Dallosto v. Colvin
MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is remanded to the Commissioner for further proceedings consistent with this opinion. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 10/10/2017: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
No. 16 CV 50294
Magistrate Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
This is a Social Security disability benefits appeal. Plaintiff Kari Dallosto filed her
applications in early 2012, shortly after being hospitalized for 13 days because of a manic
episode that apparently started at a party at her parent’s house. She was then 25 years old.
Everyone, including the administrative law judge (“ALJ”), agrees that she has bipolar disorder
and personality disorder. She suffers from difficult personal relationships and has engaged in risk
taking behaviors and drug use. For example, she told a nurse that she once “[j]umped out of [a]
two story building and landed on her feet.” R. 512. She became pregnant at age 16 and had a
daughter. Still, after high school, she was able to work in a series of jobs as a hairdresser until the
February 2012 hospitalization.
This hospitalization serves as an anchor point in the competing factual narratives. In the
ALJ’s view, the hospitalization was plaintiff’s low point and was one-off event—perhaps caused
by the illegal drugs taken at the party—and plaintiff thereafter made steady improvement
through therapy and medication. She was even able to work again as a hairdresser, albeit parttime at a nursing home, and took care of her daughter and exercised and did other things showing
Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).
the ability to work full-time. The ALJ also acknowledged that plaintiff had a few relapses in the
post-hospitalization period from 2012 to 2015, but the ALJ viewed these problems as being
caused by plaintiff’s voluntary choice to quit counseling and take illegal drugs. Essentially, the
ALJ believed that plaintiff’s problems were lifestyle choices. As the ALJ stated, “chaos is a
choice” and “not a complete medical restriction.” R. 21.
A different view was offered by plaintiff’s long-term therapist, Alison Wintrode, who
treated plaintiff for many years. She opined, both in a letter and later in testimony at the
administrative hearing, that the hospitalization led to a worsening of plaintiff’s condition (it went
form “moderate to severe”) such that she was no longer able to work full-time. In the letter, she
stated that plaintiff had “frequent volatile relationships,” that she had only a “small and unstable”
support system, that she had periods when she stopped counseling and quit her medication, and
that she would have “a great deal of difficulty concentrating, staying on task and completing the
requirements of her job.” R. 683. In addition, she stated that plaintiff’s visits with psychiatrists
were “short and hurried.” These psychiatrists “quickly dismissed or ignored” her concerns.
The latter statements appear to be referring to plaintiff’s treatment with two medication
oversight psychiatrists she saw after the hospitalization. The first was Dr. Jafry who has offered
no opinion in this case. Then in 2014, plaintiff saw Dr. Syed Irfan who completed a form stating
that plaintiff would miss five days a month and would be “off task” 30% of the time. R. 685.
There is one other relevant medical opinion. At the hearing, clinical psychologist Allen
W. Heinemann testified. 2 For the most part, he agreed with Ms. Wintrode’s and Dr. Irfan’s
opinions. He testified that plaintiff could manage her bipolar symptoms “for a period of time, so
weeks, a few months, but sustaining that on an ongoing basis is difficult for her.” R. 64. He
This was the second hearing held in December 2014. There was also an earlier hearing, but for unexplained
reasons, no transcript is available. Neither side argues that this transcript would be relevant to the current appeal.
noted that she was “not in a highly supportive arrangement.” R. 65. He believed that if she were
under greater stress, she would “deteriorate to some extent[;] whether it would be so serious [as]
to require hospitalization. It’s difficult to speculate.” Id. Although he found that her impairments
were not “at listing level,” he opined that she would miss work one day a week (roughly four
times a month instead of the five suggested by Dr. Irfan) and would be off task 25% of the time
(as opposed to 30% stated by Dr. Irfan). R. 66. He explained as follows: “We do have the
GAF’s which are indicative of a severe impairment, severe work-related performance problems
and I do think that Ms. Wintrode’s testimony and letter in 12-F are consistent with that opinion
of Dr. Irfan.” Id. He added that plaintiff would “need more rest breaks than most employees
would require” and noted that she lost her last job “because of difficulties relating.” R. 67-68.
To summarize, three medical opinions supported, or arguably supported, plaintiff’s claim.
The ALJ rejected all three, relying largely on his layperson analysis. 3 Plaintiff argues that the
ALJ ignored the treating physician rule, cherrypicked facts to support his preordained thesis, and
relied on questionable assumptions about psychiatric impairments. This Court agrees.
Plaintiff argues that the ALJ failed to follow the well-known treating physician rule. It is
undisputed that ALJ did not discuss the first step under this rule or apply the checklist under the
second step. The Government concedes this point, acknowledging that the ALJ did not
“explicitly weigh” every checklist factor, but argues that the factors were impliedly considered in
the overall analysis and that this “is enough in the Seventh Circuit.” Dkt. #12 at 5. This Court has
previously expressed its view that an explicit analysis is still required. See Duran v. Colvin, 2015
U.S. Dist. LEXIS 101352, *8-9 (N.D. Ill. Aug. 4, 2015) (summarizing the treating physician
In a brief paragraph, the ALJ stated that he gave “substantial weight” to the opinions of the State Agency doctors.
R. 21. However, the ALJ did not discuss these opinions, nor explain how they supported the ALJ’s reasoning. And,
after reading these opinions, the Court can find little correlation between them and the ALJ’s analysis.
rule). Notwithstanding this point, even if the Government’s more holistic approach were
acceptable, this Court would still find the ALJ’s analysis insufficient.
An important point—perhaps the central one justifying a remand—is that, aside from a
few relatively minor exceptions, all three medical opinions were consistent with each other. This
is significant. The ALJ glossed over this fact and instead engaged in a piecemeal divide-andconquer strategy, examining each opinion seriatim. But at the hearing, the ALJ asked Dr.
Heinemann whether he agreed more with Ms. Wintrode or Dr. Irfan, the presupposition being
that their opinions conflicted. R. 62. However, Dr. Heinemann rejected the suggested dichotomy
and instead characterized the opinions as being consistent with each other. R. 66. Consistency is
a key principle embodied in the treating physician rule. The fourth checklist factor specifically
refers to the “the consistency of the opinion with the record as a whole.” The third factor refers
to the “supportability” of the opinion. In considering the ALJ’s rationales below, it is important
to remember that these opinions reinforced each other. Given this interlocking consistency, the
ALJ was required to come forward with compelling reasons to reject all three opinions in toto.
The ALJ’s analysis does not meet this standard.
Ms. Wintrode. The ALJ gave the most attention to Ms. Wintrode, offering multiple
rationales for rejecting her opinions. However, these rationales, though numerous, rely on highly
questionable factual premises, vague logical connections, or dubious assumptions. 4
The ALJ’s first criticism of Ms. Wintrode’s opinion was not set forth in the formal
analysis, but was interspersed into the earlier narrative summary. In effect, this criticism set the
Ms. Wintrode’s title is listed as LCPC, which apparently stands for Licensed Clinical Professional Counselor. As
plaintiff recognizes, she does not qualify as an “acceptable medical source” under the treating physician rule, but her
opinions still must be considered. Dkt. #7 at 14; Voigt v. Colvin, 781 F.3d 871, 878 (7th Cir. 2015) (an ALJ may not
reject an opinion by a nurse practitioner simply because he or she is not an acceptable medical source) (citing 20
C.F.R. §404.1513). The ALJ did not explicitly rely on Ms. Wintrode’s level of expertise as a reason for discrediting
her, although the ALJ repeatedly injected the phrase LCPC into the decision. Her expertise is an issue that may be
considered on remand, as it relates to the fifth checklist factor (degree of specialization).
stage for later criticisms. However, this one rests on a shaky factual foundation, specifically a
single statement by plaintiff. In response to a question asking her to identify strengths, plaintiff
stated that “she has [a] positive support system through family, friends” and “has contact with
support daily.” R. 565. The ALJ seized upon this statement to discredit Ms. Wintrode’s. Here is
[Plaintiff] appears to have relapsed and briefly stopped Rosecrance treatment.
Therapy and medication oversight resumed in February 2013 (9F/6). Although the
GAF was only 45, the claimant listed among her strengths and adaptive skills, “I
am good at my job, I am good at caring for people,” which seemingly implies
adaptive coping reserves that bear upon the ability to perform work. The claimant
also reported positive support through family and friends, with whom she allegedly
had daily contact (9F/8). This detail implies that she had a support network she
could call upon when coping became a struggle.
This positive support system represents a significant discrepancy as far as therapist
Alison Wintrode, LCPC, who offered the unsubstantiated statement that the
claimant had a small and unstable support system (12F/1). This discrepancy goes
towards the likelihood that the claimant is not able to provide accurate and specific
details such that others reasonably can rely upon her history. It also follows that
Alison Wintrode, LCPC, lacked the longitudinal familiarity that she claimed, which
goes towards the absence of weight the undersigned can assign her opinion.
R. 18-19 (emphasis in original). The ALJ’s characterization of this as being a “significant”
discrepancy, as well as the ALJ’s added italics, show that the ALJ placed weight on this point.
But the problem is that, aside from this one aspirational statement, the record consistently points
to the opposite conclusion—namely, that plaintiff’s family, in particular her mother, were part of
the problem (at least according to plaintiff). The medical record contains many statements
supporting this contrary interpretation. 5 Plaintiff testified that “she had limited support” and that
See R. 388 (plaintiff “feels she is the family scapegoat”); R. 392 (“States Mother hit her sister today, is upset, and
sister wants her at school to make conference call to Mother”); R. 425 (“Client reports ‘I use to beat my mother
up’”); R. 429 (“Kari reports  dysfunctional family”); R. 444 (“Client is living at home with her parents and she
states the home is so chaotic. ‘I hate I have beat my mother up so many times.’”); R. 462 (“she reports conflict at
home and appears to rely on her parents to help her complete her responsibilities and care of her daughter”); R. 466
(“[plaintiff] reports she feels that what she does [is] not good enough for family”) (“she discussed negative living
environment—always feeling judged—especially by her mother”) (“she reports when she is out of current
environment she would be more productive”); R. 350 (“This pt states that living at home with her family is stressful,
she could not trust people, specifically mentioning her “own sister.” R. 38, 44. Because of these
issues, plaintiff eventually moved out of her parent’s house. Dr. Heinemann concurred that
plaintiff did not have a strong support system. In short, the evidence supports Ms. Wintrode’s
opinion that plaintiff’s support system was “unstable.” Given these serious doubts about the
ALJ’s factual premise, this particular rationale collapses. Allord v. Barnhart, 455 F.3d 818, 821
(7th Cir. 2006) (an ALJ may not base a credibility determination on “errors of fact or logic”).
The ALJ offered several other rationales later in the decision. The first was that Ms.
Wintrode only saw plaintiff “intermittently since 2006,” that her visits were “irregular,” and that
she, therefore, was “not in a position to offer an informed longitudinal perspective.” R. 21. This
argument implicates the first two checklist factors—length and nature of treatment relationship.
The ALJ concluded that they undermined Ms. Wintrode’s opinions. But it is perplexing why the
ALJ believed this to be true. The duration and frequency of Ms. Wintrode’s treatment
relationship dwarf that of all the other medical providers. She treated plaintiff for eight years,
seeing her years before and after the pivotal 2012 hospitalization. She was, therefore, the only
medical provider who had a before-and-after perspective. According to her treatment notes, she
saw plaintiff, by this Court’s count, approximately 75 times and also, according to her testimony,
participated in additional phone consultations. Her therapy sessions were presumably much
longer than the 15-minute-or-less medical oversight visits with Dr. Jafry. The ALJ failed to
acknowledge these details. It is true, as Ms. Wintrode herself noted, that there were “times when
[plaintiff] stopped coming to counseling” during this eight-year span, but these gaps do not mean
that she lacked a longitudinal perspective, especially compared to the agency physicians who
never saw plaintiff. Dr. Heinemann, the medical expert, praised Ms. Wintrode’s perseverance,
but she does not have anywhere else to go.”); R. 218 (“I saw some abuse happen @ home & I felt like it was my
fault.”); R. 730 (“The patient reported she has been having problems with her mother also.”); R. 567 (“I live in this
loud house – my mom yells—and I am constantly blamed for stuff.”).
stating: “I think, to her credit, Ms. Wintrode has established a therapeutic relationship, is
compassionate with the claimant and the difficulty she has at times, maintaining a consistent
therapy relationship.” R. 63.
The ALJ’s next criticism is that Ms. Wintrode’s treatment notes “contain little
information.” R. 21. This rationale is erroneous. The notes consist of 24 handwritten pages with
a short paragraph for each visit. The ALJ provided the following explanation:
For example, on June 3, 2014, she records that the claimant has trouble going out.
An old friend feels that Facebook causes trouble. She closed the account. She is not
doing billing for the job (15F/5). On July 22, 2014, the claimant still was having
issues with her sister. There were issues concerning money spent, the claimant
feeling put upon, and the claimant spending time with friends younger than her
(15F/7). On October 27, 2014, the claimant returned after missing a month. She
still was struggling with work. She stood for 1/2 the session (15F/10).
R. 21. Put aside whether these three examples from the 75 or so entries are truly representative,
the Court is not clear why they undermine Ms. Wintrode’s opinion. Several statements are
directly relevant. Consider plaintiff’s part-time work as a hairdresser. The ALJ mentioned this
fact as a reason why plaintiff could work. But Ms. Wintrode’s observation that plaintiff was “still
. . . struggling with work” and “not doing billing for the job” support a contrary inference. Other
statements (e.g. “still was having issues with her sister”) show continuing problems with social
interaction. Other statements are less obviously relevant (e.g. why was she standing for half of
the therapy session?) but they do not contradict Ms. Wintrode’s opinions.
The ALJ also faulted Ms. Wintrode for supposedly engaging in speculation. The ALJ
explained as follows:
Most of [Ms. Wintrode’s] conclusions appear to involve unsupported speculation,
e.g., “Throughout her treatment, Kari has had times when she stopped coming to
counseling or went off of her medication. This is a frequent issue for persons of this
disorder.” The latter may be true, but it is not necessarily a reason to infer that she
lacks adaptive reserves or is unable to perform some work, particularly when she is
R. 21. The ALJ’s broader assertion—that “most” of Ms. Wintrode’s conclusions are
speculative—is again based on only an isolated example. As a factual matter, Ms. Wintrode did
not speculate that plaintiff stopped counseling periodically; she observed this fact. As for
whether this was a frequent issue for bipolar patients in general, the ALJ obliquely cast doubt on
the claim by stating that it “may” be true, but the ALJ offered no evidence to suggest that this
“speculation” was unwarranted. There was no dispute that plaintiff was bipolar. And the reason
why plaintiff stopped counseling was important. The ALJ repeatedly suggested that plaintiff did
so based on lifestyle preferences. In sum, the Court does not find Ms. Wintrode’s “speculation”
either false or improper.
The ALJ next suggests that Ms. Wintrode’s opinion rested solely on the “lone February
2012 hospitalization [from] three years before.” R. 21 (emphasis supplied by the ALJ). But Ms.
Wintrode did not rely on this one incident. Her opinion was based on “working as a therapist
with [plaintiff] for eight years.” R. 683. The ALJ believed that the 2012 hospitalization was a
“discrete” event, and asserted that the “record contains no other reports of ‘mania’ or psychosis.”
R. 22. This raises a question whether the ALJ wrongly assumed that a manic episode only occurs
when a person is hospitalized. But this assumption is misguided. See Voigt, 781 F.3d at 876 (the
lack of hospitalization does not mean that a claimant does not have serious mental health
problems). Logically, if the lone hospitalization were the only evidence of mania, then it would
raise a question as to why plaintiff’s doctors, as well as the ALJ, concluded that she had bipolar
disorder in the first place. In sum, although the ALJ articulated various rationales for giving Ms.
Wintrode’s opinion no weight, these rationales are flawed in various ways.
Dr. Irfan. The ALJ offered fewer reasons directed at Dr. Irfan’s opinion. The main
rationale appears to be that, although Dr. Irfan’s bottom-line conclusions—that plaintiff would
be “off task” 30% of the time and would miss five days a month—would lead to a finding that
plaintiff was disabled, Dr. Irfan made intermediate findings supposedly undermining these
conclusions. Specifically, Dr. Irfan never checked the most disabling category entitled “not able
to perform,” although he did check several times the box entitled “seriously limited, but not
precluded.” R. 22. The ALJ believed that these findings cast doubt on the conclusions. But this
Court does not find that this is necessarily contradictory because Dr. Irfan could have concluded
that cumulative effect of the individual limitations justified the bottom-line conclusions.
The other rationale is that Dr. Irfan “was prepared to dismiss plaintiff from his practice”
because of concerns about her medication compliance and cooperativeness. R. 22. The ALJ
believed that these statements undermined Dr. Irfan’s opinion. Plaintiff, on the other hand,
argues the opposite, claiming that Dr. Irfan’s willingness to offer an opinion despite these
concerns enhances his credibility. This Court is more persuaded by plaintiff’s reasoning, but in
any event, the ALJ’s argument, even if accepted, is a woefully thin rationale for rejecting his
Dr. Heinemann. The ALJ offered two main reasons for rejecting Dr. Heinemann’s
testimony. 6 The ALJ believed that Dr. Heinemann “relied almost exclusively” on Ms.
Wintrode’s testimony and had “little folder familiarity.” The suggestion is that the doctor rubberstamped Ms. Wintrode’s opinion and had little independent knowledge of the record. But neither
criticism is borne out by a reading of the transcript. Dr. Heinemann discussed specific exhibits
(e.g. 1F, 2F, 3F, and 14F) and referred to specific pages in some of them. There is nothing to
suggest he lacked familiarity with the record. During this discussion, he made no reference to
There appears to be a glitch, or possible omission, in the ALJ’s decision at page 11 (R. 22). The ALJ discussed Dr.
Irfan’s testimony and then, seemingly in the middle of that discussion, began discussing reasons that clearly related
to Dr. Heinemann’s testimony. Perhaps a transition paragraph was left out? The parties do not mention this
Ms. Wintrode’s testimony. It was only toward the end of his testimony, and then at the urging of
the ALJ, that he commented on Ms. Wintrode’s testimony. As noted above, he did agree with
much of her testimony. But this is not evidence that he failed to exercise independent judgment,
just as an appellate court’s affirmance of a lower court decision would not mean that it failed to
carefully review the issues. Moreover, because he was the impartial expert, playing the role of a
clean-up hitter, part of his job was to help the ALJ reconcile the earlier opinions. It thus would be
natural for him to comment on Ms. Wintrode’s testimony, which he did, and on Dr. Irfan’s
opinion, which he also did.
In sum, the Court finds that the ALJ’s reasons for rejecting these three, largely consistent
opinions were insufficient and that a remand is, therefore, required. Given this conclusion, the
Court will only briefly comment on a few remaining concerns. As noted above, the ALJ
repeatedly criticized plaintiff for not staying in therapy and for taking street drugs such as
marijuana. The ALJ apparently believed that plaintiff would have had no major problems if she
simply exercised more self-control. 7 But the ALJ never considered possibility that plaintiff’s
impairments made such control difficult. The Seventh Circuit has repeatedly told ALJs to
consider this alternative possibility. 8 Here, there is no evidence that the ALJ did so.
The ALJ mentioned this point often. See R. 18 (“She again was not taking her medication, so her emotional state
was ‘up and down,’ which begs the question of whether she could have had optimum control if she took her
medications as prescribed.”); R. 19 (“The record is replete with instances of the claimant starting and stopping
Rosecrance Mental Health Center services to suit her preferences , which supports an inference of choice, volition,
insight and capacity.”); R. 20 (“Medication misuse seemed to play a role in her presentation.”).
See Jelinek v. Astrue, 662 F.3d 805, 814 (7th Cir. 2011) (“ALJs assessing claimants with bipolar disorder must
consider possible alternative explanations before concluding that non-compliance with medication supports an
adverse credibility inference.”); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010) (“The administrative law judge’s
reference to Spiva’s failing to take his medications ignores one of the most serious problems in the treatment of
mental illness—the difficulty of keeping patients on their medications.”); Kangail v. Barnhart, 454 F.3d 627, 630
(7th Cir. 2006) (“[M]ental illness in general and bipolar disorder in particular (in part because it may require a
complex drug regimen to deal with both the manic and the depressive phases of the disease) may prevent the
sufferer from taking her prescribed medicines or otherwise submitting to treatment. The administrative law judge
did not consider this possibility.”) (citations omitted).
More broadly, there are a number of areas where the ALJ cherrypicked evidence or
ignored contrary lines of evidence. Thomas v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (an
ALJ may not ignore a line of evidence contrary to his conclusion). The Court will note two
examples. One is plaintiff’s part-time work. The ALJ referred to this several times, arguing that
it showed that plaintiff had, in the ALJ’s oft-repeated expression, “adaptive reserves.” But the
ALJ did not acknowledge contrary evidence showing that plaintiff had trouble with billing, got
into conflicts with co-workers, only worked sporadically three days a week at the nursing home
job, and had to quit several of these jobs. Plaintiff testified that she “would miss her scheduled
day to do the hairdressing at least once a week.” R. 34. There is no evidence that the ALJ
considered these qualifications when giving weight to this argument.
Another issue was that, according to the ALJ, plaintiff was taking care of her daughter.
See, e.g., R. 15. However, at the hearing, plaintiff stated that her daughter was living with
plaintiff’s parents. Plaintiff stated that whenever her daughter came over to her house for a visit
she would “get really irritated and [would] freak out” because she could not handle the stress. R.
65. The fact that plaintiff no longer had physical custody was a significant fact to omit when
discussing this issue. This omission is another example of cherrypicking.
As a final note, this Court’s opinion should be personally delivered to and read by
whichever ALJ hears the case on remand so that the same errors to not occur, a phenomena all
too often in Social Security cases. See Wallace v. Colvin, 193 F. Supp. 3d 939, 942 (N.D. Ill.
2016) (collecting cases).
For all the above reasons, plaintiff’s motion for summary judgment is granted, the
Government’s motion is denied, and the case is remanded to the Commissioner for further
proceedings consistent with this opinion.
Date: October 10, 2017
Iain D. Johnston
United States Magistrate Judge
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