Keippel v. Berryhill
Filing
17
MEMORANDUM Opinion and Order: Plaintiff's request to remand for additional proceedings 10 is GRANTED, and the Commissioner's motion for summary judgment 14 is DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ's decision is reversed, and the case is remanded to the Commissioner for further proceedings consistent with this opinion. - Signed by the Honorable Mary M. Rowland on 6/25/2018. Mailed notice (np, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JENNIFER KEIPPEL,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
No. 17 C 4394
Magistrate Judge Mary M. Rowland
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Keippel filed this action seeking reversal of the final
decision of the Commissioner of Social Security denying her application for
disability insurance benefits (DIB) under Title II and Supplemental Security
Income (SSI) under Title XVI of the Social Security Act. The parties consented to
the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C §
636(c), and filed cross motions for summary judgment. This Court has jurisdiction
pursuant to 42 U.S.C. § 1383(c) and 405(g). For the reasons stated below, the case is
remanded for further proceedings consistent with this Opinion.
Nancy A. Berryhill has been substituted for her predecessor, Carolyn W. Colvin, as the
proper defendant in this action. Fed. R. Civ. P. 25(d).
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I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI benefits on July 25, 2013, alleging that she
became disabled on March 31, 2011. (R. at 206, 213). These claims were denied both
initially on January 14, 2014, and upon reconsideration on December 16, 2014. (Id.
at 115, 126). Plaintiff, represented by counsel, testified at a hearing before an
Administrative Law Judge (ALJ) on February 10, 2015. (Id. at 37–73). The ALJ also
heard testimony from James Radke, a vocational expert (VE). (Id.). Plaintiff’s
counsel was also present at the hearing. (Id.). Following the hearing, additional
records were entered into the administrative record. (Id.). The ALJ denied
Plaintiff’s request for DIB and SSI on April 26, 2016. (R. at 17–31).
Applying the five-step evaluation process, the ALJ found, at step one, that
Plaintiff engaged in substantial gainful activity from June 2015 to November 2015,
but that there has been a continuous 12-month period during which she did not
engage in substantial gainful activity. (R. at 22). The remaining steps address the
periods during which Plaintiff did not engage in substantial gainful activity. (Id.).
At step two, the ALJ found that Plaintiff had the following severe impairments:
lumbar degenerative disc disease with radiculopathy, bilateral tarsal tunnel
syndrome, mood disorder, and bipolar disorder. (Id. at 23). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of any of the listings
enumerated in the regulation. (Id.).
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The ALJ then assessed Plaintiff’s Residual Functional Capacity (RFC) and
determined that Plaintiff has the RFC to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b), except she is able to do the following:
Frequently climb ramps, stairs, ladders, ropes and scaffolds, but only
occasionally stoop, kneel, crouch and crawl. She is able to understand,
remember and carry out simple, routine and repetitive tasks. She can
use judgment to make simple work related decisions and frequently
interact with supervisors, co-workers and the public.
(R. at 25). The ALJ determined at step four that Plaintiff is unable to perform any
past relevant work. (Id. at 29). Based on Plaintiff’s RFC, age, education, work
experience, and the VE’s testimony that Plaintiff is capable of performing work as a
cleaner, mail clerk, and handpacker, the ALJ determined at step five that there are
jobs that exist in significant numbers in the national economy that Plaintiff can
perform. (Id. at 30–31). Accordingly, the ALJ concluded that Plaintiff was not under
a disability, as defined by the Act, from the alleged onset date of March 31, 2011,
through the date of the ALJ’s decision. (Id.).
On April 17, 2017, the Appeals Council denied Plaintiff’s request for review.
(R. at 1–6). Plaintiff now seeks judicial review of the ALJ’s decision, which stands as
the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th
Cir. 2009).
II. STANDARD OF REVIEW
A Court reviewing the Commissioner’s final decision may not engage in its own
analysis of whether the plaintiff is severely impaired as defined by the Social
Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor
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may it “reweigh evidence, resolve conflicts in the record, decide questions of
credibility, or, in general, substitute [its] own judgment for that of the
Commissioner.” Id. The Court’s task is “limited to determining whether the ALJ’s
factual findings are supported by substantial evidence.” Id. (citing § 405(g)).
Evidence is considered substantial “if a reasonable person would accept it as
adequate to support a conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th
Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014) (“We will
uphold the ALJ’s decision if it is supported by substantial evidence, that is, such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”) (citation omitted). “Substantial evidence must be more than a scintilla
but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007). “In addition to relying on substantial evidence, the ALJ must also
explain his analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351
(7th Cir. 2005).
Although this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is
weighted in favor of upholding the ALJ’s decision, but it does not mean that we
scour the record for supportive evidence or rack our brains for reasons to uphold the
ALJ’s decision. Rather, the ALJ must identify the relevant evidence and build a
‘logical bridge’ between that evidence and the ultimate determination.” Moon v.
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Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner’s decision “lacks
evidentiary support or is so poorly articulated as to prevent meaningful review, the
case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
III. DISCUSSION
Plaintiff makes a number of arguments challenging the ALJ’s decision. After
reviewing the record and the parties’ briefs, the Court is convinced by Plaintiff’s
argument that the ALJ erred in evaluating the medical opinions of Plaintiff’s
treating psychiatrist.
The opinion of a treating source is entitled to controlling weight if the opinion “is
well-supported
by
medically
acceptable
clinical
and
laboratory
diagnostic
techniques and is not inconsistent with the other substantial evidence.” 20 C.F.R. §
404.1527(d)(2); accord Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). A treating
physician typically has a better opportunity to judge a claimant’s limitations than a
non-treating physician. Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996); Grindle v.
Sullivan, 774 F. Supp. 1501, 1507–08 (N.D. Ill. 1991). “More weight is given to the
opinion of treating physicians because of their greater familiarity with the
claimant’s conditions and circumstances.” Gudgel v. Barnhart, 345 F.3d 467, 470
(7th Cir. 2003). Therefore, an ALJ “must offer ‘good reasons’ for discounting a
treating physician’s opinion,” and “can reject an examining physician’s opinion only
for reasons supported by substantial evidence in the record; a contradictory opinion
of a non-examining physician does not, by itself, suffice.” Campbell v. Astrue, 627
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F.3d 299, 306 (7th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2); other citation
omitted).
If a treating physician’s opinion is not given controlling weight, an ALJ must
still determine what value the assessment does merit. Scott v. Astrue, 647 F.3d 734,
740 (7th Cir. 2011); 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)–(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 opinions of Mary Ellen Walsh, M.D.
Dr. Walsh is Plaintiff’s treating psychiatrist and treated Plaintiff from May 10,
2013 to February 10, 2016. (See R. 305, 348, 710). Dr. Walsh gave two statements
regarding Plaintiff’s conditions– one in 2013 and one in 2016. 2 The Court finds that
the reasons the ALJ offered for discounting the second opinion of Dr. Walsh are not
supported by substantial evidence. The Court will address each statement in turn.
Plaintiff argues that the ALJ mistakenly evaluated Dr. Walsh’s two opinions as if issued by two
different physicians, based on the ALJ’s misspelling of Dr. Walsh’s name. (Pl.’s Mem., Dkt 11 at 9).
The Court is not convinced that this is anything other than a typographical error.
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In her three-sentence statement dated August 16, 2013, Dr. Walsh gave Plaintiff
“a working diagnosis” of Mood Disorder, Not Otherwise Specified with a rule out
diagnosis of Bipolar Disorder, and concluded that Plaintiff was unable to work due
to her mental illness. (R. at 305). The ALJ gave “little weight” to this August 2013
statement because: 1) Dr. Walsh did not give an explanation for the basis of her
opinion; 2) it is not known if Dr. Walsh was familiar with the definition of disability
contained in the Social Security Act and regulations; and 3) Dr. Walsh’s opinion
that Plaintiff was unable to work is an issue reserved for the Commissioner. (R. at
28). An ALJ is not required to accept a treating physician’s opinion if it is “brief,
conclusory, and inadequately supported by clinical findings.” Gildon v. Astrue, 260
Fed. Appx. 927 (7th Cir. 2008) (internal quotation omitted). Further, “the ALJ is not
required to give controlling weight to the ultimate conclusion of disability –a finding
specifically reserved for the Commissioner.” Denton v. Astrue, 596 F.3d 419, 424
(7th Cir. 2010) (citing 20 C.F.R. § 404.1527 (e)(1)). The 2013 statement contained
only a “working diagnosis” of Plaintiff’s condition and did not include any reasons
why Dr. Walsh concluded that Plaintiff was unable work. Thus, the Court finds that
the ALJ did not err when she gave “little weight” to Dr. Walsh’s 2013 statement.
The same cannot be said for the ALJ’s handling of Dr. Walsh’s second medical
opinion, a Medical Impairment Report, dated February 10, 2016. In this opinion,
Dr. Walsh diagnosed Plaintiff with Bipolar Disorder and Anxiety Disorder Not
Otherwise Specified. (R. at 710). The doctor indicated that she had been treating
Plaintiff for two years and eight months. (Id.). Dr. Walsh opined that Plaintiff’s
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mental illness restricted her daily activities and impacted her ability to sustain
concentration and attention long enough to complete tasks. (Id. at 710–11). Dr.
Walsh also stated that she noticed both depressive syndrome (manifesting eight of
nine symptoms) and manic syndrome (manifesting six of eight symptoms) during
her treatment of Plaintiff. (Id. at 712). Finally, Dr. Walsh concluded that Plaintiff
had moderate restriction of activities of daily living, marked difficulties in
maintaining social functioning, marked difficulties in maintaining concentration,
persistence, or pace, and repeated episodes of decompensation of extended duration.
(Id.).
The ALJ gave partial weight to Dr. Walsh’s February 2016 mental impairment
report because: 1) the report was not consistent with Dr. Walsh’s therapy notes,
which the ALJ claims showed no significant problems with social functioning or
attention and concentration; 2) Dr. Walsh noted that Plaintiff was able to attend
and perform her self-care adequately and could take medications independently;
and 3) there were no episodes of decompensation of an extended duration. (Id.).
There are several errors in the ALJ’s analysis, warranting remand on this issue.
First, the ALJ maintains that Dr. Walsh’s therapy notes showed no
significant problems with social functioning or attention and concentration, despite
her mental impairment report stating that she had marked difficulties in both
social functioning and maintaining concentration, persistence, or pace. (R. at 28).
However, the ALJ does not discuss where the discrepancies are in Dr. Walsh’s notes
or cite to any examples of such inconsistencies. Nor does the ALJ discuss areas in
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which Dr. Walsh’s therapy notes corroborate her findings in the mental impairment
report. Indeed, the ALJ ignored evidence including psychiatric evaluations,
treatment plans, and progress notes that supported Dr. Walsh’s findings. See e.g.
(R. at 344–353, 355–360, 363–365, 368–370, 374–376, 399–401, 403–419, 526–533,
537–38, 540, 543–34, 549, 559–60, 572–73, 579). These notes indicate the presence
of the following symptoms that the ALJ failed to discuss: problems with her family
relationships, racing thoughts, anger, agoraphobia, being mistrustful of people,
moodiness, weepiness, depression, irritability, varying moods, anxiety, thoughts of
people out to get her, paranoid thoughts about police, sadness, and tangential
thoughts. (Id.). The Court finds the ALJ erred by failing to address supportive
evidence from Dr. Walsh’s own treatment notes, corroborating her assessment. See
Scrogham, 765 F.3d at 697 (finding the ALJ erred when she “neither considered nor
explained her decision not to consider the rest of [a treating physician’s] copious
records, which, upon closer review, might indicate that [claimant] was substantially
more limited in his physical abilities than the ALJ initially concluded.”).
Second, the ALJ discounted Dr. Walsh’s 2016 opinion because the Plaintiff “was
able to attend and perform her self-care adequately and take her medications
independently.” (R at 28). As an initial matter, there are session notes from Dr.
Walsh indicating that Plaintiff was unable to adequately perform her self-care that
the ALJ failed to address. (Id. at 537, 548, 559, 572). An ALJ "cannot simply cherrypick facts that support a finding of non-disability while ignoring evidence that
points to a disability." Denton, 596 F.3d at 425. Moreover, the ALJ failed to explain
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how Plaintiff’s ability to perform basic self-care or take medications independently
contradicts Dr. Walsh’s characterization of her limitations and impairments. 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). Nor did the ALJ explain how Plaintiff’s ability to perform basic
self-care equates with an ability to perform full time work. Plaintiff’s ability to
attend to basic self-care “says little about her ability to perform the tasks of a fulltime job.” Thomas v. Colvin, 826 F.3d 953, 961 (7th Cir. 2016). Courts have
“repeatedly cautioned against equating daily living activities with the ability to
perform a full day of work, as the former are often subject to different restraints . . .
and at times can be avoided only at great personal cost.” Brown v. Colvin, 845 F.3d
247, 253 (7th Cir. 2016).
Third, the ALJ discounted Dr. Walsh’s 2016 opinion because there were “no
episodes of decompensation of an extended duration.” (R. at 28). However, the ALJ
did not provide any evidence to support this statement. Once again, the ALJ failed
to consider evidence which supports Dr. Walsh’s conclusion of episodes of
decompensation. For instance, Plaintiff was hospitalized for suicidal ideation in
July of 2015, which the Seventh Circuit has found qualifies as an episode of
decompensation. (R. at 535–36); see Larson v. Astrue, 615 F.3d 744, 750 (7th Cir.
2010) (finding that a hospital trip for suicidal thinking qualified as an episode of
decompensation) (citing 20 C.F.R. § Pt. 404, Subpart P. App. 1, § 12.00). Further, an
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episode of decompensation “may be inferred from medical records showing a
significant alteration in medication.” Larson, 615 F.3d at 750 (7th Cir. 2010) (citing
20 C.F.R. § Pt. 404, Subpart P. App. 1, § 12.00). Plaintiff’s progress notes show at
least four medication changes, which the ALJ did not mention. (R. at 357, 370, 400,
409). The ALJ erred by both failing to substantiate her claim that Plaintiff had no
episodes of decompensation and failing to consider evidence that corroborates the
treating psychiatrist’s opinion.
Fourth, although the ALJ is entitled to not accord controlling weight to Dr.
Walsh’s opinions, she still must address the factors listed in 20 C.F.R. § 404.1527 to
determine what weight to give the opinions. SSR 96-2p. SSR 92-2p states that
treating source medical opinions “are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. § 404.1527.” (Id.). Here, the
ALJ failed to minimally address several of the enumerated factors provided in 20
C.F.R. § 404.1527 for either the 2013 report or the 2016 report. Specifically, the ALJ
did not discuss the nature and extent of the treatment relationship, the frequency of
examination, or whether Dr. Walsh had a relevant specialty. The ALJ must
“sufficiently account [ ] for the factors in 20 C.F.R. 404.1527.” Schreiber v. Colvin,
519 Fed. Appx. 951, 959 (7th Cir. 2013) (unpublished decision). The ALJ did not do
so here, preventing this Court from assessing the reasonableness of the ALJ’s
decision in light of the factors indicated in 20 C.F.R. § 404.1527.
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In sum, the Court finds that the ALJ did not offer substantial evidence for
rejecting the 2016 opinion of Dr. Walsh, which is an error requiring remand. 3 On
remand, the ALJ shall properly consider and weigh treating physician opinions, the
testimony of Plaintiff, then reevaluate Plaintiff’s impairments and RFC, considering
all of the evidence and testimony of record and shall explain the basis of her
findings in accordance with applicable regulations and rulings. With the assistance
of a VE, the ALJ shall determine whether there are jobs that exist in significant
numbers that Plaintiff can perform.
IV. CONCLUSION
For the reasons stated above, Plaintiff’s request to remand for additional
proceedings [10] is GRANTED, and the Commissioner’s motion for summary
judgment [14] is DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), the
ALJ’s decision is reversed, and the case is remanded to the Commissioner for
further proceedings consistent with this opinion.
E N T E R:
Dated: June 25, 2018
MARY M. ROWLAND
United States Magistrate Judge
Because the Court remands for this reason, it does not address Plaintiff’s other arguments
at this time.
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