Thomas v. Berryhill

Filing 21

MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 8/15/2017. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENJAMIN J. THOMAS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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No. 17 C 752
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Benjamin J. Thomas brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the Social Security Administration Commissioner’s decision denying his application for
benefits. For the reasons set forth below, the Court reverses the Commissioner’s decision.

Background
Plaintiff applied for benefits on May 8, 2013, alleging a disability onset date of June 1,
2000. (R. 82, 93.) His application was initially denied on September 4, 2013, and again on
reconsideration on March 10, 2014. (R. 93, 105.) Plaintiff requested a hearing, which was held
by an Administrative Law Judge (“ALJ”) on September 17, 2015. (R. 50-81.) On October 29,
2015, the ALJ issued a decision finding plaintiff not disabled. (R. 13-25.) The Appeals Council
declined to review the decision (R. 1-4), leaving the ALJ’s decision as the final decision of the
Commissioner, reviewable by this Court pursuant to 42 U.S.C. § 405(g). See Villano v. Astrue,
556 F.3d 558, 561-62 (7th Cir. 2009).

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, 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). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. The Commissioner must consider whether: (1) the claimant has
performed any substantial gainful activity during the period for which she claims disability; (2)
the claimant has a severe impairment or combination of impairments; (3) the claimant’s
impairment meets or equals any listed impairment; (4) the claimant retains the residual
functional capacity to perform her past relevant work; and (5) the claimant is able to perform any
other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245
F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four.
20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the
burden shifts to the Commissioner to establish that the claimant is capable of performing work
existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).

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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since his application date. (R. 15.) At step two, the ALJ determined that plaintiff has the severe
impairments of “organic mental disorder (neurodevelopmental disorder), major depressive
disorder, and personality disorder.” (Id.) At step three, the ALJ found that plaintiff does not
have an impairment or combination of impairments that meet or medically equal the severity of
one of the listed impairments. (R. 16.) At step four, the ALJ found that plaintiff has no past
relevant work but has the residual functional capacity (“RFC”) “to perform a full range of work
at all exertional levels” but is limited to “simple work [with] simple work-related decisions” and
“no interaction with the general public.” (R. 18, 24.) At step five, the ALJ determined that jobs
exist in significant numbers in the national economy that plaintiff can perform, and thus he is not
disabled. (R. 24-25.)
Plaintiff contends that the ALJs credibility determination is flawed.

Last year, the

Commissioner issued new guidance for evaluating symptoms in disability claims, which
“eliminate[es] the use of the term ‘credibility’” to “clarify that subjective symptom evaluation is
not an examination of an individual’s character.” See SSR 16-3p, 2016 WL 1119029, at *1
(Mar. 16, 2016). Though SSR 16-3p was issued after the ALJ’s decision in this case, it is
appropriate to apply it here because it is a clarification of, not a change to, existing law, see Pope
v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) (stating that courts give “great weight” to an
agency’s expressed intent to clarify a regulation), overruled on other grounds by Johnson v.
Apfel, 189 F.3d 561 (7th Cir. 1999), and is substantially the same as the prior regulation.
Compare SSR 96-7p, 1996 WL 374186 (July 2, 1996), with SSR 16-3p, 2016 WL 1119029
(Mar. 16, 2016).

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The ALJ said that plaintiff’s “reports of poor memory and focus,” “limited education,”
“struggles with social functioning in the community,” and “generally poor learning ability while
in school” were “credible and supported by record evidence.” (R. 22.) But the ALJ did not
believe that these issues limited plaintiff’s ability to work because:
. . . . [Plaintiff] testified that he has applied for jobs, but that employers
always have a way to find out about his criminal record. He testified that he
might become distracted or have problems interacting with people on the job due
to obsessions and compulsions, as well as his feelings of being judged by others.
He indicated that somewhat solitary work, such as assembly line work, is not
likely to be available to him because these jobs are largely in the suburbs. In
other words, [plaintiff] attributes his inability to work to his criminal history and
to his lack of transportation rather than to impairment-related symptoms.
(Id.)
The issue is not, however, why plaintiff thinks he cannot find a job, but how, if at all, his
impairments impact his ability to work. Moreover, as the ALJ acknowledged, plaintiff testified
that his obsessions and compulsions negatively impact his ability to concentrate and interact with
others. (Id.) Further, though the ALJ did not acknowledge it, plaintiff also testified that: (1) he
cannot work because his math and reading abilities are so poor that he cannot read a map or fill
out a job application on his own (R. 65-66); (2) his “focus is just so off,” that he is not sure he
could perform an assembly line job (R. 69); (3) he is so depressed that he “can’t really be
sociable with people” (R. 72); (4) he has auditory hallucinations (R. 76-77); and (5) he
sometimes thinks about harming himself (R. 78). Plaintiff’s medical records corroborate his
testimony. (See R. 288-89 (consultative examiner stating that plaintiff’s “depression is fairly
constant,” his memory and concentration are “very poor,” he hears voices telling him to “‘take
chances’” with regard to his “pedophilia issues,” he “essentially cannot read at all,” and he “stays
to himself and does not maintain social relationships”); R. 274-75 (psychiatric evaluation stating
that plaintiff is paranoid, depressed, has pedophiliac fantasies, and a Global Assessment of
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Functioning (“GAF”)1 score of 35-38); R. 297-98 (psychiatric evaluation stating that plaintiff
feels “down, sad, depressed,” rated his mood as a 0 on 0-10 scale, and has auditory
hallucinations).)

In short, because the ALJ’s determination that plaintiff is not “entirely

credible” (R. 22) is not supported by substantial evidence the case must be remanded for a new
credibility determination. See Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014) (“An
erroneous credibility finding requires remand unless the claimant’s testimony is incredible on its
face or the ALJ explains that the decision did not depend on the credibility finding.”).
Plaintiff also contends that the ALJ’s RFC determination is erroneous. The Court agrees.
The ALJ found plaintiff to have “moderate difficulties” in social functioning. (R. 17.) To
address this issue, the ALJ incorporated in the RFC the limitation that plaintiff “should have no
interaction with the general public.” (R. 18.) The RFC does not, however, address limiting
plaintiff’s contact with co-workers and supervisors, though there is evidence that plaintiff would
have problems interacting with both. (See R. 90, 102 (agency doctors opining that plaintiff
“could interact with others sufficiently in a work setting with reduced social demands”); R. 181
(plaintiff’s sister-in-law stating that plaintiff does not get along well with authority figures and
“cannot get along with other workers”).) Because the ALJ does not explain why the RFC only
limits plaintiff’s social interactions with the general public and does not address limitations with
co-workers and supervisors and the reason for the partial limitation is not otherwise apparent
from the record, the limitation is not supported by substantial evidence.

The case must,

therefore, be remanded for a new determination of plaintiff’s RFC. (See R. 80 (vocational expert

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The GAF scale, which goes from 0-90, “is a hypothetical continuum of mental health-illness used to determine
psychological, social, and occupational functioning.” Bartrom v. Apfel, No. 00-149, 2000 WL 1412777, at *1, n.3
(7th Cir. Sept. 20, 2000) (quotation omitted). As relevant here, a score of 31-40 indicates “some impairment in
reality testing or communication or major impairment in several areas such as work, family relations, and
judgment.” Id.
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testifying that there would be no work available for a person who is “occasionally unable to
interact appropriately with coworkers or respond appropriately to supervision).)2
Plaintiff’s last argument, that the ALJ did not fulfill his duty to ensure there was a
complete record, is unavailing. As the Seventh Circuit has said:
An ALJ does have a duty to develop a claimant’s medical record, and thus may be
required to consult medical advisors where that record appears to be incomplete.
20 C.F.R. § 416.912(d) (2000); Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir.
1999). However, the primary responsibility for producing medical evidence
demonstrating the severity of impairments remains with the claimant. 20 C.F.R. §
416.912(c) (2000). Further, we have recognized that, because it is always
possible to identify one more test or examination an ALJ might have sought, the
ALJ’s reasoned judgment of how much evidence to gather should generally be
respected. Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994).
Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004). The record shows that
plaintiff received special education services before he dropped out of school at age thirteen, was
unable to obtain a GED, reads at less than a first grade level and has math skills at a second
grade level, and has a “very severe learning disability.” (R. 65, 71, 211, 289, 291.) Given this
evidence and the fact that plaintiff was represented by counsel, the Court cannot say that the
ALJ’s failure to obtain IQ testing for plaintiff was “a significant, prejudicial omission . . .
compelling reversal.” Flener, 361 F.3d at 449; see Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.
2007) (a claimant represented by counsel is presumed to have made his best case before the
ALJ); (see also R. 13 (identifying counsel of record for plaintiff)).

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Having determined that the case must be remanded for a new RFC determination, the Court need not address
plaintiff’s alternative argument that the RFC is flawed because it does not properly account for his deficits in
concentration.
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Conclusion
For the reasons set forth above, the Court denies the Commissioner’s motion for
summary judgment [17], reverses the Commissioner’s decision, and remands this case for further
proceedings consistent with this Memorandum Opinion and Order.
SO ORDERED.

ENTERED: August 15, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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