Shackelford v. Kijakazi

Filing 31

MEMORANDUM Opinion and Order. Signed by the Honorable Heather K. McShain on 1/3/2025. Mailed notice. (pk, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARVA S.,
Plaintiff,
No. 21 CV 5922

v.
MARTIN J. O’MALLEY,
COMMISSIONER OF SOCIAL SECURITY,

Magistrate Judge McShain

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Marva S. appeals the Commissioner of Social Security’s decision
denying her applications for benefits. For the following reasons, plaintiff’s motion for
summary judgment [17] is granted, defendant’s motion for summary judgment [22]
is denied, and the case is remanded for further administrative proceedings.1
Background
Plaintiff applied for a period of disability and disability insurance benefits in
June 2019 and for supplemental security income in January 2020, alleging an onset
date of December 1, 2016. [14-1] 112. Plaintiff’s claims were denied initially, on
reconsideration, and by an administrative law judge in August 2020. [Id.] 112-24. In
December 2020, the Appeals Council remanded the case to the ALJ because the
hearing recording was only partly audible and the record was thus incomplete. [Id.]
130. The remand order also instructed the ALJ to “[o]btain additional evidence
concerning the claimant’s mental impairment(s) in order to complete the
administrative record in accordance with the regulatory standards regarding
consultative examinations and existing medical evidence.” [Id.]. On remand, the ALJ
held a second hearing and issued a new decision denying plaintiff’s claims. [Id.] 1325. The Appeals Council denied further review in September 2021 [id.] 1-6, making
the ALJ’s decision the agency’s final decision. See 20 C.F.R. §§ 404.955 & 404.981.

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings, except for citations to the
administrative record [14-1], which refer to the page numbers in the bottom right corner of
each page.

Plaintiff then appealed to this Court [1], and the Court has subject-matter
jurisdiction pursuant to 42 U.S.C. § 405(g).2
The ALJ reviewed plaintiff’s claims in accordance with the Social Security
Administration’s five-step sequential-evaluation process. At step one, the ALJ found
that plaintiff had not engaged in substantial gainful activity since her alleged onset
date. [14-1] 15. At step two, the ALJ determined that plaintiff had the following
severe impairments: schizophrenia; schizoaffective disorder, depressive type;
unspecific psychotic disorder; cannabis use disorder; and alcohol use disorder. [Id.]
15-16. At step three, the ALJ ruled that plaintiff’s impairments did not meet or equal
the severity of a listed impairment. [Id.] 16-19. Before turning to step four, the ALJ
found that plaintiff had the residual functional capacity to perform a full range of
work at all exertional levels, though she required multiple non-exertional limitations:
limited to making simple work-related decisions while performing simple, routine,
repetitive tasks; incapable of performing production-rate-pace work where tasks
must be performed quickly; capable of responding to no more than occasional and
gradually introduced changes in a routine work setting; capable of frequent
interactions with supervisors, coworkers, and the public incidental to the work being
performed; no group or team-based tasks; and requiring an additional 15 minute
break spread throughout the workday. [Id.] 19-23. At step four, the ALJ determined
that plaintiff could not perform her past relevant work. [Id.]. At step five, the ALJ
ruled that jobs existed in significant numbers in the national economy that plaintiff
could perform: industrial cleaner (58,000 jobs), laundry worker II (20,000 jobs), and
salvage laborer (44,000 jobs). [Id.] 23-24. For these reasons, the ALJ concluded that
plaintiff was not disabled.
Legal Standard
The Court reviews the ALJ’s decision deferentially to determine if it is
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “not a
high threshold: it means only ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Karr v. Saul, 989 F.3d 508, 511 (7th Cir.
2021) (quoting Biestek v. Berryhill, 587 U.S. 97, 103 (2019)). “When reviewing a
disability decision for substantial evidence, we will not reweigh the evidence, resolve
debatable evidentiary conflicts, determine credibility, or substitute our judgment for
the ALJ’s determination so long as substantial evidence supports it.” Warnell v.
O’Malley, 97 F.4th 1050, 1052-53 (7th Cir. 2024) (internal quotation marks and
brackets omitted).

2 The parties have consented to the exercise of jurisdiction in this case by a United States

Magistrate Judge. [7, 9].

2

Discussion
Plaintiff argues that this case should be remanded because (1) substantial
evidence does not support the ALJ decision to reject the opinions of her treating
psychiatrist, Dr. Sean Conrin; (2) the ALJ created an evidentiary deficit when she
rejected all opinion evidence in the record and impermissibly “played doctor” to
determine plaintiff’s RFC; and (3) the ALJ erred in evaluating plaintiff’s subjective
symptom allegations. See [17] 3-16. Because the ALJ committed multiple errors in
evaluating plaintiff’s schizophrenia and the work-related limitations it caused, and
because those errors seriously undermine multiple aspects of the decision denying
benefits, a remand is required.
“As the Seventh Circuit has noted, the temptation to play doctor is particularly
acute where, as here, the claimant has psychological impairments. In a series of cases
over the last couple decades, the Seventh Circuit has repeatedly faulted ALJs for
having a general lack of understanding of complicated impairments such as bipolar
disorder, schizophrenia, and PTSD.” Anthony S. v. Saul, No. 18 CV 50220, 2020 WL
30601, at *2 (N.D. Ill. Jan. 2, 2020). The court in Anthony S. identified several
“common fallacies or misconceptions made by ALJs” in cases involving a claimant
with psychological impairments: (1) “[s]ymptoms are often episodic”; (2) psychological
impairments are “not easy to treat in many cases”; (3) “[p]sychological impairments
may be subtly confused with other non-medical issues”; and (4) “[c]laimants may lack
insight into their condition or be unable to communicate effectively about it.” Id., at
*2-4. Unfortunately, the ALJ’s decision in this case embodies a number of these
fallacies–and more besides.
A.

Lack of Consistent Treatment

First, the ALJ extensively relied on plaintiff’s failure to maintain a consistent
treatment regimen for her schizophrenia when evaluating her mental functioning,3
in determining her RFC,4 and in evaluating her subjective symptom allegations.5 But
3 [14-1] 16-17 (finding that plaintiff had moderate limitation in interacting with others and

emphasizing “dearth of evidence of treatment from November 2016 until July 2017” and
noting that plaintiff “was seen for a solitary mental health treatment session” after her 2017
inpatient hospitalization and before her 2018 inpatient hospitalization); [id.] 18 (finding that
plaintiff had moderate limitation in concentrating, persisting, and maintaining pace and
observing that “the common precursor” in plaintiff’s experience with “worsening psychoses
and hallucinations” was “a scarcity of treatment and ongoing substance use”).
4 [14-1] 21 (“as for her behavior and the circumstances leading up to this hospitalization, the
claimant was noncompliant with medication and had been using cannabis since her teens,
which was consistent with the claimant’s positive test on admission”); [id.] (recognizing that
one consequence of plaintiff’s “minimal treatment” was “being reportedly asked to leave her
apartment due to her behavior”).
5 [14-1] 20 (finding plaintiff’s statements “not entirely consistent with the medical evidence”
because, inter alia, “the common pattern demonstrated here . . . is a combination of lack of

3

the ALJ never meaningfully considered whether plaintiff’s schizophrenia itself
contributed to the repeated and extensive gaps in the treatment record. “[O]ne of the
most serious problems in the treatment of mental illness” is “the difficulty of keeping
patients on their medications.” Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010).
Given that difficulty, the ALJ “must consider the effect mental health illnesses may
have on a claimant’s ability to comply with treatment,” Pulley v. Berryhill, 295
F. Supp. 3d 899, 901 (N.D. Ill. 2018), and “must not draw any inferences about a
claimant’s condition” from her failure to comply with prescribed treatment “unless
the ALJ has explored the claimant’s explanations as to the lack of medical care.” Craft
v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (internal quotation marks omitted).
Despite these requirements, the ALJ’s decision gives no indication that she explored
why plaintiff was unable to obtain treatment on a consistent basis, let alone whether
her schizophrenia interfered with her ability to obtain needed treatment.
In the Commissioner’s view, plaintiff offers nothing but “mere speculation” to
support her argument that her schizophrenia made it difficult to participate in
treatment. [23] 10. But the inference that plaintiff’s mental impairments interfered
with her ability to obtain needed treatment practically leaps off the pages of the
administrative record. One glaring example is Dr. Conrin’s repeated notation that
plaintiff refused to take oral medications. See [14-1] 622 (observing in July 2019 that
plaintiff “would not adhere to oral meds and was eventually hospitalized by this
author in 8/18” and stating that if plaintiff “would” adhere to “oral meds” Conrin
would “augment her treatment”); [id.] 715 (noting in November 2019 that Conrin was
“working to maintain current stability with the hopes that she will slowly improve
with more time in treatment and at some point hopefully accept oral meds”). Nothing
in the treatment record suggests that plaintiff made (or was even capable of making)
a reasoned, well-informed choice that the benefits of taking oral medications were
outweighed by their adverse side effects or some other consideration. Rather, it
appears probable that plaintiff’s unexplained refusal, against her doctor’s repeated
urging, to take oral medications was attributable to her severe schizophrenia.
Another example was Dr. Conrin’s repeated observation that plaintiff had no or poor
insight into her condition and regularly denied or minimized her symptoms. See [id.]
620, 647, 649, 663, 710, 712, 729, 731, 753, 762, 764; see also [id.] 578 (findings from
2017 comprehensive psychiatric evaluation that plaintiff has “impaired” judgment,
“as evidenced by: Refusal to accept treatment,” and “impaired” insight, “as evidenced
by: Denial of mental illness”). Thus, one explanation for plaintiff’s refusal to obtain
treatment could have been her lack of insight and her repeatedly professed, but
entirely false, belief that she had no or only mild symptoms for which treatment was
not required. See Lewis v. Astrue, No. 10 C 6447, 2012 WL 5342669, at *7 (N.D. Ill.
Oct. 25, 2012) (“by definition, a claimant with poor insight cannot be expected to

treatment and substance abuse leading to an increase in symptoms that ultimately
necessitates hospitalization”).

4

understand the true nature of his impairment”). But this obvious possibility was
simply ignored by the ALJ.6
B.

Lack of Insight and Denial of Symptoms

Second, the ALJ also relied on plaintiff’s statements about her mental
functioning7 and her ability to perform activities of daily living8 to find that plaintiff
was not disabled. As just seen, however, Dr. Conrin’s notes establish that plaintiff
had little, if any, insight into her own condition and that she regularly denied or
minimized her symptoms. Yet the ALJ apparently accepted at face value plaintiff’s
statements about her functional abilities without weighing them against Dr. Conrin’s
opinion on this score and the multiple treatment notes supporting that opinion.
See Anthony S., 2020 WL 30601, at *4; Lewis, 2012 WL 5342669, at *7.
C.

Plaintiff’s “Improvement”

Third, the ALJ heavily relied on Dr. Conrin’s finding that plaintiff’s condition
had improved after she received Invega Trinza injections in July 2019. In doing so,
however, the ALJ ignored not only the maxim that “improvement alone does not
necessarily mean that [a claimant] is not disabled,” Brett D. v. Saul, Case No. 19 C
8352, 2021 WL 2660753, at *4 (N.D. Ill. June 29, 2021), but also the caveat that
6 During a November 2019 exam with Dr. Conrin, plaintiff said that she was tolerating her

Invega Trinza injections and that “she is doing well.” [14-1] 710. According to the ALJ,
plaintiff’s statement that she “benefit[ted] from the medication she was receiving . . . lends
credence to the assertion that she had insight into the need for ongoing treatment[.]” [Id.] 19.
There is no substantial evidence in the record to support this “assertion”: not only is it
contrary to the great weight of the treatment record, see [id.] 620, 647, 649, 663, 712, 729,
731, 753, 762, 764, it is even contradicted by the November 2019 treatment note itself. There
Dr. Conrin noted (again) that plaintiff “denies all symptoms” and that her answers to
questions were “still minimal and directed towards presenting herself in a way that
minimized symptoms.” [Id.] 710 (emphasis added). If the ALJ concludes on remand that
plaintiff had adequate insight into her condition such that her schizophrenia presented no
barrier to her ability to obtain treatment, the ALJ should consider what factors contributed
to the lack of treatment (1) before plaintiff’s 2017 hospitalization, (2) her attendance at only
one “solitary” treatment session before her 2018 hospitalization, (3) her noncompliance with
prescribed medications before the 2018 hospitalization, (4) the four-month treatment gap
between August 2018 and December 2018, and (5) the lack of consistent follow-up care
between December 2018 and April 2019–all of which the ALJ documented in her decision.
See [14-1] 17-18, 21.
7 See, e.g., [14-1] 16 (discussing plaintiff’s functional reports, in which she “denied needing
any type of reminders and stated she was ‘good’ at following written and spoken directions”);
[id.] (noting without commenting on plaintiff’s false claim that she and her mother moved
out of apartment because lease expired and not because of plaintiff’s behavior); [id.]
(highlighting plaintiff’s claim that “she gets along ‘good’ with authority figures”).
8 See, e.g., [14-1] 18 (highlighting plaintiff’s claim that she had “no issues regarding her ability
to handle stress or change in routine”).

5

Conrin himself placed on plaintiff’s improvement. There is no question that the record
shows that plaintiff experienced clearer thinking, less response to internal stimuli,
and improved behavior with these injections. See [14-1] 622, 715. But there is also no
question that, in Dr. Conrin’s view, “prominent residual symptoms remain[ed]” after
the injections were administered, and that these symptoms “are barriers to treatment
and her ability to obtain social resources.” [Id.] 622. Not only was plaintiff still
resistant to “oral meds . . . lab testing, and/or efforts to obtain social resources such
as SSI,” but Dr. Conrin was still “working to maintain current stability with the hopes
that she will slowly improve with more time in treatment” with “a main focus on
safety and prevention of relapse.” [Id.]. The ALJ acknowledged that the injections left
“some residual symptoms” for plaintiff to deal with, see [id.] 22, but she never
accounted for Conrin’s opinion that this was a limited, relative improvement from
plaintiff’s baseline condition; that the remaining symptoms were barriers to
treatment that plaintiff needed to overcome; or that Conrin’s focus was primarily on
keeping plaintiff safe and preventing a relapse, which is in serious tension with the
ALJ’s unqualified findings about plaintiff’s improvement. There is thus no logical
bridge in the ALJ’s decision from the evidence of the “mild to moderate” improvement
that Conrin observed, see [id.] 754, to the ALJ’s conclusion that plaintiff could work.
See Brett D., 2021 WL 2660753, at *4 (“Improvement is a relative concept and, by
itself, does not convey whether or not a patient has recovered sufficiently to no longer
be deemed unable to perform particular work on a sustained basis.”).
D.

Treating Physician’s Opinion

Fourth, substantial evidence does not support the ALJ’s rejection of Dr.
Conrin’s opinion. The ALJ concluded that Conrin’s opinion that plaintiff had marked
or extreme limitations in all areas of functioning was “not supported by her mental
status exams or evidence of improvement.” [14-1] 23. As just discussed however, the
ALJ significantly overstated the nature of plaintiff’s improvement and failed to
consider whether the record supported Conrin’s opinion that residual symptoms
posed significant barriers to treatment and that Conrin was left to focus on
preventing a relapse. What’s more, Dr. Conrin’s treatment notes consistently
documented that plaintiff (1) mumbled and swore to herself during exams, see [id.]
618, 661, 674, 710, 729, 762; (2) presented with delusions, see [id.] 674 (plaintiff’s
false claim that she was moving to a new apartment she paid for and that she had
money left over from a previous job; (3) denied or minimized her symptoms, see [id.]
620, 647, 649, 663, 710, 712, 729, 731, 753, 762, 764; and (4) had an unkempt or
“notably malodorous” appearance, see [id.] 619, 649, 663, 710. All of this was at least
consistent with and provided some support for Dr. Conrin’s statements that plaintiff’s
schizophrenia caused her to experience poor memory, personality changes, emotional
lability, manic syndrome, hostility and irritability, perceptual disturbances, difficulty
thinking or concentrating, social withdrawal or isolation, blunt affect, delusions or
hallucinations, and paranoia. [Id.] 753. In the ALJ’s view, Dr. Conrin’s opinions were
contradicted by some findings in a 2017 comprehensive psychiatric evaluation that
6

immediately preceded her inpatient hospitalization. See [id.] 23 (citing [id.] 577-78).
As the ALJ noted, this evaluation documented that plaintiff could spell “world”
backwards, count backwards from 20 by ones, recite the months of the year in reverse,
and perform a three-step task. [Id.] 578. But the evaluation also documented that
plaintiff could not name three large cities, did not know how much change she would
receive if she bought something that cost $3.85 and paid for it with a $5 bill, could
not correctly perform the serial 7s test (which tests for the ability to sustain attention
and concentration, not math skills, see Renee E. v. Kijakazi, No. 19 CV 7840, 2022
WL 3576662, at *6 (N.D. Ill. Aug. 19, 2022)). In addition, the comprehensive
psychiatric evaluation that immediately preceded plaintiff’s 2018 hospitalization
reflected that she could not answer questions designed to measure her recent and
long-term memory, could not follow a three-step command or perform the serial 7s
test, could not count backwards from 20 or spell “world” backwards, and could not
answer how an apple and an orange were alike. See [14-1] 517-18. That the ALJ relied
on the more favorable findings in the 2017 evaluation without explaining how the
unfavorable findings in the 2017 and 2018 evaluations did nor support or were
inconsistent with Dr. Conrin’s opinion suggests the ALJ’s was cherry-picking
evidence to support her decision that plaintiff was not disabled.
E.

Creating an Evidentiary Deficit and Playing Doctor

Fifth, and contrary to the Commissioner’s arguments, see [23] 11-12, this was
a case where the ALJ’s rejection of all the opinion evidence in the record created an
evidentiary deficit that left the ALJ to play doctor. Courts in this District have
recognized that an “ALJ’s decision to discount all medical opinion evidence in the
record [can] create[ ] an evidentiary gap that render[s] the ALJ’s RFC unsupported
by substantial evidence.” Gail A. v. Kijakazi, No. 21 C 502, 2023 WL 8935003, at *3
(N.D. Ill. Dec. 27, 2023). The ALJ is not required to support her RFC determination
with a specific medical opinion, but when the ALJ rejects all medical opinion evidence
in the record she has “a duty to conduct an appropriate inquiry to fill that gap.” Id.
“An ALJ is not allowed to substitute his own lay opinions to fill an evidentiary gap in
the record.” Id., at *4. Here, the ALJ rejected not only Dr. Conrin’s opinions, but also
the opinions of the state agency psychological consultants who concluded, rather
dubiously, that plaintiff’s schizophrenia was non-severe. See [14-1] 22. The ALJ
“could have filled in the evidentiary deficit by seeking further information . . . [by]
obtaining an opinion from an independent examining physician or a medical expert.”
Id.9 Instead, the ALJ “created a situation where the RFC could only be supported by
9 Notably, the Appeals Council’s remand order instructed the ALJ to “[o]btain additional

evidence concerning the claimant’s mental impairment(s) in order to complete the
administrative record in accordance with the regulatory standards regarding consultative
examinations and existing medical evidence.” [14-1] 130. The Commissioner contends that
the ALJ had no obligation to obtain additional evidence respecting plaintiff’s mental
impairments, see [14-1] 23, but the Commissioner does not make any argument about the
import of this language. Given the multiple other errors in the ALJ’s decision, the Court does

7

her lay interpretation of medical findings because she had rejected all relevant
medical opinions as unpersuasive.” Arthur P.L. v. Comm’r of Soc. Sec., Case No. 3:23CV-111-MGG (N.D. Ind. Mar. 22, 2024). And this is exactly what the ALJ did. Despite
the lack of any medical evidence to support her conclusion, and notwithstanding Dr.
Conrin’s express opinion that plaintiff’s symptoms were “not due to drug use,” [14-1]
755, the ALJ found that plaintiff’s substance abuse was a key–if not the preeminent–
factor causing the worst of her symptoms. See [14-1] 18 (“again, the common
precursor . . . was a scarcity of treatment and ongoing substance abuse”); (noting that
plaintiff’s 2018 hospitalization occurred “in the presence of ongoing substance
abuse”); [id.] 20 (“the common pattern demonstrated here and in subsequent
hospitalizations is a combination of lack of treatment and substance abuse leading to
an increase in symptoms”); [id.] 22 (“The claimant improved in mental functioning in
the presence of appropriate treatment, and with the absence of substances.”); [id.] 23
(linking plaintiff’s RFC to her “abstinence from substances”). Even if the ALJ had
been free to ignore Dr. Conrin’s opinion on this issue, the reflects little more than an
apparent correlation between substance use and some episodes of exacerbated
symptoms. Yet the ALJ ignored the possibility that plaintiff’s schizophrenia
“precipitate[d] substance abuse, for example as a means by which the sufferer tries
to alleviate her symptoms,” Kangail v. Barnhart, 457 F.3d 627, 629 (7th Cir. 2006),
and the ALJ was “simply not qualified to make [her] own medical determinations.”
Tamara H. v. Kijakazi, No. 1:21-cv-153-MJD-TWP, 2022 WL 22883189, at *3 (S.D.
Ind. June 21, 2022). Nor did the ALJ test her hypothesis about the relationship
between plaintiff’s substance abuse and exacerbated symptoms against the evidence
that, two weeks into her 2018 hospitalization–when she was presumably sober–
plaintiff’s symptoms became so worrisome that she was declared to be an “imminent
danger” to herself and others and given an emergency dose of sedatives. See [14-1]
548.
F.

Speculations about a “Sympathetic Doctor”

Finally, there is no support whatsoever in the record for the ALJ’s speculation
that Dr. Conrin’s opinion was “a sympathetic or accommodating opinion for his
patient,” [14-1] 23, rather than one based on his professional medical judgment and
years of treating plaintiff. “[T]he ALJ’s notion that treating physicians such as Dr.
[Conrin] lie about their patients’ capabilities is based on nothing but speculation and
a general suspicion of treating physicians.” Rockwell v. Saul, 781 F. App’x 532, 537
(7th Cir. 2019).

not need to resolve this issue but urges the ALJ to consider the Appeals Council’s order when
conducting further proceedings on remand.

8

Conclusion
For the reasons set forth above, plaintiff’s motion for summary judgment [17]
is granted and defendant’s motion for summary judgment [22] is denied. The decision
of the Social Security Administration is reversed, and, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), this case is remanded for further proceedings
consistent with this Memorandum Opinion and Order.
_____________________________________
HEATHER K. McSHAIN
United States Magistrate Judge
DATE: January 3, 2025

9