Sharp v. Colvin

Filing 21

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further consideration consistent with this opinion. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 7/1/2016: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Dinesha Sharp,
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

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No. 14 CV 50344
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Dinesha Sharp brings this action under 42 U.S.C. §405(g), challenging the denial
of social security disability benefits. Although plaintiff has raised several arguments, the Court
finds that a remand is warranted based on the treating-physician rule. 20 C.F.R. §404.1527(c).
At issue is whether plaintiff’s alleged mental impairments, notably bipolar disorder,
prevent her from working full-time. After plaintiff filed her disability applications, two state
agency doctors (Hudspeth and Kuester) opined that plaintiff had an anxiety disorder causing
moderate limitations in social functioning and concentration, but that she still had the capacity to
do unskilled work without frequent public interaction. During this period, plaintiff was treated by
several doctors and therapists including Dr. Tawfik, her primary care physician; Dr. Rizvi, a
psychiatrist; Ms. Reddy, a social worker; and Mr. Holm, also a social worker. They provided
assessments that plaintiff believes support her claim for disability. See Ex. 5F, 8F, 9F, 15F, 23F.
This case has a somewhat unusual procedural history in that three administrative hearings
were held. At the first one, on May 24, 2012, plaintiff’s attorney asked that the ALJ procure a
psychological consultative examination because the medical opinions were varied. The ALJ
agreed, and after the hearing, Dr. John Peggau interviewed plaintiff and issued a report. R. 8381

842. Dr. Peggau’s report was critical of plaintiff, calling her a malingerer and stating that this
fact made it hard to reach any definitive diagnosis. The ALJ sent the report to plaintiff’s counsel
and informed him that he could request a supplemental hearing where he could question Dr.
Peggau. Counsel accepted the offer, and a second hearing was held on January 23, 2013. But this
hearing was cut short because no one arranged for Dr. Peggau to be there. The ALJ and counsel
agreed that a third hearing was needed. 1 The ALJ proposed several options. One was to call Dr.
Peggau as a witness. Another was that the ALJ would get a new psychologist, along with an
internal medicine specialist, to testify as impartial medical experts. Counsel chose this option.
At the third hearing, the new psychological expert, Dr. Allen Heinemann, testified that he
was “confident” that plaintiff had bipolar disorder, anxiety disorder, and borderline personality
disorder and that she could not work a full work week because she would need “frequent rest
periods” and because she could not “accept feedback from a supervisor.” R. 63-64. Dr.
Heinemann conceded that plaintiff had a “chronic pattern of not cooperating adequately with
treating sources.” R. 67. However, he was never was asked directly whether he agreed with Dr.
Peggau’s claim that plaintiff was malingering and possibly engaged in drug-seeking behavior.
In his opinion finding that plaintiff was not disabled, the ALJ weighed the conflicting
medical opinions as follows:
As for the opinion evidence, Dr. [Rosch] [the new internal medicine specialist], an
impartial medical expert, was given substantial weight for having reviewed all of
the medical evidence of record, and for being present during the hearing testimony.
She inferred that the claimant had no severe physical impairment, including no
seizure disorder, only intermittent headaches and adequately controlled asthma.

1

Counsel explained that he believed the Peggau report was “not founded on science and proper technique” and
failed to address the fact that “we have the treating physicians who have rendered different diagnoses about
[plaintiff’s] condition.” R. 105. Counsel also stated that Dr. Peggau “[b]asicallyl [] said there were no impairments
other than malingering.” Id.

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Dr. Peggau was given some weight for his consultative examination and opinion.
Dr. Kuester and Dr. Hudspeth were also given some weight as [] non-examining
doctors with an extensive knowledge of disability requirements.
Dr. [Rosch], Dr. Peggau, Dr. Kuester, and Dr. Hudspeth's opinions were consistent
with the medical evidence of record. No weight was given to Dr. [Tawfik], Dr.
Rizvi, or the sundry therapists, including Ms. Gessner, who assigned low GAFs
based upon what the claimant reported. The undersigned will accept Dr.
[Heinemann’s] assessment only in part, excluding the probability that the claimant
would not be able to sustain a work week or supervisory criticism based upon what
she said. The undersigned also has given the Dr. Rizvi and Dr. [Tawfik] opinion
evidence limited weight because these sources specifically did not seem to exhibit
longitudinal familiarity.
R. 23 (citations omitted). In addition to this explanation, the ALJ made occasional comments
about these medical opinions in narrative portion of the opinion.
Plaintiff argues that the ALJ failed to follow the treating-physician rule. This Court
agrees. As a matter of procedure, the ALJ did not follow the two steps contemplated by the
treating-physician rule. 2 At Step One, the ALJ should have first assessed whether any of the
opinions of plaintiff’s treating physicians deserved controlling weight. 3 The ALJ did not make
this assessment. Then, at Step Two, the ALJ should have explicitly applied the checklist of
factors in assessing all of the medical opinions. Again, this was not done. In this Court’s view,
the failure to explicitly apply the checklist is by itself a ground for a remand. See Duran, 2015
U.S. Dist. LEXIS 101352 at *8-9.
However, even if this Court were to follow the more implicit approach advocated by the
Government, the Court would still find a remand is warranted. Although the ALJ referred
indirectly to some of the checklist factors, the ALJ did so in a sporadic and haphazard way. The
ALJ selectively invoked factors, citing them when they supported the ALJ but ignoring them

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This Court has previously set forth in some detail its understanding of how the treating-physician rule works. See,
e.g., Duran v. Colvin, 2015 U.S. Dist. LEXIS 101352, *8-9 (N.D. Ill. Aug. 4, 2015).
3
For example, Dr. Tawfik completed a Medical Opinion form in which he opined, among other things, that plaintiff
“may become violent” on the job and would miss more than four days a month. R. 832.

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when they supported plaintiff. This is classic cherry picking. See Moon v. Colvin, 763 F.3d 718,
722 (7th Cir. 2014). The ALJ also glossed over obvious conflicts in the medical opinions. The
following points provide support for these conclusions.
First, the ALJ never set forth the basic details about the length and nature of the treating
relationships (i.e. the first and second checklist factors). It is thus not clear how often plaintiff
saw Dr. Tawfik or Dr. Rizvi. Plaintiff claims that she had a “lengthy” relationship with them,
although plaintiff, like the ALJ, did not provide specific details to prove the point. Dkt. #12 at
11. In any event, the larger point remains that the ALJ never gave any weight to the fact that
these two doctors were treating physicians who had a more extensive relationship with plaintiff
than either Dr. Peggau, Dr. Kuester, Dr. Hudspeth, or Dr. Rosch, whose opinions all were given
more weight. In fact, the ALJ discounted the opinions of Dr. Tawfik and Dr. Rizvi by stating,
vaguely and tentatively, that they “did not seem to exhibit longitudinal familiarity.” R. 23
(emphasis added). 4 The ALJ did not apply this same scrutiny to the other opinions.
Second, the ALJ never addressed the fundamental contradiction at the heart of this case.
As evidenced by the winding procedural history, there was a split in opinion between Dr. Peggau
(who thought plaintiff was malingerer and drug-seeker with no real impairments) and Dr.
Heinemann (who was “confident” plaintiff had several psychological impairments and was
unable to work because of them). The ALJ never confronted this conflict head-on. Although the
ALJ basically sided with Dr. Peggau, the ALJ never clearly explained why. If anything, Dr.
Peggau’s opinion was the outlier among the group as he was the only one who found plaintiff
was malingering. The ALJ did not explain why, if he was relying on Dr. Peggau, he concluded at
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It should be noted also that the ALJ stated—at least at one point—that these two opinions deserved no weight. The
proper application of the treating physician rule should result in the total rejection (i.e., assigning “no weight”) of the
treating physician’s opinion only on rare occasions. See SSR 96-2p (“A finding that a treating source’s medical
opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to
deference and adopted by the adjudicator.”).

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Step Two that plaintiff had the three psychological impairments diagnosed by Dr. Heinemann.
The ALJ did not provide an explanation for why he rejected Dr. Heinemann’s bottom-line
conclusion that plaintiff would have to take frequent breaks and could not get along with others.
Third, the ALJ seems to have dismissed the opinions of plaintiff’s therapists simply
because they were social workers and not doctors. Referring to them as “sundry therapists,” the
ALJ stated that their opinions deserved no weight, although the ALJ provided no explanation for
the conclusion. It is true that such therapists do not qualify as acceptable medical sources whose
opinions can be given controlling weight. But this does not mean their opinions should be
discarded outright. Instead, the ALJ should evaluate them using the checklist. See SSR 06-03p;
see Canales v. Commissioner, 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010) (ALJ cannot merely
disregard non-acceptable medical source opinions; instead ALJ must apply checklist and
determine weight of opinions).
Fourth, another instance of cherry-picking is the fact that the ALJ did not apply the same
standards when analyzing the opinions of the two testifying doctors (Heinemann and Rosch).
Although they testified about different domains, mental versus physical impairments, they were
otherwise similar in that neither treated nor examined plaintiff, and both heard the same
testimony by plaintiff. Despite this parity, the ALJ gave Dr. Rosch’s testimony “substantial”
weight because she “reviewed all of the medical evidence of record” and because she was
“present during the hearing testimony.” These two rationales—tepid endorsements at that—
should have applied equally to Dr. Heinemann, but the ALJ gave him no credit.
Rather than grappling with the specific reasoning of the medical opinions supporting
plaintiff, the ALJ fell back on two broader arguments to discount those opinions in one fell

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swoop. But these arguments rest on shaky grounds that, at a minimum, need more explanation
and factual support.
The ALJ asserted repeatedly that plaintiff was not a reliable self-reporter. See. R 21
(“there is an issue as to whether [plaintiff] was able to provide accurate and specific detail”); R.
22 (two references to the same point); R. 23 (three references). This point was mentioned so
often that it functioned like a universal acid burning through every medical opinion because they
all, to one degree or another, relied on self-reports. 5 But the argument is questionable for several
reasons. One is that the ALJ seemed to unrealistically expect that psychiatric diagnoses can be
made without relying on such reports, an assumption the Seventh Circuit has questioned. 6
Another is that the ALJ gave only one specific example of where the plaintiff supposedly was an
unreliable reporter, thus essentially invoking the dubious doctrine of falsus in uno falsus in
omnibus (false in one, false in all). See U.S. v. Edwards, 581 F.3d 604, 612 (7th Cir. 2009).
Finally, the one example is vague. The ALJ noted that one of plaintiff’s therapists, Karen
Gessner, wrote the following in a July 5, 2011 “To Whom It May Concern” letter: “Dinesha
Sharp is a frequent patient at OSF Saint Anthony Medical Center. She has had seven Emergency
Department visits and multiple physician office visits over the past 12 months for anxiety,
headaches and seizures.” R. 541, 21. The ALJ’s explanation is fuzzy as to why this statement,
one not made directly by plaintiff, was unreliable. It does not appear that the statement was
technically inaccurate as plaintiff apparently did go to the emergency room multiple times. The
ALJ’s complaint seems to be that plaintiff somehow misreported the exact nature of her
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The ALJ proactively pushed this point at the hearing, asking Dr. Heinemann this leading question: “And if the
client’s not able to give accurate, specific details, it’s like the sands that shook the time. You have no basis for
making that judgment [i.e. that plaintiff could not work full-time]. Would you agree on that?” R. 68.
6
See, e.g., Price v. Colvin, 794 F.3d 836, 840 (7th Cir. 2015) (“psychiatric assessments normally are based primarily
on what the patient tells the psychiatrist, so that if the judge were correct, most psychiatric evidence would be totally
excluded from social security disability proceedings”); Schickel v. Colvin, No. 14 C 5763, 2015 U.S. Dist. LEXIS
165463, at *40-41 (N.D. Ill. Dec. 10, 2015).

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conditions as they were later diagnosed during these visits. But this seems to be a harsh standard
because a person might be unsure what condition certain vague symptoms point to and might go
to the emergency room simply to have them checked out. 7
The other global rationale was that plaintiff was engaged in “medication-seeking.” R. 21,
Here again, other than Dr. Peggau, no medical provider raised such a concern. The ALJ’s
conclusion thus rests mostly on the ALJ’s own analysis of the medical record. The ALJ
catalogued instances where the plaintiff asked for specific medications, in particular Xanax.
Although it is possible that plaintiff was abusing Xanax, this point is not clear, as there are other
innocent explanations that were not explored. In making a request for a specific medication, a
person may reasonably believe that the medication has been the most effective. Moreover, the
ALJ picked out evidencing supporting this particular thesis without confronting the counterevidence. See, e.g., R. 460 (Dr. Peggy Shiels wrote that plaintiff “feels like the Xanax is not
working and is interested in something else”). The ALJ also did not consider that financial
considerations may have played a role. See R. 907 (“had a new prescription she could not fill
because it was too expensive for her, saying it was about $180.”).
In remanding this case, the Court is not dictating a particular result, as this Court
recognizes that the evidence is not uniform and that plaintiff must overcome several significant
hurdles if she is to be found disabled on remand. See Moore v. Colvin, 743 F.3d 1118, 1124 (7th
Cir. 2014). Still, the treating-physician rule requires a more complete and more explicit analysis
than was provided by the ALJ.

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At the first hearing, the ALJ asked plaintiff why she went to the emergency room “fairly regularly.” R. 141.
Plaintiff explained: “they told me if I ever, you know, have the pain in my chest, and if I wasn’t feeling up at ease
that I could go to the hospital.” Id.

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Plaintiff’s motion for summary judgment is granted, the government’s motion is denied,
and this case is remanded for further consideration consistent with this opinion.

Date: July 1, 2016

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge