Merle v. Colvin

Filing 19

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 6/15/2017: Nancy Berryhill, acting Commissioner of Social Security, is substituted as the defendant in this case. For the reasons stated above, the Court grants plaintiff& #039;s motion for summary judgment [dkt. no. 8] and denies defendant's motion [dkt. no. 16]. The Clerk is directed to enter judgment remanding the case to the Social Security Administration for further proceedings consistent with this decision. Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JEREMY MERLE,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, 1
Defendant.

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Case No. 16 C 5550

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jeremy Merle seeks review of an administrative law judge's decision that he is
not disabled under the Social Security Act and therefore not entitled to supplemental
security income benefits. Merle argues that the ALJ mischaracterized the medical
record, improperly discounted the opinions of his treating mental health professionals,
improperly discounted his credibility, and failed to properly evaluate the vocational
expert's testimony. He has appealed the decision and has moved for summary
judgment. The Commissioner of Social Security has cross-moved for summary
judgment, asking to uphold the decision. For the reasons stated below, the Court grants
Merle's motion for summary judgment, denies the Commissioner's motion, and remands
the case for further consideration.

On the Court's motion, Nancy A. Berryhill, who became acting Commissioner of Social
Security in January 2017, is substituted as the defendant in this case.

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Background
Merle applied for child's insurance benefits and supplemental security income
benefits on November 28, 2012. He stated that he suffered from severe attention deficit
hyperactivity disorder (ADHD), bipolar disorder, anxiety disorder, and a history of
polysubstance abuse. Merle initially alleged a disability onset date of May 1, 2005. He
later withdrew his claim for child's insurance benefits and amended his onset date to
November 28, 2012.
The Social Security Administration (SSA) denied Merle's application on March 1,
2013 and again upon reconsideration on September 5, 2013. Merle then filed a written
request for a hearing. On October 14, 2014, Merle appeared with his attorney at a
hearing before an administrative law judge. Merle; Dr. Mark Oberlander, an expert
requested by the SSA to review the records of Merle's psychiatric treatment; and
Margaret Ford, a vocational expert, testified at the hearing. On January 30, 2015, the
ALJ issued his decision, finding Merle not disabled.
In his decision, the ALJ applied the five-step sequential evaluation process
established by the SSA to determine whether an individual is disabled. See 20 C.F.R. §
404.1520(a). At step one, the ALJ found that Merle had not engaged in substantial
gainful activity since November 28, 2012. At step two, the ALJ found that Merle had
severe impairments of ADHD, bipolar disorder, anxiety disorder, and a history of
polysubstance abuse/alcoholism.
At step three, the ALJ determined that the severity of Merle's impairments did not
meet or medically equal the severity of the listed impairments found in 20 C.F.R. § 404,
Subpart P, Appendix 1. The listed impairments the ALJ considered were 12.02 (organic

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mental disorders), 12.04 (affective disorders), 12.06 (anxiety-related disorders), and
12.09 (substance addiction disorders).
The ALJ first considered whether Merle's impairments satisfied the "paragraph B"
criteria of the listed impairments. Paragraph B provides a set of functional limitations
related to the impairments under 12.02, 12.04, 12.06, and 12.09. To satisfy paragraph
B, the claimant's impairments must meet the requisite degree of limitation in one or
more of the following categories: activities of daily living; maintaining social functioning;
maintaining concentration, persistence, or pace; and episodes of decompensation. The
ALJ also evaluated whether Merle's impairments satisfied the "paragraph C" criteria
under 12.02, 12.04, and 12.06. The additional functional limitations under paragraph C
may be considered, but only if the paragraph B criteria are not met.
The ALJ concluded that neither the paragraph B nor the paragraph C criteria
were satisfied. To reach this conclusion, the ALJ reviewed the opinion of Dr.
Oberlander as well as the opinions of Dr. Richard Hamersma and Dr. David Voss, state
agency medical consultants who reviewed records of Merle's treatment and provided an
assessment of his residual functional capacity (RFC). The ALJ stated that these
experts were "unanimous in their firm opinions that [Merle] does not have mental health
problems of listing level severity." R. 22. The ALJ specifically adopted the opinion of
Dr. Oberlander "because he provided an extremely thorough analysis of [Merle's]
mental health status that in all respects is completely consistent with the clinical
information in the Merle case file." R. 22.
Addressing the effects of Merle's mental health issues, the ALJ found Merle had
"moderate restriction" in activities of daily living and social functioning because, among

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other activities, he could perform his own hygiene, prepare meals, use a computer,
attend classes at a community college, and tolerate occasional interaction with the
public. R. 22. The ALJ also stated that Merle had "moderate difficulties" maintaining
concentration, persistence, and pace. R. 23. Finally, the ALJ found that Merle had
experienced "no episodes of decompensation, which have been of extended duration."
R. 23.
At step four, the ALJ evaluated Merle's RFC to perform physical and mental work
activities. He concluded that Merle had the "[RFC] to perform a full range of work at all
exertional levels" but with certain non-exertional limitations. R. 23. In making this
determination, the ALJ examined the opinions of Merle's treating mental health
professionals, Dr. Suzanne Streicker, Dr. Elizabeth Brumfield, and Dr. Dale Gody. Dr.
Streicker was Merle's psychotherapist since 2009. The ALJ cited purported
inconsistencies between Dr. Streicker's formal correspondence and her treatment
notes. For example, he stated that Dr. Streicker noted in two undated letters that Merle
"had problems attending his college classes," "was anxious around people," and "was
still unable to function" despite moderate improvement in his anxiety and depression
due to his medications. R. 26. The ALJ then compared these statements with Dr.
Streicker's treatment notes, in which she stated Merle "was more productive," "school
was ok and fun," and "his computer classes were going great." R. 26. The ALJ also
stated that Dr. Streicker's opinion of Merle's marked limitations in the RFC questionnaire
that she had completed was contradicted by Merle's testimony about his participation in
recreational activities and his interactions with his parents and friends. R. 30. As a
result, the ALJ determined to "completely discount" Dr. Streicker's report, finding it to be

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"without persuasive credibility." R. 30.
The ALJ similarly discounted the opinion of Dr. Elizabeth Brumfield, Merle's
treating psychiatrist since 2008. He stated that in her RFC questionnaire and formal
reports, Dr. Brumfield noted Merle's extreme social anxiety, sleep problems, a
depressed mood, and inability to work due to overwhelming stress. R. 28. The ALJ
stated, however, that Dr. Brumfield had contradicted this assessment in her treatment
notes, which indicated that Merle had "a good mood," "was not psychotic," and that
"anxiety [was] not a big problem." R. 28. The ALJ found Dr. Brumfield's assessment
"unsound and not supported by the medical record, or even her own treatment notes."
R. 28.
The ALJ also cited the opinion of Dr. Dale Gody, Merle's psychotherapist from
2008 to 2010. He noted that Dr. Gody reported Merle's "significant psychiatric disorder
during the time he was in treatment with her." R. 27. The ALJ stated, however, that
because Dr. Gody had not seen Merle since 2010, "[t]his treatment gap made it
impossible for [Dr. Gody] to attest to his current status." R. 27. The ALJ did not specify
what weight he assigned to Dr. Gody's opinion.
The ALJ further discussed the weight he gave to the opinions of the nonexamining experts. He stated that Dr. Oberlander had convinced him that "a drug free
and sober Mr. Merle can understand, remember and carry out simple job instructions"
but "cannot tolerate stress emanating from numerically strict production demands that
must be accomplish with rigid time-sensitive boundaries." R. 24. According to the ALJ,
Dr. Oberlander also noted inconsistencies between the reports and the respective
treatment notes of Dr. Streicker and Dr. Brumfield. R. 33. Therefore, he adopted and

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gave "significant weight" to Dr. Oberlander's opinion. R. 33. The ALJ stated that Dr.
Oberlander's opinion "is controlling in this case and trumps all others. It is scientifically
sound and has a logic to it that it compelling." R. 28.
The ALJ also cited the RFC assessments completed by Dr. Hamersma and Dr.
Voss, the state agency consultants. He stated that both doctors "opined that [Merle]
had moderate limitations in his daily activities, his social functioning, and in maintaining
his concentration, persistence, and pace, with 1-2 episodes of decompensation of
extended duration." R. 30. Although the ALJ noted that he gave "the persuasion nod to
Dr. Oberlander," he gave Dr. Hamersma and Dr. Voss "substantial weight for their
extensive psychiatric assessments, which were similar to the opinion of Dr. Oberlander."
R. 24, 34.
Finally, the ALJ determined that although Merle's medically determinable
impairments reasonably could cause his alleged symptoms, his "statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible." R.
33. The ALJ cited a questionnaire Merle completed, highlighting that Merle noted "sleep
problems," "a depressed mood," and extreme difficulty working because "nearly every
day he is nervous, irritable, and afraid." R. 30. But because Dr. Brumfield's treatment
notes indicated that Merle was sleeping better and that his mood was variable, the ALJ
concluded that Merle's claims were "not supported by the accompanying records." R.
30. The ALJ also acknowledged that Merle had moderate limitations and found him
credible to the extent that he indicated "he cannot handle detailed or complex
instructions." R. 34. However, he pointed out that Merle had "a fairly good range of
daily activities," including performing household chores, attending gaming events, and

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having a girlfriend. R. 33. Ultimately, the ALJ found Merle "quite functional in
appropriate settings with activities that are right for him." R. 30.
At the final step of the sequential evaluation process, the ALJ found that "jobs
exist in significant numbers in the national economy that [Merle] can perform" given his
RFC, education, and work experience. R. 34. The ALJ relied on testimony from the
vocational expert, who testified that Merle could work as a marker (with 13,000 jobs in
Illinois and 300,000 nationally), an industrial cleaner (with 9,000 jobs in Illinois and
120,000 nationally), or a store laborer (with 4,000 jobs in Illinois and 67,000 nationally).
R. 35. Based on this testimony, the ALJ found that Merle was "capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy." R. 35. He concluded by finding that Merle "has not been under a disability."
R. 35.
On March 22, 2016, the Appeals Council denied Merle's request for review. As a
result, the ALJ's decision became the final decision of the Commissioner of Social
Security.
Discussion
Merle seeks judicial review of the Commissioner's decision to deny benefits
pursuant to 42 U.S.C. § 405(g). Merle has moved for summary judgment, asking the
Court to reverse the decision of the ALJ or to remand for a rehearing. The
Commissioner has cross-moved for summary judgment, asking the Court to affirm the
decision of the Commissioner.
The Court will affirm the decision of the ALJ if it is supported by "substantial
evidence." Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016). Substantial evidence

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is evidence that "a reasonable mind might accept as adequate to support a conclusion."
Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Although this standard is deferential to the ALJ's
determination, the Court must review the evidence critically. Minnick v. Colvin, 775 F.3d
929, 935 (7th Cir. 2015) (citing Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000)). In
addition, an ALJ must build a logical bridge from the evidence to his conclusion. Id.
Merle argues that the ALJ erred by 1) mischaracterizing the medical evidence to
find that Merle's impairments did not meet or equal the listing level severity, 2) failing to
defer to the opinions of the treating professionals, 3) determining that Merle was not
credible, and 4) failing to properly assess the vocational expert's testimony. The
Commissioner argues that the ALJ's findings were reasonable, not patently wrong, and
supported by substantial evidence. Because many of the parties' arguments regarding
the first two points overlap, the Court will address them together.
1.

ALJ's consideration of the medical evidence
and the treating professionals' opinions
Merle argues that the ALJ selectively considered the medical evidence and erred

in failing to give the opinions of his treating mental health professionals controlling
weight. Although an ALJ need not address every piece of testimony and evidence in his
decision, he "must weigh all the evidence" and may not ignore evidence that suggests a
disability finding. Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (quoting
Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982)). The ALJ must give a treating
physician's medical opinion controlling weight if it is well-supported by medical findings
and is consistent with other substantial evidence in the record. Jelinek v. Astrue, 662
F.3d 805, 811 (7th Cir. 2011) (citing 20 C.F.R. § 404.1527(d)(2)). When controlling
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weight is not given to the treating physician's opinion, the ALJ "is not permitted to simply
discard it." Scrogham, 765 F.3d at 697. Instead, he must determine what specific
weight to give the opinion and "must offer good reasons" for doing so. Brown v. Colvin,
845 F.3d 247, 252 (7th Cir. 2016). Moreover, an ALJ may not selectively consider the
medical reports of treating physicians. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir.
2009).
Here, the ALJ stated that Dr. Streicker and Dr. Brumfield, "the claimant's treating
psychiatric sources, are given little weight for their respective assessments, which are
extreme and inconsistent with the objective medical evidence of record, and even their
own treatment notes." R. 34. To support his conclusion, the ALJ discussed several
references. But upon close examination of these records, it is apparent that the ALJ
considered only evidence supporting his conclusion and ignored evidence corroborating
the treating professionals' opinions.
By way of example, the ALJ compared Dr. Streicker's letter, which described that
Merle was unable to function, with her treatment records, in which she stated that Merle
was working on a website for his parent's business. R. 519. The ALJ highlighted this
statement in his decision but failed to mention that, in the same note, Dr. Streicker also
wrote that Merle's "brain goes negative," he tries to avoid negative thoughts with
"unhealthy habits," and he needed to work on a "cycle of self-loathing and nonproductivity." Id. The ALJ also referred to a treatment note in which Dr. Streicker
reported that Merle indicated school was "OK-fun." R. 506. But the ALJ disregarded
Dr. Streicker's observations in the same note that described Merle as "depressed" and
having "a sense of inadequacy". Id. Similarly, although the ALJ indicated that one of

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Dr. Streicker's treatment notes stated that Merle did well in computer science, he
disregarded that the same note also reflected that Merle did not sleep for two days. R.
503. Finally, though the ALJ pointed out that Dr. Streicker described Merle was more
productive, he failed to mention that Dr. Streicker also described Merle as "more irritable
since last summer." R. 510.
The ALJ carried out a similarly selective review of Dr. Brumfield's opinion and
notes. The ALJ cited to Dr. Brumfield's treatment note, which stated that Merle was
looking into volunteer work, while omitting that Dr. Brumfield wrote in the same note that
Merle "remains unable to function." R. 575. The ALJ also cited Merle's "good mood"
and "improved productivity" in Dr. Brumfield's treatment notes as inconsistent with her
assessment of Merle's difficulty in sustaining tasks autonomously. R. 29. But in fact,
Dr. Brumfield's treatment notes also often mentioned Merle's depressed mood,
increased anxiety, and difficulty staying on track. See, e.g., R. 475, 477, 480, 481, 483,
486. The ALJ made no mention of these statements in finding an inconsistency
between Dr. Brumfield's opinion and her treatment notes.
An ALJ cannot ignore evidence that contradicts his conclusion, which is what the
ALJ did here. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012). The Seventh Circuit
has found this practice especially problematic where a mental impairment is at issue.
"A person who suffers from a mental illness will have better days and worse days, so a
snapshot of any single moment says little about [his] overall condition." See Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011). The ALJ should have analyzed whether Dr.
Brumfield's and Dr. Streicker's assessments were consistent with the entirety of their
treatment notes. Id. Instead, the ALJ selectively cited references in the notes

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consistent with his determination while failing to address other notes that put these in
context and tended to support the treatment professionals' conclusions.
Even if the ALJ had provided sound reasons for refusing to give the opinions of
the treating mental health professionals controlling weight, he failed to determine the
appropriate weight to give their opinions under the regulatory factors. Scott v. Astrue,
647 F.3d 734, 740 (7th Cir. 2011). Social security regulations require the ALJ to
consider "the length, nature, and extent of the treatment relationship, frequency of
examination, the physician's specialty, the types of tests performed, and the consistency
and supportability of the physician's opinion." Moss v. Astrue, 555 F.3d 556, 561 (7th
Cir.2009) (citing 20 C.F.R. § 404.1527(d)(2)). The ALJ discussed the perceived
inconsistencies of the physicians' opinions, but there is no indication that he considered
any other factor before assigning little weight to their opinions. Also absent from the
ALJ's decision was any assignment of weight to Dr. Gody's opinion. Although the ALJ
summarized Dr. Gody's opinion and noted Merle's treatment gap with her, he did not
indicate whether or how he considered Dr. Gody's opinion in his determination.
In sum, the ALJ's selective consideration of the medical record and his
insufficiently supported decision to discount the opinions of the treating professionals
warrant remand.
2.

ALJ's negative credibility determination
Merle also challenges the ALJ's negative assessment of his credibility. An

ALJ's credibility determination is entitled to deference, and the Court must accept the
determination unless it is patently wrong. Engstrand v. Colvin, 788 F.3d 655, 660 (7th
Cir. 2015). But although this standard is deferential, the ALJ must "consider the entire

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case record and give specific reasons for the weight given to the individual's
statements." Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir. 2012) (quoting Simila v.
Astrue, 573 F.3d 503, 517 (7th Cir. 2009)). A finding concerning a claimant's credibility
must also be supported by substantial evidence. McKinzey v. Astrue, 641 F.3d 884,
890 (7th Cir. 2011).
Here again, the ALJ appears to have based his credibility finding on selective use
and interpretation of the record. The ALJ referenced two questionnaires that Merle
completed. R. 30. In the first questionnaire, Merle indicated that nearly every day he
felt anxious, was unable to stop or control worrying, had trouble relaxing, and was easily
irritable. R. 567. He also noted that he regularly felt afraid that something awful might
happen. Id. Because of these feelings, Merle stated, it was extremely difficult to do
work, take care of things at home, and get along with others. Id. Merle's answers in the
second questionnaire were similar. He indicated that nearly every day he felt
depressed, had trouble falling or staying asleep, and felt bad about himself. R. 568.
The ALJ concluded that these claims "are not supported by the accompanying records"
that noted Merle was sleeping better and had variable mood and anxiety levels. R. 30.
However, the ALJ disregarded remarks in the treating medical professionals'
notes that were consistent with Merle's claims. The notes often indicated that Merle's
sleep pattern was "variable," "out of whack," and "bad." See R. 570, 573, 576, 579,
580. One treatment note stated that Merle was up for two-day stretches. R. 576.
Another stated that he would sleep for four hours and remain awake for the rest of the
night. R. 573. The ALJ failed to explain why Merle's repeated reports of poor sleep did
not support his complaints in the questionnaire. In addition, the ALJ stated that the

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treatment notes indicated Merle had variable mood and anxiety levels. However, he
neither specified how Merle's varied mood undermined his credibility nor explained why
his varied mood was inconsistent with complaints of feeling anxious, irritable, afraid, and
depressed nearly every day.
An ALJ must "competently explain an adverse-credibility finding with specific
reasons 'supported by the record.'" Engstrand, 788 F.3d at 660 (quoting Minnick, 775
F.3d at 937). Here, the ALJ concluded he "believes that [Merle] has variable moods
and anxiety levels" without explaining why what he cited in the treatment notes was
more persuasive than Merle's claims in the questionnaire and without dealing with
statements in the notes that supported Merle's claims. R. 30. The ALJ's improper
evaluation of the record and failure to adequately support his credibility determination
independently requires reversal and remand.
3.

ALJ's reliance on the vocational expert's testimony
Merle also argues that the ALJ erred in its treatment of the vocational expert's

testimony. In his decision, the ALJ relied on the vocational expert's determination of the
jobs available in Illinois and nationally based on an individual with Merle's age,
education, work experience, and RFC. The expert identified three types of jobs and
confirmed that they were consistent with the Dictionary of Occupational Titles ("DOT").
Based on this testimony, the ALJ concluded that Merle was "capable of making a
successful adjustment to other work that exists in significant numbers in the economy.
A finding of 'not disabled' is therefore appropriate . . . ." R. 35.
First, Merle asserts that the ALJ failed to properly assess the expert's testimony
and accepted it without question. The Seventh Circuit has expressed concern

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regarding the accuracy and source of the jobs contained in the DOT. See Voigt v.
Colvin, 781 F.3d 871, 879 (7th Cir. 2015); Browning v. Colvin, 766 F.3d 702, 709 (7th
Cir. 2014). However, neither case held that the ALJ's reliance on unexplained
vocational testimony warranted remand. See Fitzgerald v. Colvin, No. 15-CV-135-BBC,
2016 WL 447507, at *11 (W.D. Wis. Feb. 4, 2016) (describing the Seventh Circuit's
language on the issue as dicta). That said, this is a topic that the ALJ who reviews the
case on remand should consider addressing.
Finally, Merle argues that the ALJ should have considered the availability of jobs
in the particular region rather than state-wide and national job figures. But social
security regulations permit the consideration of work that "exists in the national
economy when it exists in significant numbers either in the region where you live or in
several other regions of the country. It does not matter whether — (1) Work exists in
the immediate area in which you live . . . ." 20 C.F.R. § 404.1566(a). Moreover,
although vocational experts have used an area smaller than an applicant's state to
determine the number of jobs available, the Seventh Circuit has accepted the use of
state-wide data to ascertain job availability. See Barrett v. Barnhart, 368 F.3d 691, 692
(7th Cir. 2004). See also Gonzalez v. Colvin, No. 12 C 10262, 2014 WL 4627833, at *8
(N.D. Ill. Sept. 16, 2014) (finding that the vocational expert did not err in defining the
relevant region as the State of Illinois). Because the vocational expert provided job
availability numbers for each relevant position in Illinois, the ALJ did not err in relying on
state-wide job figures in his decision.
Conclusion
Nancy Berryhill, acting Commissioner of Social Security, is substituted as the

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defendant in this case. For the reasons stated above, the Court grants plaintiff's motion
for summary judgment [dkt. no. 8] and denies defendant's motion [dkt. no. 16]. The
Clerk is directed to enter judgment remanding the case to the Social Security
Administration for further proceedings consistent with this decision.
Date: June 15, 2017
________________________________
MATTHEW F. KENNELLY
United States District Judge

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