Weisberg v. Berryhill

Filing 18

MEMORANDUM Opinion and Order. Because the ALJs decision was not based on substantial evidence, the Court grants summary judgment to Plaintiff and denies the Motion for Summary Judgment brought by the Commissioner. Enter Memorandum Opinion and order. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 7/24/2018:Mailed notice(maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
STUART WEISBERG,
Plaintiff,
v.

Case No. 17 C 8699

NANCY BERRYHILL,
Commissioner of Social
Security,

Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

The Administrative Law Judge (“ALJ”) found that Plaintiff was
not

disabled

benefits.

and

thus

denied

him

Social

Security

disability

The Appeals Council denied review and Plaintiff now

seeks judicial review of that final decision.
Plaintiff

suffers

from

severe

bipolar

disorder,

disease, and congenital nystagmus and refractive error.
suffers from anemia and depression.

Crohn’s
He also

He is a widower and is

responsible for the care and upbringing of his two children, ages
seven and nine.

The onset of his disability was April 1, 2013.

Plaintiff is a psychiatrist who lost his license because of a twoyear psychotic episode which left him delusional and suicidal.

He

takes prescription Lithium which causes him to have tremors. After
losing his license he commenced door-to-door business sales but
was subsequently fired because he was frequently incontinent, and
the resulting stress exasperated his depression preventing him
from working sufficient hours.
Plaintiff

takes

infusions

of

prescription

medication

(apparently a chemotherapy drug) for his Crohn’s disease which at
the time of the hearing was every six weeks.

This regimen helps

the colon but causes symptoms of nausea and fatigue.
the infusions, the fecal incontinence persists.

Even with

The infusions

require five hours to administer.
A typical day in his life begins at six in the morning.

He

lays in bed with nausea until he must defecate which is about six
thirty.

He spends about an hour on the toilet.

He has to take

his kids to school at eight, so he has to prepare breakfast and
their lunches.

After he returns from school he lays down for about

an hour and then he usually needs to use the toilet again.

Around

eleven he can do household tasks without feeling too sick.

During

the day he uses the bathroom for bowel movements about six times
total.

He goes to pick up his kids at three.

He is usually

fatigued when he returns so he takes a nap or watches television
with the kids.

At five he is feeling “pretty good.”

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He is able

to function “pretty well” and he prepares dinner and helps the
kids with their homework.

They all go to bed at 9:00 p.m.

He has to defecate between six and ten times per day depending
on his activities. The average time for each bowel movement varies
between twenty minutes and one hour depending on cramping and pain.
Activities increase his need to defecate.

Therefore, his ability

to walk depends on the availability of a restroom.

He is able to

drive a car but only during the daylight due to his vision
problems.

Anxiety and stress tends to throw his mental health

into problematic states, either depression or manic.

A low stress

environment, however, helps keep his mood cycle under control.
In July 2015, Plaintiff began treatment with Dr. Arora, a
gastroenterology specialist, for his Crohn’s disease and has been
treated by him every three months since then.

CT enterography of

the colon revealed left-sided inflammation, and a colonoscopy
revealed microscopic changes but no serious ulcers.

Dr. Arora

concluded that, despite the infusion treatments, his prognosis for
the

Crohn’s

disease

was

“guarded,”

with

chronic

symptoms,

including nausea, vomiting, dizzy spells, persistent diarrhea,
sleep disturbance, hot and cold spells, bowel incontinence, and
fatigue.

Dr. Arora further opined that workplace stress would

prevent Plaintiff from performing routine, repetitive tasks at a

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consistent pace, meet strict deadlines, and perform fast-paced
tasks such as working on a production line.

He would need to take

an average of four unscheduled bathroom breaks during an eighthour day.

He would also need to take, on average, two additional

breaks to lie down for an hour due to nausea and fatigue, which
normally are severe enough to cause dizziness.

Dr. Arora also

estimated that Plaintiff would likely be absent from work about
four days per month.
Despite the opinion of Dr. Arora to the contrary, the ALJ
found that Plaintiff has a Residual Functional Capacity (“RFC”) to
perform light work and would be “off task” less than 15 percent
during an eight-hour work day (approximately one hour and twenty
minutes) and would be absent fewer than one and a half days per
month.

A vocational expert testified that given the above RFC,

Plaintiff would be unable to perform his past work but he could
perform light, unskilled occupational work, such as a packer, an
assembler, or a sorter.

The expert further testified that there

were many such positions available nationally.

However, she also

testified that if an individual had to miss more than one and onehalf days of work per month, he would be subject to termination.
The reasons the ALJ gave for discounting Dr. Arora’s opinions
as to Plaintiff’s disability were: consultative reports from three

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examiners (Dr. Henry Fine and Dr. Roopa Karri, both apparently
members of the Arthritis and Internal Medicine Specialists, Ltd.,
and Dr. Lisa Young of Chicago Glaucoma Consultants), her belief
that Arora failed to cite any objective evidence to support his
opinions, and the “robust activities” in which Plaintiff engaged.
However, none of the consultants expressed any opinions on the
extent of Plaintiff’s disability.

The closest any of them came to

the expression of an opinion concerning disability was Dr. Fine’s
statement that Plaintiff’s “psychiatric symptoms along with his
medical issues have clearly impacted his functioning” and Dr.
Karri’s statement “that the claimant can handle funds if granted
disability.”

There was nothing particularly new in Dr. Young’s

report, as her impression was “Congenital nystagmus and refractive
error” and her prognosis was “fair.” The “robust activities” which
impressed the ALJ was Plaintiff’s ability to bathe, do house work,
do the laundry, do the dishes, vacuum, take his children to and
from school, and feed them and help them with their homework, much
of which he did during the 6:00 to 9:00 p.m. window in the evening
when he admittedly felt better.
The basis for the ALJ’s denial of disability was her finding
that Plaintiff’s mental limitations were mild to moderate and that
he had the residual functional capacity to perform light work.

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In

arriving

at

these

conclusions,

the

ALJ

performed

a

two-step

process. First, the ALJ determined whether there was an underlying
medically determinable physical or mental impairment that could be
shown by medically acceptable diagnostic techniques that could
reasonably be expected to produce the claimant’s pain or other
symptoms.

Second, the ALJ determined whether the physical or

mental impairment could reasonably be expected to produce the
claimant’s pain or other symptoms.

In applying this two-step

process, the ALJ found that the underlying impairments produced
“some, but not all” of his alleged symptoms.

His bipolar disorder

symptoms she found would “wax and wane” in severity but were
generally “well controlled” with his treatments.

With respect to

the Crohn’s disease, she found that while his condition was “not
fully controlled,” it had improved steadily since 2009.
In further support of her decision, she found that Dr. Arora’s
opinions were “not entitled to controlling weight” because they
were inconsistent with other evidence in the record, including the
reports of the three consultants described above, and his opinion
did not reference any objective signs or diagnostic test results
supporting his opinions.

She therefore found that Plaintiff had

the residual functional capacity to perform work at a “light
exertional level” and he would be “off task less than 15% during

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an eight-hour work day and would be absent fewer than 1.5 days a
month.”
II.
While

the

Court

DISCUSSION

owes

great

deference

to

the

ALJ’s

determination, it must do more than give it a “rubber stamp.”
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation
omitted).

The ALJ “should give controlling weight to the treating

physician’s opinion as long as it is supported by medical findings
and consistent with substantial evidence in the record.

See,

Kaminski v. Berryhill, No. 17-3314, 2018 WL 3341811, at *2 (7th
Cir. July 9, 2018) (citing 20 C.F.R. § 404.1527(c)(2)). The reason
given by the ALJ for discounting Dr. Arora’s opinions was her view
that there was insufficient objective evidence in the record to
support his opinions.

However, this reason ignores the undisputed

fact that Plaintiff has disabling Crohn’s Disease.

Every doctor

that has examined or treated Plaintiff has concluded that he has
Crohn’s

disease

and

that

it

is

disabling.

An

expert

in

gastrointestinal medicine must rely in part on his patient’s
symptoms in diagnosing and treating him.

Plaintiff testified in

great detail before the ALJ to his symptoms and to his disabilities
that resulted from these symptoms.

There is no evidence, nor did

the ALJ contend, that Plaintiff was prevaricating.

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There was

absolutely

no

evidence

Plaintiff or Dr. Arora.
consultants

hired

by

in

this

record

to

contradict

either

As the ALJ admits in her decision, the
the

Defendant

gave

no

opinions

as

to

disability (other than the minimal ones described above).
The basis for a finding of disability in this case is the
fact that the record is uncontradicted that Plaintiff is unable to
work on a job site, no matter how light the work, for the sufficient
hours and days necessary to remain employed.

The best the Court

can determine from the record is that the ALJ came up with the
“off task” estimate of 15% of the eight-hour day and the absence
estimate of fewer than one and one-half days per month out of whole
cloth.
III.

CONCLUSION

Because the ALJ’s decision was not based on substantial
evidence, the Court grants summary judgment to Plaintiff and denies
the Motion for Summary Judgment brought by the Commissioner.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated:

7/24/2018

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