
See Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (“It is only when the ALJ’s
[credibility] determination lacks any explanation or support that we will declare it to be patently
wrong and deserving of reversal.”) (quotations omitted).
For the reasons set forth above, the Court reverses the Commissioner’s decision and
remands this case to the Commissioner for further proceedings consistent with this memorandum
opinion and order.
ENTERED: February 14, 2017
M. David Weisman
United States Magistrate Judge
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