James v Berryhill
Filing
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MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 7/17/2018. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LATON JAMES,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner
of Social Security,
Defendant.
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No. 17 C 3037
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Laton James brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
Social Security Administration (“SSA’s”) decision denying his application for benefits. For the
reasons set forth below, the Court reverses the SSA’s decision.
Background
Staring on March 1, 2001, plaintiff was given childhood disability benefits because of a
learning disorder and epilepsy. (R. 79.) After plaintiff turned eighteen, the SSA reviewed his
eligibility for benefits and determined that his disability had ended in March 2013. (R. 65-66.)
Plaintiff requested reconsideration of that decision, which was denied. (R. 74-75, 88-90.) Plaintiff
appealed the decision to an Administrative Law Judge (“ALJ”), who held a hearing on September
1, 2015. (See R. 29-64.) The ALJ found that plaintiff has not been disabled since March 31, 2013.
(R. 13-26.) The Appeals Council denied review (R. 1-3), leaving the ALJ’s decision as the final
decision of the SSA. 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. Under the regulations, the SSA must consider: (1) whether the claimant has
performed any substantial gainful activity during the period for which she claims disability; (2) if
not, whether the claimant has a severe impairment or combination of impairments; (3) if so,
whether the claimant’s impairment meets or equals any listed impairment; (4) if not, whether the
claimant retains the residual functional capacity (“RFC”) to perform her past relevant work; and
(5) if not, whether he is unable 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, and if that burden is met, the burden shifts at step
five to the SSA to provide evidence that the claimant is capable of performing work existing in
significant numbers in the national economy. See 20 C.F.R. § 404.1560(c)(2).
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At step one, the ALJ found that plaintiff had been eligible for benefits as a child, but was
found no longer disabled as of March 31, 2013. (R. 15.) At step two, the ALJ found that, since
May 31, 2013, plaintiff has had the severe impairment of “learning disability/borderline
intellectual functioning.” (Id.) At step three, the ALJ found that, since March 31, 2013, plaintiff
has not had an impairment or combination of impairments that meets or medically equals the
severity of a listed impairment. (R. 16.) At step four, the ALJ found that plaintiff has no past
relevant work (R. 24) but, since March 31, 2013, has had the RFC to “perform a full range of work
at all exertional levels” with certain environmental limitations, “can understand, remember, and
carry out instructions that are limited to the performance of simple, routine repetitive tasks,” and
“can make . . . simple, work-related decisions,” but would “require[] reminders from his
supervisors to perform simple, routine repetitive tasks once per day.” (R. 19.) At step five, the
ALJ found that, since March 31, 2013, there have been a significant number of jobs in the national
economy that plaintiff can perform, and thus he is not disabled. (R. 24-25.)
The ALJ said that plaintiff does not meet listing 12.05D for intellectual disorder, a
conclusion plaintiff contends is erroneous. At the time of the ALJ’s decision, that listing required:
A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least
two of the following: 1. Marked restriction of activities of daily living; or 2. Marked
difficulties in maintaining social functioning; or 3. Marked difficulties in
maintaining concentration, persistence, or pace; or 4. Repeated episodes of
decompensation, each of extended duration.
20 C.F.R. pt. 404, subpt. P, App’x 1, Listing of Impairments § 12.05D (eff. to May 13, 2016).
Plaintiff has a full scale IQ of 68 (R. 506), but the ALJ said plaintiff was only mildly restricted in
social functioning, moderately restricted in activities of daily living (“ADLs”), and had moderate
difficulties in maintaining concentration, persistence or pace. (R. 16-17.) Plaintiff says the last
two conclusions are flawed.
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ADLs “include adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for . . . grooming and
hygiene, using telephones and directories, and using a post office.” 20 C.F.R. pt. 404, subpt. P,
App’x 1, Listing of Impairments § 12.00C (eff. to May 13, 2016). A “marked” restriction in ADLs
is not defined “by a specific number of different [ADLs] in which functioning is impaired, but by
the nature and overall degree of interference with function.” (Id.) A claimant may be markedly
limited in ADLs, if he has “serious difficulty performing them without direct supervision, or in a
suitable manner, or on a consistent, useful, routine basis, or without undue interruptions or
distractions.” (Id.) With respect to ADLs, the ALJ said:
. . . . The claimant testified that he is able to dress, shower, and prepares
meals independently. Similarly, the claimant’s IEP for 11th grade indicated that he
is able to groom, feed, and clothe himself independently and he is capable of
transferring himself from home to school independently. However, the claimant
testified he has never taken a bus by himself that either his mom or dad accompanies
him on the bus. The claimant’s parents each reported that the claimant does not
know how to take public transportation and believe he would get lost.
(R. 17) (citations omitted).
First, the ALJ did not even address most of the ADLs, including whether plaintiff can clean,
shop, pay bills, maintain a residence, and use directories and the post office. Second, the ALJ’s
conclusion that plaintiff can travel independently is not supported by the record. Plaintiff’s
eleventh grade IEP, the only evidence the ALJ cites for finding that plaintiff can travel
independently, states that plaintiff is “eligible for transportation as a related service” because he
“is unable to travel alone” and “needs support to travel to and from school.” (R. 469.) In short,
the ALJ’s finding that plaintiff is only moderately limited in ADLs is not supported by substantial
evidence.
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Plaintiff also contests the ALJ’s conclusion that plaintiff is only moderately restricted in
concentration, persistence, and pace, i.e., “the ability to sustain focused attention and concentration
sufficiently long to permit the timely and appropriate completion of tasks commonly found in work
settings.” 20 C.F.R. pt. 404, subpt. P, App’x 1, Listing of Impairments § 12.00C (eff. to May 23,
2016). “On mental status examinations, concentration is assessed by tasks such as having [the
claimant] subtract serial sevens or serial threes from 100. In psychological tests of intelligence or
memory, concentration is assessed through tasks requiring short-term memory or through tasks
that must be completed within established time limits.” Id. ALJs are instructed to:
[E]xercise great care in reaching conclusions about [a claimant’s] ability or
inability to complete tasks under the stresses of employment during a normal
workday or work week based on a time-limited mental status examination or
psychological testing by a clinician, or based on [his/her] ability to complete tasks
in other settings that are less demanding, highly structured, or more supportive.
[ALJs] must assess [a claimant’s] ability to complete tasks by evaluating all the
evidence, with an emphasis on how independently, appropriately, and effectively
[he/she is] able to complete tasks on a sustained basis.
Id.
With respect to this area of plaintiff’s mental functioning, the ALJ said:
The claimant graduated from high school in June 2013. At the hearing, [he]
testified he watches movies and television shows on cable and can sit through a
whole show and he plays video games on Play Station 3 and he can advance to the
next level. The claimant could also correctly subtract 17 dollars from 20 dollars at
the hearing. Therefore, the weight of the evidence supports a finding that the
claimant has a moderate restriction in this area.
(R. 17) (citations omitted). The Seventh Circuit, however, has rejected the notion that the ability
to play video games and watch television signals the ability to do full-time work. See Voigt v.
Colvin, 781 F.3d 871, 878 (7th Cir. 2015) (reversing ALJ’s decision, in part, because he assumed
that “doing limited online research or playing video games online requires the same concentration
as is required for full-time employment”); Taylor v. Colvin, 829 F.3d 799, 801 (7th Cir. 2016)
(“The administrative law judge conjectured that because Taylor is ‘a young adult’ who can play
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video games . . . , she may experience ‘increased function with maturity.’. . . But there is no
evidence to support the administrative law judge’s conjecture. And he ignored the doubt we
expressed in [Voigt] that playing video games requires the same level of concentration as working
full time.”); Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) (expressing skepticism “that the
ability to watch television for several hours indicates a long attention span”). Thus, the ALJ’s
conclusion that plaintiff is only moderately limited in concentration, persistence, and pace is not
supported by substantial evidence.
Plaintiff further argues that the ALJ erred in assigning “little weight” to the opinion of
plaintiff’s treating physician, Dr. Colleton. (See R. 22.) An ALJ must give a treating physician’s
opinion controlling weight if “it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
20 C.F.R. § 404.1527(c)(2).1 “If an ALJ does not give a treating physician’s opinion controlling
weight, the 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); see also 20 C.F.R. § 404.1527(c).
Among other things, Dr. Colleton opined that plaintiff was “unable to manage ADLs or
travel independently” and either “markedly” or “extremely” limited in his ability to: (1) “maintain
attention and concentration for extended periods”; (2) “sustain an ordinary routine without special
supervision”; (3) “make simple work-related decisions”; (4) “respond appropriately to changes in
the work setting”; (5) “be aware of normal hazards and take appropriate precautions”; (6) “travel
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This regulation was amended effective March 27, 2017, but the cited language was not changed.
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in unfamiliar places or use public transportation”; and (7) “set realistic goals or make plans
independently of others.” (R. 649, 651-53.)
The ALJ said this about Dr. Colleton’s opinions:
Dr. Colleton . . . noted that [plaintiff] has a developmental delay and
learning disabilities and he “is unable to manage ADLs or travel independently.”
The undersigned assigns little weight to this report, as it appears based primarily on
the subjective reports of the claimant’s mother regarding the claimant’s limitations
in performing activities of daily living, rendering her opinion less persuasive.
Indeed, Dr. Colleton’s treatment records note that “Mom reports that [the claimant]
is intellectually limited: he does not travel alone or manage ADLs.” . . .
Dr. Colleton opined . . . that the claimant was “markedly limited” in his
ability to maintain attention and concentration for extended periods and in his
ability to respond appropriately to changes in the work setting and travel in
unfamiliar places or use public transportation. . . . [A]s a primary care physician,
nothing in the record suggests that Dr. Colleton has any expertise in mental health
issues.
(R. 22-23) (citations omitted).
First, the quotation that starts “Mom reports” does not appear in the document the ALJ
cites for it. (See R. 658.) Second, even if the evidence showed that Dr. Colleton relied heavily on
reports from plaintiff’s mother, the ALJ does not explain why that would be inappropriate, given
the demonstrated limitations in plaintiff’s intellectual functioning. (See e.g., R. 506 (consultative
examiner concluding that plaintiff has a full scale IQ of 68); R. 551 (grade twelve IEP noting that
plaintiff “continues to present with significant deficits in reading comprehension, organization,
grammar, and ability to elaborate during social interactions”); R. 448 (grade eleven IEP noting that
plaintiff’s “[v]erbal responses are short and he requires prompting to explain, describe and/or
expand on an idea or topic”); R. 334 (grade nine IEP stating that plaintiff is “quiet, soft spoken[,]
. . . often reluctant to communicate,” “exhibits difficulty following directions [and] completing
assignments,” and “does not ask for assistance or volunteer information in class”).) Third, the
record shows that Dr. Colleton did not rely solely on reports from plaintiff’s mother but on her
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own observations of plaintiff as well. (See R. 653 (“[Patient] is pleasant but does not interact with
this provider at the expected level of a 21 [year old male].”). Finally, though the ALJ only
discussed a few of Dr. Colleton’s opinions, she rejected all of them and did so without considering
the regulatory factors required for assessing medical evidence. See 20 C.F.R. § 404.1527(c). In
short, the ALJ erred in rejecting Dr. Colleton’s opinions wholesale.
Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion for summary judgment
[16], denies the Commissioner’s motion for summary judgment [20], reverses the Commissioner’s
decision, and remands this case for further proceedings consistent with this Memorandum Opinion
and Order.
SO ORDERED.
ENTERED: July 17, 2018
M. David Weisman
United States Magistrate Judge
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