Herman v. Colvin

Filing 21

ORDER: Plaintiff Michael Herman ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Disability Insurance Benefits ("DIB") under Title XVI of the Social Security Act. The Court grants the Plaintiff's motion for summary judgment (Dkt. 11), and denies the Commissioner's motion for summary judgment (Dkt. 19). The Court reverses the Commissioner's decision and remands the case for further proceedings consistent with this opinion. - Signed by the Honorable Susan E. Cox on 3/8/2017. [For further details see order] Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL H. HERMAN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the U.S. Social
Security Administration, 1
Defendant.

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No. 15 C 10194

Magistrate Judge Susan E. Cox

ORDER
Plaintiff Michael Herman (“Plaintiff”) seeks judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying Plaintiff Disability Insurance
Benefits (“DIB”) under Title XVI of the Social Security Act. The Court grants the Plaintiff’s
motion for summary judgment (Dkt. 11), and denies the Commissioner’s motion for summary
judgment (Dkt. 19). The Court reverses the Commissioner’s decision and remands the case for
further proceedings consistent with this opinion.
STATEMENT
I.

Procedural History
Plaintiff filed a DIB application on March 22, 2012, alleging a disability onset date of

January 20, 2012, due to Hashimoto’s disease, hyperthyroidism, pre diabetes, obstructive sleep
apnea, male hypogonadism, asthma, hypertension, hiatal hernia, gastroesophageal reflux disease,
hypercholesterolemia, and an anxiety disorder. (R. 222, 226.) His initial application was denied
on July 12, 2012, and again at the reconsideration stage on December 19, 2012. (R. 128, 132.)

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Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of Civil
Procedure 25(d).

Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on January 15, 2013,
and the hearing was scheduled on March 25, 2014. (R. 142, 44.) At the hearing, Plaintiff, who
was represented by counsel, appeared and testified. (R. 69-81.) Vocational expert (“VE”)
Aimee Mowery and medical expert (“ME”) James M. McKenna, M.D., also appeared and
offered testimony. (R. 7-23, 82-93.) At that time, Plaintiff amended his alleged disability onset
date to February 6, 2012. (R. 51.) On May 5, 2014, the ALJ issued a partially favorable written
decision finding that Plaintiff was disabled as of April 18, 2014 through the date of the decision,
but not prior thereto. (R. 22-38.) Plaintiff then filed a timely request for review of the ALJ’s
decision on June 12, 2014. (R. 17.) The Appeals Council (“AC”) granted the request, and, on
October 19, 2015, issued a final decision of the Commissioner, finding that Plaintiff was not
disabled within the meaning of the Act for the entire period under consideration. (R. 4-7); see 20
C.F.R. § 404.981. Plaintiff then filed this civil action pursuant to 42 U.S.C. §§ 405(g) and
1383(c).
III.

The ALJ’s Decision
On May 5, 2014, the ALJ issued a written determination denying Plaintiff’s DIB

application. (R 22-38.) As an initial matter, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2016. (R. 24.) Applying the
five-step sequential evaluation process pursuant to 20 C.F.R. § 404.1520, the ALJ
found, at step one, that Plaintiff had not engaged in substantial gainful activity since the
amended alleged onset date of February 6, 2012. (Id.) At step two, the ALJ determined that
Plaintiff had the severe impairments of obesity, sleep apnea, and anxiety. (Id.) At step three, the
ALJ found that Plaintiff’s impairments did not meet the severity requirements of the listing in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 25.) Before step four, the ALJ determined that

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Plaintiff had the residual functional capacity (“RFC”) to perform medium work as defined in 20
CFR 404.1567(c). (R. 27.) The ALJ also found that Plaintiff’s RFC was further limited to no
climbing ladders, ropes, or scaffolds; to no exposure to work hazards such as unprotected heights
and moving machinery; and to simple routine work which would preclude fast paced or moving
assembly type work. (Id.) At step four, the ALJ concluded that Plaintiff could not perform his
past relevant work as a senior consultant. (R. 36.) Finally, at step five, the ALJ found that
Plaintiff would have been able to perform work that existed in the national economy from
February 6, 2012 through April 18, 2014; however, beginning on April 18, 2014, when Plaintiff
turned 61 years old, no jobs existed in significant numbers in the national economy that Plaintiff
could perform, given his age, education, work experience and RFC. (R. 36-38.) Given these
findings, the ALJ concluded that Plaintiff was disabled as defined in the Social Security Act
from April 18, 2014 until the date of the ALJ’s opinion on May 5, 2014. (R. 38.)
To support his RFC determination, the ALJ summarized Plaintiff’s symptoms as reported
by Plaintiff to various medical professionals, and also as he described them in Function Reports
and at the hearing. (R. 27-34.) The ALJ concluded that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s]
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible prior to April 18, 2014.” (R. 28.)
The ALJ also summarized the opinions of various doctors who examined Plaintiff or
reviewed the medical record (R. 28-36). Regarding the physical RFC determination, the ALJ
accorded “very substantial weight” to the opinions of the ME “since he is familiar with the
disability program and has had the opportunity to review and evaluate the entire record,
including both the written documentation and hearing testimony.” (R. 34.) By contrast, the ALJ

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gave “less weight” to the state agency physicians’ assessments, explaining that new evidence had
been received since the state agency medical consultants formulated their opinions. (R. 34.)
With regards to the mental RFC determination, the ALJ accorded “[n]o great or controlling”
weight to the opinion of Dianne Stevenson, Psy.D., indicating that she was a one-time examiner
of Plaintiff and that the treatment records do not support the level of limitation suggested by her.
(R. 35.) Similarly “no great or controlling weight” was given to the medical source statement of
treating psychiatrist Ralph M. Orland, M.D., or to his letter opining that Plaintiff is unable to
work in any capacity at this point. (R. 35-36.) The ALJ reasoned that the level of limitation
claimed by Dr. Orland is not supported by his own treatment notes, and that the issue of
disability is reserved for the Commissioner. (R. 36.) The ALJ did not articulate what weight, if
any, he gave to state agency mental health consultants.
V.

The AC’s Decision
On October 19, 2015, the AC issued an unfavorable decision, applying the five-step

sequential evaluation process. (R. 1-8.) The AC adopted the ALJ’s findings at steps one, two,
three, and four of the sequential evaluation process. (R. 4-5.) At step five, the AC also adopted
the ALJ’s finding that Plaintiff would have been able to perform work that existed in the national
economy from February 6, 2012 through April 18, 2014. (R. 5.) However, the AC rejected the
VE’s finding that Plaintiff would be unable to make a vocational adjustment to other work in the
national economy once he changed age categories to closely approaching retirement age. (Id.)
The AC explained, “Agency regulations indicate that an individual who is closely approaching
retirement age and is limited to work at the medium exertional level should be found disabled
only if that individual has a limited education and no work experience, or a marginal education
and a history of unskilled work (20 C.F.R Subpart P, Appendix 2, Section 203.00(c)).” (Id.)

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Accordingly, the AC concluded that Plaintiff “was not disabled within the framework of
Medical-Vocational Rules 203.15 and 203.07” for the entire period under consideration. (R. 56.)
DISCUSSION
I. Standard of Review
The ALJ’s decision must be upheld if it follows the administrative procedure for
determining whether the plaintiff is disabled as set forth in the Act, 20 C.F.R. §§ 404.1520(a)
and 416.920(a), if it is supported by substantial evidence, and if it is free of legal error. 42
U.S.C. § 405(g). Substantial evidence is “relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971). Although we review the ALJ’s decision deferentially, she must
nevertheless build a “logical bridge” between the evidence and her conclusion. Moore v. Colvin,
743 F.3d 1118, 1121 (7th Cir. 2014). A “minimal[ ] articulat[ion] of her justification” is enough.
Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008). “Similar requirements necessarily apply in
reviewing the [AC]’s decision.” Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir. 1986).
II.

The ALJ and the AC Improperly Weighed the Treating Physician’s Opinion
The “treating physician” rule requires that an ALJ 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. 20
C.F.R. § 404.1527(d)(2); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). Otherwise, the
ALJ must “offer good reasons for discounting” the opinion of a treating physician. Campbell v.
Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal quotations omitted); Scott v. Astrue, 647 F.3d
734, 739 (7th Cir. 2011). Even where a treater's opinion is not given controlling weight, an ALJ

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must still determine what value the assessment does merit. Scott, 647 F.3d at 740; Campbell,
627 F.3d at 308. In making that determination, the regulations require the ALJ to consider a
variety of factors, including: (1) the nature and duration of the examining relationship; (2) the
length and extent of the treatment relationship; (3) the extent to which medical evidence supports
the opinion; (4) the degree to which the opinion is consistent with the entire record; (5) the
physician's specialization if applicable; and (6) other factors which validate or contradict the
opinion. 20 C.F.R. § 404.1527(d)(2)-(d)(6); Harris v. Astrue, 646 F. Supp. 2d 979, 999 (N.D. Ill.
2009). An opinion is given controlling weight because “a treating physician has the advantage
over other physicians whose reports might figure in a disability case because the treating
physician has spent more time with the claimant.” Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.
2007).
Here, the ALJ improperly discounted the opinion of Dr. Orland. It is undisputed that Dr.
Orland is Plaintiff’s treating psychiatrist. The ALJ himself recognized “Dr. Orland was
Plaintiff’s treating psychiatrist and had treated Plaintiff from February 2012 through at least
January 2014.” (R. 30-32, 34.) However, the reasons the ALJ gave to reject Dr. Orland’s
opinion were insufficient to completely deny weight to his medical opinion as a treating
physician.
The ALJ accorded “no great or controlling weight” to the opinion of Dr. Orland. The
ALJ reasoned that the level of limitation claimed by Dr. Orland is not supported by his own
treatment notes and that the issue of disability is reserved for the Commissioner. (R. 36.) While
the ultimate issue of disability is a legal decision reserved for the Commissioner, the ALJ cannot
disregard the medical evidence as a whole from the treating physician. Scrogham v. Colvin, 765
F.3d 685, 697 (7th Cir. 2014). The ALJ must consider the entire record, including those portions

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of the record that do not support the ALJ’s ultimate determination. (Id.) Particularly in mental
illness cases, it is important for the ALJ to evaluate the entire record, as mental illness often
fluctuates. Scott, 647 F.3d at 740.
The ALJ asserted that although Dr. Orland opined that Plaintiff had marked deficiencies
in concentration, persistence, or pace, his own treatment notes support a finding that these
abilities were only moderately limited as the notes “often demonstrate normal memory,
concentration, and abstraction.” (R. 35-36). The ALJ points to no specific progress notes to
support this proposition, but cites to Dr. Orland’s treatment records as a whole. It is unclear to
this Court, where in Dr. Orland’s notes the ALJ found that Plaintiff “often” demonstrates normal
memory, concentration and abstraction. Indeed, of the seven progress notes that directly address
memory and concentration in formal mental status examinations, only one indicates normal
memory and concentration, whereas six indicate abnormalities in memory and concentration.
(R. 597-601.) The other progress notes which do not directly address memory and
concentration, indicate that Plaintiff is preoccupied (R. 604, 606-608), agitated (R. 605), and
cannot focus for very long. (R. 606.) Thus, the ALJ failed to demonstrate inconsistencies
between Dr. Orland’s treatment notes and his findings.
The ALJ further argued that Dr. Orland’s treatment notes did not support his findings
regarding the severity of Plaintiff’s mental impairments or the resulting limitations on Plaintiff’s
ability to work full time. (R. 35.) The ALJ reasoned that Dr. Orland’s treatment notes indicate
that Plaintiff “is able to maintain a relationship with his girlfriend, has longtime friendships, and
attends to daily activities.” (Id.) The ALJ fails to articulate how having these relationships or
attending to daily activities supports an ability to have a full-time job or contradicts Dr. Orland’s
findings. See Clifford v. Apfel, 227 F. 3d 863, 871 (7th Cir. 2000) (finding that the

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ALJ did not provide any explanation for his belief that the claimant’s activities were
inconsistent with the treating physician’s opinion and his failure to do so
constitutes error); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The
critical differences between activities of daily living and activities in a full-time job are that a
person has more flexibility in scheduling the former than the latter, can get help from other
persons . . . and is not held to a minimum standard of performance, as she would be by an
employer.”); Punzio v. Astrue, 630 F.3d 740, 712 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346,
352 (7th Cir. 2010) (“an ability to engage in ‘activities of daily living’ (with only mild
limitations) need not translate into an ability to work full time.”). Without such a logical bridge,
the Court cannot trace the path of the ALJ’s reasoning.
Further, although the ALJ is entitled to not accord Dr. Orland’s opinion controlling
weight, she must still address the factors listed in 20 C.F.R. § 404.1527. SSR 96-2p. SSR 92-2p
states that treating source medical opinions like Dr. Orland’s “are still entitled to deference and
must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.” (Id.) Here, the ALJ
failed to minimally address many of the enumerated factors provided in 20 C.F.R. § 404.1527.
Specifically, the ALJ did not discuss the nature and extent of Dr. Orland’s treating relationship
with Plaintiff, the frequency of examination, the supportability of the decision or the consistency
of the opinion with the record as a whole. Accordingly, the ALJ impermissibly rejected Dr.
Orland’s opinion before engaging in the required discussion. Without the requisite “good
reasons” for rejecting Dr. Orland’s opinion, the ALJ committed reversible error, which requires
remand. 2
CONCLUSION
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Because the Court remands on this issue, it need not explore in detail the other arguments posited by Plaintiff on
appeal since the analysis would not change the results in this case.

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For the reasons discussed herein, the Court grants the Plaintiff’s motion for summary
judgment (Dkt. 11), and denies the Commissioner’s motion for summary judgment (Dkt. 19.)
The Court reverses the Commissioner’s decision and remands the case for further proceedings
consistent with this opinion.
ENTER:
DATED:

3/8/2017

____________________________
Susan E. Cox
United States Magistrate Judge

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