Smith v. Colvin

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 6/11/2018.(rbf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OMEGA DASHA SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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No. 16 CV 9976
Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Plaintiff Omega Smith (“Claimant”) filed a motion for summary judgment seeking
reversal of the final decision of the Commissioner of Social Security (“Commissioner”),
finding that her disability ended on November 1, 2012. The Commissioner has filed a
cross-motion asking the Court to uphold the previous decision. For the reasons set
forth below, Claimant’s motion for summary judgment (Dkt. 15) is granted and the
Commissioner’s motion for summary judgment (Dkt. 16) is denied.
I. Background
A. Procedural History
In a previous determination by an Administrative Law Judge (“ALJ”) (that is not in
the record before the Court), Claimant was found to be disabled and entitled to
Supplemental Security Income (“SSI”) as of June 9, 2009 due to Listing level major
depressive disorder and generalized anxiety. (R. 76.) But on November 21, 2012,
following a periodic review of Claimant’s disability, the Social Security Administration
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(“SSA”) determined that Claimant’s condition had improved and her disability had ended
as of November 1, 2012. (R. 76, 78-80, 82.) This determination was upheld at the
reconsideration level following a hearing by a Disability Hearing Officer (“DHO”). (R. 89100, 105-115.) Claimant then requested a hearing before an Administrative Law Judge
(“ALJ”), which was held on November 24, 2014. (R. 42.) On March 16, 2015, the ALJ
issued a written decision, affirming the decision that Claimant’s disability ended on
November 1, 2012. (R. 22-36.) On August 26, 2016, the Appeals Council denied
Claimant’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (R. 1-3.) This action followed.
B. Relevant Medical Evidence
1. Treating Physicians
Again, Claimant was previously granted benefits in 2009 for Listing level
depression and anxiety. The medical records from that time period are not in the record
before the Court. However, it appears that, among other things, Claimant suffered from
obesity, appetite disturbance, sleep disturbance, difficulty concentrating and thinking,
and paranoia. (R. 394.)
The medical records currently before the Court date back to July 2009 and
demonstrate visits with psychiatrist Dr. Doshi about every three months through 2014.
(R. 269-73.) At the first visit in July 2009, Dr. Doshi assessed general anxiety disorder
and depression, and a GAF score of 40-50. (R. 269.) Over the course of her treatment
with Dr. Doshi, Claimant often reported she was “doing well.” (R. 270-73.) At other
times, she reported lingering anxiety and increased symptoms due to certain events.
(Id.) For example, she complained of increased depression following the 2010 holiday

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season and increased anger following a verbal altercation in 2012. (R. 271-72.) She
also reported that she suffers from nightmares. (R. 271.) Throughout this period,
Claimant continued to take Prozac and Klonopin.
In November 2011, Claimant’s counselor, Ms. Neely, completed an updated
mental health assessment. (R. 324-33.) The mental status exam yielded normal
results. (R. 324.) Claimant reported she enjoyed watching television, shopping, and
her son’s school activities. (R. 330.) She explained that she gets support from her
mother and grandmother, and can “usually” communicate with others. (Id.) Overall,
things were “going well,” though she admitted to “some anxiety when dealing with
family.” (R. 332.) Claimant’s diagnoses and GAF score were the same as previously
assessed by Dr. Doshi. (R. 333.)
In April 2012, Claimant reported to the ER complaining of back pain after lifting a
heavy object. (R. 307.) She described a history of depression. (Id.) She was given
pain medication and discharged. (R. 301.) Claimant returned to the ER in August 2012
due to bilateral knee pain and swelling. (R. 315.) The examining physician assessed
arthritis, prescribed pain medication, and advised Claimant to follow up with a primary
care physician. (R. 314.)
Ms. Neely completed another updated health assessment in November 2012.
(R. 369-78.) Though the mental status exam was normal, Claimant reported she had
good days and bad days, and had been suffering from recent mild knee pain. (R. 369,
371.) She said she keeps to herself because she does not communicate well with
others. (R. 375.) Overall she was doing well, and taking her medication as prescribed.
(R. 377.) By early 2013, Claimant’s suicidal ideations had increased due to the holiday

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season. (R. 379.) She was doing “about the same” in April 2013, and she was sleeping
well, but “irritable at times.” (R. 408). Her complaints of knee pain also continued at
that time. (R. 464.) She had no complaints in January 2014, though her grandmother
was doing poorly. (R. 407.) Her Klonopin dosage was increased later that year. (Id.)
Also, in August 2014, Claimant was treated for tendinitis in her left foot. (R. 436-39.)
By January 2015, Dr. Doshi described Claimant as “stable enough.” (R. 413.)
Dr. Doshi also completed a mental impairment questionnaire. (R. 404-06.) He
indicated that Claimant’s medication partially helps her symptoms and described her
prognosis as “ongoing.” (R. 404.) He indicated that Claimant suffered from: change in
personality, irrational fear, emotional withdrawal, difficulty concentrating, panic attacks,
isolation, sleep disturbance, and decreased energy. (R. 405.) He opined that Claimant
suffers from marked limitations in activities of daily living and maintaining concentration,
persistence and pace; extreme limitations in social functioning; and four or more
episodes of decompensation. (Id.)
At general physical visits over the years, Claimant usually denied feeling “down,
depressed or hopeless” in response to the general depression screening. (R. 278,
286.)
2. Agency Physicians
In November 2012, Claimant underwent an internal medicine consultative exam
with Dr. Karri. (R. 336-39.) She described a history of depression, anxiety, arthritis in
the knees, low back pain, and obesity. (R. 336.) She could do some driving, but said
she did not do chores at home. (R. 337.) A physical exam revealed crepitus and

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tenderness in her knees, and decreased range of motion of the lumbar spine. (R. 338.)
A mental status exam was normal, though Claimant was somewhat anxious. (Id.)
Also in November 2012, a reviewing physician opined that Claimant suffered
from non-Listing level depression and anxiety that would cause mild limitations in daily
activities and moderate limitations in social functioning and concentration, persistence
and pace. (R. 341-54.) Specifically, the agency physician opined that Claimant would
be moderately limited in her ability to work with others and to accept instructions and
respond appropriately to criticism. (R. 363-65.) From a physical standpoint, another
agency physician determined that Claimant could perform light work, with only
occasional climbing of ladders, ropes, and scaffolds due to her history of arthritis and
back pain. (R. 355-62.) Due to her asthma, she should also avoid concentrated
exposure to fumes. (R. 359.)
Similar physical RFC findings were made at the reconsideration level in March
2013. (R. 396-403.) However, from a mental standpoint, the reviewing physician
determined that Claimant would only suffer from mild limitations in daily activities and
maintaining social functioning. (R. 392.) In his opinion, medical improvement had
occurred since the previous decision awarding benefits. (R. 394.) The DHO also found
that medical improvement had occurred and that Claimant could perform her past work
as a daycare center worker. (R. 105-114.)
C. Claimant’s Testimony
Claimant appeared at the hearing with counsel and offered the following
testimony. At the time of the hearing, she was 38 years old and living with her two

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children, ages 11 and 15. (R. 48-49.) She did not finish high school and had not
worked since 2003 when she was a part-time teacher’s aide. (R. 49.)
Claimant explained that she has difficulty dealing with stress, pressure and
anger, and often shuts down or has an outburst. (R. 56-60.) She suffers from regular
crying spells and has vivid nightmares of being hurt or chased, which cause paranoia
and a fear of crowds. (R. 58-61.) Claimant estimated that she reads at a fifth grade
level and explained that her attention span “wouldn’t be that good” in a work setting. (R.
60-61.) Claimant testified that she had been seeing her psychiatrist every two to three
months since about 2009, and her current therapist every two weeks since about 2011.
(R. 55.) Although in the past she had problems taking her medications consistently, she
testified that she had been more consistent over the past year. (R. 57.) She had not
completed any inpatient mental health treatment, but sometimes feels like she should.
(R. 57.)
From a physical standpoint, Claimant testified that she had been under the care
of a doctor for arthritis in her knees for the past few years, and also suffers from back
pain. (R. 50, 54.) She takes pain medication and had recently undergone physical
therapy for a problem with her Achilles tendon. (R. 50-51.) She was prescribed an
inhaler in the past for breathing difficulties, but had not used it recently. (R. 65.)
According to Claimant, she is unable to stand for more than ten minutes at a time and
has trouble getting up and down the stairs. (R. 52.) She struggles to complete
household tasks because she has to take breaks. (R. 52-53.)
Claimant has one friend that she can call, but otherwise does not socialize with
friends or family. (R. 53, 63.) She does not attend her kids’ school activities because

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she does not like the crowds. (R. 53, 60.) Her mom comes over to help two or three
times a week, particularly on bad days when she is overwhelmed and tired. (R. 62-63.)
When asked by her attorney if things had gotten better or worse since her last hearing,
she testified that she had not gotten better and that she just wanted “to get help” in the
way of someone she could talk to more frequently. (R. 64.)
D. Vocational Expert’s Testimony
A vocational expert (“VE”) also appeared at the hearing. Based on a hypothetical
posed by the ALJ (describing someone with the RFC indicated below), the VE testified
that such an individual could work as a cashier, hand packager, or assembler. (R. 6768.) The VE also testified that an individual who would be off task 25% of the day, three
times a week, could not sustain employment in those jobs. (R. 69.) Upon questioning
by Claimant’s counsel, the ALJ confirmed that being off task 15-20% of the day multiple
times a week would also preclude employment. (R. 70.) The VE also agreed that the
cashier job would include potentially stressful rush periods, and that the other two jobs
would likely carry certain production requirements. (R. 70-71.) Lastly, the VE
explained that during an initial probationary period of employment, absences would
likely not be tolerated. (R. 71.)
II. Analysis
A. Standard of Review
This Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002). Substantial evidence is more than a scintilla of evidence; it is “such
relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). We must consider
the entire administrative record, but will not “reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the Commissioner.”
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (citing Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000)). This Court will “conduct a critical review of the evidence” and
will not let the Commissioner’s decision stand “if it lacks evidentiary support or an
adequate discussion of the issues.” Lopez, 336 F.3d at 539 (quoting Steele, 290 F.3d
at 940).
In addition, while the ALJ “is not required to address every piece of evidence,” he
“must build an accurate and logical bridge from evidence to his conclusion.” Clifford,
227 F.3d at 872. The ALJ must “sufficiently articulate [his] assessment of the evidence
to assure us that the ALJ considered the important evidence … [and to enable] us to
trace the path of the ALJ’s reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.
1993) (per curiam) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
B. Analysis under the Social Security Act
To be eligible for SSI benefits, a claimant must be disabled under the Social
Security Act. A claimant is disabled if she is “unable 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 twelve months.” 42 U.S.C.A. § 1382c(a)(3)(A).
After the SSA determines that a claimant is disabled, it must evaluate the claimant’s
impairments “from time to time” to determine if the claimant remains eligible for benefits.

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20 C.F.R. § 416.989. When determining a claimant’s continued eligibility for benefits,
the SSA must consider whether there has been any “medical improvement” in the
claimant’s impairments and, if so, whether the improvement is related to the ability to
work. 20 C.F.R. § 416.994. In addition, the SSA must establish that the claimant is
able to engage in substantial gainful activity before determining she is no longer
disabled. Id. To make these determinations, ALJs are expected to follow a seven-step
process laid out in 20 C.F.R. § 416.994(b)(5).
Here, the ALJ applied the seven-step process when assessing whether Claimant
continued to be disabled and entitled to SSI. First, the ALJ acknowledged that at the
time of the “comparison point decision,” Claimant suffered from Listing level severe
impairments of major depressive disorder (Listing 12.04) and generalized anxiety
disorder (Listing 12.06) (R. 23.) Next, the ALJ found that as of November 1, 2012,
Claimant had the following severe impairments: depression, anxiety, obesity, and
chronic degenerative joint disease in both knees. (R. 24.) He did not find Claimant’s
back pain, tendonitis, or asthma to be severe. (Id.) According to the ALJ, Claimant’s
impairments no longer met any of the SSA’s Listings, including Listings 12.04, 12.06,
and 1.02 (dysfunction of joints). (R. 24-26.)
At step two, the ALJ concluded that medical improvement had occurred as of
November 1, 2012. (R. 27.) In doing so, the ALJ cited to the previous ALJ’s decision
and some of the evidence apparently cited therein. (Id.) Ultimately, the ALJ determined
that Claimant’s symptoms had improved, in part because she often reported “doing
well,” and continued to take her prescribed medication. (Id.) The ALJ found Claimant’s
medical improvement related to her ability to work at step three because she no longer

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had symptoms of Listing-level impairments. (R. 27-28.) But the ALJ did find that
Claimant’s impairments continued to cause more than minimal limitations in her ability
to work. (R. 28.)
The ALJ went on to assess Claimant’s RFC, finding that Claimant could perform
light work as defined in 20 C.F.R. 416.967(b), except that she could not climb ladders,
ropes, or scaffolds; could only occasionally climb ramps and stairs, stoop, kneel, crouch
and crawl; and must avoid concentrated exposure to pulmonary irritants. (R. 28-35.)
Further, the ALJ found that Claimant could understand, remember and complete simple
instructions; execute simple workplace judgments; and perform work involving
occasional decision-making and changes in the work setting. (Id.) She must have no
more than brief and superficial interactions with the general public and only occasional
contact with co-workers and supervisors. (Id.) Claimant had no past relevant work to
consider at step six. (R. 35.) But at the final step, based on Claimant’s RFC and the
testimony of the VE, the ALJ found that Claimant could perform work in the national
economy, including in the positions of cashier, hand packager, and assembler. (R. 3536.)
Claimant now argues, for a number of reasons, that the ALJ’s decision is not
supported by substantial evidence and requires remand. The Court agrees.
C. The ALJ’s Decision is Not Supported by Substantial Evidence and
Remand is Required.
First, the Court would be remiss not to point out a concern that was raised only in
passing by Claimant and that was not addressed by the Commissioner. As mentioned
above, the administrative record before the Court does not include the previous ALJ’s
opinion or the records relied upon to find Claimant disabled. The Court acknowledges
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that the ALJ referenced the earlier opinion and that the DHO’s report described some of
the previous evidence. But without the benefit of the actual records and previous
opinion, it is difficult to determine whether the ALJ made a proper comparison of the
previous records and the current records. See Bartruff v. Astrue, No. 12 CV 571, 2013
WL 498790, at *6 (S.D. Ill. Jan. 10, 2013), report and recommendation adopted, No. 12
CV 571, 2013 WL 498788 (S.D. Ill. Feb. 8, 2013) (“[Medical improvement] is determined
by a comparison of prior and current medical evidence which must show that there have
been changes (improvement) in the symptoms, signs or laboratory findings associated
with that impairment(s).”). It is worth noting that courts in other jurisdictions have
remanded on this basis even where, as here, some of the earlier records were
otherwise summarized in the current record. See, e.g. Medina v. Colvin, No. 14 CV
01967, 2015 WL 5448498, at *11 (N.D. Cal. Aug. 21, 2015); Veino v. Barnhart, 312 F.3d
578, 587 (2d Cir. 2002) (“The Commissioner also argues that the record before us is
adequate because the 1982 medical evidence was summarized in the Hearing Officer’s
decision....The difficulty with the Commissioner’s position is that these decisions are not
evidence .... without any of the 1982 medical evidence in the record before us, this
Court cannot make a reasoned determination as to whether the DHO’s summary is
accurate or adequate.”).
Notwithstanding the lack of a full record, the Court agrees that the ALJ’s opinion
is otherwise flawed. Though the ALJ summarized some of the current medical
evidence, he relied too heavily on Dr. Doshi’s progress notes that Claimant was “doing
well.” In doing so, he improperly glossed over, or otherwise ignored, some of Dr.
Doshi’s notes reflecting occasional ups and downs in her progress, often triggered by

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interactions with others or circumstances outside her control (both of which would occur
in the workplace). See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ
has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of non-disability while ignoring evidence that points to a
disability finding.”). Further, without the previous records, it is hard to know whether the
ups and downs are consistent with Claimant’s history, which, if they were, could weigh
in favor of continued disability.
The ALJ was also quick to discredit the opinion of Dr. Doshi, who had been
treating Claimant regularly for over five years. As explained above, Dr. Doshi’s opinion
was that Claimant suffered from a number of debilitating symptoms that caused her
marked and extreme limitations. From what we do know, the symptoms recognized by
Dr. Doshi are similar to those previously found to support a finding of disability. Yet, the
ALJ discredited Dr. Doshi’s opinion as unsupported by the objective findings and
otherwise contradictory with other record evidence under the treating physician rule.
See Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006) (“The [treating physician]
rule directs the administrative law judge 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.”).
As Claimant points out, in the context of mental health impairments, it can
certainly be more difficult to hone in on specific objective findings. Notably, in this case
both Dr. Doshi and Ms. Neely repeatedly documented Claimant’s GAF score as 40-50
throughout the relevant time period. Such a score range is indicative of “serious

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symptoms,” such as suicidal ideation, severe obsessional rituals, or frequent shoplifting
or “any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job, cannot work).” Simpson v. Berryhill, No. 17 CV 2299,
2018 WL 2238593, at *2 n.4 (N.D. Ill. May 16, 2018). Such scores seem to support Dr.
Doshi’s opinion. While the ALJ was not necessarily required to give weight to the GAF
scores, see Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010), on this record, his
decision to discredit those scores as “limited” in “evidentiary value,” seems to have been
a result of improper cherry picking.
Further, the ALJ cited to Claimant’s negative depression screenings at
Claimant’s visits for physical impairment issues. But it is not surprising that Claimant,
who was already receiving regular treatment from a psychiatrist and counselor, chose
not to delve into her mental health issues at visits with general practitioners.
Lastly, the ALJ seemed to rely too heavily on Claimant’s daily activities,
particularly that of raising her children, which she does with assistance. As the Seventh
Circuit has cautioned, ALJs should avoid placing “undue weight on a claimant's
household activities in assessing the claimant’s ability to hold a job outside the home.”
Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006).
The Court is of the opinion that all of these shortcomings leave the ALJ’s
decision without substantial support. As such, remand is required. On remand, the ALJ
should better consider and articulate the combined effect, if any, of Claimant’s morbid
obesity and her other impairments (severe or not) on her ability to work.
III. Conclusion

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For the foregoing reasons, Claimant’s motion for summary judgment is granted
and the Commissioner’s motion for summary judgment is denied. This case is
remanded to the Social Security Administration for proceedings consistent with this
Opinion. It is so ordered.

_______________________________
The Honorable Michael T. Mason
United States Magistrate Judge

DATED: June 11, 2018

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