Bahler-Kuhle v. Colvin
Filing
15
MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is denied, the government's motion is granted, and the decision of the ALJ is affirmed. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 1/29/2018: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Lori Bahler-Kuhle
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 16 CV 50370
Magistrate Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
Plaintiff Lori Bahler-Kuhle applied for Social Security disability benefits on May 11,
2013, alleging that she was disabled because of back problems and anxiety and depression. The
administrative law judge (“ALJ”) found that her ailments were not so severe that they would
prevent her from working a sedentary job subject to certain restrictions. In this appeal, plaintiff
argues that the ALJ’s analysis of her mental impairments was flawed. 2
The ALJ’s decision is affirmed. Plaintiff’s arguments on appeal run headlong into three
fundamental principles: (1) when a claimant is represented by counsel at the hearing, the ALJ is
entitled to presume that the best case was made, Sears v. Bowen, 840 F.2d 394, 402 (7th Cir.
1988); (2) a claimant bears the burden of proof for the first four-steps of a disability
determination, Brisco ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); (3) a court
may not merely reweigh the evidence on the appeal to reach a different result, Terry v. Astrue,
580 F.3d 471, 475 (7th Cir. 2009). In this case, plaintiff was represented by excellent counsel at
the administrative hearing, but no additional evidence was elicited; claimant failed to meet her
1
Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).
Because plaintiff raises no challenges to the ALJ’s discussion of her back impairment or other physical problems,
the Court will not discuss those issues or the facts relating to them.
2
1
burden; and now, on appeal, this Court is being asked to simply reweigh the evidence. The ALJ’s
decision is based on substantial evidence. Attempts to simply poke holes in the weighing of the
evidence will not result in remand.
BACKGROUND
On August 18, 2015, a hearing was held before the ALJ. Plaintiff, who was then 40 years
old, testified. that she was married and had a 17-year old son. R. 14-15. She last worked cleaning
offices as part of a business she and her sister ran from 2003 to 2011. They were the only two
workers, and were able to set their own hours. She quit in 2011 because the job required “too
much bending,” which was difficult with her back problems. R. 16, 18. Before operating this
company, plaintiff was a stay-at-home mother. Plaintiff stated that she did not feel she could
work anymore because of her anxiety and depression, as well as some forgetfulness. As for
treatment, plaintiff was seeing a psychiatrist (Dr. Irfan) roughly every month, sometimes at
longer intervals. See R. 20 (“Sometimes it’s once a month. Sometimes it goes to three months, at
the most.”). Starting in 2009, she began taking medications for these problems. Even with the
medications, she still had “a lot of ups and downs” and sometimes will “sit and cry” and “seclude
[herself] into the bedroom” because she does not “want to be around anybody.” Id.
Plaintiff testified that she had panic attacks. They contributed to her decision to stop
working on the cleaning job. She stated that one trigger for the panic attacks was “a big crowd of
people.” R. 24. Plaintiff stated that she sometimes missed doctor appointments at Rosecrance
because she was forgetful. Plaintiff was asked about one time when Dr. Irfan advised her to “go
over to the hospital” because plaintiff was—in her words—“just a wreck” and was having
suicidal thoughts. R. 26. Plaintiff did not follow through with the recommendation because she
did not want to leave her 17-year old son at home. Plaintiff stated that her mental conditions
2
affected her ability to care for her son because she would “isolate [herself] a lot” by going into
the bedroom and “just lay[ing] there” for a couple hours. Id. But she tried to avoid letting her son
know that she was having any problems with anxiety or depression.
On September 17, 2015, the ALJ issue her decision finding plaintiff not disabled. At Step
Three, the ALJ concluded that plaintiff did not meet a Section 12 mental health listing because
she did not meet the Paragraph B criteria. The ALJ found that plaintiff had “mild” limitations in
activities of daily living; “moderate” limitations in social interaction; “moderate” limitations in
concentration, persistence, or pace; and no episodes of decompensation. The ALJ then found that
plaintiff had the residual functional capacity (“RFC”) to do sedentary work, subject to various
restrictions designed to accommodate her anxiety and depression. The ALJ provided a number of
reasons for this finding, including that plaintiff’s treatment had been effective. See R. 105 (“her
psychiatric treatment, both counseling and medications, have kept her symptoms under control,
so that she can function if not facing certain types of situations—such as significant dealings
with the public (as identified in the residual functional capacity)”).
DISCUSSION
As noted above, plaintiff limits her arguments to the mental health impairments.
Plaintiff’s briefs also mostly focus on the ALJ’s listing analysis at Step Three, rather than on the
RFC analysis. As the Supreme Court has noted, the purpose of the listings is to “streamline[] the
decision process by identifying those claimants whose medical impairments are so severe that it
is likely they would be found disabled regardless of their vocational background.” Bowen v.
Yuckert, 482 U.S. 137, 153 (1987) (emphasis added). In short, qualifying as disabled under a
listing is typically viewed as more difficult than doing so through the RFC analysis.
3
To prevail under one of the Section 12 mental health listings, plaintiff must show that she
had “marked” limitations under at least two of the first three Paragraph B criteria. In her opening
brief, she did not tie her arguments to this criteria, but instead offered a looser structure
organized around four “assertions” allegedly made by the ALJ, to which plaintiff then offered
her own “rebuttal.” Rather than following this organizational scheme, the Court finds that it will
be easier to simply evaluate each of the three Paragraph B criteria, assessing whether the ALJ
relied on substantial evidence in reaching her decisions. The ALJ specifically addressed these
three criteria in the first half of the decision.
I.
Activities of Daily Living.
The ALJ provided the following analysis:
In activities of daily living, the claimant has mild restriction. One thing to note
initially is that according to section 12.00A of the introductory material to the
mental listings, the functional limitations in paragraphs B and C must be the result
of the mental disorder contained in the diagnostic description, as manifested by the
medical findings in paragraph A for the relevant listing section(s). In this case
many of the claimant’s alleged limitations on her activities of daily living are
related to her back complaints, and to that extent are not properly considered in the
B criteria rating. Even so, her activities of daily living have been fairly full. She
cares for her husband and son and engages in a wide variety of typical household
activities, such as preparing meals, light house chores, and shopping. She goes out
both by herself and with others. She is able to care not only for her own typical
personal care needs, but has follow-up with a wide variety of appointments for her
back and psychiatric issues. Overall, there is only a mild restriction on her activities
of daily living attributable to her psychological condition.
R. 99. Later in the RFC discussion, the ALJ elaborated slightly on these activities, describing
plaintiff’s answers on the Function Report (Exhibit 6E) and her testimony. But these references
mostly echo the same points made above. See, e.g., R. 104 (“The claimant’s daily activities,
recounted earlier in this decision, have shown she is able to take care of herself and a teenage
son, forge a new relationship and get married, and perform normal household tasks, such as
cleaning, shopping and preparing meals.”).
4
Plaintiff’s raises several arguments as to why this analysis is insufficient. Plaintiff first
notes that the ALJ cited plaintiff’s back problems as one factor limiting some of her activities.
But plaintiff fails to explain why the ALJ’s assertion was unjustified. One of the key sources
about plaintiff’s daily activities was the Function Report. This report contains several statements
supporting the ALJ’s assertion. See R. 243 (“my back pain wakes me up out of a deep sleep and I
have to get up and move around every 2 hours”); R. 244 (“I can’t prepare meals alone because I
can’t stand for a long period of time due to back pain”); R. 246 (plaintiff does not do yard work
because “back pain stops [her]”); R. 252 (plaintiff has trouble getting in and out of truck because
of “lower back pain”); R. 252 (plaintiff cannot sit for at least two hours without having to get up
and stand or walk “due to back pain”).
Plaintiff’s main argument is that there are numerous “contradictory” facts undermining
the ALJ’s conclusion. In show-don’t-tell fashion, plaintiff simply lays out a bullet-point list of
ten facts or assertions that are allegedly self-evidently contradictory. 3 However, upon closer
examination, this list is insufficient for several reasons.
First, many of these ten assertions do not address the relevant question, which is
plaintiff’s daily activities. Instead, they offer evidence about plaintiff’s moods or goals or
feelings. For example, plaintiff’s belief that she needs therapy more than once a month does not
speak to what activities she was then able to do on a regular basis. The various statements about
plaintiff’s anxiety (e.g. that it occurred more around the holiday) are again not probative on
3
These ten assertions are as follows: (1) “Dr. Irfan [] had been pushing for her to come to Rosecrance for about a
year because he felt she needed more support and counseling”; (2) “plaintiff herself reports that she needs therapy
more than once a month”; (3) “plaintiff would like greater control of anxiety and depression and would like to
develop more independence” and would “like to reduce her depressive episodes to less than 2-3x a week”; (4)
“plaintiff has problems shopping in crowds and going to family gatherings”; (5) “plaintiff has anxiety attacks and
needs to achieve more independence”; (6) “plaintiff’s anxiety is worse and she is not sleeping more than 4-5 hours a
night”; (7) “plaintiff is getting married and not sure how she will cope in front of a large crowd,” and she has “been
isolating at home”; (8) “plaintiff wants to die in her sleep” and “[h]er physical condition is impacting her ability to
obtain mental health treatment”; (9) “anxiety attacks around the holidays”; and (10) “Dr. Irfan told plaintiff to go to
the ER after an appointment due to worsening depression.” Dkt. #8 at 3.
5
whether plaintiff was able, despite her anxiety, to do daily activities. In the abstract, it is possible
that a person’s anxiety could be so debilitating that it would prevent a person from doing daily
activities, but this is the question at issue. It cannot be assumed away, but must be proven with
concrete examples. For these reasons, many of these assertions are not on their face contradictory
to the ALJ’s finding. 4
Second, and relatedly, many of these assertions are vague. Plaintiff’s desire for greater
control and more independence cannot be easily evaluated without some context and a better
understanding of what she meant by those terms. Put differently, many full-time workers might
have similar thoughts, and they might also periodically suffer from bouts of anxiety or
depression or face periods when their lives, due to external stressors, become psychologically
difficult for a time. To cite one example, anxiety attacks around the holidays is an experience
that many people might experience to some degree. It is not enough for plaintiff to simply point
to general statements that she was suffering from anxiety or panic attacks or was isolating herself
in the bedroom on occasion. This is because the ALJ agreed that plaintiff had some of these
problems, and then included several accommodations in the RFC to account for them. The ALJ
emphasized this point, stating as follows: “[Plaintiff’s] anxiety and difficulty interacting with
others has also been considered and incorporated into restrictions precluding more than
occasional interaction with the public and in working in tandem with others. These are not minor
restrictions. In fact, these restrictions rule out a large percentage of jobs.” R. 104.
Third, even if the above ten assertions were all directly relevant to plaintiff’s daily
activities and even if they were “contrary” to the ALJ’s findings, this does not mean that the
ALJ’s decision was unsupported. In most cases, there is some evidence contrary to either side’s
4
The Court acknowledges that several of the ten assertions reflect more severe symptoms. Although this evidence is
more compelling in a general sense, it is still non-responsive to the precise question about plaintiff’s daily activities.
6
position. The important question is whether the ALJ failed to consider the contrary evidence. See
Thomas v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (an ALJ may not ignore a line of evidence
contrary to his conclusion). However, when the ALJ has considered the contrary evidence, then
the Court “must” defer to the ALJ’s interpretation of that evidence so long as it was a reasonable
interpretation. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014). Here, plaintiff has not
argued that the ten assertions were ignored by the ALJ.
Fourth, plaintiff’s ten assertions do not even address several of the ALJ’s specific
findings. The ALJ noted that plaintiff “engages in a wide variety of typical household activities,
such as preparing meals, light house chores, and shopping”; that she “goes out both by herself
and with others”; and that she was able to “follow-up with a wide variety of appointments for her
back and psychiatric issues.” R. 99. As the Government argues, the ALJ’s examples fit within
the typical activities that ALJs should consider, as contemplated by Listing 12.00. Dkt. #13 at 4.
Fifth, plaintiff addresses a few of the specific activities relied on by the ALJ, but the
plaintiff offers criticisms that ultimately amount to disagreements over what weight should be
given to those activities. For example, in response to the ALJ’s observation that plaintiff was
taking care of her son, plaintiff (or more precisely, her counsel) speculates that plaintiff’s son
may not have needed much parental help. See Dkt. #8 at 4 (“Based on the testimony at the
hearing, and plaintiff’s medical records, it is really not clear how the judge felt the plaintiff was
taking care of her 17-year old son. Additionally, a 17-year old typically is fairly independent in
terms of self care.”) (emphasis added). Plaintiff’s point seems to be that it is easier to take care of
a 17-year old than, say, an infant. In terms of physical care, which is how plaintiff subtly defines
the issue, this may be true, but it is also often the case that teenagers require other, less physical
7
types of parental assistance. In any event, there is no reason to believe that the ALJ was unaware
of these distinctions or gave undue weight to this one factor among the many relied on.
Plaintiff raises similar qualifications about the ALJ’s assertion that she was able to go to
her many doctor appointments. Plaintiff first argues that “[t]here are multiple notes in the file
that she avoids driving,” but it is not clear why this changes the ALJ’s larger point that she was
able to schedule the appointments and then get to them (however she may have done so). Dkt. #8
at 4-5. As a fallback argument, plaintiff argues that, even if she was able to get to appointments
on her own, then “such activities” would “detract from her ability to maintain employment.” Id.
at 5. This argument—that merely having to go to doctor appointments would render someone
disabled—is one that could apply to many disability claimants. Even assuming that this is a valid
line of argument, and plaintiff has not cited to any authority to suggest that it is, there would still
be the problem that plaintiff has not established the factual predicate that her appointments were
so numerous that she could not work full-time. Plaintiff only saw Dr. Irfan once a month, and
sometimes even less frequently. This does not seem like an overbearing amount. In sum,
although plaintiff believes her limitations in daily activities were “marked,” she has not provided
a basis for overturning the ALJ’s contrary conclusion that they were only “mild.” The Court will
not reweigh this evidence. Terry, 580 F.3d at 475.
II.
Social Functioning.
Set forth below is the ALJ’s analysis of social functioning, which is the second of the
three Paragraph B criteria at issue:
In social functioning, the claimant has moderate difficulties. Her allegations
regarding difficulty working with others have been fully acknowledged and
accommodated into the RFC. She clearly is somewhat limited in terms of
interacting with others, both because of her psychiatric issues and perhaps also to
some extent because of her back pain (which is not properly considered under the B
criteria). However, a “marked” limitation, which suggests an inability to perform
8
SGA, is not warranted. In assessing the claimant’s social functioning, the lack of
evidence suggesting dysfunctional social behaviors in this case is relevant. For
example, the record fails to reveal evidence of verbal or physical altercations with
others or being fired for inappropriate behavior. The claimant has reported, or the
record otherwise reflects, that the claimant has engaged in the following activities
(which require some degree of social skill or effectiveness in interacting with
others): going out into public alone; carrying out a daily routine without unusual
dependence on others; going to family functions, including, and organizing her own
wedding. The treatment notes fail to reflect that the claimant had any significant
difficulty interacting with health care providers while receiving treatment (e.g., no
evidence of anger, lack of cooperation, aggressiveness or generally inappropriate
behavior toward health care personnel). The claimant’s behavior at the hearing was
entirely proper in terms of interacting with others, showing no signs of difficulty
socializing. Also, this rating is supported by the opinion of the state agency
psychological consultant, who reached the same conclusion regarding claimant’s
social functioning.
R. 99-100.
Plaintiff’s only response to this analysis is to assert that the ALJ relied on boilerplate
language and provided no concrete examples other plaintiff’s wedding planning. But this line of
argument misses the ALJ’s point, which is that there was an absence of evidence showing
problems, conflicts, or dysfunctional behaviors. It is hard to cite examples of an absence.
Plaintiff is the one who has failed to provide examples showing that she had “marked”
limitations in social functioning. See Briscoe, 425 F. 3d at 351-52 (plaintiff bears burden).
Instead, she again falls back on her general assertion that she experienced mood swings, crying
spells, anxiety attacks, and suicidal thoughts. But she never connects these feelings to any
specific problems in interacting with others. She argues only that her feelings should be viewed
as “physical abuse [to] herself.” Dkt. #8 at 6 (emphasis added). In short, this line of argument
fails to address the issue of social functioning.
As for the wedding, plaintiff argues that the “record is devoid of evidence as to how large
or formal the wedding was.” Id. at 5. Here again, plaintiff appeals to a mushy factual agnosticism
in the hope of undermining the ALJ’s assertion. Specifically, her counsel speculates that
9
plaintiff’s wedding “may very well have been a courthouse wedding,” and complains that the
ALJ did not ask about it at the hearing. Id. Plaintiff’s unstated premise seems to be that it would
require no effort or skill to organize a courthouse wedding. But plaintiff presented no evidence
that the wedding was a simple courthouse wedding. See Briscoe, 425 F.3d at 351-52; Sears, 840
F.2d at 402. Moreover, plaintiff’s argument is undercut by several statements in her brief. She
states that she “complained to her providers on multiple occasions that she was worried about her
wedding.” Id. But the fact that plaintiff was worried about it arguably suggests that the wedding
was not simply a rubber-stamp ceremony with no people attending. As for her worries, plaintiff
was still able to plan the wedding and go through the ceremony despite this fact. By extension,
this same skill could be applied to workplace anxiety—at least, that is one reasonable
interpretation that the ALJ could draw. But even more damaging to plaintiff’s small-courthousewedding theory is the following statement, which was one of plaintiff’s ten assertions set forth
earlier in her opening brief: “plaintiff is getting married and not sure how she will cope in front
of a large crowd.” Dkt. #8 at 3 (emphasis added). This statement contradicts counsel’s
speculation that her client had a small wedding.
III.
Concentration, Persistence, or Pace.
For the third paragraph B criteria, the ALJ provided the following analysis:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant’s moderate difficulties have been taken into account in
the RFC finding below. The treatment notes generally do not suggest major
difficulty concentrating—the claimant quite ably pursued her treatment and
conveyed her medical needs throughout the relevant period of time. She also was
able to testify effectively, with no evidence of diminished concentration. The state
agency consultants also rated the claimant as only “moderately” limited in terms of
her ability to concentrate. While difficulty concentrating is undoubtedly present,
and has been acknowledged in the RFC and in this “moderate” rating, the very
serious problems denoted by a “marked” limitations are not warranted based on the
claimant’s ability to function as shown in the evidence.
10
R. 100.
Plaintiff argues that this analysis was “minimal” and suffers from a “faulty
understanding” of her mental impairments. Dkt. #8 at 6. However, plaintiff’s provides little
evidence to support this thesis. Plaintiff merely states that she “often reported fatigue to Dr.
Irfan” and “had trouble doing activities such as leaving the house independently.” Id. This
argument is cursory, and suffers from many of the same problems already identified above—
namely, plaintiff’s assertions are vague; they are not tied to the precise criteria at issue; and they
are not necessarily inconsistent with the ALJ’s finding (here, that she had moderate limitations in
concentration, persistence, or pace). It is not clear, for example, how her trouble leaving the
house was relevant to her ability to concentrate on a job requiring simple and routine tasks.
IV.
Remaining Arguments
There are two remaining issues that were not covered by the above discussion.
A. GAF Scores. Plaintiff argues that the ALJ noted that plaintiff’s GAF scores “ranged
around 50 for much of the period,” but then ignored that plaintiff “had multiple GAF scores in
the 30s-40s.” R. 103; Dkt. #8 at 6. Plaintiff argues that an ALJ may not cherry-pick GAF scores.
Plaintiff is correct on this point. See Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014) (improper
for the ALJ to “seize upon” a GAF “high-water” mark of 60 while ignoring other lower scores).
But here, the ALJ did not ignore the contrary GAF scores. Instead, she addressed this
issue at some length in the following two paragraphs:
As mentioned in the summary of the evidence, the Rosecrance records include
GAF score[s] that range from approximately 30-50 (B13F). Generally, low scores
are not dispositive for Social Security Disability purposes. This is, in part, because
the GAF score is not purely an evaluation of psychological limitations. Rather, it is
comprised of three factors “psychological, social and occupational functioning.”
The Diagnostic and Statistical Manual of Mental Disorders (“DSM IV”) p. 30.
Additionally, while GAF scores are assessments of functioning that can be useful in
determining a claimant’s functional capabilities, such scores are also highly
11
subjective and lack standardization. The updated DSM-V has eliminated GAF
scores as a diagnostic tool. Nevertheless, claimant’s GAF scores have been
considered in reaching the findings here.
The lowest of claimant’s GAF scores was assessed when claimant was in an acute
depressive episode shortly after leaving an abusive relationship. She was
experiencing significant suicidal ideation at that time. But her condition improved,
as did her GAF scores. Her later scores are significantly higher. A GAF score of
41-50 suggests the presence of “serious” symptoms or serious impairment in social
or occupational functioning, and a score of 50, which was assigned on multiple
occasions, borders between “moderate” and “serious” symptoms. In addition, the
treatment notes from Dr. Irfan, mentioned earlier, do not generally report such
serious psychiatric symptoms. Ultimately, after considering and balancing all of the
evidence of record, this decision acknowledges that claimant has limitations
resulting from her mental health condition and has accordingly limited her to
simple unskilled work, requiring few changes and few decisions, as well as limited
contacted with the public, co-workers and supervisors.
R. 105 (footnote omitted).
In this discussion, the ALJ expressed some initial reservations about the general
persuasiveness of GAF scores, and acknowledged that plaintiff had some lower scores. The ALJ
did not ignore those scores, but instead offered a rationale to explain why they were lower, which
was the ending of an abusive relationship. The ALJ also considered other contemporaneous
evidence (i.e. Dr. Irfan’s treatment notes) to help put the scores in a larger context. The Court
finds that the ALJ’s analysis, taken as a whole, is a reasonable approach. It would have perhaps
been more consistent if the ALJ had simply ignored the GAF scores altogether, but it is clear that
this evidence was only a small part of the ALJ’s decision. Thus, if there were any errors in this
analysis, the Court finds that they were harmless errors.
B. Supporting Medical Opinions. Plaintiff has suggested, in very brief fashion, that the
ALJ lacked supporting medical testimony. However, in her opening brief, plaintiff mentioned
this point only in a general way at the end of her brief. See Dkt. #8 at 6 (“To the extent that the
ALJ made conclusions about plaintiff’s mental health without supporting medical expert
12
testimony, it was an error.”). In its response brief, the Government noted that the ALJ relied on
the opinions from two State agency physicians. See Dkt. #13 at 9 (“The ALJ considered the
opinions from the State agency consultants at both step three and when determining BahlerKuhle’s RFC.”). Then, in her reply brief, plaintiff for the first time raised the argument that the
State agency consultants “last evaluated the evidence on April 17, 2014” and thus were not able
to review some additional evidence from Dr. Irfan which, according to plaintiff, contains
“significant treatment notes.” Dkt. #14 at 2-3. However, plaintiff fails to discuss what this
evidence was, and why it was significant or would have changed the earlier conclusions. On the
whole, this argument is undeveloped, and not persuasive in any event. Plaintiff’s main argument
in this appeal has been about the nature of her daily activities. It is not clear how a medical
expert would have aided in that inquiry, and plaintiff has not even requested that a medical
expert should be called if this case were remanded.
CONCLUSION
For all the above reasons, plaintiff’s motion for summary judgment is denied, the
government’s motion is granted, and the decision of the ALJ is affirmed.
Date: January 29, 2018
By:
13
___________________________
Iain D. Johnston
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?