Del Real v. Commissioner of Social Security
Filing
30
MEMORANDUM AND OPINION. The Commissioner's final decision is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 2/18/2015. (klm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALISSA H. DEL REAL,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 14-cv-277-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Alissa H. Del Real is before
the Court, represented by counsel, seeking judicial review of the final agency
decision denying her Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI) benefits pursuant to 42 U.S.C. § 423
Procedural History
Plaintiff initially applied for benefits in May 2009, alleging disability
beginning on December 31, 2008. (Tr. 15, 100). The claim proceeded to a hearing
before ALJ Paula Garrety, who issued an unfavorable decision on July 2, 2010.
(Tr. 102-115). Plaintiff filed a new application in May 2011, alleging disability
beginning on the same date. (Tr. 116). A decision on the 2011 application
resulted in a favorable determination that plaintiff was disabled as of July 30,
1
This case was referred to the undersigned for final disposition on consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 9.
1
2010. (Tr. 200-02). The Appeals Council granted plaintiff’s request for review of
ALJ Garrety’s initial unfavorable determination and remanded plaintiff’s case for
consideration of both claims due to the inconsistent findings of the ALJs. (Tr.
211).
Plaintiff’s second hearing was held before ALJ Anne Pritchett in September
2012. (Tr. 41). ALJ Pritchett denied the application for benefits in a decision
dated November 26, 2012. (Tr. 30).The Appeals Council denied review, and the
decision of the ALJ became the final agency decision. (Tr. 1). Administrative
remedies have been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in weighing the medical opinions.
2. The ALJ erred in plaintiff’s credibility determination.
3. The ALJ failed to ask appropriate hypothetical questions to the vocational
expert.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning
of the applicable statutes. 2 For these purposes, “disabled” means the “inability to
engage in any substantial gainful activity by reason of any medically determinable
2
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case,
the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.
2
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).
“Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or equals
one of the listed impairments, then the applicant is considered
disabled; if the impairment does not meet or equal a listed
impairment, then the evaluation continues. The fourth step assesses
an applicant's residual functional capacity (RFC) and ability to engage
in past relevant work. If an applicant can engage in past relevant
work, he is not disabled. The fifth step assesses the applicant's RFC,
as well as his age, education, and work experience to determine
whether the applicant can engage in other work. If the applicant can
engage in other work, he is not disabled.
Weatherbee v. Astrue , 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
3
presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet or
equal one of the listed impairments acknowledged to be conclusively disabling; (4)
whether the claimant can perform past relevant work; and (5) whether the
claimant is capable of performing any work within the economy, given his or her
age, education and work experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue ,
573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v. Sullivan , 977 F.2d 391,
393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically
be found disabled if he or she suffers from a listed impairment, determined at
step three. If the claimant does not have a listed impairment at step three, and
cannot perform his or her past work (step four), the burden shifts to the
Commissioner at step five to show that the claimant can perform some other job.
Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also, Zurawski
v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an
“affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding
that the claimant is disabled…. If a claimant reaches step 5, the burden shifts to
the ALJ to establish that the claimant is capable of performing work in the
national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
4
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th
Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)).
The Supreme Court has defined substantial evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). In reviewing for “substantial
evidence,” the entire administrative record is taken into consideration, but this
Court does not reweigh evidence, resolve conflicts, decide questions of credibility,
or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d
1384, 1390 (7th Cir. 1997). However, while judicial review is deferential, it is
not abject; this Court does not act as a rubber stamp for the Commissioner. See,
Parker v. Astrue , 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Pritchett followed the five-step analytical framework described above.
She determined plaintiff had not been engaged in substantial gainful activity since
the date of her application. (Tr. 17). She found plaintiff had severe impairments
of major depressive disorder, bipolar disorder, anxiety disorder, degenerative
disc disease of the cervical spine, and degenerative disc disease of the lumbar
5
spine. (Tr. 18). The ALJ determined these impairments do not meet or equal a
listed impairment.
The ALJ found plaintiff had the residual functional capacity to perform
work at the light level, with physical and mental limitations. (Tr. 21). Based on
the testimony of a vocational expert, the ALJ found that plaintiff was not able to
do her past work. However, she was not disabled because she was able to do
other work that exists in significant numbers in the regional and national
economies. (Tr. 29-30).
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this opinion. The following summary of the record is directed to the
points raised by plaintiff, which focus only on limitations arising from her mental
condition. Therefore, the Court will omit substantial discussion of evidence
related only to her physical conditions.
1. Agency Forms
Plaintiff was born on July 8, 1967. (Tr. 310). She was insured for DIB
through December 31, 2014. 3 (Tr. 351). Plaintiff was five feet four inches tall and
weighed one hundred and twenty-nine pounds. (Tr. 301).
According to plaintiff, her bipolar disorder, post-traumatic stress disorder,
depression, and anxiety limited her ability to work. (Tr. 302). She completed high
school as well as four years of college. (Tr. 307). Plaintiff previously worked as an
The date last insured is relevant to the claim for DIB, but not the claim for SSI. See, 42 U.S.C. §§ 423(c) &
1382(a).
3
6
accounting clerk and a bookkeeper. (Tr. 302-03). She took several prescription
medications and as of May, 2012, she was taking Depakote as a mood stabilizer,
Remeron, Pristiq, and Xanax for depression and anxiety, Fioricet for migraines,
Hydrocodone, Norflex, and Tramadol for pain, Zofran for nausea, and Fluticasone
for allergies. (Tr. 434).
Plaintiff submitted Function Reports in August 2009 and June 2011. (Tr.
316-22, 390-95). She reported that her ability to perform daily tasks was
dependent upon whether she was having a good or bad day. (Tr. 316, 390). On
good days she was able to do laundry or take a walk. However, she reported
having one to three bad days a week where was unable to even get dressed in the
morning. (Tr. 317, 390). She wrote herself notes to remember to shower or take
her medicine. On plaintiff’s good days, she would prepare simple meals. On her
bad days she may not be able to eat at all. Plaintiff stated she spent maybe one
hour a week on cleaning and laundry. (Tr. 318, 392). She was able to drive and
she shopped for her own groceries. She handled financial matters but
occasionally paid bills late or overdrew from her account. (Tr. 319).
Plaintiff had anxiety around people and would sometimes become
withdrawn. She reported having difficulties remembering, completing tasks,
concentrating, understanding, following instructions, and getting along with
others. She typically could only pay attention for a half an hour and had trouble
with detailed or long instructions. (Tr. 321).
2. Evidentiary Hearing
7
Plaintiff was represented by an attorney at the evidentiary hearing on
September 5, 2012. (Tr. 41). She was forty-five years old and had a bachelor’s
degree in business and accounting. (Tr. 42). She testified that she had been
unable to work since December 2008 due to her panic attacks and inability to
function on bad days. (Tr. 49). She attempted to return to work as a bookkeeper
for one week but due to anxiety attacks she could not continue. (Tr. 45). She also
began training at a Cracker Barrel but quit due to anxiety attacks. (Tr. 46).
Plaintiff received long-term disability benefits for about a year but at the
time of the hearing was no longer receiving payments. (Tr. 47). Two years before
the hearing plaintiff moved from Pennsylvania to Illinois due to her husband
changing jobs. (Tr. 48). She testified that since moving to Illinois, her husband got
another new job about three hours away and only lived at home on weekends. She
did not feel she could handle the stress of moving to where his job was located.
(Tr. 64).
Plaintiff returned to Pennsylvania to see her family and receive
treatment from one of her doctors every three or four months. (Tr. 48). Typically,
her husband would drive them to Pennsylvania. (Tr. 56). She stated that if she
had to fly the airport overwhelmed her and she would need several days rest after.
(Tr. 57).
Plaintiff testified that she had a low tolerance for stress and began crying
during the hearing. (Tr. 51-52). She stated that she slept a little less than half the
day and had difficulty focusing on television. (Tr. 51). Her medications helped
keep her out of the hospital but she still had good and bad days. (Tr. 53). The
8
previous year she was associating with new people and began drinking more. (Tr.
62). During this time she had a manic episode and received a DUI. (Tr. 61).
Before this episode plaintiff had no issues with alcohol, but now only drank one
glass of wine every four to six weeks. (Tr. 61). She testified that she volunteered at
a nursing home a few hours a week where she helped serve lunch or hand out
pills. (Tr. 61).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
question which comported with the ultimate RFC assessment, that is, a person of
plaintiff’s age and work history who was able to perform light, unskilled work,
and all postural activities occasionally. Additionally, they should have a stable
work setting without frequent shifts in the expectations of the employer, no
stringent speed or production requirements, and only occasional interactions with
supervisors, coworkers, and the general public. (Tr. 66).
The VE testified that the person would be unable to perform plaintiff’s
previous work. However, she could do jobs that exist in significant numbers in the
national economy. Examples of such jobs are sorter, inspector, and assembler.
(Tr. 66-67). The VE testified that if the individual were to miss three or more
workdays a month it would preclude employment. Additionally, if the ALJ found
plaintiff’s testimony credible and substantiated by medical evidence the VE
testified that plaintiff would be unable to perform full time employment. (Tr. 68).
3. Medical Treatment
9
Since 1999 plaintiff regularly saw psychiatrist Martha Little for treatment of
her psychological problems. (Tr. 617). In December 2008, plaintiff complained to
Dr. Little about significant pressures she was facing at work. She was having
panic attacks, taking more Xanax, and was unable to complete a full workweek.
(Tr. 534-37). In January 2009 after deciding to resign from work, plaintiff
reported feeling calmer but noted the thought of returning to work made her
anxious. (Tr. 533). Thereafter, plaintiff continually reported post-traumatic stress
disorder symptoms related to her previous work environment. Dr. Little reported
plaintiff had panic attacks and flashbacks when thinking or talking about her job.
(Tr. 527, 531).
Plaintiff often reported that her mood was up and down, she had anxiety
attacks, and she had difficulty completing tasks. Dr. Little repeatedly changed
plaintiff’s medications to help with her symptoms. On every report she diagnosed
plaintiff with bipolar affective disorder, PTSD, chronic anxiety, or adjustment
disorder. (Tr. 517-551, 623-30, 644-49, 787-99, 893). Dr. Little’s treatment notes
indicate that plaintiff had manic episodes where she would stay up all night and
was overly energetic, as well as depressive episodes where she could not leave her
bed for the entire day. (Ex., Tr. 624-28, 646, 649, 787). When she had
particularly bad episodes of depression her hygiene was poor and she was illkempt. (Tr. 624-26).
Plaintiff moved to Illinois in 2010 but continued to receive treatment from
Dr. Little when possible. In August 2010, plaintiff indicated she was struggling
10
with life in Illinois and continued to have panic attacks. Dt. Little assigned
plaintiff a GAF score of 35 and stated her heavy medication load made it difficult
for plaintiff to concentrate. (Tr. 788). In November, Dr. Little’s treatment notes
indicate plaintiff attempted to work for a week but was unable to continue due to
her anxiety attacks. The record shows that Dr. Little noted plaintiff needed to find
some work, even if it was part-time. (Tr. 789).
In 2011, plaintiff began volunteering a few hours a week and seeing a new
psychologist, Dr. Boyd, in Illinois. (Tr. 794, 817). Dr. Boyd regularly saw plaintiff
and noted she had illogical thought and chronic anxiety. (TR. 762-3, 803, 805-6,
810-125, 815, 890). He discouraged full time employment and tried to teach
plaintiff appropriate coping skills. (Tr. 764, 802). In November and December
2011, plaintiff had a breakdown and called Dr. Boyd on an emergency basis. He
recommended she go to the hospital due to her suicidal ideations but she refused.
(Tr. 808-11). During this time plaintiff got a DUI and Dr. Boyd did not want her to
be left alone. (Tr. 809). Dr. Boyd’s treatment notes indicated that while plaintiff
still volunteered a few hours a week and completed her court ordered DUI
classes, her bipolar disorder was still problematic. (Tr. 890-92).
4. Opinions of Treating Physicians
Dr. Little submitted several reports about plaintiff’s functional capacity. She
submitted her first report in February 2010. She stated plaintiff had bipolar
syndrome with a history of episodic periods manifested by both manic and
depressive syndromes. Plaintiff reported anhedonia, sleep disturbance, decreased
11
energy, appetite disturbance, and psychomotor agitation or retardation. Dr. Little
described her mood as variable form panic to depression. She stated plaintiff had
poor concentration and her speech was mildly pressured. (Tr. 617). Dr. Little felt
plaintiff was moderately limited in her ability to perform activities of daily living
and maintain social functioning. She opined that plaintiff was markedly limited in
her concentration, persistence, and pace and that plaintiff would have repeated
episodes of deterioration at work. Dr. Little stated she felt plaintiff was unable to
work. (Tr. 618).
Dr. Little’s second opinion was written in August 2011. (Tr. 785-86).
Plaintiff’s diagnoses were bipolar affective disorder drug resistant with extreme
anxiety and post-traumatic stress disorder which prevents plaintiff from working.
She stated plaintiff had marked limitations in her activities of daily living and
social functioning. Dr. Little felt plaintiff had marked limitations in her
concentration, persistence, and pace. (Tr. 785). She stated plaintiff had four or
more episodes of decompensation in the last year and she would anticipate
plaintiff missing work more than three times a month. (Tr. 786).
Dr. Little’s final opinion was in the form of a letter to the Department of
Human Services in October 2011. (Tr. 783-84). She stated plaintiff suffered from
bipolar affective disorder, anxiety disorder, and post-traumatic stress disorder.
Plaintiff fluctuated from depression to mania to mixed states and was a rapid
cycler. Dr. Little stated that because of plaintiff’s mental health issues she was
prevented from attending work on a regular basis and performing the work she
12
was qualified to do. She stated plaintiff had difficulty with sleep and regularly
took Xanax which caused fatigue. Dr. Little opined that if plaintiff were able to
work again in the future she could only handle a part time job and not in a
stressful field. She assigned plaintiff a GAF score of 35. (Tr. 784).
Dr. Boyd also provided three opinions with regards to plaintiff’s mental
functional capacity. His first opinion was written in July 2011 and he had last
seen plaintiff one month prior. He diagnosed her with bipolar disorder and
generalized anxiety. He felt plaintiff only had a mild restriction with regards to
activities of daily living. However, he also felt plaintiff had extreme limitations in
social functioning and concentration, persistence, and pace. (Tr. 760). He stated
plaintiff had three episodes of decompensation in the last year and that she would
probably miss work more than three times a month. (Tr. 761). Based on
plaintiff’s record he did not believe she would be able to function in a customary
work setting on a consistent basis and meet minimal work demands. He stated
she may someday be a candidate for vocational rehabilitation but he felt it was
more than a year away. (Tr. 759).
Dr. Boyd’s submitted a progress report in March 2012. (Tr. 800-01). Dr.
Boyd reported that since his prior opinion plaintiff had a substantial manic
episode with decompensation and regression in her behavior. She called Dr. Boyd
on an emergency basis during this time period. While she had improved
somewhat since the episode, she still was significantly depressed, chronically
anxious, and prone to anxiety attacks. He stated plaintiff had substantial
13
regression and would not be able to function in any employment capacity. (Tr.
800). Dr. Boyd noted that while plaintiff may have periods of improvement, the
nature of her bipolar disorder was that she would always have periods of
exacerbation. (Tr. 801).
Finally, Dr. Boyd completed a psychological evaluation in July 2012. (Tr.
853-61). Plaintiff was alert and correctly oriented times four but she began
uncontrollably crying at one point. Her attention, concentration, and short term
memory showed mild impairment. (Tr. 855). Plaintiff had rapid speech and her
mood was depressive with agitated features. (Tr. 856). He diagnosed plaintiff with
bipolar disorder rapid cycling type, generalized anxiety disorder with panic
attacks, and episodic alcohol abuse. He stated plaintiff did not have adequate
coping skills and would not be reliable in a work setting as she would be
overwhelmed by work pressures. Dr. Boyd assigned plaintiff a GAF score of 48.
(Tr. 857).
5. Consultative Examinations
In October 2009 plaintiff had a mental consultative examination with
Herbert Machowsky, Ed.D. (Tr. 575-80). Dr. Machowsky felt plaintiff had a slight
impairment in her ability to carry out short and simple instructions and her
ability to understand and remember detailed instructions. He opined that plaintiff
had moderate impairment in her ability to make judgments on simple work
related decisions, interact appropriately with supervisors and coworkers, respond
appropriately to work pressures in a work setting, and respond appropriately to
14
changes in a routine work setting. (Tr. 575). Plaintiff’s mood was dysthymic,
anxious, ruminative with mild agitation and tearfulness. (Tr. 578). Dr.
Machowsky diagnosed plaintiff with bipolar disorder, currently depressed and
anxiety disorder NOS. He felt her prognosis was fair as she was adherent to her
medications and counseling. He also stated plaintiff handling her own benefits
would be contraindicated. (Tr. 580).
In July 2012 plaintiff had a physical consultative examination with Dr.
Vittal Chapa. (Tr. 866-75). He felt plaintiff could occasionally lift and carry up to
fifty pounds. (Tr. 866). Dr. Chapa stated plaintiff could sit for eight hours, stand
for five hours, and walk for three hours out of an eight hour work day. (Tr. 867).
His diagnostic impressions were chronic cervical pain syndrome, migraine
headaches, a history of cardiac arrhythmia, and irritable bowel syndrome. (Tr.
875).
6. RFC Assessments
Plaintiff’s first mental RFC assessment was performed by Dr. Francis
Murphy in November 2009. (Tr. 597-99). Based on plaintiff’s records at the time,
he felt plaintiff was moderately limited in her ability to understand and remember
detailed instructions, carry out detailed instructions, maintain attention and
concentration for extended periods, complete a normal workday and workweek
without interruptions form psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods, and
respond appropriately to changes in the work setting. (Tr. 597-98). He opined
15
that plaintiff could perform simple, routine, repetitive work in a stable
environment and could be expected to complete a normal workweek without
exacerbation of psychological symptoms. Additionally, she had the ability to
perform repetitive work without constant supervision and had no restrictions in
regards to social interaction.
Plaintiff’s second mental RFC assessment was performed by Dr. Joseph
Mehr in July 2011. (Tr. 779-81). He opined that plaintiff was moderately limited
in her ability to understand, remember, and carry out detailed instructions,
sustain an ordinary routine without special supervision, interact appropriately
with the general public, and respond appropriately to changes in the work setting.
He felt she was markedly limited in her ability to maintain attention and
concentration for extended periods, perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances, and complete a
normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods. (Tr. 779-80).
While he felt plaintiff had the intellectual ability to understand and
remember instructions for simple tasks, she did not have the necessary attention
and concentration to persist and complete those operations. Plaintiff did not have
the capacity to maintain a schedule and be on time, and did not retain the pace
and endurance necessary to fulfill a normal workday on a consistent basis. He
16
opined that plaintiff did not have the capacity to persevere at or sustain work. (Tr.
781).
Analysis
Plaintiff argues that the ALJ improperly weighed the medical opinions,
erred in her credibility determination, and failed to ask appropriate hypothetical
questions to the VE.
The Court first looks at plaintiff’s argument that the ALJ improperly
weighed the medical opinions. Plaintiff first contends that the ALJ did not provide
an adequate analysis of the opinions of Dr. Boyd when assigning them “some
weight.” (Tr. 27). The ALJ is required to consider a number of factors in weighing
a treating doctor’s opinion.
healthcare
provider
as
a
The applicable regulation refers to a treating
“treating
source.”
The
version
of
20
C.F.R.
§404.1527(c)(2) in effect at the time of the ALJ’s decision states:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of
your medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations. If we find
that a treating source's opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record,
we will give it controlling weight. [Emphasis added]
A treating doctor’s medical opinion is entitled to controlling weight only where it
is supported by medical findings and is not inconsistent with other substantial
evidence in the record. Clifford v. Apfel , 227 F.3d 863 (7th Cir. 2000);
17
Zurawski , 245 F.3d at 881. Supportability and consistency are two important
factors to be considered in weighing medical opinions.
In a nutshell, “[t]he
regulations state that an ALJ must give a treating physician's opinion controlling
weight if two conditions are met: (1) the opinion is supported by ‘medically
acceptable clinical and laboratory diagnostic techniques[,]’ and (2) it is ‘not
inconsistent’ with substantial evidence in the record.” Schaaf v. Astrue, 602 F.3d
869, 875 (7th Cir. 2010), citing §404.1527(d).
The ALJ looked at Dr. Boyd’s opinions and determined they were not
consistent with his treatment notes. (Tr. 27). While the ALJ is only required to
minimally articulate his reasons for rejecting evidence, his reasoning has to be
sound. Berger v. Astrue , 516 F.3d 539, 545 (7th Cir. 2008); Jelinek v. Astrue ,
662 F.3d 805, 811 (7th Cir. 2011). Here, the Court agrees with plaintiff that ALJ
Pritchett’s analysis is insufficient.
First, the ALJ focuses on what she considers moderate rather than severe
limitations in Dr. Boyd’s treatment notes. The ALJ states that plaintiff had mostly
normal sessions with some ups and downs and focuses on a report that she could
follow moderately complex instructions. She also notes that plaintiff had a fair
insight as opposed to an impaired insight, and her mood, appearance,
relatedness, speech, and affect were normal. (Tr. 26-7).
The ALJ focused on minimal portions of Dr. Boyd’s records where plaintiff
was doing well and indicated they were representative of the record as a whole.
The treatment notes indicate the opposite. Dr. Boyd’s notes show plaintiff
18
regularly had illogical thoughts, chronic anxiety, mood swings, difficulty
completing everyday tasks, and impaired judgment. (Ex., Tr. 762-4, 800-04, 810,
812, 890-92). When plaintiff was doing well, it was always followed by her
symptoms getting worse once again. For instance, plaintiff was relatively stable in
early November 2011. However, by the end of the month she required emergency
treatment from Dr. Boyd. (Tr. 806-10). In May 2012 Dr. Boyd’s notes indicate
plaintiff was “ok” but by June she was “horrible.” (Tr. 890-92). In weighing the
medical opinions, the ALJ is not permitted to “cherry-pick” the evidence, ignoring
the parts that conflict with her conclusion. Myles v. Astrue , 582 F.3d 672, 678
(7th Cir. 2009). While an ALJ is not required to mention every piece of evidence,
“he must at least minimally discuss a claimant's evidence that contradicts the
Commissioner's position.”
Godbey v. Apfel , 238 F.3d 803, 808 (7th Cir.
2000).
Additionally, plaintiff suffers from bipolar disorder where, as the Seventh
Circuit has observed, symptoms often wax and wane. "[A] snapshot of any single
moment says little about her overall condition." Punzio v. Astrue , 630 F.3d 704,
710 (7th Cir. 2011). ALJ Pritchett downplays plaintiff’s disorder by noting that
plaintiff had “some ups and downs” and focused on snapshots where plaintiff was
doing well. The overall record indicates plaintiff’s bipolar disorder regularly
affected her ability to function normally and the ALJ’s failure to recognize this is
error.
The ALJ also looked at plaintiff’s daily activities such as volunteering a few
19
hours a week, attending DUI classes, and being actively engaged in her treatment
regimen. The ALJ stated that these activities indicated plaintiff was capable of
performing some work. The Seventh Circuit has repeatedly held it is appropriate
to consider these activities but it should be done with caution. The ability to
perform daily tasks “does not necessarily translate into an ability to work fulltime.” Roddy v. Astrue , 705 F.3d 631, 639 (7th Cir. 2013). Plaintiff’s daily
activities can all be done with significant limitations and do not indicate she can
complete an entire workday or workweek. She only volunteers a few hours a week
when she feels well. On plaintiff’s bad days she rarely leaves her bed and may not
make meals for herself. (Tr. 302, 391, 649, 787, 796, 800). Again, the ALJ
impermissibly cherry-picked the evidence in order to support her opinion that
plaintiff can perform work. Myles, 582 F.3d 678.
Additionally, the ALJ failed to explain how plaintiff’s daily activities
translated into her working capabilities. She simply stated that plaintiff
volunteered and participated in court ordered activities. The Seventh Circuit has
held the ALJ must do more than merely mention daily activities to build a logical
bridge to her conclusions in these instances. See Hamilton v. Colvin . 525 Fed.
Appx. 433, 438 (7th Cir. 2013) ALJ Pritchett simply failed to do so here. As a
result, her decision is lacking in evidentiary support and must be remanded.
Minnick v. Colvin, __ F.3d __, 2015 WL 75273, *7 (7th Cir. 2015); Kastner v.
Astrue , 697 F.3d 642, 646 (7th Cir. 2012).
The Court wishes to stress that this Memorandum and Order should not be
20
construed as an indication that the Court believes that plaintiff is disabled or that
he should be awarded benefits. On the contrary, the Court has not formed any
opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Alissa H. Del Real’s application
for social security disability benefits is REVERSED and REMANDED to the
Commissioner for rehearing and reconsideration of the evidence, pursuant to
sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE: February 18, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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