Hoffswell v. Berryhill

Filing 25

MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 8/22/2018. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW HOFFSWELL,
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 8786
Magistrate Judge M. David Weisman

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

Background
Plaintiff filed an application for disability benefits on April 10, 2014, alleging a disability
onset date of November 15, 2012. (R. 98, 101.) Plaintiff’s application was denied initially on July
1, 2014, and on reconsideration on February 24, 2015. (R. 98, 128.) An Administrative Law Judge
(“ALJ”) held a hearing on plaintiff’s application on August 25, 2016. (See R. 33-75.) On January
11, 2017, the ALJ denied plaintiff’s application. (See R. 18-27.) The Appeals Council denied
plaintiff’s request for review (R. 1-3), leaving the ALJ’s decision as the final decision of the SSA,
reviewable by this Court pursuant to 42 U.S.C. § 405(g). See Villano v. Astrue, 556 F.3d 558, 56162 (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) (citation omitted).
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(a). The SSA 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. Zurawski, 245 F.3d at 886. If that
burden is met, at step five, the burden shifts to the SSA to establish that the claimant is capable of
performing work existing in significant numbers in the national economy.
404.1560(c)(2).

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20 C.F.R. §

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (R. 20.) At step two, the ALJ determined that plaintiff has the severe
impairment of bipolar disorder. (Id.) At step three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments. (Id.) At step four, the ALJ found that plaintiff cannot perform his past
relevant work but has the residual functional capacity (“RFC”) to perform “simple work of a
routine and repetitive type involving only occasional brief and superficial contact with co-workers
and supervisors and incidental contact with the general public.” (R. 22, 26.) At step five, the ALJ
found that jobs exist in significant numbers in the national economy that plaintiff can perform and
thus he is not disabled. (R. 26-27.)
Plaintiff argues that the ALJ wrongly rejected the opinion of his treating psychiatrist, Dr.
Khaja, in favor of the opinion of a non-examining expert, Dr. O’Brien. The ALJ was required to
give controlling weight to Dr. Khaja’s opinion if it “[was] well-supported by medically acceptable
clinical and laboratory diagnostic techniques and [was] not inconsistent with the other substantial
evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir.
2011). If the ALJ did not give Dr. Khaja’s opinion controlling weight, the regulations required
him “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” in assessing the doctor’s opinion. Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c).
Dr. Khaja said that plaintiff “remains stable on medications; and “without regular
medication regime [he] is at risk of decompensation.” (R. 678.) He also said that, because of
plaintiff’s impairment, he would be unable for ten percent of workday to: (1) understand,

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remember, and carry out short and simple instructions; (2) sustain an ordinary routine without
special supervision; (3) ask simple questions or ask for assistance; (4) take appropriate precautions
for normal hazards; and (5) travel in unfamiliar places. (R. 679-80.) He also said that plaintiff
would likely be off task thirty percent or more of a workday and “would be inhibited from undo
chaos or interpersonal conflict from a coworker and supervisors and may become easily agitated
if his routine was changed.” (R. 680.) Finally, it was Dr. Khaja’s opinion that plaintiff’s
impairments make him unable to obtain and keep a job in a competitive work environment. (R.
681.)
The ALJ gave “little weight” to Dr. Khaja’s opinion because “it is . . . internally
inconsistent and not well supported by the record”:
. . . . While Dr. Khaja reported that the claimant has a Global Assessment
of Functioning score of 55, remains stable on his medication regimen, and would
only be at risk without medication, he then opined that the claimant would be off
task for 30% of the workday and would likely miss 3 days of work per month.
However, Dr. Khaja did not provide a clinical explanation based on examination
findings, which would support his opinion in this regard. Although he checked off
“items” upon which he based his opinion, Dr. Khaja did not specify what evidence
within claimant’s history . . . he used to formulate his conclusions. . . .
(R. 25.)
The ALJ does not explain, however, how a Global Assessment of Functioning (“GAF”)1
score of 55, which indicates “moderate symptoms or moderate difficulty with social and
occupational functioning,” Bartrom v. Apfel, 234 F.3d 1272, 2000 WL at 1312777, *1 n.3 (7th Cir.
2000) (unpublished), is inconsistent with Dr. Khaja’s conclusions about the amount of time that
plaintiff would be off task during a workday. Moreover, the doctor can hardly be faulted for
“checking off ‘items’” or identifying by category the evidence that supports his opinion when the

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“The GAF scale is a hypothetical continuum of mental health-illness used to determine psychological, social, and
occupational functioning.” Bartrom v. Apfel, 234 F.3d 1272, 2000 WL at 1312777, *1 n.3 (7th Cir. 2000)
(unpublished) (quotation omitted).
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Mental Residual Functional Capacity form he completed requires him to do just that. (See R. 67880.) In any event, the cure for these perceived ambiguities was for the ALJ to seek clarification
from Dr. Khaja, not to reject his opinion out of hand. See Barnett v. Barnhart, 381 F.3d 664, 669
(7th Cir. 2004) (stating that “[a]n ALJ has a duty to solicit additional information to flesh out an
opinion for which the medical support is not readily discernable” and should “recontact [a] doctor
for clarification [of an opinion] if necessary”); Norris v. Astrue, 776 F. Supp. 2d 616, 631 (N.D.
Ill. 2011) (“[A]n ALJ needs to obtain additional evidence or clarification when the medical
source’s report contains a conflict or ambiguity that must be resolved.”).

Moreover, the ALJ

rejected Dr. Khaja’s opinion without giving any consideration to the regulatory factors. See 20
C.F.R. § 404.1527(c). Had the ALJ acknowledged that Dr. Khaja is a psychiatric specialist and
based his opinion on monthly examinations of plaintiff over a three-year period, he may well have
accorded it more weight. The ALJ’s failure to properly assess Dr. Khaja’s opinion requires a
remand.
On remand, the ALJ must also reconsider the opinion of plaintiff’s treating therapist, Ms.
Wold. In one part of her report, Ms. Wold opined that plaintiff has marked restrictions in activities
of daily living, maintaining social functioning, and maintaining concentration, persistence or pace.
(R. 676.) In another part, she said the marked restrictions were only in the first two categories.
(R. 674-75.) Once again, instead of seeking clarification of the opinion, the ALJ improperly used
this ambiguity as a reason to reject Ms. Wold’s opinion. (See R. 24-25.)
The ALJ’s contention that Ms. Wold’s opinion is unsupported by the record is equally
unsound. (R. 24.) The bulk of the record is Ms. Wold’s treatment notes, which are replete with
references to plaintiff’s tangential thought processes, cognitive impairments, irritability, and poor
insight into his illness. (R. 400, 404, 408, 414, 419-20, 424, 428, 430, 432, 440, 446, 448, 454,

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470, 474, 476, 479, 482, 485, 495, 499, 504, 577, 580-82, 589, 594-95, 601, 604, 628, 696-97,
701.) The ALJ did not acknowledge this evidence or the fact that it was generated over more than
two years by a therapist who treated plaintiff while he was regularly taking medication. Had the
ALJ done so, as the regulations required, see 20 C.F.R. §§ 404.1502, 404.1513(a), (d)(1),
404.1527(c)(1)-(6) (eff. to Mar. 26, 2017) (the opinions of therapists, who are not acceptable
medical sources, must be assessed using the same factors applicable to the opinions of physicians
and other acceptable medical sources), he may have given Ms. Wold’s opinions more weight. In
short, the ALJ must revisit Ms. Wold’s opinion on remand as well. 2

Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion for summary judgment
[10], denies the SSA’s motion for summary judgment [21], reverses the SSA’s decision, and
remands this case for further proceedings consistent with this Memorandum Opinion and Order.
SO ORDERED.

ENTERED: August 22, 2018

M. David Weisman
United States Magistrate Judge

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Plaintiff also challenges the ALJ’s RFC determination and symptom evaluation. (See Mem. Supp. Mot. Summ. J.,
ECF 11 at 11-14.) Because these issues are intertwined with the assessment of the medical evidence, they must be
revisited on remand as well.

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