Cook 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 3/6/2018: (yxp, ) (Main Document 19 replaced on 3/6/2018) (yxp, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Ciera Cook
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.

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No. 16 CV 50338
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Cierra Cook began experiencing severe anxiety around age 15, and was
eventually diagnosed with bipolar disorder. She was hospitalized in May 2010 and then
participated in a partial hospitalization program in October 2011. She eventually quit school
because she was too anxious being around people. She now spends most of her time in her
bedroom at her parent’s house. Over the last several years, she has received counseling from a
number of therapists. As even plaintiff concedes, therapy has improved her coping skills.
However, soon after turning 18 years old, she applied for disability insurance benefits. After a
hearing in January 2015, the administrative law judge (“ALJ”) concluded that, although plaintiff
still suffers from bipolar disorder, her condition had improved to the point where she could work
certain jobs. The ALJ relied heavily on the testimony of Dr. Mark Oberlander.
Plaintiff argues here that the alleged improvement was merely an artifact of the episodic
nature of her illness, and that she inevitably will regress. Plaintiff argues that the ALJ erred by
cherrypicking the evidentiary record and by misapplying the treating physician rule.
Encompassed within the second argument is a narrower sub-argument, which is that Dr.
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Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).

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Oberlander rendered his opinion without having reviewed plaintiff’s most recent records. These
records, set forth in Exhibit 20F, consist of 95 pages and cover plaintiff’s treatment at
Rosecrance from late 2013 to early 2015. After spending some time reviewing the parties’
arguments and the 770-page record, the Court has concluded that a remand is required based on
the latter argument and that this conclusion can be succinctly explained.
At the administrative hearing, it became apparent that the recent records had not been
made available to Dr. Oberlander. The ALJ asked why plaintiff’s counsel waited “so long” to
request these records. R. 74. The ALJ was frustrated and blamed counsel for the failure to timely
procure these records. 2 The ALJ even expressed concern that Dr. Oberlander could not give a
valid opinion as a result. See id. (“I don’t know that the doctor is going to be able to give us any
sort of opinion at this point without the updated records.”). Nevertheless, the ALJ proceeded
with the hearing, and Dr. Oberlander testified, as noted above, that plaintiff had “made good
progress with regard to psychiatric symptomatology” over the last three years and was, therefore,
able to work certain “low stress” jobs. R. 76, 81. After the hearing, counsel submitted the recent
Rosecrance records. In the ALJ’s decision, the ALJ adopted Dr. Oberlander’s improvement
rationale, concluding that plaintiff’s treatment records “show improvement with medical
management,” but that she also had “ongoing fluctuating symptoms and intermittent
exacerbations.” R. 22. At the end of the decision, the ALJ noted that counsel had submitted the
Rosecrance records (Ex. 20F) after the hearing, but concluded that these records merely showed
“continued participation by [plaintiff] in treatment with resulting improvement.” 3 R. 28. In short,
the ALJ believed that the records would not have changed Dr. Oberlander’s opinion.

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Different counsel represented plaintiff at the hearing.
The ALJ provided the following brief analysis of these records: “The record reflects infrequent contact with Dr.
D’Souza, with no intensity of treatment. His assessment shows no significant abnormalities and there are no
additional notes from him to support the low GAF he posits. Nor are there any treatment notes in the post-hearing
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Plaintiff disagrees with this conclusion. Plaintiff argues that, even though these records
“show some increase in coping skills (after years of therapy), plaintiff was still acting selfdestructive[ly] in 2014 and 2015.” Dkt. #10 at 11-12. To support this claim, plaintiff cites to the
following two incidents: “In 2014, [plaintiff] started breaking things in her mother’s office after
getting upset. In 2015, she cut herself with a razor.” Id. (citations omitted). Plaintiff’s theory is
that these two incidents, along with other evidence from these records, cast doubt on the ALJ’s
improvement rationale. In her reply, plaintiff argues that the ALJ should have “proffered [the]
additional evidence to Dr. Oberlander post-hearing.” Dkt. #18 at 2.
In response, the Government raises two main counter-arguments. First, the Government
asserts that plaintiff “now seeks to profit from her hearing representative’s lack of
punctiliousness” in submitting these records. Dkt. #17 at 7. Second, the Government notes that
the ALJ “specifically addressed” the recent records and found that they “warranted no change in
the RFC or [the] decision.” Id. at 8. To support the latter argument, the Government has culled
several facts from these records, noting for example that plaintiff had improved after a 12-week
anger management course and that Dr. D’Souza, in his most recent visits, wrote that plaintiff was
stable and doing well, with no mood swings and no medication side effects. Id.
The Court is not persuaded by either argument. The first is essentially a waiver argument
in which the Government is suggesting that plaintiff should be penalized for her counsel’s
(apparent) lack of diligence. However, the Government has not provided legal authority to
support this argument. Moreover, ALJs have a general duty to develop a full and fair record. See
Minnick v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015). At the hearing, the ALJ noted that these
records could be important. This Court agrees. Given that these were the most recent records,

submissions to support the low GAF scores. Exhibit 20F at 28 and 83. They are inconsistent with the earlier GAF
scores and there is no attempt to explain the inconsistency.” R. 28.

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they were relevant to the improvement rationale. Also, they were not simply a snapshot of, say, a
single doctor visit but covered a year of regular treatment.
The Government’s second argument is likewise untenable. The various facts cited by the
Government to show that the ALJ’s conclusion was justified (such as the completion of an anger
management course) were not mentioned by the ALJ in the decision. Accordingly, these are
after-the-fact explanations. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“the
Chenery doctrine [] forbids an agency’s lawyers to defend the agency’s decision on grounds that
the agency itself had not embraced”). A related problem with both the ALJ’s brief analysis, as
well as the Government’s more fact-specific analysis, is that they are layperson analyses. See
Lewis v. Colvin, No. 14 CV 50195, 2016 U.S. Dist. LEXIS 115969, *11 n. 3 (N.D. Ill. Aug.
30, 2016) (courts, counsel, and ALJs must resist the temptation to play doctor).

The Court’s decision to remand this case finds support in a recent, similar Seventh
Circuit decision. In Moreno v. Berryhill, 2018 WL 914954 (7th Cir. Feb. 16, 2018), the Seventh
Circuit remanded for a new hearing because the ALJ relied on an “outdated mental-health
assessment.” Id. at *1. The Government argued there, just as it does here, that “the newer
mental-health records would not have made a difference because they showed improvement.” Id.
at 5. However, the Seventh Circuit rejected this argument, stating as follows:
This argument is based on the ALJ’s own assessment of the more recent records.
We have made clear, however, that ALJs are not qualified to evaluate medical
records themselves but must rely on expert opinions. Meuser v. Colvin, 838 F.3d
905, 911 (7th Cir. 2016) (remanding because the ALJ improperly “played doctor”);
Goins, 764 F.3d at 680 (prohibiting ALJs from “playing doctor” by summarizing
the results of a medical exam without input from an expert).
Id.
In sum, although the Court finds that the ALJ erred in not seeking an updated medical
opinion regarding the new records, the Court is not suggesting that the ALJ’s improvement
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rationale was unpersuasive or lacking in evidentiary support. Having found that a remand is
required, the Court need not address plaintiff’s remaining arguments. On remand, the ALJ should
consider all the issues and arguments with a fresh eye, especially in light of the recent records.
For the foregoing reasons, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and this case is remanded for further consideration.

Date: March 6, 2018

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge