Young v. Astrue

Filing 28

MEMORANDUM Opinion and Order For the reasons given, plaintiffs motion for summary judgment is denied, the governments motion is granted, and the decision of the ALJ is affirmed. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 4/16/2015: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
TARI L. YOUNG
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)

No. 13 CV 50025
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Tari L. Young brings this action under 42 U.S.C. § 405(g), seeking remand of
the decision denying her social security disability benefits. For the reasons set forth below, the
decision is affirmed.
BACKGROUND
On December 28, 2009, plaintiff filed applications for disability insurance benefits and
supplemental security income. R. 10. She alleges that she has been unable to work since June 25,
2008 because of her fibromyalgia, chronic obstructive pulmonary disease, and depression,
among other things. Dkt. # 14 at 1.
On July 21, 2011, a hearing was held before an administrative law judge (“ALJ”). R. 30.
Plaintiff testified that she was 56 years old, weighed 240 pounds, and has three adult children. R.
37, 42. She graduated from high school with a GED and went to college four years part time but
did not graduate: “I almost finished but I didn’t make it.” R. 37.
Her last job was as a claims verifier at Rockford Mutual Insurance Company where she
did various jobs such as faxing, running claims program, pulling files, running errands, and
typing letters and memos. R. 39. After working in this job for approximately 14 years, plaintiff

quit on June 25, 2008. R. 39-40. Plaintiff testified that she quit because of health problems, but
then added that she “had a co-worker [who] was bullying [her] too.” R. 40.
Plaintiff testified that she gets out of breath very easily and uses her inhaler quite a bit.
R. 43. She can walk a half a block before she is out of breath. She had seen a counselor,
Kathleen Freeburg, about a half a dozen times. R. 45, 315. She was taking the generic form of
Paxil for her depression. The Paxil helped her, although she sometimes wonders whether she
needs “a little bit more.” R. 46. When she is depressed, she cries uncontrollably for quite a while
and then works through it. She socializes with her sister and a girlfriend and goes to church when
she is able to get a car. R. 46-47.
Plaintiff testified that she has an albuterol inhaler and was given samples from the doctor
because she did not have the money to get any. She never used a nebulizer, but wonders whether
she needs one. When asked whether she has ever had to gone to the hospital in the last two or
three years because of breathing issues, she stated: “No, I’ve kept it pretty good under control
with the Advair.” R. 51.
The ALJ called a medical expert, Dr. Laura Rosch, to testify. She is a board-certified
internist. R. 51-52. Her testimony is discussed further in Section II below.
On September 20, 2011, the ALJ issued a decision finding plaintiff not disabled. At step
two, the ALJ found that plaintiff suffered from several severe impairments, including
fibromyalgia, obesity, and chronic obstructive pulmonary disease. R. 12. However, the ALJ
concluded that plaintiff’s depression did not qualify as a severe impairment because it did not
cause “more than minimal limitation in [plaintiff’s] ability to perform basic mental work
activities.” R. 13. The ALJ also concluded that plaintiff’s depression would not meet the Section
12 listings for mental impairments. The ALJ found that plaintiff had only mild limitations in

-2-

activities of daily living, social functioning, and concentration, persistence or pace. R. 13-14.
This issue is discussed further in Section I below. The ALJ found that plaintiff had the residual
functional capacity to perform sedentary work, subject to certain limitations. R.15.
DISCUSSION
A reviewing court may enter judgment “affirming, modifying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). If supported by substantial evidence, the Commissioner’s factual findings are
conclusive. Id. Substantial evidence exists if there is enough evidence that would allow a
reasonable mind to determine that the decision’s conclusion is supportable. Richardson v.
Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the
decision by reconsidering facts or evidence, or by making independent credibility
determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the Seventh Circuit
has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593
(7th Cir. 2002) (a “mere scintilla” is not substantial evidence). If the Commissioner’s decision
lacks evidentiary support or adequate discussion, then the court must remand the matter. Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Moreover, a reviewing court must conduct a critical
review of the evidence before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534
F.3d 663, 665 (7th Cir. 2008). Indeed, even when adequate record evidence exists to support the
Commissioner’s decision, the decision will not be affirmed if the Commissioner does not build
an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d
539, 544 (7th Cir. 2008).
In this appeal, plaintiff only raises two arguments, the first focusing on her depression
and the second on her chronic obstructive pulmonary disease. Neither justifies a remand.

-3-

I.

The Decision Not To Call A Psychological Expert.
Plaintiff argues that the ALJ should have called a psychological expert. This argument is

undeveloped and cursory, basically consisting of four long quotations strung together. Dkt. # 14
at pp. 5-7. The first quotation is the portion of the ALJ’s opinion finding that plaintiff only had a
mild limitation in the functional area of “concentration, persistence or pace.” The second is part
of a one-paragraph letter written by a therapist named Kathleen Freeburg who plaintiff saw on
eight occasions over a several year period. The third is from the portion of the hearing transcript
where the ALJ questioned the vocational expert about certain hypotheticals. The fourth is the
portion of the hearing transcript where Dr. Rosch stated that she was not a psychiatrist and thus
could not opine about psychiatric listings. Aside from these four quotations, plaintiff only adds
this conclusory sentence: “Thus a psychological medical expert was needed at the hearing to
clarify the record.” Dkt. # 14 at p. 7. The single word “thus” has a large weight on its shoulders,
as plaintiff does not provide any explanation of what the four quotes mean, does not connect
them to any rule or regulation, and does not cite to any case or legal authority.
This sparse presentation leaves this Court in the position of having to piece together
plaintiff’s argument. Plaintiff is requesting a psychiatric expert. This suggests that plaintiff is
focusing on her depression, as it is the only psychological impairment mentioned in the record.
Plaintiff quotes the portion of the opinion concerning the ALJ’s finding that plaintiff only had a
mild limitation in the area of “concentration, persistence, or pace.” The latter phrase is one of the
paragraph B criteria under the Section 12 mental health listings for her depression. These points
suggest that plaintiff is arguing that a psychiatric expert was needed to opine about how severe
her limitations were in the category of concentration, persistence, or pace. The Court will
therefore focus its analysis on this question.

-4-

This Court cannot conclude that the ALJ was obligated to call an expert on this issue for
the simple reason that the ALJ’s finding of a mild impairment was based on the opinions of two
psychiatrists. First, the ALJ relied on the four-page report of Dr. Peggau. R. 289-292. As the
ALJ discussed in the opinion, Dr. Peggau found (among other things) that plaintiff’s mood was
euthymic, that she had a global assessment of functioning (“GAF”) of 90, and that her depression
was getting better. R. 13. Second, later in the opinion, the ALJ relied on the opinion of Dr.
Donna Hudspeth, a state agency psychiatrist, who filled out a Psychiatric Review Technique
form stating that plaintiff only had mild limitations in the area of concentration, persistence or
pace. R. 19; Ex. 7F; R. 304.
In this type of situation, where the ALJ has clearly relied on agency medical experts to
determine that plaintiff did not meet a listing, there is no requirement that the ALJ call yet
another medical expert. See Youngblood v. Colvin, 2015 WL 667993, *4 (S.D. Ind. Feb. 17,
2015) (the ALJ did not err in failing to obtain a medical advisor to testify about Section 12
listings: “the ALJ need not summon a medical expert to testify at the hearing if a medical expert
has signed the [agency forms] that address medical equivalency”) (citing Seventh Circuit cases);
Sutherlin v. Colvin, 2015 WL 1046101, *5 (S.D. Ind. March 10, 2015) (no error in not calling
medical expert because ALJ could properly rely on two state-agency psychologists and because
the plaintiff failed to meet his burden of showing why an expert was needed); Tichenor v. Colvin,
2015 WL 1455702, *6 (S.D. Ind. March 30, 2015) (“An ALJ is not required to seek the opinion
of additional medical experts, and the decision to summon a medical expert is discretionary.”)
(relying on 20 C.F.R. § 416.927(e)(2)(iii)); see also Scheck v. Barnhart, 357 F.3d 697, 700 (7th
Cir. 2004) (the ALJ may rely on reports of state agency physicians to “conclusively establish”
that claimant did not meet a listing requirement).

-5-

Plaintiff believes the letter from therapist Freeburg was compelling enough that the ALJ
should have called a psychiatric expert to clarify the record. This Court is not persuaded. As an
initial matter, the only comment potentially relevant is Ms. Freeburg’s statement that plaintiff
“was experiencing some difficulty with memory and sustained concentration.” R. 315. This
statement does not provide much detail, and the reference to “some” difficulty is vague. In any
event, the ALJ considered this letter and offered several reasons why the report from Dr. Peggau
was more persuasive. These include: Dr. Peggau was a psychiatrist and Ms. Freeburg was a
social worker who was not an acceptable medical source; Dr. Peggau assessed plaintiff’s GAF as
90, “which fails to suggest more than minimal functional significance;” and the “focus of
[plaintiff’s] counseling sessions [with Ms. Freeburg] [was] to provide coping skills for
fibromyalgia.” 1 R. 13. The ALJ expressed no doubt or uncertainty about the conclusion that
plaintiff did not meet the listing for depression. In fact, as noted above, the ALJ did not even find
that plaintiff’s depression qualified as a severe impairment at step two, a standard that is
typically easier to meet than the step three listing standards.
More broadly, calling an expert would not have changed the final outcome because, even
if an expert could persuade the ALJ to find that plaintiff had marked, rather than merely mild,
limitations in concentration, persistence, or pace, this would not be enough to qualify under a
Section 12 listing. Plaintiff would also have to show that she had marked limitations in at least
one of the other paragraph B criteria—either activities of daily living or social interaction. Yet,
in her two briefs to this Court, plaintiff has never offered any argument challenging the ALJ’s
finding that she only had mild limitations in these two categories.

1

It is worth noting that Dr. Peggau did not diagnose plaintiff with any form of
depression, but listed “nicotine dependence” as her only Axis I diagnosis. R. 291. He stated:
“she had some depression but it is resolved.” Id. (emphasis in original).
-6-

II.

The Decision Not To Order A Second Spirometry Test.
Plaintiff’s second argument focuses on her chronic obstructive pulmonary disease

(“COPD”) and whether she qualified as disabled under a Section 3 listing for respiratory
conditions. Evaluation of this argument is complicated slightly by the fact that the ALJ in the
opinion referred to the wrong Section 3 listing.
To recap the relevant facts, before applying for disability benefits, plaintiff visited a
pulmonologist named Dr. Theodore Ingrassia in 2008 and 2009. He treated plaintiff and
performed at least three spirometry tests. This test includes a component called the one-second
forced expiratory volume test, or “ FEV1.” This test is used by the Social Security
Administration in two of its respiratory listings: Section 3.02 (“Chronic pulmonary
insufficiency”) and Section 3.04 (“Cystic fibrosis”). Both sections contain a numerical table that
correlates the claimant’s height range to a FEV1 number. If the claimant’s FEV1 number is at or
below the threshold FEV1 number for her height, then the claimant qualifies under that listing.
Although the two sections use the same type of table, the FEV1 values are different. Section 3.04
has higher threshold amounts, meaning that it is easier to qualify under this section.
After plaintiff applied for disability benefits in December 2009, someone at the Social
Security Administration ordered that plaintiff be given another FEV1 test. It is not known why
the test was ordered, but plaintiff clams that it was because the “reading on spirometries by her
treating pulmonologist, Dr. Ingrassia, were quite low (though shy of Listings level).” Dkt. # 22 at
p.1. On May 7, 2010, a new FEV1 test was performed by Dr. Kamlesh Ramchandani. The FEV1
number from this test was 1.3. R. 316. This number (if considered valid) qualify plaintiff as
disabled under Section 3.04 (if she in fact had cystic fibrosis) because the threshold for plaintiff’s

-7-

height is 1.65. However, a 1.3 FEV1 would not be enough to qualify under Section 3.02, which
has a threshold of 1.25.
At the hearing, the medical expert, Dr. Laura Rosch, testified that the FEV1 number from
the test conducted by Dr. Ramchandani appeared to meet the listing level for Section 3.04.
Everyone now agrees that Dr. Rosch inadvertently referred to the wrong Section 3 listing.
However, Dr. Rosch further concluded that this test was invalid and could not be relied on
because it did not meet various requirements imposed by the Social Security Administration
before a spirometry test is considered valid. See SSR Section 3.0. The failures cited by Dr. Rosch
were: the report did not include volume loops; there was a variance of greater than 5% in the
reported seconds; there was not a minimum of three trials of at least six seconds on the
expiratory base; and there was no description of the effort made by the claimant. R. 59-60.
The ALJ adopted the conclusions of Dr. Rosch. R. 19. Specifically, the ALJ first
observed that the FEV1 number from the test conducted by Dr. Ramchandani “may appear, on
the surface, to medically equal listing 3.04A, the listing for cystic fibrosis, given the claimant’s
height of 64 inches and best FEV1 value of 1.3.” R. 14-15. Like Dr. Rosch, the ALJ applied the
wrong part of Section 3. The ALJ then concluded, again agreeing with Dr. Rosch, that the test
was not valid because certain requirements in testing protocol had not been followed.
Plaintiff argues that the ALJ should have ordered a new spirometry exam after the
hearing. This argument, like her first, is undeveloped, again consisting of a series of long
quotations with little or no analysis and no legal authority. As best this Court can determine,
plaintiff is only challenging whether, at step three, her COPD qualified under a Section 3 listings.
After reviewing the record, the Court does not find that a remand is warranted. Through
the briefing process, the parties now agree the following facts are undisputed. First, the only

-8-

potentially applicable listing is Section 3.02 for chronic pulmonary conditions. There has never
been any claim that plaintiff has cystic fibrosis. Accordingly, as set forth in her reply brief,
plaintiff agrees that Section 3.04 (cystic fibrosis) is “admittedly irrelevant.” Dkt. # 22 at p.1.
Second, based on the FEV1 tests performed by plaintiff’s own treating pulmonologist (Dr.
Ingrassia), plaintiff did not meet the requirements of Section 3.02. Third, after reviewing these
tests and other medical evidence, Dr. Rosch also concluded that plaintiff did not meet any of the
pulmonary listings. See R. 56 (in this portion of her testimony she cites to both Sections 3.02 and
3.04).
In sum, based on the current record, but excluding the results from the Ramchandani test,
there is no possibility that if the ALJ had applied the more rigorous standard of Section 3.02, the
ALJ would have concluded that plaintiff met that listing. Both Sections 3.02 and 3.04 are
straightforward with no discretion involved. They simply involve looking up numbers on a table.
Plaintiff does not dispute this conclusion. 2
Plaintiff argues instead that, after Dr. Rosch testified that Dr. Ramchandani’s FEV1 test
did not meet social security standards, the ALJ should have then ordered a new spirometry test.
This Court disagrees. The evidence above, which includes two medical opinions, is sufficient.
As discussed in Section I, the “decision to summon a medical expert is discretionary,” and while
the ALJ could have called for another test, this Court cannot find fault based on the current
record if the ALJ simply “chose not to do so.” See, e.g.,Tichenor, 2015 WL 1455702 at *6.

2

Even if the Ramchandani test results were included, they would only add more evidence
that plaintiff did not meet the requirements of Section 3.02. It should be noted that, during the
hearing, plaintiff’s counsel seemed surprised that Dr. Rosch would object to the tests results from
Dr. Ramchandani. Counsel pointed out that Dr. Ramchandani has been providing these
consultative examinations for 20 years. The impression created by these comments is that
plaintiff’s counsel, at least during the hearing, did not believe that the FEV1 score from Dr.
Ramchandani was inaccurate or unreliable.
-9-

Plaintiff has not cited to any case suggesting that an expert must be called in this type of
situation.
Plaintiff’s only argument is this sentence in her reply brief: “it would seem that the
Defendant, who earlier wanted a consulting spirometry done, would still want one done – so
simple would it have been for the Administrative Law Judge to order a post-hearing one.” Dkt.
#22 at p. 1-2. This argument is speculative. For one thing, as the generic reference to “the
Defendant” suggests, it does not appear that it was the ALJ who initially made the decision to
order the first spirometry test, which was done over a year before the hearing. Even if the ALJ
had made the earlier decision, this does not mean that the ALJ was bound by that decision.
Instead, the ALJ reasonably could have concluded, after listening to testimony at the hearing and
after reviewing all the medical evidence, that the current record was clear enough and provided
substantial supported for a finding of no disability.
As the government argues in its response brief, the ALJ did not believe that plaintiff had
serious pulmonary deficiencies. The ALJ noted the following: (i) plaintiff’s COPD never
required hospitalization or emergency treatment (R. 18); (ii) plaintiff never used a nebulizer or
other breathing machine (R. 18); (iii) when plaintiff saw her family physician on October 24,
2008 she denied having any respiratory symptoms (R. 16) (iv) plaintiff rarely visited Dr.
Ingrassia who recommended no treatment aside from quitting smoking (R. 16); (v) the FEV1
tests done by Dr. Ingrassia, which did not even meet the listing, were “all obtained pre-treatment,
with no post-bronchodilator responses recorded” (R. 15); (vi) “Dr. Ingrassia notably declined to
provide a medical source statement, despite [plaintiff’s] express request” (R. 19); and (vii)
plaintiff provided inconsistent testimony about why she quit her job of 14 years and about her
daily activities . Dkt. # 21 at p.9. Plaintiff does not address any of this evidence in her two

- 10 -

briefs. This evidence further confirms that the ALJ did not find that another spirometry test was
called for given the evidence already in the record. This Court cannot second-guess that decision.
CONCLUSION
For the reasons given, plaintiff’s motion for summary judgment is denied, the
government’s motion is granted, and the decision of the ALJ is affirmed.

Date: April 16, 2015

By:

- 11 -

___________________________
Iain D. Johnston
United States Magistrate Judge