Horner v. Berryhill

Filing 27

MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 3/20/2018. Mailed notice (ao,)

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

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No. 17 C 4823
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Tricia Ann Horner brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the Social Security Administration Commissioner’s decision denying her application for
benefits. For the reasons set forth below, the Court affirms the Commissioner’s decision.
Background
Plaintiff applied for benefits on January 5, 2015, alleging a disability onset date of
September 30, 2014. (R. 133-36.) Her application was initially denied on May 20, 2015, and
again on reconsideration on September 8, 2015.

(R. 133, 165.) Plaintiff requested a hearing,

which was held by an Administrative Law Judge (“ALJ”) on January 9, 2017. (R. 70-106.) On
January 30, 2017, the ALJ issued a decision finding plaintiff not disabled. (R. 49-63.) The
Appeals Council declined to review the decision (R. 1-3), 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 has not engaged in substantial gainful activity
since the alleged disability onset date, September 30, 2014. (R. 51.) At step two, the ALJ
determined that plaintiff has the severe impairments of “degenerative disc disease of the cervical
and lumbar spine; an affective disorder/bipolar disorder; anxiety disorder/PTSD[;] history of
gastric bypass; history of bowel obstruction surgery; history of IVC filter placement; history of
deep venous thrombosis; opioid abuse; and history of right meniscus removal.” (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. 52.) At step four,
the ALJ found that plaintiff cannot perform her past relevant work (R. 61), but has the residual
functional capacity (“RFC”) to perform light work with certain restrictions. (R. 54.) At step
five, the ALJ determined that jobs exist in significant numbers in the national economy that
plaintiff can perform, and thus she is not disabled. (R. 62.)
Plaintiff first argues that the ALJ erred by failing to address her post-hearing objections
to the vocational expert’s (“VE’s”) testimony as directed by the agency’s internal guidelines
known as HALLEX. The Seventh Circuit has yet to decide whether an ALJ’s failure to follow
HALLEX is reversible error, and the appellate courts that have directly addressed the issue have
reached different results. See Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (“As HALLEX
does not have the force and effect of law, it is not binding on the Commissioner and we will not
review allegations of noncompliance with the manual.”); Newton v. Apfel, 209 F.3d 448, 459
(5th Cir. 2000) (“While HALLEX does not carry the authority of law, this court has held that
where the rights of individuals are affected, an agency must follow its own procedures” and if
“prejudice results from a violation, the result cannot stand”) (quotations omitted). The Court

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need not decide whether a violation of HALLEX is reversible error, however, because the ALJ
did not violate it.
The HALLEX provision on which plaintiff relies addresses objections to VE testimony
made during the administrative hearing. See Hearings, Appeals, and Litigation Law Manual
(“HALLEX”) § I-2-6-74(B), available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-674.html (last visited Mar. 20, 2018).

It states: “At the hearing . . . . , the ALJ must (on the

record): . . . [r]ule on any objection(s). The ALJ may address the objection(s) on the record
during the hearing, in narrative form as a separate exhibit, or in the body of his or her decision.”
Id.; see HALLEX § I-2-5-30(B), available at  https://www.ssa.gov/OP_Home/hallex/I-02/I-2-530.html (last visited Mar. 20, 2018) (“The ALJ will respond to any objections [to expert
testimony at the hearing], either in writing or on the record at the hearing.”). Because HALLEX
does not compel an ALJ to rule on objections to VE testimony posed after a hearing has ended,
the ALJ’s failure to do so in this case was not erroneous. Cf. Donahue v. Barnhart, 279 F.3d
441, 447 (7th Cir. 2002) (“Raising a discrepancy [between a VE’s testimony and the Dictionary
of Occupational Titles] only after the hearing, as Donahue’s lawyer did, is too late. An ALJ is
not obligated to reopen the record.”).1
Plaintiff also contends that the ALJ improperly assessed the medical opinion evidence.
The record contains two identical opinions, one from plaintiff’s therapist, Dr. Parnell, and one
from plaintiff’s psychiatrist, Dr. Nagarakathi. (See R. 1010-12, 1154-56.) The ALJ evaluated

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Plaintiff’s post-hearing objection, that the VE should have relied on O*NET rather than the DOT, would have been
unsuccessful in any event because the regulations explicitly identify the DOT as a reliable source of job information.
See 20 C.F.R. § 404.1566(d)(1); SSR 00-04p, available at https://www.ssa.gov/OP_Home/rulings/di/02/SSR200004-di-02.html. Plaintiff appears to acknowledge this factual point (that the DOT “is one of the administratively
noticed sources of vocational information”) but disputes whether the DOT is “up-to-date and reliable.” (Pl.’s Mem.
Supp. Mot. Summ. J., ECF 16 at 8 n.4.) Plaintiff argues that “common sense” should prevail over the explicit
regulatory language and the agency’s continued reliance on the DOT. Plaintiff cites to no legal authority for the
wholesale abandonment of the DOT, and we are not willing to rely on “common sense” as legal support for
plaintiff’s position.

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the opinion as if it had been rendered solely by Dr. Parnell, who, unlike Dr. Nagarakathi, is not
an “acceptable medical source”:
No controlling or great weight is given to the medical source statement of Dr.
Parnell. It is inconsistent with other record opinions for example the state agency.
There was a lack of medical evidence or objective findings of record supporting
his assessment. Also, Dr. Parnell is not an acceptable medical source as he has a
doctorate in education. The representative argues that the opinion is consistent
with suicidal ideation. Moreover, it appears that her issues are related more to
family problems. Mental status examinations have been generally normal. Her
hospitalizations also have been related more to issues and situations involving her
family.
(R. 60) (citations omitted); see 20 C.F.R. § 404.1502(a) (defining “acceptable medical source”);
SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (stating that medical sources who are not
“acceptable medical sources” include therapists). Had the ALJ recognized that the opinion had
also been submitted by a treating acceptable medical source, her analysis would have been
guided by 20 C.F.R. § 404.1527(c)(2). See id. (stating that an ALJ must give a treating source’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” and must evaluate all acceptable medical source statements by considering the
length, nature, and extent of the treatment relationship, frequency of examination, the source’s
specialty, and the consistency and supportability of the opinion.).
The Commissioner contends that the ALJ’s error was harmless because her reasons for
rejecting Dr. Parnell’s opinion apply equally to Dr. Nagarakathi’s opinion. The Court agrees.
First, the opinion consists only of a series of check marks on a form without any accompanying
explanation or citation to supporting records. (See R. 1154-56.) Second, it is not clear how often
Dr. Nagarakathi examined plaintiff, given the limited number of his treatment notes in the
record. (See R. 806-07.) Third, Dr. Nagarakathi’s sparse records describe plaintiff as having

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normal psychomotor activity, no thought disorder, and appropriate affect, hygiene, and grooming
(id.), observations which do not support the extreme limitations in social functioning,
concentration, persistence and pace and decompensation he notes in his opinion. (See R. 115456.) Fourth, as the ALJ noted, the limitations set by Dr. Nagarakathi are inconsistent with those
noted by the state agency reviewers. (See R. 142-46, 156-61.) Given the lack of explanation and
evidentiary support for Dr. Nagarakathi’s opinion, the simple fact that he is an acceptable
medical source would not have changed the result in this case.

Conclusion
For the reasons set forth above, the Court denies plaintiff’s motion for summary
judgment [15], grants the Commissioner’s motion for summary judgment [23], affirms the
Commissioner’s decision, and terminates this case.
SO ORDERED.

ENTERED: March 20, 2018

_________________________________
M. David Weisman
United States Magistrate Judge     

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