Fritz v. S.S.A.
Filing
31
MEMORANDUM Opinion and Order: For the reasons set forth in the attached Opinion, it is this Court's report and recommendation that Plaintiff's motion for summary judgment be denied, the Commissioner's motion be granted, and the Commiss ioner's decision be affirmed. Any objection to this report and recommendation must be filed by 11/4/2020. See Fed. R. Civ. P. 72(b). The failure to file a timely objection may result in the waiver of objections on appeal. See Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260-61 (7th Cir. 1989). The Clerk is directed to mail a copy of this order to Plaintiff. Signed by the Honorable Lisa A. Jensen on 10/21/2020. Mailed notice (jp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Denise F.,
Plaintiff,
v.
Andrew Marshal Saul,
Commissioner of Social Security,
Defendant.
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No. 17 CV 50320
Magistrate Judge Lisa A. Jensen
MEMORANDUM OPINON AND ORDER
This is a Social Security disability appeal filed by Plaintiff who is now proceeding pro se.
Plaintiff has been receiving supplemental security income benefits, under Title XVI, since
sometime after she was found to be disabled as of March 21, 2014. 1 R.16. But this case is not
about those benefits. Instead, it concerns a separate Title II application. At issue is whether
Plaintiff was disabled for the roughly three-and-a-half-year period from February 28, 2008 (her
alleged onset date) through September 30, 2011 (her date last insured). Plaintiff alleges that she
was disabled based on osteogenesis imperfecta (brittle bones), back and other bodily pains, and
depression, among other problems.
An administrative hearing was held in 2016. Plaintiff testified, along with a vocational
expert. Plaintiff was represented at the hearing by counsel who gave an opening statement, asked
questions of both witnesses, and answered various questions posed by the ALJ.
Thereafter, the ALJ issued a written ruling finding that Plaintiff had the following
medically determinable impairments: “uterine fibroids; history of bilateral lower extremity
1
The exact date these benefits began being paid is not clear from the briefs, but this fact is not relevant
for this appeal.
1
fractures; depression; and anxiety.” R. 18. However, the ALJ concluded that these impairments
were not severe enough to significantly limit Plaintiff’s ability to perform work activities. The
ALJ found that Plaintiff had minimal treatment and also did not consistently follow treatment
recommendations during the relevant period. The ALJ also relied on the fact that Plaintiff was
doing a wide variety of activities. 2
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); Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“whatever the meaning
of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high”).
Accordingly, a 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
2
As part of the analysis, the ALJ gave little weight to two statements submitted by Katherine Schenck, a
physician’s assistant, who served as Plaintiff’s primary treater. R. 22. Plaintiff has not challenged this part
of the decision, and thus any arguments relating to it are waived.
2
an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d
539, 544 (7th Cir. 2008).
An additional consideration in this case arises from the fact that Plaintiff is proceeding
pro se in this Court. It should be noted first that she was represented all throughout the
administrative proceedings by counsel who is highly experienced in handling Social Security
cases. As result, this Court must assume that counsel presented the “best case” to the ALJ.
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007) (“a claimant represented by counsel is
presumed to have made his best case before the ALJ”). However, Plaintiff is now proceeding pro
se here. As required by Seventh Circuit precedent, this Court must “liberally construe” claims
brought by pro se litigants; at the same time, the Seventh Circuit has made clear that pro se
litigants are still required to “present arguments supported by citations to the record and legal
authority.” Jackson v. Astrue, 472 Fed. App’x. 421, 422 (7th Cir. 2012); Anderson v. Hardman,
241 F.3d 544, 545-46 (7th Cir. 2001); Greenwell v. Saul, 811 Fed. App’x. 368, 370 (7th Cir.
2020) (“We construe pro se filings liberally, but a litigant still must comply with Federal Rule of
Appellate Procedure 28(a)(8), which requires that a brief present a cogent legal argument
with citations to authority and relevant parts of the record.”). Relying on these principles, the
Seventh Circuit has affirmed ALJ decisions in many instances even though the claimant was
proceeding pro se. 3
With these principles in mind, we turn to the briefs. Plaintiff filed an 18-page, single-linespaced opening brief. Dkt. 12. Despite being handwritten, it is legible and neatly presented. As
evidenced by handwritten editorial changes in the margins and interlinings, it is clear that
3
See, e.g., Cadenhead v. Astrue, 410 Fed. App’x. 982, 984 (7th Cir. 2011) (dismissing appeal: a
“generalized assertion of error is not sufficient” and “undeveloped or unsupported contentions are
waived”); McLachlan v. Astrue, 392 Fed. App’x. 493, 494 (7th Cir. 2010) (two-paragraph order
dismissing pro se appeal because the claimant’s brief presented only a “generalized assertion of error”).
3
Plaintiff took care to proofread the document. The Court has no difficulty following Plaintiff’s
train of thought. As far as content, the brief largely consists of a chronological summary of
Plaintiff’s major life events—at least those bearing on her current problems. The summary
covers a wide timespan, going back to her birth and early childhood. Plaintiff describes difficult
matters, including childhood abuse, the death of her twin brother in 1985, a car accident, and
strained relationships with both parents. See Dkt. 12 at 14 (“I didn’t talk to [my father] for 10
years”); id. at 15 (“I never got along with my mother”); id. at 17 (“My mother really messed me
up during my life”). Although the brief is predominantly a factual narrative, it does raise some
intermittent criticisms of the ALJ’s decision.
The Commissioner filed a very short response brief—just over two pages. It has one
argument basically, which is that all of Plaintiff’s possible arguments are waived because she
failed to support or develop them. Relying on the Seventh Circuit case law discussed above, the
Commissioner argues that Plaintiff’s brief “contains no more than a series of factual allegations
without citation to the record and with no argument or legal support.” Dkt. 16 at 2 (calling her
arguments “threadbare”). 4 The Commissioner argues that Plaintiff’s long opening brief
ultimately boils down to a request for this Court to reweigh the same evidence the ALJ
considered and to then “substitute [its] own judgment” in place of the ALJ’s judgment, which
this Court is not allowed to do. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
Plaintiff filed a reply brief, although not formally labelled as such, in which she reiterated
the same points raised in the opening brief. Dkt. 17 at 5 (arguing: “Again, I feel the ALJ made
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The Commissioner does not attempt to rebut any of Plaintiff’s specific arguments with one exception. In
a footnote, the Commissioner argues that two documents that were attached to Plaintiff’s opening brief
should not be considered because the first document is not in the record and the second was specifically
considered by the ALJ. Dkt. 16 at 3 n.1. The Court agrees with these arguments, and further notes that
Plaintiff, in her two briefs, did not make any attempt to explain how these documents supported her
arguments.
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the wrong decision.”). Because the Court does not find that this reply brief adds any materially
new information, the Court will not further discuss it but will instead rely on the opening brief as
the best statement of Plaintiff’s case.
After reviewing the briefs, as well as relevant portions of the record, the Court agrees
with the Commissioner’s core contention that Plaintiff’s arguments are skeletal and not
supported by citations or legal authorities. However, the Court does not agree that they should be
summarily dismissed. They deserve some acknowledgement and consideration. In reviewing
Plaintiff’s opening brief, the Court discerns three basic arguments. Plaintiff did not formally
divide her arguments into these particular categories, but the Court finds that this categorization
provides a convenient template for the discussion here.
Argument #1. The broadest argument is that the ALJ was unfair in how she questioned
Plaintiff at the hearing. At several points in her brief, Plaintiff asserts that the ALJ required yesor-no answers and did not give Plaintiff a chance to further explain her answers. This style of
questioning made Plaintiff feel nervous and intimidated. See Dkt. 12 at 9-10 (“When I was
talking to the ALJ Judge I was very very nervous and she said keep your answers to yes and no.
She never gave me a chance to explain my self.”); id. at 13 (“As I said before the ALJ Judge just
wanted yes or no answers. I couldn’t explain anything. She was very intimidating, my whole
body was shaking sitting in front of the tv screen.”). In making this argument, Plaintiff did not
cite to any pages in the transcript, nor did she descriptively identify a particular exchange. Her
argument thus seems to be more of a generalized claim that the ALJ was overbearing throughout
the hearing.
The Court has reviewed the transcript and does not find support for this contention. The
ALJ’s questions were in the normal range of questions this Court has seen in reviewing these
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cases. The ALJ asked a number of open-ended questions. See, e.g., R. 39 (“And why did you
stop doing that job”). And it appears that in most cases Plaintiff was able to answer how she
wanted. See id. (providing a long answer to the “stop doing that job” question). It is true that, in
some instances, the ALJ asked targeted questions when she was trying to figure out a discrete
issue. See, e.g., R. 35. And in a few instances, the ALJ did interrupt Plaintiff to get her to focus
her answer in a particular way. For example, on the issue of Plaintiff’s cane use, the ALJ cut off
Plaintiff as she was starting to give her answer, but the ALJ did so to get Plaintiff to focus on the
relevant 2008-11 period, rather letting her go on to describe her current cane use, which would
not have been relevant. R. 50. Such interruptions—assuming they are not constant and overly
impolite—are not unreasonable because ALJs must efficiently manage their time. Moreover, to
the extent that the ALJ did somehow prevent Plaintiff from giving a full answer, Plaintiff’s
counsel was allowed to separately question Plaintiff to bring out issues or facts that counsel, in
her professional experience, deemed important in the presentation of Plaintiff’s best case.
Argument #2. Plaintiff raises a series of criticisms about the way the ALJ described her
activities and chores. This topic, generally referred to as “activities of daily living,” is explored
in almost every Social Security disability case. The parties in this Court often argue over whether
the ALJ mischaracterized or gave undue weight to these activities. See generally Loveless v.
Colvin, 810 F.3d 502, 508 (7th Cir. 2016) (the claimant’s daily activities cannot be relied on by
themselves to determine a claimant’s ability to perform full time work, but they may be used to
compare inconsistencies between the claimant’s daily activities and the claimant’s testimony to
determine credibility). Here, the Court does not find that the ALJ struck an improper balance
between these competing concerns.
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The ALJ concluded that Plaintiff was able to perform a “wide range” of activities and
that this ability undermined her allegations about her supposedly limited abilities. R. 22.
Specifically the ALJ stated that Plaintiff had admitted that she was able to “perform her own
activities of personal care, drive a car, prepare meals, go shopping, raise a litter of kittens, act as
caretaker and financial manager for her invalid mother, attend school, and work in a garden and
watch television for recreation.” Id. Later in the decision, the ALJ also mentioned a few other
activities, including the fact that she was in a romantic relationship at one point, showing that she
had some capacity for social interaction. R. 23.
Plaintiff argues that the ALJ overstated her activities or omitted contextual facts. Set forth
below are some of the specific criticisms:
•
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although she did prepare meals, she usually just heated up frozen dinners in the
microwave
although she did go grocery shopping, it was not frequent and she just went “in and out”
and her friend usually drove
she did have a relationship with a man during the relevant period, but it was a
dysfunctional relationship centered around drug use, and Plaintiff terminated it after
several months
she took a pharmaceutical class, but found it to be “way too hard!”
Dkt. 12 at 9-14. This list is not exhaustive, but it illustrates the nature of these criticisms.
After reviewing these contentions, the Court does not find that they justify a remand. The
ALJ acknowledged many of these facts. The ALJ noted, for example, that Plaintiff typically
prepared only “simple meals” and that she “needed assistance with grocery shopping during the
winter” and that her friend, William Nelson, helped out with yard work. See R. 19, 20. The ALJ
also noted that Plaintiff’s romantic relationship “was apparently short-lived.” R. 23.
In other instances, Plaintiff’s contentions are not fully supported by the underlying source
materials. For example, Plaintiff states that “the ALJ said I was happy about getting some flower
[] in the mail but she never gave me a chance to say someone was going to plant them for me.”
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Dkt. 12 at 9. At issue is the ALJ’s statement that Plaintiff told a nurse at one visit that she had
been “doing better [] in the last 6 months” and was “excited about the flowers she ordered and
having time outside soon.” R. 21. This fact was cited as evidence bearing on Plaintiff’s mood at
the time. Plaintiff seems to construe the ALJ’s statement as a claim that Plaintiff was doing the
physical labor of planting the flowers. As a preliminary point, the ALJ did not explicitly state
that Plaintiff did the planting herself, as opposed to having someone else do the work, but merely
stated that she was outside, which is one activity her treatment providers recommended for her
depression. But even if the ALJ’s statement could be construed as an implicit assertion in the
way Plaintiff suggests, such an assertion finds some support in the record. Specifically, at the
hearing, Plaintiff testified that, although she was not gardening in 2008-11 like she used to do
before then, she still occasionally planted flowers. See R. 52 (“Q [by the ALJ] But you were
doing some gardening. A [by plaintiff] To put in a little flower here and there, I would. But not
to the extent that I used to garden.”).
To consider another example, Plaintiff complains that the ALJ misconstrued Plaintiff’s
role in helping her elderly mother. The ALJ stated that Plaintiff “act[ed] as caretaker and
financial manager for her invalid mother.” R. 22. Plaintiff argues in response: “The ALJ also
said I manage the finances of my invalid mother, which is wrong. I had to keep track of the
visiting nurses and home care workers which were many! There was no body to do it except
me!” Dkt. 12 at 13-14. Plaintiff disputes the part about her managing finances, but not the part
about her managing the medical care. To the extent that the ALJ got the finance part wrong, any
error would be harmless because the larger point still holds, which is that Plaintiff was capable of
handling a complex task. Plaintiff does not deny this point. In fact, she touts it, as demonstrated
by the back-to-back exclamation points.
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Plaintiff’s remaining criticisms are of a similar nature. The Court finds that all these
criticisms, even when construed liberally and collectively, are at best minor differences of
characterization. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010) (“Rather than nitpick
the ALJ’s opinion for inconsistences or contradictions, we give it a commonsensical reading.”).
Argument #3. Plaintiff states in several places that the reason she only had minimal
treatment, including no counseling for depression, is because she did not have insurance and
could not afford it. See Dkt. 12 at 11 (“I would stop taking [depression medications] [because] I
never had money to go see a [psychiatrist] and I truly believe I don’t know if they could help
me.”); id. at 16 (“[Doctors] have wanted me to go talk to someone but I didn’t have the
money.”). Although Plaintiff did not cite to any case law to support this argument, the Seventh
Circuit has repeatedly held 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.” Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014). But the Court does not find this
argument, which is the strongest of the three, is sufficient for a remand because the ALJ did
explore and address this issue. At the hearing, the ALJ explored this issue in some depth, asking
Plaintiff a series of questions about it. See R. 43-45. In the later written decision, the ALJ also
specifically addressed this issue, stating for example the following about Plaintiff’s failure to
follow repeated recommendations from her treatment providers to get counseling for her
depression: “The claimant testified with regard to counseling that she did not believe she would
be able to afford individual counseling, however, this does not explain why she did not even
attempt to contact the counselors recommended by her treating provider.” R. 22. The Court is not
aware of any authority suggesting that the ALJ was required to do more investigation than she
did. For these reasons, the Court does not find that this argument, standing alone, is persuasive.
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One larger point should at least be acknowledged in closing. If this case were remanded,
Plaintiff would face an additional significant barrier in light of the admission she has made in her
opening brief. As she states in somewhat dramatic terms, she has never told anyone—not the
ALJ, not her doctors, and presumably not even her attorney—the “real story” about her
condition. See Dkt. 12 at 11 (“I’ve never told my real story to any one before, but this is the ‘real
story.’”). She has chosen to come forward now and tell the “truth” to this Court. Id. at 18 (“I
have told you the truth in my [brief].”).
Plaintiff reveals that she was addicted to alcohol and drugs (specifically cocaine)
“starting in 1985” and continuing at least through 2011 when she stopped using cocaine. Dkt. 12
at 10, 11. In other words, she was using these addictive substances throughout most, if not all, of
the relevant period. She explains: “I have never [told] anyone about this before, not Katey
Shenk, not the ALJ Judge because I was ashamed! I thought of [suicide] a lot [throughout] the
years. I never attempted it. I’m sorry I lied to everyone. But that’s how I am. I keep it all to my
self.” Id. at 10 (emphasis in original).
This new admission would undoubtedly complicate Plaintiff’s case in many ways if this
case were remanded. For one thing, she would have to overcome significant questions about her
credibility and why she “lied to everyone,” as she puts it. This new information also would
complicate the analysis regarding whether Plaintiff’s treatment and medications were
inconsistent or conservative. Finally, by statute, a claimant cannot be found disabled “if
alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner’s
determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). An ALJ would have to
determine whether the claimant would still be found disabled “if he or she stopped using drugs or
alcohol.” SSR 13-2p; see also Kangail v. Barnhart, 454 F.3d 627, 628 (7th Cir. 2006) (“When an
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applicant for disability benefits both has a potentially disabling illness and is a substance abuser,
the issue for the administrative law judge is whether, were the applicant not a substance abuser,
she would still be disabled”).
In sum, the Court acknowledges and sympathizes with the fact that Plaintiff has dealt
with challenging and unfortunate circumstances throughout her life, beginning when she was
young and continuing into adulthood with the death of her twin brother, among many other
things. However, this Court must act within the confines of the existing Social Security disability
standards of review, an important one being the principle that this Court may not simply
reconsider the facts or reweigh evidence to reach a different result from the one reached by the
ALJ. See Elder, 529 F.3d at 413.
CONCLUSION
For these reasons, it is this Court’s report and recommendation that Plaintiff’s motion for
summary judgment be denied, the Commissioner’s motion be granted, and the Commissioner’s
decision be affirmed. Any objections to this report and recommendation must be filed by
November 4, 2020. See Fed. R. Civ. P. 72(b). The failure to file a timely objection may result in
the waiver of objections on appeal. See Provident Bank v. Manor Steel Corp., 882 F.2d 258, 26061 (7th Cir. 1989).
Date: October 21, 2020
By:
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___________________________
Lisa A. Jensen
United States Magistrate Judge
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