Burrell v. Colvin
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 2/23/2017.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
No. 16 CV 3480
Michael T. Mason
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision of
the Commissioner of Social Security (the “Commissioner”) denying Claimant Kenyasha
Burrell’s claim for Supplemental Security Income (“SSI”). The parties have consented
to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Claimant has moved for summary judgment (Dkt. No. 15), asking that the court reverse
the decision of the Administrative Law Judge (“ALJ”). The Commissioner has
responded (Dkt. No. 23), arguing that the decision of the ALJ should be affirmed. For
the reasons that follow, Claimant’s motion for summary judgment is granted and the
Commissioner’s request for summary judgment is denied.
A. Procedural History
On November 5, 2012, Kenyasha Burrell (“Claimant”), a minor at that time,
protectively filed an application for SSI alleging disability as of December 1, 2010 due to
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of
Civil Procedure 25(d).
epilepsy. 2 (R. 59, 137-42.) The claim was denied initially on May 22, 2013. (R. 59-69,
73-79.) On June 27, 2013, Claimant requested a hearing before an ALJ. (R. 80-82.) At
that hearing, held on June 24, 2014, Claimant appeared with her mother, Coretha
Burrell, and was represented by counsel. (R. 39-58.) Claimant’s mother testified on her
daughter’s behalf. (Id.) On August 26, 2014, the ALJ issued an unfavorable written
decision. (R. 15-32.) Claimant filed a timely request for review. (R. 13-14.) When the
Appeal’s Council denied Claimant’s request on January 20, 2016, (R. 1-3), the ALJ’s
decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. This
B. Medical Evidence
1. Treating Physicians
On April 8, 2013, Claimant’s treating neurologist, Amy Brooks-Kayal, M.D.,
completed a Childhood Disability Evaluation form regarding Claimant’s functioning
within six domains. (R. 210-211.) She concluded that Claimant exhibited marked
limitations in three domains: acquiring and using information, interacting and relating
with others, and health and physical well-being. (R. 210.) She referenced her
treatment notes to support her opinions. (R. 211.)
Another treating physician, Abdul Mazin, M.D., completed a Seizures Residual
Functional Capacity Questionnaire on June 8, 2014. (R. 495-98.) Dr. Mazin indicated
that he treated Claimant since March 5, 2014 and based his opinion on his
examinations, imaging studies, and symptom reports. (R. 498.) He diagnosed
Claimant with epilepsy and indicated that Claimant suffers from two to three seizures
per week and experiences a loss of consciousness during her seizures. (R. 495.) He
Claimant, born January 15, 1997, turned 18 after the ALJ’s decision in this case. (R. 59.)
reported that Claimant was compliant with her medications; and that she experienced
depression and a short attention span resulting from her seizures. (R. 496.)
2. Agency Consultants
On April 9, 2013, state agency psychologist, Amy Crockett, Ph.D., conducted a
psychological evaluation consisting of a clinical interview, a mental status exam and a
review of school records. (R. 203-08.) She diagnosed Claimant with adjustment
disorder with mixed disturbance of emotions and conduct, depressive disorder not
otherwise specified, and she assigned Claimant a Global Assessment of Functioning
(“GAF”) score of 62. 3 (R. 207.) Dr. Crockett concluded that Claimant had marked
impairments in her persistence in completing tasks and in sustained concentration;
marked impairments in her ability to accept instruction or criticism and respond
appropriately to others in a school setting; moderate to marked impairments in her
ability to maintain a schedule and regular, punctual attendance; and moderate
impairments in her flexibility, adaptability, and ability to tolerate school-related stressors.
On May 22, 2013, as part of an initial disability determination, state agency
psychologist, James J. Wanstrath, Ph.D., and medical consultant, Chrys Synstegard,
M.D., reviewed Claimant’s medical records and completed a functional equivalence
analysis. (R. 59-69.) Drs. Wanstrath and Synstegard found that Claimant suffered from
severe epilepsy and affective disorders. (R. 64.) They concluded that Claimant had
The Global Assessment of Functioning (“GAF”) is a system used to score the severity of psychiatric
illness, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3036670/ (last visited on January 31, 2017).
According to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR) (4th Ed. Text Rev. 2000) at page 34, a GAF between 61 and 70 indicates some mild
symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty
well, has some meaningful interpersonal relationships. DSM-IV-TR (4th Ed. Text Rev. 2000) at 34.
“less than marked” limitations in the first five domains but exhibited “marked” limitation
in the sixth domain of health and physical well-being due to seizures. (R. 65-66.)
3. School Records
On February 6, 2013, an unnamed math teacher and Claimant’s school nurse,
Robert Williams, M.S., B.S.N., R.N., filled out a Teacher Questionnaire at the request of
the state agency, asking for ratings and comments on Claimant’s functioning within the
six domains for evaluating disability in children. (R. 173-80); See 20 C.F.R §
416.926a(g)-(1). The math teacher filled out the questionnaire regarding the first five
domains, after teaching Claimant for two hours a day for the previous one and a half
years. (R. 173.) In the first domain of acquiring and using information, the math
teacher rated three of the ten areas as obvious problems, noting that her difficulties
derive from “absenteeism,” her “unsatisfactory progress” in previous academic years,
and “lack of focus or motivation.” (R. 174.) In the second domain of attending and
completing tasks, the math teacher found six of the thirteen areas assessed to be either
serious (4) or very serious (5) problems, many of which are experienced daily. (R. 175.)
The math teacher again indicated a lack of “focus” and “a hard time concentrating” as
the basis for her difficulties. (Id.) In the third domain of interaction and relating with
others, the math teacher opined to nine of the thirteen areas as either serious (4) or
very serious (5) problems. (R. 176.) The math teacher indicated that behavior
modification strategies were regularly necessary to help Claimant refocus. (Id.) In the
fourth domain of moving about and manipulating objects, no problems were indicated.
(R. 177.) In the fifth domain of caring for herself, three of the ten categories were
assessed as serious (4) or very serious (5) problems. (R. 178.) The math teacher
noted Claimant “has outbursts and can, at times, handle frustration inappropriately.”
(Id.) The school nurse, Mr. Williams, filled out the questionnaire on the final domain of
health and physical well-being. (R. 179.) Mr. Williams indicated that Claimant suffered
from seizure disorder and that Claimant was compliant with her medications, but had
had some trouble adjusting to the new medication regimen. (Id.)
C. Hearing Testimony
At the June 24, 2014 administrative hearing, Claimant’s mother, Coretha Burrell,
testified on behalf of her daughter. (R. 34-58.) Ms. Burrell testified that Claimant had
epilepsy and seizures since 2009. (R. 41.) She indicated that Claimant had seizures
three to four times per week, lasting between five and forty-five minutes. (R. 53-54.)
Ms. Burrell reported that Claimant took anticonvulsant medications for seizures and
ibuprofen for headaches. (R. 42-43.) She testified that Claimant had side effects from
the medications including “confusion, trouble concentrating, memory problems, anxiety,
depression, tiredness.” (R. 43.) She indicated that her daughter had problems with
memory, concentration and had headaches that required her to lie down. (R. 51-55.)
Ms. Burrell asserted that Claimant received poor grades in school and took online
courses because of her struggling grades, bullying and concentration issues in regular
classes. (R. 46, 50.) Ms. Burrell testified that Claimant was frequently absent from
school due to seizures. (R. 51.)
A. Standard of Review
A decision by an ALJ becomes the Commissioner’s final decision if the Appeals
Council denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
Under such circumstances, the district court reviews the decision of the ALJ. (Id.)
Judicial review is limited to determining whether the decision is supported by substantial
evidence in the record and whether the ALJ applied the correct legal standards in
reaching her decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971). A “mere scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d 589,
593 (7th Cir. 2002). Even when there is adequate evidence in the record to support the
decision, the findings will not be upheld if the ALJ does not “build an accurate and
logical bridge from the evidence to the conclusion.” Berger v. Astrue, 516 F.3d 539, 544
(7th Cir. 2008). If the Commissioner’s decision lacks evidentiary support or adequate
discussion of the issues, it cannot stand. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
The “findings of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Though the standard
of review is deferential, a reviewing court must “conduct a critical review of the
evidence” before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d
663, 665 (7th Cir. 2008). It may not, however, “displace the ALJ’s judgment by
reconsidering facts or evidence, or by making independent credibility determinations.”
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The reviewing court may enter a
judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
B. Analysis under the Social Security Act
To be eligible for disability benefits, a claimant must establish that he suffers from
a “disability” as defined by the Social Security Act (“SSA”) and regulations. A child is
disabled if he or she has a “physical or mental impairment, which results in marked and
severe functional limitations, and... which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The SSA
employs a three-step analysis to decide whether a child meets this definition. 20 C.F.R.
§ 416.924. First, if the child is engaged in substantial gainful activity, his or her claim is
denied. (Id.) Second, if the child does not have a medically severe impairment or
combination of impairments, then his or her claim is denied. (Id.) Finally, the child's
impairments must meet, or be functionally equivalent, to any of the Listings of
Impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
To determine if an impairment is functionally equivalent to a listing, an ALJ
analyzes the severity of the impairment in six domains: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others;
(4) moving about and manipulating objects; (5) caring for yourself; and (6) health and
physical well-being. 20 C.F.R. § 416.926a(b). To functionally equal the listings, the ALJ
must find an “extreme” limitation in one category or a “marked” limitation in two
categories. 20 C.F.R. § 416.926a(d). An “extreme” limitation occurs when the
impairment interferes very seriously with the claimant’s ability to independently initiate,
sustain or complete activities. 20 C.F.R. § 416.926a(e)(3)(i). A “marked” limitation is
one which interferes seriously with the child’s ability to independently initiate, sustain, or
complete activities. 20 C.F.R. § 416.926a(e)(2)(i).
C. ALJ’s Determination
Here, the ALJ found that: (1) Claimant was born on January, 15 1997 and was in
the “adolescent” child category when she applied for disability benefits and at the time
of the hearing; (2) Claimant has not engaged in substantial gainful activity since the
November 5, 2012 application date; (3) Claimant suffers from the severe impairments of
epilepsy and headaches; (4) Claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Claimant does not have an
impairment or combination of impairments that functionally equals the severity of the
listings; and (6) Claimant has not been disabled, as defined in the SSA, since the date
the application was filed. (R. 21-31.)
To support her determination, the ALJ summarized Claimant’s symptoms as
reported by Claimant’s mother and as reported to various medical professionals. (R.
22-23.) The ALJ concluded that Claimant’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible.” (R. 23.)
The ALJ also summarized the opinions of various doctors who examined
Claimant or reviewed the medical record. (R. 24-26). The ALJ accorded “great weight”
to the opinions of state agency psychologist Dr. James Wanstrath and state agency
medical consultant Dr. Chrys Synstegard, “since they are consistent with the bulk of the
medical evidence.” (R. 25-26.) Regarding the opinion of state agency psychologist Dr.
Crockett, the ALJ “gave substantial weight” to Dr. Crockett’s GAF score “since it is
supported by Dr. Crockett’s objective exam findings.” (R. 25.) By contrast, the ALJ
gave “less weight” to the other limitations opined by Dr. Crockett “because they appear
to be contradicted by Dr. Crockett’s evaluation results and by Dr. Crockett’s GAF score.”
(Id.) Similarly, the ALJ accorded “little weight” to the opinions of treating neurologist, Dr.
Brooks-Kayal, “since they are inconsistent with Dr. Brooks’ treatment records.” (R. 24.)
With regards to Dr. Mazin’s opinion, the ALJ indicated that she “does not know how
much weight” to give to the form inquiring about adult functional limitations, but
nonetheless found Dr. Mazin’s assessment to be “inconsistent with a finding of
disability.” (R. 26.)
In challenging the ALJ’s decision, Claimant now argues that the ALJ’s functional
equivalency assessment was not supported by substantial evidence. Specifically,
Claimant asserts that the ALJ erred by: (1) improperly weighing the opinion of
Claimant’s treating neurologist, Dr. Brooks-Kayal; (2) failing to properly weigh the
teacher questionnaire from Claimant’s math teacher and school nurse; and (3)
improperly formulating the functional equivalence analysis without guidance from any
D. The ALJ improperly weighed the opinion of Claimant’s treating
neurologist, Dr. Brooks-Kayal.
In evaluating a claim of disability, an ALJ “must consider all medical opinions in
the record.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); see 20 C.F.R. §
404.1527(b). The opinion of a treating physician is afforded controlling weight if it is
both “well-supported” by clinical and diagnostic evidence and “not inconsistent with the
other substantial evidence” in the case record. 20 C.F.R. § 404.1527(c)(2); see Scott v.
Astrue, 647 F.3d 734, 739 (7th Cir. 2011). Because of a treating doctor’s “greater
familiarity with the claimant’s condition and circumstances,” Gudgel v. Barnhart, 345
F.3d 467, 470 (7th Cir. 2003), an ALJ must “offer ‘good reasons’ for discounting a
treating physician’s opinion.” Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010)
(citations omitted); see also See Stage v. Colvin, 812 F.3d 1121, 1126 (7th Cir. 2016).
Those reasons must be “supported by substantial evidence in the record; a contrary
opinion of a non-examining source does not, by itself, suffice.” Campbell, 627 F.3d at
Even where a treater’s opinion is not given controlling weight, an ALJ 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).
The ALJ must then provide a “sound explanation” for that decision. Punzio v. Astrue,
630 F.3d 704, 710 (7th Cir. 2011).
Here, the ALJ improperly discounted the opinion of Dr. Brooks-Kayal. It is
undisputed that Dr. Brooks-Kayal is Claimant’s treating neurologist. The ALJ herself
recognized that Claimant received treatment from Dr. Brooks-Kayal for epilepsy and
headaches from 2012 to 2014. (R. 24.) However, the reason the ALJ gave to reject Dr.
Brooks-Kayal’s opinion was insufficient to discount her medical opinion as a treating
To begin, the ALJ accorded “little weight” to the opinion of Dr. Brooks-Kayal,
asserting that her opinion is “inconsistent” with her own treatment notes. (R. 24.)
However, the ALJ failed to explain how Dr. Brooks-Kayal’s opinion was inconsistent with
her treatment notes or point to any inconsistencies. See Clifford v. Apfel, 227 F. 3d
863, 871 (7th Cir. 2000) (finding that the 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). Without such a logical bridge, the Court
cannot trace the path of the ALJ’s reasoning.
Moreover, although the ALJ is entitled to not give Dr. Brooks-Kayal’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. BrooksKayal’s “are still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.” (Id) (emphasis added). 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. Brooks-Kayal’s treating
relationship with Claimant, the frequency of examination, the supportability of the
decision, the consistency of the opinion with the record as a whole, or whether Dr.
Brooks-Kayal had a relevant specialty. Accordingly, the ALJ impermissibly rejected Dr.
Brooks-Kayal’s opinion before engaging in the required discussion. Without the
requisite “good reasons” for rejecting Dr. Brooks-Kayal’s opinion, the ALJ committed
reversible error, which requires remand.
E. The ALJ improperly considered the Teacher Questionnaire.
Claimant also argues that the ALJ erred by not properly considering the Teacher
Questionnaire jointly submitted by Claimant’s math teacher and school nurse. Under
the Social Security Regulations, evaluations from school personnel are considered
“other source” opinions. See SSR 06-3p. While other sources “cannot establish the
existence of a medically determinable impairment,” they are considered “valuable
sources of evidence for assessing impairment severity and functioning.” (Id.) “[A]n ALJ
must weigh all the evidence and may not ignore evidence that suggests an opposite
conclusion.” Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) citing Whitney v.
Schweiker, 695 F.2d 784, 788 (7th Cir. 1982); see also SSR (“[T]he Act requires us to
consider all of the available evidence in the individual’s case record in every case.”)
The Seventh Circuit has found that failure to discuss portions of teacher reports that
were favorable to the claimant amounts to reversible error. See Hopgood v. Astrue, 578
F.3d 696, 700 (7th Cir. 2009); see also Murphy v. Astrue, 496 F.3d 630, 634-35 (7th Cir.
2007) (reversing the ALJ’s failure to address school records contrary to his conclusion).
Here, although the ALJ mentioned the teacher’s questionnaire at several points
in her decision (R. 27, 29, 30, 31), she did not address portions of the questionnaire that
were favorable to Claimant. For instance, the ALJ failed to discuss limitations noted in
the Teacher Questionnaire in the second domain of attending and completing tasks,
where seven of the thirteen areas were assessed as either serious or very serious
problems. (R. 175.) Likewise, the ALJ did not recognize that ten of the thirteen areas in
the third domain of interaction and relating with others were found to be serious or very
serious problems. (R. 176.) Without mention of this contrary evidence, the Court
cannot assess if and to what extent the ALJ considered this evidence in her
determination. The ALJ committed reversible error by ignoring the contradictory
evidence. On the whole, the ALJ’s errors here are particularly noteworthy given that the
ALJ found that Claimant met the severity of one domain. This would mean that a similar
finding with respect to only one other domain would have resulted in a finding of
disability. The ALJ should take care to properly consider the teacher questionnaire on
F. The ALJ did not “play doctor” by basing her determination on a nonexamining agency opinion.
Claimant next argues that the ALJ erred by formulating the functional
equivalence analysis without guidance of any examining opinion. The Claimant asserts
that the ALJ “has apparently succumbed to the temptation to play doctor by discounting
all opinion evidence from examining and observing sources.” (Claimant’s Mem. at 15.)
Claimant cites to the unpublished Seventh Circuit opinion, Suide v. Astrue, 371 Fed.
Appx. 684, 690 (7th Cir. 2010), for the proposition that the ALJ may not substitute her
own lay judgment for opinions in the record. However, that is not what happened in this
case. Here, the ALJ relied on the opinion of non-examining agency consultants, Drs.
Wanstrath and Synstegard in formulating her functional equivalence analysis. (R. 2526.) Nowhere in Suide does the court say that an ALJ cannot rely on a non-examining
physician opinion. In fact, the Seventh Circuit has found that an ALJ “must consider the
entire record, but the ALJ is not required to rely entirely on a particular physician’s
opinion or choose between the opinions . . .” Schmidt v. Astrue, 496 F.3d 833, 845 (7th
So, while the Court disagrees with the general assertion that the ALJ “played
doctor” when basing her opinion on non-examining physician opinions, as explained
above, the Court finds that the ALJ otherwise improperly weighed the opinion evidence
of treating physician Dr. Brooks-Kayal, and improperly ignored contradictory evidence in
the Teacher Questionnaire. Accordingly, the case must be remanded for further
consideration, including a proper assessment of all of the evidence in the record.
For the reasons stated above, Claimant’s request for summary judgment is
granted and the Commissioner’s motion for summary judgment is denied. This case is
remanded for further proceedings consistent with this Memorandum Opinion and Order.
It is so ordered.
Michael T. Mason
United States Magistrate Judge
Dated: February 23, 2017
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