Murphy v. Colvin
Filing
24
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 10/5/2016.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICIA MURPHY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the U.S. Social
Security Administration,
Defendant.
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No. 15 CV 8919
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Claimant Patricia Murphy (“Claimant”) seeks judicial review under 42 U.S.C. §
405(g) of a final decision of Defendant Commissioner of the Social Security
Administration (“SSA”) denying her concurrent application for Social Security Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and
Supplemental Security Insurance (“SSI”) under Title XVI of the Act. See 42 U.S.C. §
423; 20 C.F.R. § 416.110. The parties have consented to the jurisdiction of the United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow,
Claimant’s motion for reversal or remand is granted and the Commissioner’s motion for
summary judgment is denied. The case is remanded to the SSA for proceedings
consistent with this opinion.
BACKGROUND
I.
Procedural History
Claimant filed a concurrent DIB and SSI application on August 8, 2011 alleging
an onset date of January 1, 2011 due to anxiety, high blood pressure, leg and back
problems, as well as agoraphobia. (R. 324, 341.) The applications were denied initially
on September 7, 2011 and upon reconsideration on February 8, 2012. (R. 164-67.)
After both denials, Claimant filed a hearing request, which was scheduled on October
22, 2013 before an Administrative Law Judge (“ALJ”). (R. 48-105, 188-89.) The
hearing was continued to February 11, 2014 for further testimony from Claimant. (R.
106-63.) Claimant appeared for both hearings along with her representative. (Id.) A
Vocational Expert (“VE”) was also present to offer testimony. (Id.) On June 27, 2014,
the ALJ issued a written opinion finding that Claimant was not disabled and denying her
DIB and SSI applications. (R. 16-40.) Claimant sought review by the Appeals Council,
which was denied on September 18, 2015. (R. 1-3.)
II.
Medical Evidence
On April 18, 2009, Claimant was treated at the Norwegian American Hospital for
chest tightness and pain. (R. 429.) An exam of the chest showed “no acute infiltrates”
and “mild blunting of right costophrenic angle.” (R. 438.) She was diagnosed with
anxiety and discharged in good condition. (R. 440.)
Records reveal that Claimant is a patient of Mount Sinai Hospital (“Mount Sinai”)
and has been receiving regular treatment for complaints of dizziness and abdominal
pain. Claimant had a CT scan of her pelvis and abdomen on June 23, 2008, which
revealed normal results. (R. 456.) On January 14, 2009, after a complaint of dizziness,
Claimant underwent a cranial scan, which showed “no evidence of extracranial or
vertebral artery occlusive disease.” (R. 476.) On March 10, 2009, Dr. Joseph Rosman
noted “she [was] doing well,” but planned to conduct a pulmonary function test. (R.
747.) On April 9, 2009, Claimant returned to Mount Sinai with complaints of chest pain.
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A CT scan revealed normal results with “no evidence of pulmonary emboli.” (R. 496.) A
chest scan on the same day showed “grossly normal” results. (R. 497.) On August 30,
2010, Claimant returned to Mount Sinai due to chest pains and dizziness. (R. 575.)
She received a CT scan of the brain, which was normal. (R. 528.) An MRI of her brain
showed no abnormalities. (R. 530.) She was discharged home on September 2, 2010
with a diagnosis of dizziness and hypertension. (R. 576, 708.)
On October 27, 2013, Claimant was admitted to Mount Sinai due to abdominal
pain that woke her from her sleep. (R. 1348.) A CT scan of her abdomen and pelvis
were unremarkable. (Id.) The medical staff noted that her pain was likely caused by
constipation. (R. 1358.) She reported to hospital staff that she remained anxious due
to her relationship with her estranged husband. (R. 1331.) She was referred to the
psychiatry department for evaluation. (Id.) She was advised to continue Zoloft for her
anxiety and depression. (R. 1346.) She was discharged from the hospital on October
30, 2013. (R. 1345-46.)
Claimant has also been treated at Lawndale Christian Health Center (“LCHC”)
since 2009. (R. 752-53.) On February 23, 2009, she was diagnosed with shingles and
hypertension and prescribed medication as treatment. (R. 749-50.) On April 22, 2009,
the attending physician noted that Claimant’s dizziness may be due to her high dosage
of medication and advised her to stop taking Benazepril and Lopressor. (R. 742.) On
June 23, 2009, she reported to LCHC due to crying spells and was diagnosed with
depression. (R. 735.) She was prescribed Lexapro. (R. 736.)
On October 26, 2010, Claimant was admitted to the emergency room at LCHC
after complaints of dizziness. (R. 701.) The attending physician opined that her
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dizziness may be due to an ear infection. (R. 702.) During a follow-up appointment on
November 19, 2010, Claimant stated that she was feeling better and that her dizziness
had improved. (R. 698.) On December 22, 2010, Claimant completed a survey and
noted that she frequently felt nervous, could not control her worries, had trouble
relaxing, and feared that something awful may happen. (R. 783.) She commented that
she was often bothered by stomach and back pains, pain in the arms, legs, and joints,
chest pains, headaches, and dizziness. (Id.) The attending physician noted that her
symptoms were likely due to anxiety, depression, and stress. (R. 786.)
On August 12, 2011, Claimant called LCHC to ask for a letter “for SS disability
stating she has panic attacks.” (R. 1017.) On May 10, 2012, Claimant completed
another survey with largely the same answers regarding her mental and physical wellbeing. (R. 1181-82.) She was diagnosed with Post-Traumatic Stress Disorder
(“PTSD”) due to past experiences in her life including her sister’s death in 2008. (R.
1141.) On August 13, 2012, the attending physician noted that her condition was stable
and that she has good days and bad days. (R. 1196.) She had been compliant with her
Zoloft. (Id.) A record from September 11, 2012 reveals that Claimant “continues to get
out of the house more and engage in enjoyable activities.” (R. 1205.) However, she
had experienced recent stress due to harassment from her estranged husband. (Id.)
On December 15, 2012, Claimant was able to independently leave her apartment and
pick up her medications. (R. 1213.) But on May 7, 2013, Claimant reported living in
isolation once again and had discontinued all social activities, including going to church.
(R. 1080.) Claimant continued to visit LCHC through January 29, 2014 and treatment
notes indicated that her condition fluctuated. (R. 1087, 1104, 1292, 1297, 1312.)
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On January 21, 2011, Dr. Nathan Wagner completed a formal mental status
examination for the Bureau of Disability Determination Services (“DDS”). (R. 580-87.)
Dr. Wagner’s diagnostic impression was that Claimant had panic disorders with
agoraphobia and depressive disorder. (R. 585.) Claimant had several crying spells
during the evaluation, but was able to “pull herself together after several minutes.” (R.
583.) She was able to interact appropriately throughout the evaluation. (Id.) On the
same day, Dr. Norbert De Biase of DDS completed an internal medicine consultative
examination. (R. 588-96.) His clinical impression was that Claimant had high blood
pressure, vertigo, chest pain, anxiety, and depression. (R. 591.) However, the
examination returned mostly normal results as she had normal dexterity, normal range
of motion, and no physical limitations. (R. 93-97.)
On August 23, 2011, Dr. Marion Panepinto completed a physical Residual
Functional Capacity (“RFC”) assessment for hypertension and vertigo. (R. 964-71.) Dr.
Panepinto found Claimant did not have any exertional, manipulative, visual, or
communicative limitations, but found Claimant should only occasionally climb stairs and
balance, and should avoid hazardous machinery. (R. 965, 968.) Dr. Panepinto found
Claimant’s allegations regarding her physical limitations to be partially credible based
upon the medical evidence. (R. 971.)
On September 1, 2011, Dr. Elizabeth Kuester completed a mental RFC
assessment and a Psychiatric Review Technique Form (“PRTF”), evaluating Claimant
under listing 12.04 for affective disorders and 12.06 for anxiety-related disorders. (R.
972-889.) Dr. Kuester noted that Claimant was impaired by depression, a persistent
irrational fear of a specific object, activity, or situation, as well as recurrent severe panic
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attacks “manifested by sudden unpredictable onset of intense apprehension, fear, or
terror.” (R. 975, 977.) With regard to Claimant’s functional limitations, Dr. Kuester
found that Claimant was mildly limited in activities of daily living and maintaining
concentration, persistence, and pace. (R. 982.) Claimant would be moderately limited
in certain areas of understanding and memory and sustained concentration and
persistence. (R. 986-87.) Specifically, Dr. Kuester noted that Claimant would be
moderately limited in the ability to carry out detailed instructions and maintain attention
and concentration for extended periods. (R. 986.) She would also be moderately
limited in the ability to complete a normal workday, interact appropriately with the
general public, accept instructions and respond appropriately to criticism, travel to
unfamiliar places, and set realistic goals. (R. 987.) Dr. Kuester concluded, after
reviewing the overall medical evidence, that Claimant could learn and perform simple,
routine tasks adequately with ordinary instruction and supervision, but that she should
not be required to interact extensively or deal with the public. (R. 988.) She would be
able to relate with supervisors and coworkers to a minimal and superficial extent. (Id.)
On June 7, 2012, a physician completed another mental RFC statement. 1 (R.
1066-69.) It was noted that it was “most likely” the case that Claimant’s conditions had
prevented her from working since December 2010. (R. 1066.) Claimant’s prognosis
was “poor.” (Id.) The physician found that Claimant would be precluded from
performing activities within a schedule, working in coordination with others, completing
workday tasks, interacting appropriately with the public, accepting instructions,
interacting with coworkers, responding to changes in the work setting, traveling to
unfamiliar places, and maintaining socially acceptable behavior for 15 percent or more
1
The physician’s signature is illegible, but Claimant argues in her brief that it is Dr. Karla Torres.
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of a typical workday. (R. 1067-68.) The physician also opined that Claimant would be
precluded from performing more than 30 percent of an eight-hour workday, would be
absent from work or unable to continue a workday for five days or more, and could not
efficiently perform a full-time job. (R. 1068.) The physician concluded that based on
her conditions, Claimant would be unable to obtain and retain full-time work in a
competitive work environment. (R. 1069.)
III.
Claimant’s Testimony
Claimant was present at the hearing on October 22, 2013 and testified before the
ALJ. (R. 48.) At the time of the hearing, Claimant was married with four adult children.
(R. 55.) She does not work and relies on her children to provide for her. (R. 56.)
Claimant testified that she last worked in June 2009 as a Child Development Assistant
for a social service non-profit organization. (R. 59-60.) She performed administrative
duties until she was laid off. (R. 62.) Claimant explained that she believed she became
disabled on January 1, 2011, but not because of a specific event or hospitalization. (R.
63.) She testified that she is unable to work because she is afraid of being outside. (R.
68.) She further stated that she has felt scared since 2009. (Id.)
With regard to physical impairments, Claimant testified that she sometimes
cannot walk because she has trouble moving her arms and legs. (R. 69.) Claimant can
walk about thirty feet independently. (R. 94-95.) She also has pain in her neck and
shoulders, which her doctors told her was caused by stress and high blood pressure.
(R. 72.)
Claimant further stated that she has emotional problems that make her “very
sad.” (R. 74.) She has trouble sleeping and sleeps for only about four hours every
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night. (R. 77.) Claimant testified that she began seeking treatment at a behavioral
health clinic beginning December 2010. (R. 78.) She received counseling while there.
(R. 79.) Claimant further testified that she occasionally experiences panic attacks,
which can last anywhere from two days to a week. (R. 86.)
On a typical day, Claimant wakes up at 6 a.m. and proceeds to walk around her
apartment until 10 a.m. (R. 89.) She then cooks breakfast, takes a shower, and goes
to her room. (Id.) She does not cook otherwise and does not clean, but sometimes
washes the dishes. (R. 90.) Generally, her children help her with household chores.
(R. 127.) She cannot pay the bills due to her memory problems. (R. 130.) She also
forgets to take her medication. (Id.) Claimant testified that she used to walk her
granddaughter to school, but can no longer take her because she was “just scared.” (R.
91.) She further testified that she spends her day reading the bible and watching
television. (R. 92.)
The hearing reconvened on February 11, 2014. (R. 106.) Claimant’s attorney
stated that after the previous hearing, Claimant was hospitalized for emotional distress
for a few days. (R. 111.) The ALJ then asked Claimant to explain the lack of medical
records from September 2011 through July 2013. (R. 119.) Claimant responded that
she believed she was treated during this period but did not know where the records
were. (Id.) Claimant then testified that she feels unsafe in the house without her
children because her husband, whom she is separated from, has previously entered the
home and attacked her. (R. 123.) She continues to fear public places and crowds
because of her negative experiences with men. (R. 124-25.) She thinks about killing
herself every other week. (R. 137-38.)
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Claimant further testified that her medication makes her feel grouchy, keeps her
awake, and gives her headaches. (R. 139, 141-42.)
IV.
VE’s Testimony
A VE was present at the second hearing and offered testimony. The VE first
classified Claimant’s previous job as being akin to a nursery school attendant, described
as a light occupation of a semiskilled nature that she performed at an unskilled, medium
exertional level. (R. 151.) The ALJ then asked the VE whether an individual without
exertional limitations, who cannot work on moving surfaces, but has the RFC to perform
and sustain simple, repetitive, unskilled work, would be able to perform Claimant’s past
relevant work as previously described. (R. 152.) The VE opined that it would not be
feasible due to the limitations in interacting with the general public. (Id.) However, the
VE believed that such an individual would be able to perform the responsibilities of an
assembler, packing line worker, and a sorter. (R. 153.) The VE further testified that
these positions require minimal social interaction. (R. 154.) The jobs would include
three regular breaks and the individual may not be absent for more than ten days in a
year. (Id.) The individual could not be off-task for more than ten percent of the
workday. (R. 155.) The VE testified that if the individual were distracted frequently, it
would preclude any prior work and competitive employment. (Id.)
LEGAL ANALYSIS
I.
Standard of Review
Because the AC denied review, the ALJ’s findings constitute the final decision of
the agency. (R. 1-3); see Herron v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994). The
findings of the ALJ as to any fact, if supported by substantial evidence, shall be
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conclusive. 42 U.S.C. § 405(g); see also Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002); 42 U.S.C. § 1383 (“The final determination of the Commissioner after a hearing
under paragraph (1) shall be subject to judicial review as provided in section 405(g) of
this title to the same extent as the Commissioner's final determinations under section
405 of this title.”) Although the court affords great deference to the ALJ’s determination,
it must do more than merely rubber stamp the ALJ’s decision. See Griffith v. Sullivan,
916 F.2d 715 (7th Cir. 1990) (citing Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986)).
In order to affirm the ALJ’s decision, the court must find the decision to be supported by
substantial evidence on the record as a whole, and must take into account whatever in
the record fairly detracts from its weight. See Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 488 (1951). Substantial evidence is more than a mere scintilla; it is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. See Kepple v. Massanari, 268 F.3d 513 (7th Cir. 2001) (citing Richardson
v. Perales, 402 U.S. 389, 401 (1971)).
The court may not displace the ALJ’s judgment by reconsidering facts or
evidence or making credibility determinations. See Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007). Where conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that determination falls upon the
ALJ, not the courts. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). An ALJ
must articulate her analysis by building an accurate and logical bridge from the
evidence to her conclusions, so that the court may afford the claimant meaningful
review of the ALJ’s ultimate findings. See Pepper v. Colvin, 712 F.3d 351 (7th Cir.
2013). It is not enough that the record contains evidence to support the ALJ’s decision
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and the court must remand if the ALJ does not rationally and sufficiently articulate the
grounds for that decision, so as to prevent meaningful review. (Id.)
II.
Analysis under the Social Security Act
To qualify for benefits, a claimant must be under a disability within the meaning
of the Act. See 42 U.S.C. § 423(a)(1)(E). A 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); see also Barnhart v. Walton, 535 U.S. 212, 217-22 (2002).
Pursuant to the Act, Claimant is disabled only if her physical or mental impairments are
of such severity that she is unable to do her previous work and cannot, when
“considering her age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which she lives, or whether a specific job
vacancy exists for her, or whether she would be hired if she applied for work.” 42
U.S.C. § 423(d)(2)(A). Another agency requirement to receive disability insurance
benefits is that Claimant must show she was disabled on or before the date her insured
status expired. See 20 C.F.R. § 404.130 for definition of insured status; see also
Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997).
Under the authority of the Act, the SSA has established a five-step sequential
evaluation process for determining whether Claimant is disabled. See 20 C.F.R. §
404.1520(a). This five-step sequential evaluation process requires the ALJ to inquire:
1.
Is Claimant presently engaging SGA? See 20 C.F.R. § 404.1572 et seq.
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2.
Does Claimant have a severe medically determinable physical or mental
impairment that interferes with work and is expected to last at least 12 months?
3.
Does the impairment meet or equal one of a list of specific impairments
enumerated in the regulations? See 20 C.F.R. § Pt. 404, Subpt. I, App. 1.
4.
Is Claimant unable to perform her former occupation?
5.
Is Claimant unable to perform any other work?
20 C.F.R. § 404.1520(a)(4); Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
Claimant has the burden of establishing steps one through four. At step five the burden
shifts to the Commissioner to establish that Claimant is capable of performing work.
See Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
III.
ALJ’s Determination
Here, the ALJ applied the five-step analysis in her decision to deny benefits. As
an initial matter, the ALJ determined that Claimant met the insured status requirements
of the Act through December 31, 2014 for the purposes of her DIB application. (R. 22.)
At step one, the ALJ found that Claimant has not engaged in substantial gainful activity
since her alleged onset date of January 1, 2011. (Id.) At step two, the ALJ determined
that Claimant suffered from the severe impairments of depression, anxiety, and PTSD
(Id.) At step three, the ALJ found that Claimant did not have an impairment or a
combination of impairments that meet or medically equal the severity of one of the listed
impairments of 20 C.F.R. Part 404, Subpart P, App’x 1. (R. 23-24.)
Before step four, the ALJ determined that Claimant has no exertional limitations
and has the mental RFC to perform and sustain a wide range of simple, repetitive,
unskilled work. (R. 38.) The ALJ further found that Claimant has the ability to
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understand, remember, and carry out simple, routine instructions. (Id.) Furthermore,
she found Claimant capable of “adapting to the type of changes that would be expected
in a work setting, making the type of decision that would be required, and exercise the
type of judgment needed for such work.” (Id.) The ALJ determined Claimant could
respond appropriately to superficial contact with supervisors and coworkers, but should
not work with the general public. (Id.) In so finding, the ALJ gave great weight to the
state agency psychological consultants’ mental RFC assessments because they are
“generally consistent with and supported by the evidence of record.” (R. 32.) The ALJ
also found that Claimant has not generally received “the type of medical treatment one
would expect for a totally disabled individual.” (R. 36.) The ALJ also did not find
Claimant’s allegation to be credible. (R. 38.) At step four, the ALJ determined that
Claimant is unable to perform past relevant work. (Id.) However, at step five, after
considering Claimant’s age, education, work experience, and RFC, the ALJ found jobs
existing in significant numbers in the national economy that Claimant could perform,
such as an assembler, packing line worker, and sorter. (R. 39.)
DISCUSSION
In challenging the ALJ’s decision, Claimant proffers two arguments for the
Court’s review. First, Claimant contends that the ALJ’s credibility determination was not
supported by substantial evidence as it was based on legally improper inferences and
factual errors. (Pl. Mot. at 5-12.) Next, Claimant argues that the ALJ improperly
rejected the medical opinion of Dr. Karla Torres, a mental health professional from
LCHC. (Pl. Mot. at 12-15.) The Court agrees on both counts.
I.
Credibility Determination
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Since the ALJ issued her decision in this case, the SSA has issued new
guidance on how the agency assesses the effects of a claimant’s alleged symptoms.
Specifically, SSR 96-7p and its focus on “credibility” has been superseded by SSR 163p in order to “clarify that subjective symptom evaluation is not an examination of the
individual’s character.” See SSR 16-3p, 2016 WL 1119029, at *1. As SSR 16-3p is
simply a clarification of existing law, rather than a change to it, it can be applied to
Claimant’s case. See Qualls v. Colvin, No. 14 CV 2526, 2016 WL 1392320, at *6 (N.D.
Ill. Apr. 8, 2016); Hagberg v. Colvin, No. 14 CV 887, 2016 WL 1660493, at *6 (N.D. Ill.
Apr. 27, 2016).
In any event, under SSR 16-3p the court will review the ALJ’s determination in
much the same way as previously done. See Cole v. Colvin, No. 15-3883, 2016 WL
3997246, at *1 (7th Cir. July 26, 2016) (“The change in wording is meant to clarify that
[ALJs] aren't in the business of impeaching claimants’ character; obviously [ALJs] will
continue to assess the credibility of pain assertions by applicants, especially as such
assertions often cannot be either credited or rejected on the basis of medical
evidence.”) As before, the ALJ must carefully consider the entire case record and
evaluate the “intensity and persistence of an individual’s symptoms to determine the
extent to which the symptoms affect the individual’s ability to do basic work activities.”
SSR 16-3p at *2. The ALJ is obligated to consider all relevant medical evidence and
may not cherry-pick facts to support a finding of non-disability while ignoring evidence
that points to a disability finding. See Goble v. Astrue, 385 Fed. Appx. 588, 593 (7th
Cir. 2010). However, the ALJ need not mention every piece of evidence so long as she
builds a logical bridge from the evidence to her conclusion. See Craft v. Astrue, 539
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F.3d 668, 673 (7th Cir. 2008). Consequently, the court will only reverse the ALJ’s
credibility finding if it is patently wrong. The ALJ’s credibility determination is patently
wrong if it lacks “any explanation or support.” Elder v. Astrue, 529 F.3d 408, 413-14
(7th Cir. 2008.)
In making a credibility determination, the ALJ “may not disregard subjective
complaints merely because they are not fully supported by objective medical evidence.”
Knight, 55 F.3d at 314. Rather, SSR 16-3p requires the ALJ to consider familiar factors
in addition to the objective medical evidence, including: (1) the claimant’s daily activities;
(2) the location, duration, frequency and intensity of the pain or other symptoms; (3)
factors that precipitate and aggravate the symptoms, (4) the type, dosage, effectiveness
and side effects of medication; (5) any treatment, other than medication, for relief of
pain or other symptoms; (6) any measures the claimant uses to relieve the pain or other
symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions due to pain or other symptoms. SSR 16-3p at *7.
In her decision, the ALJ concluded that Claimant’s subjective allegations were
not supported by the medical record and were inconsistent with the RFC that she
assigned. (R. 38.) In so finding, the ALJ rendered an adverse credibility determination
and provided several reasons. First, the ALJ found that Claimant “has not generally
received the type of medical treatment one would expect for a totally disabled
individual.” (R. 36.) Specifically, the ALJ seemed to fault Claimant for significant gaps
in her mental health treatment and characterized the treatment she did receive as
"routine” and “conservative” on an infrequent basis. (Id.)
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In assessing credibility, “infrequent treatment or failure to follow a treatment plan
can support an adverse credibility finding but the ALJ ‘must not draw any inferences’
about a claimant's condition from this failure unless the ALJ has explored the claimant's
explanations as to the lack of medical care.” Craft, 539 F.3d at 679. Here, the ALJ
made several unfair inferences against Claimant. First, she found Claimant’s infrequent
treatment to be fatal to her credibility without regard to the nature of Claimant’s mental
health impairment. As Claimant correctly points out, she frequently suffers from panic
attacks and agoraphobia. Medical records indicate, and she herself testified at the
hearing, that she is often afraid to leave the house as she feels anxious and unsafe. (R.
124-25, 1079, 1085.) While the ALJ acknowledged the extreme signs of anxiety and
panic from the medical records, she found that they “generally indicate that claimant is
able to engage and cooperate with treating sources.” (R. 36.) She also found that
Claimant was able to go to church. (Id.) Moreover, the ALJ found Claimant to be
incredible because she was able to manage her symptoms while on medication. (Id.)
While the medical records from LCHC do show periods of improvement, they
were followed by periods in which Claimant “isolate[d] herself” more. (R. 1082.) There
were periods where she did not want to leave the house. (R. 1079.) Because of her
anxiety, she also often missed therapy sessions and church as she only wanted to “stay
in her room.” (R. 1080, 1082.) Thus, while the ALJ focused on the parts of the
treatment notes that showed improvement, she failed to address the fact that the
treatment notes also clearly documented Claimant’s fluctuating condition.
The Commissioner points out that the Claimant does not dispute the ALJ’s
finding of improvement in the medical record. But the issue here is that the ALJ’s
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negative inferences exemplify a misunderstanding of mental illness often criticized by
the Seventh Circuit. See Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006) (“But
mental illness in general…may prevent the sufferer from taking her prescribed
medicines or otherwise submitting to treatment.”). While Claimant may have shown
improvement at times with medication, it has been acknowledged that the nature of her
mental condition may cause her compliance with medication to be erratic, which could
then lead to fluctuating levels of functional capacity.
The ALJ also seems to believe that Claimant’s mental impairments could not be
as severe as alleged because she did not receive “the type of medical treatment one
would expect for a totally disabled individual.” (R. 36.) But the treatment notes from
LCHC from 2009 through 2014 show that Claimant has continued to complain of and
receive behavioral health treatment for her depression, anxiety, and PTSD. (R. 1088,
1147, 1161, 1213, 1301.) Furthermore, to make such a determination, the ALJ had to
“play doctor,” which is impermissible. See Clifford, 227 F.3d at 870 (holding that an ALJ
must not substitute her own judgment for a physician’s opinion without relying on other
medical evidence or authority in the record); see also Schmidt v. Sullivan, 914 F.2d 117,
118 (7th Cir. 1990) (warning that judges, including [ALJs] of the [SSA], must be careful
not to succumb to the temptation to play doctor); see also Dixon v. Massanari, 270 F.3d
1171, 1177-78 (7th Cir. 2001). The ALJ is not a medical professional and therefore
should not have relied on her own interpretation of the type of medical treatment one
“should” receive in order to be considered disabled. The Commissioner attempts to
shift this error onto Claimant for failing to cite reasons for her lack of psychiatric
treatment, but this misses the point. The ALJ should not have substituted her own
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judgment with that of a medical professional, which is what she did here. See Clifford,
227 F.3d at 870.
Next, the ALJ did not find Claimant credible because of her ability to engage in
certain activities of daily living. (R. 37.) Specifically, the ALJ acknowledged that while
her activities were limited, they could not be verified with “any reasonable degree of
certainty.” (R. 37.) The ALJ only reasoned that the “weak medical evidence” did not
support the degree of limitation as shown in her daily activities. (Id.) But it was not
enough for the ALJ to conclude that there was a dearth of evidence supporting her
allegations regarding her daily activities.
An ALJ may consider a claimant’s daily activities when assessing credibility, see
Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007), but ALJs must explain perceived
inconsistencies between a claimant’s activities and the medical evidence. See Jelinek
v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011); see also Stewart v. Astrue, 561 F.3d 679,
684 (7th Cir. 2009); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004); Zurawski
v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). The ALJ’s cursory analysis of Claimant’s
daily activities here failed to explain any such inconsistencies. Moreover, the ALJ once
again raised the issue of Claimant’s failure to follow-up on referrals for psychiatric
treatment, but does not explain how this is relevant to Claimant’s allegation regarding
her limited ability to perform daily activities. While there is evidence to suggest that
Claimant may have only mild limitations in performing activities of daily living, such as
the September 1, 2011 PRTF completed by Dr. Kuester, the ALJ failed to make any
mention of this evidence and therefore failed to build an accurate logical bridge from the
evidence to her conclusion. See Craft, 539 F.3d at 677.
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Overall, the ALJ’s credibility determination was not based on the subjective
evidence and therefore cannot be upheld. Notwithstanding the reasons above, the ALJ
also made several other errors in assessing Claimant’s credibility. Shockingly, the ALJ
reasoned that Claimant was not credible because she continued to “voluntarily interact”
with her husband though she accused him of abuse. The ALJ also did not believe
Claimant’s allegation of self-harm because she never reported the injuries and never
received treatment. As Claimant correctly points out, this is simply not the case as the
record documents instances in which she reported wanting to inflict self-harm, as well
as suicidal ideations. (R. 1081, 1170, 1201.) The ALJ instead points to Claimant’s field
office interview, in which her documented lack of difficulty with “hearing, reading,
breathing, understanding, coherency, concentration, talking, answering, sitting,
standing, walking, seeing, using hands or writing” apparently shows support for the
ALJ’s adverse credibility determination. (R. 38.) Yet the court fails to understand how
Claimant’s physical capabilities during one interview render her allegations regarding
her years of suffering from a mental impairment incredible. For reasons such as these,
the ALJ’s adverse credibility determination is simply not supported by the record. On
remand the ALJ must reassess Claimant’s credibility in light of all the evidence of
record. See Ribaudo v. Barnhart, 458 F.3d 580, 584-85 (7th Cir. 2006) (remanding
where ALJ’s adverse credibility determination was not supported by record); see also
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002); Terry v. Astrue, 580 F.3d 471,
478 (7th Cir. 2009)
II.
Medical Opinion
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Next, Claimant argues that the ALJ improperly rejected the medical opinion of Dr.
Torres, a psychologist who treated Claimant during her visits to LCHC.
The treating physician rule, 20 C.F.R. § 404.1527(d)(2), “directs the [ALJ] to give
controlling weight to the medical opinion of a treating physician if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and not inconsistent
with the other substantial evidence.” Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir.
2006). “If the treating physician’s medical opinion is well supported and there is no
contradictory evidence, there is no basis on which the [ALJ], who is not a physician,
could refuse to accept it.” Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). But once
well-supported contradicting evidence is introduced, the treating physician’s evidence is
no longer entitled to controlling weight and at that point, the medical opinion is just one
more piece of evidence for the ALJ to weigh. Id. The treating-physician rule goes on to
list various factors that the ALJ should consider, such as how often the treating
physician has examined the claimant, whether the physician is a specialist in the
condition claimed to be disabling, and so forth.
Here, the ALJ accorded Dr. Torres’ medical opinion “little weight,” and took issue
with how infrequently she treated Claimant. (R. 33.) While true, other regulatory factors
of 20 C.F.R. § 404.1527 seem to favor giving more weight to Dr. Torres’ opinion. First,
as a psychologist at LCHC, she is a specialist in her field and thus is in the best position
to provide an accurate picture of Claimant’s mental impairments. Though she may not
have provided Claimant with frequent treatment, she is the only psychologist on record
to have treated Claimant consistently while she was visiting LCHC. Dr. Torres also
noted that she based her medical assessment on one diagnostic interview and several
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counseling visits over the course of two years. (R. 1069.) Rather than reference
evidence to contradict Dr. Torres’ opinion, the ALJ discredited her simply because she
believed that the diagnostic interview and counseling sessions were not enough
evidence to support her medical opinion. This is not what the treating physician rule
directs the ALJ to do. See Bauer, 532 F.3d at 608.
Claimant also correctly points out that it was inconsistent for the ALJ to give
controlling weight to the agency consultative examiners, who also examined Claimant
only once. Moreover, the ALJ once again cited to Claimant’s infrequent treatment for a
reason to reject Dr. Torres’ findings. She also noted that Dr. Torres’ opinion lacked
support because Claimant generally improved with Zoloft. For the same reasons these
reasons failed in the ALJ’s credibility determination, they fail on this issue. Because the
ALJ did not support her decision to deny controlling weight to Dr. Torres’ opinion,
remand is required.
CONCLUSION
For the aforementioned reasons, Claimant’s motion for reversal or remand is
granted and the Commissioner’s motion for summary judgment is denied. This case is
remanded to the SSA for further proceedings consistent with this opinion.
____________________________
Michael T. Mason
United States Magistrate Judge
Dated: October 5, 2016
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