Taylor v. Berryhill

Filing 36

MEMORANDUM Opinion and Order: Plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is reversed and remanded for further proceedings. (See attachment for full detail). Signed by the Honorable Lisa A. Jensen on 2/4/2020. Mailed notice (jk, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Pamela T.,
Plaintiff,
v.
Andrew Saul,
Commissioner of Social Security,
Defendant.

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No. 18 CV 50173
Magistrate Judge Lisa A. Jensen

MEMORANDUM OPINION AND ORDER1
This is a Social Security disability benefits appeal. Plaintiff, who is now 45 years old, has
a limited work history, having worked only sporadically in two jobs. Although she suffers from
some physical impairments (left knee arthritis, carpal tunnel syndrome, and obesity), her mental
impairments are the sole focus of this appeal. She has been diagnosed with major depressive
disorder, generalized anxiety disorder, obsessive compulsive disorder, post-traumatic stress
disorder, and borderline personality disorder. The administrative law judge (“ALJ”) found these
impairments were severe at Step Two, but concluded that plaintiff could still work.
In reviewing the briefs, the Court is presented at the outset with two starkly different
portrayals of plaintiff, both ostensibly derived from the same evidentiary record. An initial
overview will show just how far apart they are. According to plaintiff’s lawyers, she was an
abrasive and contentious person who has repeatedly gotten into tangles (and more pronounced
conflicts) with a broad range of people, including customers at work, medical personnel, and
family members. She has a history of severe mood swings and dysfunctional behavior and is

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The Court will assume the reader is familiar with the basic Social Security abbreviations and jargon.

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reluctant to go into public places, is fearful of germs, and often sees strangers as angels or
demons. She alleges that her main problem is emotional.
Looking at the same record, the ALJ saw a different person. According to the ALJ,
plaintiff was a cooperative person, whose mental problems were manageable, as confirmed by
normal examination findings, such as her intact memory and logical thought processes. The ALJ
believed plaintiff’s periodic difficulties were caused by her failure to take her medications
consistently. In short, the ALJ concluded that plaintiff was not a credible witness. Relying on the
testimony of the vocational expert, the ALJ concluded that plaintiff was capable of working as a
hotel housekeeper, small products assembler, or sales attendant. The premise underlying the
ALJ’s analysis is that plaintiff’s problem is mainly cognitive or intellectual, not emotional.
In their briefs, the parties argue over several specific legal questions arising out of the
complex legal framework governing Social Security disability decisions. For example, the
parties argue whether plaintiff had marked, as opposed to moderate limitations, in the Paragraph
B criteria considered in the analysis of the Section 12 listings. Another question debated in the
briefs is whether the ALJ should have included an RFC limitation for one-to-two step tasks.
The Court concludes, however, that it need not resolve these more technical questions
because a remand is justified for the more basic reason that the ALJ relied too heavily on
cherrypicking, resulting in a one-sided portrayal that was not based on a fair review of the
record. See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (remanding because the ALJ
“misstated some important evidence and misunderstood the import of other evidence”); Allord v.
Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (an ALJ may not rely on “errors of fact or logic”). It
is one thing to make an open choice between two reasonable interpretations, but it is a different

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matter to ignore critical lines of evidence without even acknowledging them. See Moore v.
Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
In her two briefs, plaintiff identifies a number of instances of cherrypicking. The Court
finds that these arguments are, for the most part, persuasive and well-made. The Court will not
go through every instance of cherrypicking, as the following examples are enough to move this
case across the remand threshold.
Plaintiff’s cherrypicking arguments are largely tied to the ALJ’s main findings. As
summarized by the Government, the ALJ relied on six main findings: (1) “plaintiff was able to
perform serial sevens upon examination”; (2) “her memory was primarily considered intact by
evaluators”; (3) “she was found to be cooperative with doctors and even friendly”; (4) “both
consultative examiners found that plaintiff would be able to manage benefits, if awarded”; (5)
“plaintiff reported that she was able to pay bills, count change, manage a savings account and
handle checkbook/money orders”; and (6) “plaintiff was often not compliant with prescribed
treatment.” Dkt. #31 at 14-15.
The Court will start with the first finding—the passing of the serial sevens test. This test,
which requires a person to count backward from 100 by sevens, “is a clinical test used to test
mental function; for example, to help assess mental status after possible head injury or in
suspected cases of dementia.” See “Serial Sevens,” Wikipedia,
https://en.wikipedia.org/wiki/Serial_sevens (last visited Feb. 4, 2020). The ALJ stated,
straightforwardly and unqualifiedly, that plaintiff had passed this particular test. In fact, the ALJ
mentioned this fact several times, relying on it in both the credibility analysis and in the medical
opinion analysis. See R. 27, 28. It was the first reason mentioned in the list of six findings

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summarized by the Government. All this suggests that this seemingly simple test was
nonetheless viewed as a significant piece of evidence.
Although the ALJ did not state specifically who made the finding that plaintiff passed
this test, the ALJ’s citation indicates that it was Dr. Ramchandani, one of two consultative
examiners who examined plaintiff in June 2015. Exs. 2F and 3F. Dr. Ramchandani’s focus was
on plaintiff’s physical impairments. A different consultative examiner, psychologist Julie Harris,
examined plaintiff’s psychological impairments. The ALJ’s reliance on the serial sevens test is
misleading and problematic because, although Dr. Ramchandani did find that plaintiff passed
this test, the ALJ did not acknowledge that plaintiff did not pass the test when it was performed
by Dr. Harris. Specifically, in her report, Dr. Harris wrote:
When asked to count backward from 100 by 7’s, [plaintiff] said, “Oh Hell! 93
(delay), 87, 80, 73, and 64.”
R. 326. Although Dr. Harris did not explicitly state that plaintiff did not pass this test, it is clear
from this statement, as plaintiff argues, that plaintiff “made an error on just the second
calculation in the series and then another error two steps later.” Dkt. #35 at 8. The failure of the
ALJ to acknowledge this failed test, while relying heavily on another successful test, is a classic
example of cherrypicking. See, e.g., Bole v. Berryhill, No. 16-CV-1230, 2018 WL 1257811, *3
(E.D. Wisc. Mar. 12, 2018) (“The ALJ also failed to acknowledge that during a more recent
assessment, [the claimant] was unable to perform the serial sevens.”); Mitchell v. Colvin, No. 13
CV 50209, 2015 WL 5227411, *5 (N.D. Ill. Sept. 8, 2015) (criticizing the ALJ for not
considering all the serial sevens findings).
Another finding that rests on shaky factual grounds is the claim that plaintiff was
cooperative with her doctors. See R. 22 (“claimant was primarily described as cooperative by
doctors and at one point was even described as friendly.”). This finding goes to the heart of
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plaintiff’s case, which is her claim that she had severe problems with social interaction. Plaintiff
argues that the ALJ’s conclusion ignores a “plethora” of contrary evidence. This Court agrees.
Perhaps the best evidence comes from Dr. Harris, who provided a detailed report. One of
her major conclusions was that plaintiff’s personality was “abrasive.” R. 323. Here is a longer
description:
The claimant presented as dramatic and entitled and frequently swore in the
current evaluation. Her personality was abrasive, loud and animated. She has a
history of non-compliance and interpersonal conflict. She has a history of
treatment non-compliance and interpersonal conflict. In the evaluation, her affect
was labile—she was never tearful, but was observed laughing or angry.
R. 326. The conclusion that plaintiff was “dramatic” and “entitled” fits with the diagnosis of a
personality disorder, according to Dr. Harris, and is strongly at odds with the ALJ’s suggestions
that plaintiff was cooperative and friendly with medical personnel. The ALJ omitted these
findings in her decision. However, the ALJ did cite to the Harris report as evidence supporting
the ALJ’s conclusion. The ALJ seized upon one sentence in the report that refers to plaintiff as
being “cooperative.” However, this brief reference is misleading because the ALJ basically
airlifted this one word from its textual surroundings. Here is the sentence in question: “She was
cooperative, but appeared dramatic and animated.” R. 323. The ALJ chopped off the sentence at
the word “but,” rewriting it to create a different impression. When read fairly and in its entirety,
the Harris report offers little support for the ALJ’s thesis that plaintiff was cooperative in a way
that would allow her to work as, for example, a sales attendant.
The ALJ engaged in a similar form of cherrypicking when citing to the treatment notes of
Kimberly Mattei, a nurse at the Crusader Clinic. The ALJ cited to her notes from October 30,
2015 to support the conclusion that plaintiff was a cooperative person. R. 22. But the ALJ again
extracted a misrepresentative nugget. Here is the passage the ALJ relied on:

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BEHAVIOR: Irritable initially but did calm down. Frustrated with the wait time
and said the staff was loud and unprofessional. Cooperative, friendly, Good eye
contact.
R. 475. Although it is true that the word “cooperative” was used, the longer quotation again casts
doubt on the ALJ’s simplistic takeaway. The more specific references to plaintiff being irritable
and frustrated and to plaintiff accusing the staff of being “loud and unprofessional” seem to
provide more support for plaintiff’s theory.2
In addition to this evidence, which the ALJ affirmatively relied on even though it didn’t
really support the ALJ’s theory, there is also the evidence that the ALJ overlooked or
downplayed. Plaintiff testified that she had a lifelong problem in getting along with others. This
testimony included the following: she had a history of fighting in school; when she worked for
six months as a bill collector, she “frequently cussed customers out”; she worked as a hair
braider but stopped because she “didn’t want to deal with anyone”; she was arrested in 2000 for
domestic battery with a weapon; and she was dropped from Crusader Clinic because she “cussed
her treatment provider out.” R. 324-25. The ALJ ignored this evidence.
Another area where the ALJ engaged in cherrypicking, according to plaintiff, is in
assessing her daily activities. Plaintiff argues that the ALJ relied on an “isolated report” to
support the conclusion that plaintiff was able to take care of personal hygiene and do tasks
around the house on her own. The isolated report is Dr. Ramchandani’s report. It does include
this sentence, which the ALJ relied on: “[Plaintiff] is able to take care of personal hygiene,
showers and changes clothes unassisted, eats meal [sic] on her own and does not use any
assistance device.” R. 329. Plaintiff argues that this characterization is undermined by “every

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These same notes contain other statements supporting plaintiff. See R. 474 (“Says the smallest things ‘piss’ her off.
Says she has a tendency to be violent.”) (“Emotional responses are dramatic and out of proportion to the
circumstances”) (“triggered by germs, driving, public places”); R. 475 (“charges dropped for attempting to stab ex
boyfriend—self defense”).

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other report in the record” showing that she “does minimal chores” and that “her children do
most of the work.” Dkt. #18 at 11. After reviewing the evidence, the Court agrees that there was
enough contrary evidence about plaintiff’s daily activities that the ALJ should have confronted it
more directly. For example, plaintiff testified that her adult children did not let her cook and took
her knives because they were worried about her hurting herself due to a “history of threatening
self-harm.” Dkt. #18 at 11; R. 49 (“[S]o the kids won’t let me cook. They took all [] the sharp
knives. [] I got plastic forks.”). Her children did the cleaning and laundry. R. 50. She testified
that she has difficulty getting off the toilet. R. 53. She testified that the last time she went
grocery shopping was at Halloween (the hearing took place in February) and that she was only
able to go that time at 3:00 a.m. and then “almost passed out” at the checkout line due to her fear
of people. R. 50.
But even if we were to confine the analysis to the Ramchandani report, as the ALJ mostly
did, then there is still a concern about cherrypicking. The ALJ relied on the sentence quoted
above in which plaintiff self-reported that she could take care of her hygiene and eat meals on
her own. However, the ALJ ignored other self-reported statements from this same report—for
example, the following:
[Plaintiff] gives history of OCD, anxiety disorder and depression for 2 years. He
[sic] feels sad, depressed and cries for no reason and sleeps only 2 hours at a
stretch. She does not like crowds, prefers to stay at home, hears unintelligible
voices, sees demons, does not have friends and interacts with family only.
R. 329. As plaintiff argues in her reply, “even if [she] were able to take care of personal hygiene,
change clothes, and eat meals on her own, it is unclear how this illustrates only moderate
limitation given that in that same examination she reported sleeping for only 2 hours at a stretch,
does not like crowds, prefers to stay at home, hears unintelligible voices, sees demons, does not
have friends and interacts with family only. Why does the ALJ credit one aspect of her self7

reporting and not the other in the context of the same examination?” Dkt. #35 at 3 (emphasis in
original; internal citation omitted). This argument is convincing and needs no further elaboration.
Consider another example of cherrypicking from within a single document. The ALJ
reviewed Dr. Jafry’s treatment notes from June 6, 2016, but found only the following
observation to be relevant: “Thought process: linear.” R. 22 (citing R. 440). This fact supported
the ALJ’s finding that plaintiff’s thought processes were normal, which in turn supported the
ALJ’s larger conclusion that plaintiff was not credible. However, the ALJ again omitted many
other contrary facts from this same document. For example, here is a screenshot of one portion of
these notes:

R. 439. There is a lot in this excerpt—e.g. that plaintiff hit her daughter, that she suffered from
sexual abuse from her step-dad, and that she had attempted suicide—which cuts against the
ALJ’s thesis. The Court recognizes that many of these statements are self-reports, but Dr. Jafry
did not suggest that they were untrue or that plaintiff was malingering and, as noted above, the
ALJ selectively relied on self-reports as well.
In sum, these cherrypicking examples justify a remand. Additionally, plaintiff has raised
legitimate concerns about doctor playing. See Lambert v. Berryhill, 896 F.3d 768, 774 (7th Cir.
2018) (“ALJs must rely on expert opinions instead of determining the significance of particular
medical findings themselves.”). Plaintiff argues generally that the ALJ’s analysis reflects a

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“misunderstanding of mental illness in general.” Dkt. #18 at 11. Plaintiff also faults the
Government for making similar flawed assumptions. Plaintiff points to several areas of concern.
First, plaintiff argues that the ALJ placed too much weight on normal findings but
overlooked the possibility that she, like many people with mental illnesses, had periods where
she appeared normal. See Byndum v. Berryhill, No. 17 C 01452, 2017 WL 6759024, *5 (N.D. Ill.
Dec. 15, 2017) (“the ALJ’s opinion does not reflect an understanding that a person under
treatment for a chronic disease, whether physical or psychiatric, is likely to have ‘better days and
worse days’ and symptoms that ‘wax and wane.’”).
Second, and related to the first point, the Government criticizes plaintiff for “mostly
citing to her own self-reports.” Dkt. #31 at 4, 5. But this criticism ignores the fact that selfreports should not automatically be dismissed as untrustworthy. See Beardsley v. Colvin, 758
F.3d 834, 837 (7th Cir. 2014) (“Whatever uncertainty may exist around such self-reports is not
by itself reason to discount them—otherwise, why ask in the first place?”); Korzeniewski v.
Colvin, No. 12 C 6895, 2014 WL 1457854, *7 (N.D. Ill. Apr. 14, 2014) (“All diagnoses,
particularly those involving mental health conditions, require consideration of the claimant’s
subjective symptoms.”).
Third, the ALJ found that plaintiff was not credible because she was “often” not
compliant with “prescribed treatment.” R. 27. However, the ALJ failed to consider possible
explanations for this fact. As plaintiff argues, her mental impairments may have prevented her
from adhering to treatment recommendations. The Seventh Circuit has made this point in many
cases. See, e.g. Voigt v. Colvin, 781 F.3d 871, 877 (7th Cir. 2015) (“Nor did [the ALJ] note the
natural reluctance of a person with psychiatric problems (perhaps of any person) to take powerful
pain medications, as they can have serious side effects if not carefully used.”); Spiva v. Astrue,

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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.”).
Here, plaintiff testified to facts which, if believed, might fit within this case law. Consider
the following colloquy with the ALJ:
Q And why did you stop going to Rosecrance?
A Ma’am, you can go inside Rosecrance right now, and they going to
look at you and frown like they mad because you’re there. Those people are not
kind and they’re inconsiderate of people’s feelings. And I’m not going there. I
told my doctor I’m [not] going back there. And I called Dr. [Jafry], and told why
I’m not coming back there. I gave them three different chances on three
different—just three different chances and I can’t do it. I’m not going there.
Q Did you have issues with the therapist that you were meeting with, or
just the whole—sorry?
A Chris—the first time I went, I had Chris Tripp [PHONETIC], and you
walk into his office. He got the lights off. Why is the lights off, you know. We’re
here for a meeting, and you got the lights off. Are you rushing me off, you know.
So me and him didn’t click, you know, in the beginning. So I asked for a new
therapist. They wouldn’t give me a new therapist so I left them alone the first
time. The second time I went, they gave me Chris Tripp again. And this time he
had [an] attitude with me, and I know he had [an] attitude because he would just
sit there. So I mean why am I going. I’m—I stopped going. And then when they
want you to go into the meetings, they have groups and meetings. It’s like 30 of
you guys, and they want you to talk about your business in front of all them. I’m
not doing that either. So Rosecrance is not a fit for Pam. I’m sorry.
R. 45-46. The ALJ did not refer to this evidence in the opinion, nor otherwise consider the larger
possibility that plaintiff’s mental problems, including her borderline personality disorder, made it
hard for her to take advantage of treatment such as counseling.
Fourth, plaintiff complains that the ALJ failed to seriously consider the “[m]ultiple times
in the record” where she reported seeing people as angels and demons. Dkt. #18 at 10 (citing to
R. 275, 329, 411, 435, 439, 468, 475. 478); see, e.g., R. 475 (plaintiff: “bad people have red hot

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faces like the devil and good people have bright glowing faces of angels”). This issue does not fit
neatly into the doctor playing category and arguably could be cited as an example of
cherrypicking. Either way, it is an issue that needs more analysis. The ALJ dismissed this whole
line of evidence based on the following statement in Dr. Harris’s report: “There is a history of
visual hallucinations, but when she described them in the evaluation, she appeared to have
perceptions of people she does not like as demons. It is not the evaluator’s opinion that these are
actual hallucinations.”3 R. 327. Given that Dr. Harris did provide support for the ALJ’s
conclusion that these were not “actual” hallucinations, the ALJ was not strictly playing doctor.
Still, this rationale is not satisfying because it does not fully address the allegation that plaintiff
was seeing demons and angels. Was the ALJ indirectly suggesting that plaintiff was
malingering? The ALJ never explicitly said so. In any event, even if these thoughts did not rise
to the technical level of an “actual hallucinations” (however that is defined), these thoughts still
could affect plaintiff’s ability to get along with co-workers and supervisors. This is an area that
could benefit from additional expert analysis.
In conclusion, the Court finds that a remand is required on the basic grounds that the ALJ
engaged in too much cherrypicking and doctor playing and that these flaws have clouded the
factual picture, making it difficult to assess the remaining legal questions. As Judge Cole has
observed, ALJs and judges “are not required to leave their common sense and experience at the
hearing room or courthouse door.” Mason v. Colvin, No. 13 C 2993, 2014 WL 5475480, *11
(N.D. Ill. Oct. 29, 2014). Taking a common sense perspective here, it seems doubtful that a
person with an abrasive personality, who has a history of cussing people out and a fear of germs,
would work well as a sales attendant, a job typically requiring interaction with customers. At the

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Dr. Harris did not provide an explanation for why she reached this conclusion.

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same time, the Court acknowledges that the ALJ did not find that plaintiff’s testimony was fully
credible. But assessing credibility in cases such as this one, where the claimant has personality
disorder, is complicated. See Sanchez v. Berryhill, No. 16 CV 50309, 2017 WL 6988656, *5
(N.D. Ill. Dec. 19, 2017) (because one feature of antisocial personality disorder is deceitfulness,
this “creates a potentially tricky catch-22 situation when assessing credibility,” which is a good
reason for calling a psychological expert). The ALJ should call a psychological expert on
remand.
CONCLUSION
For the above reasons, plaintiff’s motion for summary judgment is granted, the
Government’s motion is denied, and the case is reversed and remanded for further proceedings.

Date: February 4, 2020

By:

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___________________________
Lisa A. Jensen
United States Magistrate Judge