Booth v. Colvin
Filing
19
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. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 6/27/2016: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Stanley G. Booth,
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.
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No. 14 CV 50347
Magistrate Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
Plaintiff Stanley Booth brings this action under 42 U.S.C. § 405(g), challenging the
denial of disability benefits. As explained below, the case is remanded.
INTRODUCTION
Located within the Western Division of the U.S. District Court for the Northern District
of Illinois is the quaint city of Woodstock, Illinois. Woodstock is known for a variety of reasons.
For example, at one time, Woodstock was known as “Typewriter City,” due to the number of
typewriters manufactured there. Moreover, Eugene V. Debs—the Bernie Sanders of the day—
was once imprisoned in Woodstock. Additionally, for a small municipality, Woodstock boasts
an impressive list of several notable current and former residents, including Orson Welles,
Chester Gould, Jessica Biel, Bryan Bulaga, and “Woodstock Willie,” the groundhog derived
from the classic 90’s rom-com Groundhog Day.
Unfortunately, for many federal judges—including this one—Social Security appeals
oftentimes are reminiscent of Groundhog Day. 1 After completing an analysis of the parties’
1
Starring Bill Murray and Andie McDowell, Groundhog Day has held up well over time, despite being
released nearly a quarter of a century ago. It currently has an 8.1 rating on IMDB and a 96% fresh rating
on Rotten Tomatoes. www.imdb.com/title/tt0107048/; www.rottentomatoes.com/m/groundhog_day/. In
1
briefs, reviewing an administrative record and issuing an opinion (which, more often than not,
results in a remand), 2 a judge picks up another appeal only to be confronted with the same type
of facts, problems, and arguments. Appeals are littered with recurring issues, including, but not
limited to, the dreaded “boilerplate,” the Chenery doctrine, and, of course, the treating-physician
rule. Sometimes, the claimants in Social Security appeals may not be the most pristine parties.
They can have criminal histories, drug abuse issues, and mental health concerns, which can all
interrelate. See Koelling v. Colvin, No. 14 CV 50018, 2015 U.S. Dist. LEXIS 140754, *1-2
(N.D. Ill., Oct. 16, 2015). But this Court has warned the Administration and its administrative
law judges (“ALJs”) that “[b]enefits cannot be denied simply because an applicant is
unsympathetic, unlikeable and not entirely credible. Administrative law judges must still follow
fundamental statutory, regulatory and case-law requirements, including, but not limited to,
complying with the treating physician’s rule.” Swagger v. Colvin, No. 14 CV 50020, 2015 U.S.
Dist. LEXIS 151502, *2 (N.D. Ill., Nov. 4, 2015). This case is no different in the issues raised,
character portrayed, or opinion made.
BACKGROUND
Aside from knee problems, which are not a focus here, plaintiff’s physical and mental
problems stem primarily from an October 2006 assault that, according to plaintiff, “left him
badly beaten and psychologically scarred.” Dkt #10 at 2. Plaintiff’s frontal lobe and eye socket
were fractured, and he suffered a large subdural hematoma in his brain. He had multiple
surgeries including a craniotomy, and also had a plate and screws installed in his skull. After the
addition to the cinematic excellence of the film, the undersigned freely admits to possessing fond
memories of the quarries of McHenry County, one of which was aptly captured while meteorologist Phil
instructs quadruped Phil: “Don’t drive angry.”
2
See, e.g., Dettloff v. Colvin, No. 12 C 5700, 2015 U.S. Dist. LEXIS 80285, *7 (N.D. Ill. June 22, 2015)
(noting a 70% reversal rate); Freismuth v. Astrue, 920 F. Supp. 2d 943, 945 (E.D. Wis. 2013) (identifying
reversal rate ranging between 73% to 84%).
2
incident, he has had chronic headaches; sometimes as many as four a week. Over this time, and
even well before the assault, plaintiff was treated by his regular physician, Dr. Adekola A.
Ashaye, who prescribed various medications for plaintiff over the years. Plaintiff also has made
multiple trips to the emergency room to treat his headaches, as well as other issues. Beginning in
2011, he attended therapy sessions supervised by a counselor named Traci Stamm who
diagnosed plaintiff with major depressive disorder and post-traumatic stress disorder (“PTSD”).
Both Dr. Ashaye and Ms. Stamm have given opinions about plaintiff’s work-related limitations.
A hearing was held before the administrative law judge on May 28, 2013. In an opening
statement, plaintiff’s counsel argued that plaintiff’s recurring headaches would cause him to
“miss too many days from work” and would prevent him from “stay[ing] on task.” R. 32. The
ALJ then asked plaintiff questions about discrete issues the ALJ found to be contradictory or
suspicious. 3
After plaintiff testified, the ALJ called Mark Oberlander, a psychologist, as an impartial
medical expert. His testimony is important because the ALJ gave it “significant weight.” Dr.
Oberlander began his testimony by questioning plaintiff’s assertion that he was still seeing Ms.
Stamm at the time of the hearing or whether the therapy relationship ended the year before. After
some effort was made, without success, to resolve this issue, the ALJ asked Dr. Oberlander to
render his opinion based on the documents then available.
Dr. Oberlander acknowledged that plaintiff had a “documented” brain injury. But he also
concluded, based on his own assessment, that plaintiff had several personality disorders based on
3
She asked plaintiff about (among other things) riding his “bicycle everywhere”; why he had not tried to
get his GED; why he reported “absolutely no income” for the past 15 years; why he failed to see a
neurologist; why he “frequently” went to the emergency room and “frequently demand[ed] pain
medication”; whether any doctor suggested he may have “an addiction or a problem with pain
medication”; why he had not had his teeth problems fixed when they “may be contributing to [his]
headaches”; what his motives were when he broke into a car and was arrested; and whether medications
prescribed by Dr. Ashaye helped. R. 34-47.
3
his frequent emergency room trips. Dr. Oberlander found that plaintiff did not meet a Section 12
mental health listing and that he had the ability to do simple and routine work. The ALJ noted
that Dr. Oberlander’s opinion “obviously” conflicted with Ms. Stamm’s opinion. He explained
that Ms. Stamm’s answers on one questionnaire (Ex. 14F) lacked validity and reliability. R. 62.
According to the ALJ, “when she tells us in item five [i.e. one of the questions on Ex. 14F], use
public transportation, yet in her opinion, he is totally incapable of doing that, yet in her narrative
report [i.e. Ex. 17F], she says that he has not only used [his] bicycle but uses public
transportation. With that kind of discrepancy, it makes me question the rest of her functional
assessment.” R. 63. Essentially, the ALJ invoked the doctrine of falsus in uno, falsus in omnibus
(false in one, false in all), which is a principle of dubious applicability in the 21st Century. See
United States v. Edwards, 581 F.3d 604, 612 (7th Cir. 2009).
On August 23, 2013, the ALJ issued her opinion, finding that plaintiff had the following
severe impairments: “headaches, status post craniotomy; right knee pain/mild tear; organic brain
disorder; dysthymia; post-traumatic stress disorder; somatoform disorder; anti-social and
dependent personality disorder; and history of poly-substance use and abuse.” R. 12. She held
that plaintiff did not meet one of the Section 12 mental health listings. But the ALJ found that
plaintiff had moderate – as opposed to marked – impairments in the first three Paragraph B
criteria (i.e. activities of daily living, social functioning, and concentration). The ALJ found that
these impairments were not more severe because (a) plaintiff was “able to ride his bicycle and
take public transportation,” (b) he had a relationship with his mother and had girlfriends, and (c)
he listened to the radio. R. 13. 4 In the residual functional capacity (“RFC”) evaluation, the ALJ
found that plaintiff was capable of performing sedentary work subject to certain exceptions.
4
Although not raised as an issue on appeal, the ALJ’s analysis is suspect. On remand, the ALJ must
conduct a more thorough and critical analysis under Section 12.
4
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. 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 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). 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). Moreover, federal courts cannot build this logical bridge on behalf of
the ALJ or Commissioner. See Mason v. Colvin, No. 13 C 2993, 2014 U.S. Dist. LEXIS 152938,
at *19 (N.D. Ill. Oct. 29, 2014).
On appeal, plaintiff raises three arguments: (1) the ALJ failed to apply the treatingphysician rule; 5 (2) the ALJ erred in the credibility determination; and (3) the ALJ failed to
5
The Court recognizes that this rule is more accurately termed the “treating-sources rule,” but will use the
more familiar “treating-physician rule” terminology. For a thorough discussion of the treating-physician
rule, see Johnston, Every Picture Tells a Story: A Visual Guide to Evaluating Opinion Evidence in Social
5
consider the testimony of plaintiff’s mother. Because the first argument is the predominant one,
the Court will primarily focus on it. The treating-physician rule—and the systematic erroneous
application of the rule by ALJs—has been the subject of numerous opinions by this Court and
many remands. Edmonson v. Colvin, No. 14 CV 50135, 2016 U.S. Dist. LEXIS 32019, *16-20
(N.D. Ill. Mar. 14, 2016); Vandiver v. Colvin, No. 14 CV 50048, 2015 U.S. Dist. LEXIS 163328,
*6-10 (N.D. Ill. Dec. 7, 2015); Carlson v. Colvin, No. 13 CV 50341, 2015 U.S. Dist. LEXIS
129905, *19-21 (N.D. Ill. Sept. 28, 2015); Koelling v. Colvin, No. 14 CV 50018, 2015 U.S. Dist.
LEXIS 140754, *27-29 (N.D. Ill. Oct. 16, 2015); Taylor v. Colvin, No. 14 CV 50006, 2015 U.S.
Dist. LEXIS 111300, *16-17 (N.D. Ill. Aug. 4, 2015); Duran v. Colvin, No. 13 CV 50316, 2015
U.S. Dist. LEXIS 101352, *27-28 (N.D. Ill. Aug. 4, 2015). This Court is not alone in the
Northern District of Illinois in recently remanding cases because of ALJs’ erroneous application
of the treating-physician rule. See, e.g., Gonzalez v. Colvin, No. 14 CV 5635, 2016 U.S. Dist.
LEXIS 75707, *13-16 (N.D. Ill. June 10, 2016); (Rowland, J.); Koopers v. Colvin, No. 15 CV
5471, 2016 U.S. Dist. LEXIS 73082, *13-15 (N.D. Ill. June 6, 2016) (Martin, J.); Stubbe v.
Colvin, No. 14 CV 10442, 2016 U.S. Dist. LEXIS 64554, *9-14 (N.D. Ill. May 17, 2016) (Cox,
J.); Montgomery v. Colvin, No. 14 CV 10453, 2016 U.S. Dist. LEXIS 55074, *15-19 (N.D. Ill.
Apr. 26, 2016) (Cox, J.); Fugate v. Colvin, No. 14 CV 4240, 2016 U.S. Dist. LEXIS 33700, *2528 (N.D. Ill. Mar. 16, 2016) (Rowland, J.); Harlston v. Colvin, No. 14 CV 1606, 2016 U.S. Dist.
LEXIS 25286, *24-30 (N.D. Ill. Feb. 29, 2016) (Mason, J.); Lindo v. Colvin, No. 14 CV 1106,
2016 U.S. Dist. LEXIS 23262, *5-9 (N.D. Ill. Feb. 24, 2016) (Valdez, J.); Padua v. Colvin, No.
14 CV 566, 2016 U.S. Dist. LEXIS 21877, *21-26 (N.D. Ill. Feb. 23, 2016) (Valdez, J.); Accurso
v. Colvin, No. 12 CV 8394, 2016 U.S. Dist. LEXIS 13330, *41 (N.D. Ill. Feb. 4, 2016) (Cole, J.);
Security Appeals, The Circuit Rider, 28 (April 2016); Johnston, Understanding the Treating Physician
Rule in the Seventh Circuit: Good Luck!, The Circuit Rider, 29 (November 2015).
6
Schickel v. Colvin, No. 14 CV 5763, 2015 U.S. Dist. LEXIS 165463, *38-41 (N.D. Ill. Dec. 10,
2015) (Finnegan, J.); Middleton v. Colvin, No. 13 CV 4483, 2016 U.S. Dist. LEXIS 151847,
*27-32 (N.D. Ill. Nov. 9, 2015 ) (Kim, J.); Shaevitz v. Colvin, No. 13 CV 1721, 2015 U.S. Dist.
LEXIS 103480, *6-10 (N.D. Ill. Aug. 6, 2015) (Gilbert, J.); Moore v. Colvin, No. 13 CV 7843,
2015 U.S. Dist. LEXIS 65901, *31-38 (N.D. Ill. May 19, 2015) (Shenkeir, J.). This case is
another example of a bungled application of the rule, requiring remand.
I.
The Treating-Physician Rule.
Plaintiff argues that the ALJ violated the treating-physician rule by failing to give
“controlling” weight to Dr. Ashaye’s and Ms. Stamm’s opinions and by not applying the
checklist under that rule. The Government argues that this rule is “very deferential” and “lax”
and asserts that the ALJ implicitly applied the checklist. The Government characterizes Dr.
Ashaye’s and Ms. Stamm’s opinions as “extreme” and thus argues that they were justifiably
given “no weight,” and, in contrast, Dr. Oberlander’s opinions were properly given “significant
weight.” As explained below, the Court disagrees with these arguments. The Court agrees,
however, with the Government’s argument that Ms. Stamm’s opinion cannot be given
controlling weight. As a therapist, Ms. Stamm is not an “acceptable medical source,” and
therefore, her opinion cannot receive controlling weight. Stewart v. Colvin, No. 14-cv-1529,
2016 U.S. Dist. LEXIS 1529, *22 (C.D. Ill. Jan. 7, 2016); 20 C.F.R. 404.1527(a)(2), (c)(2).
The treating-physician rule generally requires the ALJ to “consider all” of the following
factors—referred to as the checklist factors—in weighing any medical opinion: (1) the length of
treatment; (2) the nature and extent of the treatment relationship; (3) the supportability of the
medical opinion; (4) the consistency of the opinion with the record as a whole; (5) the
physician's degree of specialization; and (6) other factors supporting or contradicting the opinion.
7
20 C.F.R. § 404.1527(c); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008) (checklist factors
help the ALJ “decide how much weight to give to the treating physician’s evidence”). But within
the weighing process, a treating-physician opinion receives particular consideration. It is entitled
to “controlling weight” if it is (i) “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and if it is (ii) “not inconsistent with the other substantial evidence in
[the] case.” § 404.1527(c). The ALJ must first assess whether to give the treating physician’s
opinion controlling weight. If the ALJ does not give the opinion controlling weight under this
first step, the ALJ cannot simply disregard it, but must proceed to the second step and determine
what specific weight it should be given by using the checklist factors. Moss v. Astrue¸ 555 F.3d
556, 561 (7th Cir. 2009). These steps are separate and distinct, ALJs are not permitted to conflate
them. Edmonson, 2016 U.S. Dist. LEXIS 32019, at *16 (“The ALJs routine conflation of these
steps is maddening.”); Taylor, 2015 U.S. Dist. LEXIS 111300, at *16-17. As explained below,
the ALJ did not follow these two steps.
A.
Dr. Ashaye
Dr. Ashaye’s opinions were set forth on a questionnaire entitled “Medical Opinion Re:
Ability To Do Worked-Related Activities (Physical).” R. 377-42. The ALJ analyzed this opinion
in the following paragraph:
Dr. Ashaye opined the claimant could lift and carry a maximum of 10 pounds (12F/
1). Additionally, Dr. Ashaye opined the claimant could stand, walk, and sit for less
than two hours maximum out of an 8-hour workday (12F/1). Dr. Ashaye opined the
claimant can sit or stand for 20 minutes before needing to change position, and
would need to shift at will from sitting or standing/walking. Additionally, he would
need to lie down at unpredictable intervals during a work shift. Dr. Ashaye also
opined the claimant never can twist, stoop, bend, crouch, climb stairs, or climb
ladders. He also opined the claimant would miss work about or more than three
times per month (12F/3-5). Dr. Ashaye noted the claimant's medications relieved
his headaches (10F/6, 7F). This evidence is inconsistent with Dr. Ashaye's
finding that the claimant was poor or marked in every area of functioning.
Therefore, the undersigned gives no weight to Dr. Ashaye's opinion.
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R. 18 (italics and bolding added).
As an initial point, this paragraph requires some unpacking to avoid confusion. The first
portion (the part neither bolded nor italicized) is a straightforward summary of Dr. Ashaye’s
medical opinion from the questionnaire. The last two sentences, which the Court has bolded,
contain the ALJ’s analysis. Tucked between them is the italicized sentence.
One might
reasonably assume this sentence is a further summary of the questionnaire, but it is not. Rather,
this sentence is based on two exhibits containing portions of Dr. Ashaye’s treatment notes. The
ALJ excised select observations from a few specific doctor visits and extrapolated a larger
conclusion—one never explicitly made by Dr. Ashaye—that plaintiff’s headache medications
generally worked to relieve his headaches. The ALJ then concluded that this jerry-rigged
observation, which she foisted on Dr. Ashaye, was at odds with Dr. Ashaye’s opinions in the
questionnaire. The result is a mischaracterization of Dr. Ashaye’s opinions.
Turning to the ALJ’s analysis in the last two sentences, the Court finds that it is
conclusory. The analysis consists of only two sentences and seems to point to only one specific
alleged inconsistency, which is the one discussed above about medications supposedly relieving
his headache. These two sentences obviously do not constitute an explicit analysis of either the
two parts to Step One, or the six checklist factors required by Step Two. In this Court’s view, the
failure to explicitly analyze these criteria is itself a ground for a remand. See, e.g., Duran v.
Colvin, No. 13 CV 50316, 2015 U.S. Dist. LEXIS 101352, *8-9 (N.D. Ill. Aug. 4, 2015).
However, even if this Court were to follow the implicit approach advocated by the
Government, it would still find remand warranted. It is not clear that the ALJ implicitly applied
the checklist. Instead, the ALJ’s “analysis” is merely a breezy drive by. Schaevitz v. Colvin, No.
13 C 1721, 2015 U.S. Dist. LEXIS 103480, *8 (N.D. Ill. Aug. 6, 2015). As for the first two
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factors—length of treatment and nature and extent of treatment relationship—the ALJ never set
forth the basic facts of the relationship. Although the ALJ mentioned a few specific visits with
Dr. Ashaye, the ALJ never tallied up the number of visits, nor surveyed the chronological
breadth of the relationship. The impression created is that plaintiff only saw Dr. Ashaye
sporadically and that the relationship began in 2011. Apparently, the ALJ was unaware that the
treatment relationship was, in fact, longer and more extensive, spanning from 2001 (well before
the 2006 assault) and continuing up until the hearing. According to a chronology of his doctor
visits, plaintiff saw Dr. Ashaye approximately thirty times (a total not including visits after July
2012). R. 452-59. In short, the ALJ “inappropriately undervalued” Dr. Ashaye’s longitudinal
view of plaintiff’s conditions. See Scrogham v. Colvin, 765 F.3d 685, 687-88 (7th Cir. 2014)
(remanding because “the ALJ inappropriately undervalued the opinions of Mr. Scrogham’s
treating physicians, whose longitudinal view of Mr. Scrogham's ailments should have factored
prominently into the ALJ's assessment of his disability status”).
As for the fifth factor—degree of specialization—the ALJ did not explicitly discuss it.
Dr. Ashaye was plaintiff’s general physician. It is true that he is not a neurologist, but the ALJ
and Dr. Oberlander agreed that plaintiff had an organic brain disorder capable of causing
recurring headaches. Therefore, the relevant question was the frequency and intensity of those
headaches, as well as the effectiveness of the medication. Because Dr. Ashaye saw plaintiff often
and was actively involved in prescribing medications, he should presumably be considered
qualified to opine about these matters. Moreover and critically, Dr. Ashaye’s opinions were
unopposed. At the hearing, Dr. Oberlander made a few passing observations about plaintiff’s
headaches, but later conceded he had no expertise in this area. Here is the exchange with
plaintiff’s counsel:
10
Q
And you’re not rendering an opinion regarding the frequency of []
headaches, are you?
A
I am not.
Q
That would be more of a medical determination?
A
That’s how you would define it?
Q
Well, he’s been receiving treatment for many, many years with Dr. Ashaye
his medical doctor, and you don’t have the qualifications to disagree with
Dr. Ashaye’s opinions, do you?
A
Regarding the frequency of his headaches, no.
Q
Or his medical conditions?
A
Correct.
R. 65.
The remaining factors—supportability (3), consistency (4) and other factors (6)—were
also not addressed in any meaningful way. As noted above, there is no evidence that Dr.
Ashaye’s opinions were inconsistent with any other opinions (other than Dr. Oberlander’s). For
example, Dr. Ramchandani, a consultant, did not question plaintiff’s claims of “having chronic
right frontal headaches” since the assault. R. 300.
Throughout the opinion, the ALJ offered several arguments which, although not
specifically tied to Dr. Ashaye’s opinions, could possibly be viewed as indirect criticisms. First,
the ALJ asserted repeatedly that plaintiff only sought routine or conservative treatment. See R.
16 (“treatment has been essentially routine and/or conservative in nature”); R. 16 (“throughout
2012, the claimant sought routine/conservative treatment for his headaches, by just seeking
medication refills”). However, because no medical provider testified on this issue, it is not
obvious that this treatment was routine or conservative. The ALJ’s opinion that the treatment
was “conservative” is a prime example of an ALJ impermissibly “playing doctor.” Moon v.
11
Colvin, 763 F.3d 718, 722 (7th Cir. 2014); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)
(“ALJs must not succumb to the temptation to play doctor and make their own independent
medical findings.”). Contrary to the impression created by the ALJ, Dr. Ashaye did not explicitly
opine that plaintiff’s treatment was routine or conservative. Dr. Ashaye prescribed numerous
medications, which were changed and adjusted at various points. See, e.g., R. 365 (2/8/12 visit:
“increase Propranolol”). As discussed below, the ALJ faulted plaintiff for not following through
with a neurology referral. Although it is possible that a neurologist would have spotted an easy
fix, this point is speculative without expert medical testimony.
Second, the ALJ speculated in several places that plaintiff’s headaches were caused in
part by unaddressed dental problems. 6 These assertions were based on sporadic complaints by
plaintiff when he went to the emergency room and speculated that his tooth problems may have
contributed to the pre-existing headaches. But Dr. Ashaye, who was aware of the ongoing dental
problems, did not find that they altered his bottom-line conclusions about plaintiff’s ability to
work. Moreover, no doctor stated or suggested that these tooth problems were a significant cause
of the ongoing headaches. Again, the ALJ impermissibly “played doctor.” Rohan, 98 F.3d at
970.
Third, as noted earlier, the ALJ believed that plaintiff’s medications “relieved” his
headaches. But this broad conclusion is not substantiated by a fair review of the entire record. It
is true, as the ALJ noted, that plaintiff in a few doctor visits reported that his medications had
helped to some degree. However, this fact still leaves important issues unaddressed. For one
6
See R. 15 (“the claimant needed a tooth pulled and had dental caries problems, which the record
indicates may have contributed to his headache problems”); R 16 (“The claimant had problems with
dental abscesses and toothaches, which likely contributed to his problems with headaches[.]”); R. 16
(“During one emergency room visit in 2013, the claimant was noted to have dental caries with an early
dental infection, which was contributing to his headache. The claimant was advised to treat with his
primary care physician (20F/60).”); R. 17 (“The claimant also had problems with dental pain (20F).”).
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thing, the ALJ does not explain what she means when she says the the medication “relieved”
plaintiff’s headaches. It is unclear whether plaintiff did not have a headache for a period of time
or if any such headache was brought under control through those medications after some period
of time. The latter scenario could still cause work disruption and absenteeism even though it
could be argued the medication was “working” to some degree in mitigating the duration or
intensity of the headache. The ALJ’s self-constructed conclusion that the medications were
generally effective on a consistent basis is undermined by both plaintiff’s testimony and his
treatment records. At the hearing, plaintiff was asked about whether his medication worked and
stated “[s]ome, yeah,” but then qualified his answer by stating: “Well I have headaches pretty
much all the time, and it moves around my head. I have it in the front, the back, all around, and
then the light, noises make me nauseous when I have the migraines, and I don’t never feel good.
I always have a headache.” R. 40. He testified that the Neurontin also made him dizzy. The ALJ
did not consider this testimony, nor the evidence in the record from emergency room visits that
the medication was, at best, partially effective. 7
In sum, for all the above reasons, the ALJ’s opinion lacks sufficient indicia from which to
conclude that she implicitly applied the checklist, even if the Court were to allow an implicit
consideration of the checklist.
7
See, e.g., R. 513 (5/19/12: “He states for the last 3 days he has been having an exacerbation of his
chronic headache which feels exactly like his previous attacks. He takes Neurontin, Tylenol, and Motrin
regularly but these have not helped his headache which is global and severe but not the worst headache of
his life.”); R. 530 (7/28/12 emergency room trip for “a headache this morning which quickly grew to full
intensity and he started to become nauseated and vomit uncontrollably”); see also R. 601 (5/4/13 visit to
Crusader where he saw Dr. Miller: “Pt also has headaches. This has also been a chronic problem. Will
get dizzy from the Neurontin. Will get HA that is at different places on the head. Will have a daily
headache. Will use Tylenol and ibuprofen to help with this.”).
13
B. Therapist Traci Stamm.
Many of the same issues apply to Ms. Stamm’s opinions, although a few differences exist
as well. Ms. Stamm’s opinions are set forth in three exhibits. The first two were relied on by Dr.
Oberlander to find a supposed contradiction in Ms. Stamm’s assessments. One exhibit is a
checkbox-style form on which Ms. Stamm answered “Poor or none” to a series of questions. R.
447-50. The second exhibit is a letter where Ms. Stamm summarized in narrative form her
opinion of plaintiff’s problems. R. 470. The third exhibit is a letter submitted after the hearing
confirming that, as plaintiff testified in the hearing, he was still seeing Ms. Stamm. R. 614.
The Government is right about one initial point. Because Ms. Stamm is a therapist and
not a psychologist, her opinion cannot be given “controlling weight” under Step One. But this
does not mean her opinions should be automatically and totally disregarded. Instead, the ALJ
still must apply the checklist under Step Two. See SSR 06-03p.
The ALJ did not apply the checklist at all, either explicitly or implicitly. Set forth below
is the ALJ’s analysis of Ms. Stamm’s opinions. It is interspersed with the analysis of Dr.
Oberlander’s opinions.
In a mental health source statement, Traci Stamm, LCPC, the claimant's counselor,
found the claimant had poor or no abilities to perform even unskilled work (14F/23). Ms. Stamm opined the claimant had major depressive disorder and posttraumatic stress disorder, and that he functions poorly in most areas of his life. She
described the claimant as low functioning (14F/4). The undersigned assigns no
weight to Ms. Stamm 's opinion, as the medical evidence as a whole contradicts her
finding that the claimant was unable to perform any work.
Dr. Mark Oberlander, Ph.D., an impartial psychological expert, noted Ms. Stamm's
professional relationship with the claimant ended in 2012, but the claimant testified
he saw Ms. Stamm a month ago. Dr. Oberlander, however, noted there were no
records to support the alleged ongoing treatment. Notwithstanding the lack of those
records, Dr. Oberlander testified he had enough evidence to make a determination
and testified the claimant had an organic brain disorder, which resulted in frequent
emergency room visits for pain medication for his headaches. Dr. Oberlander
testified the claimant had an adjustment disorder, post-traumatic stress disorder, a
14
somatoform disorder. Dr. Oberlander opined that many of his emergency room
disorders were related to disorders that had not been documented in the medical
evidence, including an anti-social personality disorder, dependent personality
disorder, and a poly-substance abuse disorder. These were attributed to the
claimant’s legal issues and drug and alcohol use.
*
*
*
Dr. Oberlander testified that his opinion conflicts with Ms. Stamm’s opinion, but
noted the discrepancies in Ms. Stamm’s findings, noting she found the claimant
“poor” in almost every category, despite there being no basis for such marked
findings. Furthermore, Dr. Oberlander noted that Ms. Stamm found the claimant
unable to use public transportation, yet noted that he rode his [bike?] and used
public transportation in her narrative, which also made him question her assessment
of the claimant’s functioning.
R. 16-17.
As with Dr. Ashaye’s opinion, the ALJ only provided a conclusory analysis. As for the
first two factors, the ALJ again did not set forth the basic details of the relationship. Recognizing
this omission, the Government in its response brief states that plaintiff “saw Ms. Stamm for 20
sessions between August 2011 and March 2012.” Dkt. #15 at 7. 8 But even this statement, which
the ALJ never included, leaves out that plaintiff’s relationship with Ms. Stamm continued after
March 2012 and was still ongoing at the time of the hearing, a point confirmed by the record. R.
614. But, in her opinion, the ALJ makes no reference to this exhibit and, even worse, continued
to dangle the suggestion that plaintiff was lying about the continuing therapy relationship. See R.
16 (“there were no records to support the alleged ongoing treatment” after 2012). The ALJ was
completely wrong on this issue.
8
This is a clear violation of the Chenery doctrine. The Court recognizes the Commissioner’s counsel’s
desire to fix problematic ALJ decisions on appeal. But the Seventh Circuit has warned that this practice
is sanctionable. Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir. 2014). This Court’s concern over the
applicability of the Chenery doctrine to Social Security appeals—a concern shared by other judges of this
circuit—is a question for the Seventh Circuit to resolve. Swagger, 2015 U.S. Dist. LEXIS 151502, at *2,
n.1.
15
As for the degree of specialization, this factor was not analyzed systematically, although
the ALJ briefly commented on the issue by giving credit to Dr. Oberlander’s expertise in the
field of psychology. See R. 17. It is true that Ms. Stamm is not a psychologist, but is listed
instead as a therapist. But the ALJ did not emphasize this point, even though the Government
now in its response brief focuses on it (again potentially violating the Chenery doctrine).
Although Dr. Oberlander’s more extensive and more formal psychology training is a factor that
certainly may be noted, it is not necessarily dispositive. See SSR 06-03p (“it may be appropriate
to give more weight to the opinion of a medical source who is not an ‘acceptable medical source’
if he or she has seen the individual more often than the treating source and has provided better
supporting evidence and a better explanation for his or her opinion”).
As for the remaining factors, the ALJ only gave a conclusory statement that “the medical
evidence as a whole contradicts [Ms. Stamm’s] finding that the claimant was unable to perform
any work.” R. 16. The ALJ basically only offered one specific reason for rejecting Ms. Stamm’s
opinions. It is the argument made by Dr. Oberlander at the hearing that Ms. Stamm’s answer to
the one question on the questionnaire about using public transportation was contradicted by her
narrative statement that plaintiff rode his bike to therapy sessions.
However, the Court finds that this one alleged discrepancy is a thin basis for rejecting
Ms. Stamm’s opinions entirely and giving “no weight” whatsoever to Ms. Stamm’s opinions.
First, the ALJ and Dr. Oberlander picked out one single question out of numerous other
questions and observations from these three exhibits and never discussed the other evidence that
favored plaintiff. Second, this issue—public transportation and bike riding—was not something
Ms. Stamm personally observed nor identified as important to plaintiff’s mental health problems.
Third, the supposed contradiction is muddy. On an exhibit, Ms. Stamm commented only about
16
plaintiff’s bike riding, stating that he “usually” rode his bike to therapy sessions. R. 470. She
offered no opinion in this exhibit, insofar as this Court can tell, about public transportation, even
though the ALJ claimed that she did so. R. 470-74. On the questionnaire, Ms. Stamm answered a
question about public transportation, not bike riding. R. 450. A question therefore exists whether
Ms. Stamm viewed bike riding as a form of public transportation. If she did not, then there is no
obvious contradiction. Overall, relying on this one quasi-contradiction fails to provide assurance
that the ALJ considered Ms. Stamm’s opinions in light of a fair and thorough review of the entire
record.
*
*
*
The ALJ’s opinion is completely inadequate. Not only did the ALJ gloss over and then
reject wholesale the opinions of Dr. Ashaye and Ms. Stamm, both of which reinforced each
other, but the ALJ also, simultaneously, readily accepted Dr. Oberlander’s opinion despite
several problems.
First, Dr. Oberlander hinted that plaintiff was lying about still engaging in therapy with
Ms. Stamm. Although it was proven after the hearing that plaintiff was not lying, Dr. Oberlander
never saw this evidence, and it is thus impossible to know whether his suspicion about plaintiff
lying colored his assessment. Second, Dr. Oberlander diagnosed plaintiff with several personality
disorders—specifically, somatoform disorder, antisocial personality disorder, and dependent
personality disorder. No other doctor diagnosed plaintiff with these conditions. These diagnoses
were based on Dr. Oberlander’s “own assessment” that plaintiff went to the emergency room an
“unusually large number” of times and suspiciously sought narcotics. R. 59-60. Here again, Dr.
Oberlander seems to be insinuating that plaintiff was fabricating or malingering in some respect.
Although Dr. Oberlander did not define somatoform disorder, according to the preeminent
17
medical dictionary, the disorder is typified by physical symptoms “for which there are no
demonstrable organic findings or known physiologic mechanisms,” thus creating “a strong
presumption that symptoms are linked to psychological factors.” Stedman’s Medical Dictionary,
571 (28th ed. 2006). The logical implication then is that such a diagnosis would call into
question the assumption, made by both the ALJ and Dr. Oberlander, that plaintiff, in fact, had an
organic brain disorder capable of causing his chronic headaches. R. 12, 59. Moreover, the
emergency records indicate that many doctors seemed to accept that plaintiff was having
headaches and even prescribed medication for it. 9
For all the above reasons, the Court finds that this case must be remanded for failure to
apply the treating-physician rule. It is important to note that the ALJ assigned no weight to the
opinions of Dr. Ashaye and Ms. Stamm. 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 be adopted by the adjudicator.”).
II.
Remaining Two Arguments.
Plaintiff’s remaining arguments are closely intertwined with the first one. As a result, the
Court will only briefly comment on them, especially because this Court has already determined
that a remand is appropriate.
9
See, e.g. R 493 (9/26/10 hospital visit: “The patient had received Toradol and Reglan for his headache
and this had decreased his headache significantly.”); R. 509 (8/23/11 hospital visit where plaintiff
complained about “headaches basically on an ongoing basis” and doctor stated: “The patient had an IV
established. Indication: IV fluid hydration. He had Benadryl and Reglan IV. On repeat evaluation, he
states that he is feeling significantly better.”).
18
Plaintiff’s second argument is that the ALJ erred in finding plaintiff not credible. 10 The
ALJ’s analysis is as follows:
The claimant was not very credible regarding his impairments. The claimant's
testimony contradicted the evidence of record. The claimant denied riding his bike
frequently, which was noted throughout the file. The claimant also denied getting
narcotics in the past two years, as noted in the medical evidence. Furthermore, the
claimant was non-compliant with his treating physician recommendations. The
claimant never saw a neurologist as he was advised to do in 2010 (1F). The
claimant stated he did not have any friends, but he later admitted to having a
girlfriend a year ago and a previous girlfriend he met through someone he knows.
Furthermore, the claimant needed a tooth pulled and had dental caries problems,
which the record indicates may have contributed to his headache problems.
Finally, the claimant has no reported income for the past 15 years; this suggests
there may be alternative reasons why the claimant currently is not working, other
than due to any alleged disability.
R. 15.
Several of these points, such as the bike riding, were discussed above. Others rest on
equivocal factual evidence or vague phrases. For example, the ALJ did not cite to any evidence
to substantiate the claim that plaintiff lied about using narcotics in the last two years. 11 The ALJ
concluded that plaintiff was non-compliant with his treating physician because he never saw a
neurologist or got his dental problems fixed. But the ALJ failed to acknowledge plaintiff cited
financial problems and difficulties in finding a doctor as part of the reason. R. 36, 52. See Pierce
v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (holding that an ALJ cannot “rely on an uninsured
claimant’s sparse treatment history to show that a condition was not serious without exploring
why the treatment history was thin”). The ALJ found it suspicious that plaintiff had no reported
10
A credibility determination should be reversed only if it is patently wrong. Minnick v. Colvin, 775 F.3d
929, 937 (7th Cir. 2015). However, an ALJ’s decision may be reversed if the ALJ “fail[s] to adequately
explain his or her credibility finding by discussing specific reasons supported by the record.” Id.; Craft v.
Astrue, 539 F.3d 668, 678 (7th Cir. 2008) (a credibility finding “must be specific enough to enable the
claimant and a reviewing body to understand the reasoning”).
11
Plaintiff testified that he was taking Neurontin and that he viewed this as a “non-narcotic pain
medication,” and stated that he had not “asked for” any narcotic pain medication in “a couple years.” R.
37. The ALJ did not discuss the definition of a narcotic nor cite to specific evidence suggesting that
plaintiff was using one, nor specifically address plaintiff’s claim that Neurontin is not a narcotic.
19
income for 15 years, but the ALJ did not acknowledge that plaintiff testified that he worked parttime and was paid in cash, that he lived with his mother, that he received a voucher from the
Township, and that he had a Link or SNAP card. R. 33, 35. In sum, the ALJ’s credibility analysis
rest on strained readings of ambiguous language and these factors seem far removed from the
relevant issue of plaintiff’s headache and other related symptoms.
Plaintiff’s third argument is that the ALJ failed to consider the testimony of his mother,
who provided statements about plaintiff’s limitations, including his memory problems. See Ex.
3E. However, the ALJ did, in fact, consider this evidence, discussing it in three paragraphs. The
ALJ’s main reason for rejecting plaintiff’s mother’s opinion is that it was inconsistent with larger
medical evidence—in short, that it suffered from the same flaws as did Dr. Ashaye’s and Ms.
Stamm’s opinions. Therefore, many of the same concerns and arguments discussed above would
apply to these points. The ALJ also noted that plaintiff’s mother was “not medically trained to
make exacting observations as to dates, frequencies, types and degrees of medical signs and
symptoms, or of the frequency or intensity of unusual moods or mannerisms.” R. 15. Although
the ALJ may consider plaintiff’s mother’s lack of medical training, this does not mean that her
observations about such daily issues as whether plaintiff could remember taking his medication
are automatically irrelevant, especially since she lived with him.
Cf. 20 C.F.R. §
416.924a(a)(2)(i) (parents “can be important sources of information because they usually see [the
child] every day”).
CONCLUSION
Despite this Court’s reference to Groundhog Day, the Court takes Social Security appeals
seriously. Indeed, the Court has previously recognized that determining whether a claimant is
disabled is serious business. Martinez v. Colvin, No. 12 CV 50016, 2014 U.S. Dist. LEXIS
20
41754, *27-28 (N.D. Ill. Mar. 28, 2014). Accordingly, this Court fulfills its duty to critically
review the evidence before affirming any ALJ decision. See Eichstadt, 534 F.3d at 665. The
Court believes that most ALJs likewise seriously consider the evidence and testimony at
hearings. But it is clear that the Administration’s regulations and rulings regarding the treatingphysician rule are not scrupulously applied. The end result is an “I-know-it-when-I-see-it”
determination of disability. Claimants deserve more, and the regulations and rulings demand
more.
For these reasons, plaintiff’s motion for summary judgment is granted, the government’s
motion is denied, and this case is remanded for further consideration. This Court makes no
determination whether plaintiff is disabled. See Moore v. Colvin, 743 F.3d 1118, 1124 (7th Cir.
2014). Instead, the Court is only remanding this case for an analysis and decision that is
consistent with this opinion, an opinion that merely applies the Social Security Administration’s
own rules and regulations. The Court reiterates its hope that the Commissioner will address with
the ALJs the systemic failure to properly analyze treating physicians’ opinions. See Duran, 2015
U.S. Dist. LEXIS 101352 at *40.
Date: June 27, 2016
By:
21
___________________________
Iain D. Johnston
United States Magistrate Judge
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