Sharos v. Commissioner of Social Security

Filing 29

MEMORANDUM AND OPINION. The final decision of the Commissioner 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 5/17/2016. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES SHAROS,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 14-cv-1274-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff James Sharos seeks judicial
review of the final agency decision denying his late wife’s application for Disability
Insurance Benefits pursuant to 42 U.S.C. § 423. 2
Procedural History
Plaintiff’s late wife, Sherry L. Sharos, applied for benefits in September
2011, alleging disability beginning on October 31, 2004.

After holding an

evidentiary hearing, ALJ Christopher Hunt denied the application on February 24,
2014. (Tr. 28-33). The Appeals Council denied review and the ALJ’s decision
became the final agency decision subject to judicial review. (Tr. 1).
Administrative remedies have been exhausted and a timely complaint was

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. 14.
2
If plaintiff’s late wife is determined to be entitled to benefits, those benefits would be payable to
plaintiff as her surviving spouse. See, 42 U.S.C. §404(d)(1). As Mr. Sharos’ claim is entirely
derivative, the Court will refer to Sherry Sharos as “plaintiff” for convenience.
1

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filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

Whether the ALJ’s finding of non-disability was supported by
substantial evidence.

2.

Whether the ALJ erred in failing to discuss prescription medication
taken by plaintiff during the period in issue.

3.

Whether plaintiff’s alleged mental impairment combined with her
physical impairments would render her disabled.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. For these purposes, “disabled” means the “inability to engage
in any substantial gainful activity by reason of any medically determinable 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.
In a DIB case, a claimant must establish that she was disabled as of her date
last insured. Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997).
2

It is

not sufficient to show that the impairment was present as of the date last insured;
rather plaintiff must show that the impairment was severe enough to be disabling as
of the relevant date. Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011).
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
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).
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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
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 Ms. Sharos 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, 91 S. Ct. 1420, 1427 (1971).
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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 Hunt followed the five-step analytical framework described above. He
determined that plaintiff had not worked since the alleged onset date and that she
was insured for DIB only through September 30, 2010. At step two, he found that,
from the alleged onset date through September 30, 2010, Ms. Sharos had medically
determinable impairments of history of left ankle fracture and hypertension. He
found that she did not have a medically determinable mental impairment during
that period. However, he concluded that her impairments were not severe because
they did not significantly limit her ability to do basic work activities for a period of
twelve consecutive months. Therefore, she was not disabled as of the date last
insured.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff and is confined to the relevant time
period. As plaintiff does not raise an issue as to her physical impairments, the
Court will focus primarily on the evidence relating to her mental condition.
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1.

Agency Forms

Plaintiff was born in 1953, and was 51 years old on the alleged onset date of
October 31, 2004. (Tr. 223). She alleged disability due to generalized anxiety
disorder, major depression, shattered ankle with permanent nerve damage,
endometriosis, perforated ear drum, and a “nervous breakdown.” (Tr. 226).
Plaintiff said that she stopped working on October 31, 2004, because she was
unable to concentrate and function properly. (Tr. 226). She had worked as a
dispatcher and secretary for a municipal police department from 1975 to 1979,
and as a secretary for a lawn care company from 1998 to October 2004. (Tr. 227).
James Sharos submitted a report in October 2011 in which he explained that
his wife had been sexually abused as a child.

She had long-standing mental

problems including anxiety, depression, night terrors, and fear, and she finally had
a “complete nervous & mental breakdown” in December 2010. (Tr. 259).
James Sharos also reported that he owned the lawn care company that
employed Sherry Sharos from 1998 to 2004. He stated that the company paid her
for work that she basically could not do. (Tr. 297). James submitted a letter in
September 2013 stating that, during her employment, “she could not even do the
basic duties of answering the phones.” She would sleep all day and stay up all
night. James did all of the household duties. “This continued for many years
until Sherry finally had the nervous breakdown in December 2010.” (Tr. 328).
2.

Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing on
February 19, 2014. (Tr. 2).
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Sherry testified that she had been treated with electroshock therapy in the
1970s. (Tr. 50).
Sherry testified that she was able to do the secretary job for her husband’s
lawn care company correctly at first, but later she became unable to answer the
phone. She also got to the point where she could not leave her room. She had
hallucinations and could not sleep. This was during the period while she was still
employed by the lawn care company.

(Tr. 51-52). She did not get any treatment

for mental problems during that period.

(Tr. 54).

From 2006 to 2010, Dr.

Fozard treated her for physical problems but he also prescribed medicine for her
mental problems. He prescribed Elavil (amitriptyline) to help her sleep. She did
not tell the doctor that she had hallucinations because she was embarrassed. The
medicine did not stop her problems. (Tr. 55-57).
James Sharos testified that he hired Sherry to work as a secretary in 1998.
She did the job adequately for some period of time, but then she “just wouldn’t
wake up anymore” and did not answer the phone or do the invoices at the end of the
month. This was in the early 2000s. He terminated her in 2004. He waited to
fire her because “it wasn’t easy to terminate my wife.” In 2002 to 2004, Sherry was
very depressed and had a lot of anxiety. She was treated by Dr. Fozard, who
prescribed Elavil for sleep and Valium for anxiety. She did not like to tell the
doctor about her emotional or mental problems. James told the doctor “certain
things.” (Tr. 67-70).
James testified that, from 2004 to 2009, Sherry continued to be depressed
and anxious. She did not want to leave the house to go anywhere. She would go
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without sleep for days and become delusional. He said that he reported this to Dr.
Fozard. (Tr. 70-72).
3.

Relevant Medical Treatment

Plainitff was admitted to the hospital with a fractured left ankle in October
1985. She was taking Valium 3 as needed and Fiorinal for ulcer pain. (Tr. 583,
612). She was admitted to the hospital again in 1986 for removal of the hardware
from her left ankle. The notes indicate she had undergone shock treatments in
1978 and 1980. She was still taking Valium as needed. (Tr. 684).
Plaintiff underwent physical therapy for neuritis in her left leg beginning in
January 1988. She was taking Tegretol, Tylenol and Elavil. 4 (Tr. 701).
Plaintiff was admitted to the hospital for excessive uterine bleeding in
September 1991.

The admitting note indicates that her regular medications

included Tegretol, occasional Tylenol #4, and Elavil. (Tr. 647). She returned to
the hospital for a hysterectomy in January 1992. It was noted that she had a prior
left ankle fracture and a subsequent nerve block procedure for “ankle damage.”
She was taking Tegretol, Elavil and Meclomen.
None of the above records contain any mention of depression or anxiety.
Sherry called Dr. Gregg Fozard’s office on April 7, 2005, and asked that her
diazepam be refilled. She saw Dr. Fozard on April 13, 2005. On that date, he
Valium (diazepam) is used to treat anxiety disorders, alcohol withdrawal symptoms, muscle
spasms, seizures, and other conditions. http://www.drugs.com/diazepam.html, visited on May 16,
2016.

3

4

Elavil (amitriptyline) is used to treat depression. http://www.drugs.com/amitriptyline.html,
visited on May 16, 2016. Tegretol is used to treat certain seizures and to control nerve pain.
http://www.drugs.com/tegretol.html, visited on May 16, 2016.

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noted that Sherry was “now on amitriptyline for neuropathy in the left ankle.” The
assessment was hypertension, neuropathy in left ankle, and chronic low back pain.
There is no mention of depression or anxiety. (Tr. 494). Sherry saw Dr. Fozard
about every six months through March 2010.

He continued to refill her

prescriptions for amitriptyline and diazepam, but he never noted a complaint or
diagnosis of depression or anxiety. (Tr. 477-508). On March 16, 2010, Sherry
complained of trouble sleeping and trouble with allergies. She had gotten some
melatonin from her brother, which helped her sleep.
insomnia and prescribed melatonin.

(Tr. 476).

Dr. Fozard diagnosed

He continued to refill her

prescriptions for amitriptyline and diazepam.
Sherry was last insured for DIB as of September 30, 2010.
On November 4, 2010, Sherry saw Dr. Fozard for a check-up. She had
some numbness in her 4th and 5th fingers on the left hand. The doctor noted that
she “[d]oes a lot of computer work.” There was no mention of trouble sleeping,
depression or anxiety. She was to continue on her current medications. (Tr.
472-475).
On December 20, 2010, Sherry was taken to the emergency room because
she was confused and disoriented. She was agitated, “bizarre,” and incoherent.
A note the next day stated that she had a history of anxiety but no other mental
health history. She was admitted to the hospital. (Tr. 429-438).
Sherry was hospitalized with a diagnosis of major depressive disorder with
psychosis. The discharge summary notes that she had a history of anxiety and a
reported psychiatric hospitalization in the 1970s. She was treated in the hospital
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with Celexa for depression and Haldol for psychosis. The note states that Sherry
“recognized that she had been depressed for a while and it was nice to be able to
open up and talk to people.” She was discharged on December 27, 2010. She
was to follow up with Dr. Johnson. (Tr. 425-426).
During her hospitalization, a social worker noted on December 23, 2010,
that plaintiff said she had been “isolating at home for the last 15 years, more so
recently. Much self talk and delusional thoughts.” She was worried about her
alcoholic son and other family issues. She had a supportive husband of many
years. (Tr. 943). Sherry indicated that she was employed part-time; she was a
housewife and “assists husband w/ lawn service.” (Tr. 945).
On December 28, 2010, the day after she was released from the hospital,
Sherry saw Dr. Fozard. He noted that she “had a history of mental problem with
depression and had shock treatment in 1975.” (Tr. 471).
Sherry began seeing Dr. Christopher Johnson, a psychiatrist, in January
2011.

He diagnosed major depression, recurrent, moderate, and generalized

anxiety disorder. He saw her about once a month and prescribed medication for
her. (Tr. 518-526). In June 2011, she had another possible psychotic episode,
and he added Risperdal, an antipsychotic drug. (Tr. 527-528). She had another
episode of confusion and delusions around Christmas. Dr. Johnson switched her
from Risperdal to Seroquel in January 2012.

(Tr. 765-766).

In April 2012,

Sherry told Dr. Johnson that she had “significant episodes of depression in the
past.” (Tr. 759). In May 2012, she reported that she was doing fairly well on
Seroquel, but she still had some difficulty with sleep and some anxiety and panic
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symptoms. (Tr. 757-758). In August 2012, she reported that her anxiety had
kept her from attending a shower for a relative and doing some other things as well.
Dr. Johnson increased her antianxiety medication. (Tr. 753-754).
Analysis
Plaintiff’s second point is well-taken and requires remand.
The Seventh Circuit has “repeatedly held that although an ALJ does not need
to discuss every piece of evidence in the record, the ALJ may not analyze only the
evidence supporting her ultimate conclusion while ignoring the evidence that
undermines it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). This rule
is long-standing. See, Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009), and
cases cited therein.
As is detailed above, the medical records establish that Sherry was
prescribed Valium (Diazepam) and Elavil (amitriptyline) for years before her date
last insured for DIB. Dr. Fozard regularly renewed these prescriptions beginning
in at least 2005.

(Tr. 494).

Sherry testified that Dr. Fozard prescribed

medication for her mental problems. (Tr. 55). However, the ALJ ignored this
testimony and simply cited Sherry’s testimony that she had no “mental health
treatment” before her date last insured. In reviewing Dr. Fozard’s treatment, the
ALJ did not mention these prescriptions at all. (Tr. 32).
Of course, the fact that plaintiff was prescribed Valium and Elavil during the
insured period does not, of itself, establish that she was disabled at that time. It
was, however, evidence that should have been considered by the ALJ, along with the
testimony of plaintiff and her husband and her children’s written statements
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regarding her mental impairments.

The ALJ said he gave “no weight” to the

statements of Sherry’s family, but gave no reason for that assessment. (Tr. 33).
The Commissioner argues that Dr. Fozard’s records indicated that
amitriptyline was prescribed for neuropathy. See, doc. 27, p. 6. That is accurate,
but the ALJ did not discount Sherry’s use of amitriptyline for that reason. In
advancing reasons not relied upon by the ALJ, the Commissioner violates the
Chenery doctrine.

See, SEC v. Chenery Corporation, 318 U.S. 80 (1943).

“Under the Chenery doctrine, the Commissioner's lawyers cannot defend the
agency's decision on grounds that the agency itself did not embrace.” Kastner v.
Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
Sherry had a psychotic episode and was hospitalized for a week in December
2010. The diagnosis was major depressive disorder with psychosis. This was only
about two and a half months after her insured status lapsed. The ALJ concluded
that she went from having no medically determinable mental impairment to having
major depressive disorder with psychosis in two and a half months. However, he
ignored evidence that she was prescribed Valium and Elavil before her date last
insured. While he 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).
The ALJ is “required to build a logical bridge from the evidence to [his]
conclusions.” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009). ALJ Hunt
failed to do so here. As a result, his decision is lacking in evidentiary support and
must be remanded. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012).
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SSR 83-20 is instructive here. “The onset date of disability is defined as “the
first day an individual is disabled as defined in the Act and the regulations.” SSR
83-20, 1983 WL 31249, at *1. For disabilities of non-traumatic origin, SSR 83-20
requires the ALJ to consider three things when determining the onset date of
disability: the claimant’s allegations, the claimant’s work history, and the medical
and other evidence. SSR 83-20 at *2. The date alleged by the claimant is the
“starting point” in determining the onset date, and that date should be used if it is
consistent with all available evidence. SSR 83-20, at *2, 3. The medical evidence
is “the primary element in the onset determination” and the chosen onset date “can
never be inconsistent with the medical evidence of record.”

SSR 83-20 at *2.

“This does not mean that a claim is doomed for lack of medical evidence
establishing the precise date an impairment became disabling.” Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 353 (7th Cir. 2005) (emphasis in original). “In
such cases, the ALJ must infer the onset date from the medical and other evidence
that describe the history and symptomatology of the disease process, and should
seek the assistance of a medical expert to make this inference.” Briscoe, 425 F.3d
at 353 (citing SSR 83-20 at *2) (internal quotation marks omitted).
Where the claimant has been hospitalized for a psychiatric illness:
The history [set forth in a hospital report] may present significant
information about the individual's condition prior to admission. Depending
on the nature of events leading to institutionalization, onset of disability may
sometimes be found at a time considerably in advance of admission. It is not
unusual for the history to show that prior to hospitalization the person
manifested personality changes such as refusing to go out of the house,
refusing to eat, accusing others of being against him or her, threatening
family and neighbors, etc. In such a case, a beginning date prior to
hospitalization would be reasonable unless contradicted by the work history
13

or other evidence.
SSR 83-20 at *4.
The Court does not mean to suggest that the ALJ was required to consult a
medical expert. “Should” does not mean “must” or “shall.” Eichstadt v. Astrue,
534 F.3d 663, 667 (7th Cir. 2008). Where the medical evidence is complete, the
ALJ is not required to consult a medical expert. Henderson, 179 F.3d at 513.
See, also, Pugh v. Bowen, 870 F.2d 1271, 1278 n. 9 (7th Cir.1989). The Court
only notes that the ALJ might consider doing so on remand.

In addition, it

appears that no one asked Dr. Fozard to explain why he prescribed Valium and
Elavil before September 30, 2010, and whether he diagnosed any mental
impairment before that date.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Ms. Sharos was disabled
before September 30, 2010, or that she should be awarded benefits for the period
in question.

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 Sherry Sharos’ 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.
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IT IS SO ORDERED.
DATE:

May 17, 2016.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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