Hudson v. Commissioner of Social Security

Filing 27

MEMORANDUM AND OPINION. The Commissioner's final decision denying plaintiff's application for disability benefits 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 12/5/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARTANYA D. H., 1

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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil No. 17-cv-1187-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the
final agency decision denying her application for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in September 2013, alleging she became
disabled as of January 13, 2013. After holding an evidentiary hearing, ALJ Mark
Naggi denied the application on October 12, 2016.

(Tr. 21-34). 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.

Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns.
See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.

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This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 18.

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Issue Raised by Plaintiff
Plaintiff raises the following issues:
1. The ALJ erred in weighing the medical opinions.
2. The ALJ failed to properly consider the evidence at step two.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes. 3 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.
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 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. The standard for disability
under both sets of 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.

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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).
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
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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 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. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003).

This Court uses the Supreme Court’s definition of substantial

evidence, i.e., “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. Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014). 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.
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2010), and cases cited therein.
The Decision of the ALJ
ALJ Naggi followed the five-step analytical framework described above. He
determined that plaintiff had not been engaged in substantial gainful activity since
the alleged onset date and that she had severe impairments of depression, mood
disorder, and carpal tunnel syndrome, which did not meet or equal a listed
impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform a limited range of light work. Her mental limitations were that she was
restricted to simple, routine, repetitive tasks and simple work-related decisions;
frequent interaction with supervisors and coworkers; and only occasional
interaction with the public. She was expected to be off-task for 5% of the time, in
addition to normal breaks.
The ALJ found that plaintiff could not do her past relevant work as a “final
inspector.” Based on the testimony of a vocational expert, the ALJ found that
plaintiff was not disabled because she was able to do other jobs that exist in
significant numbers in the national economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. Plaintiff’s arguments relate only to her
mental limitations.
1. Agency Forms
Plaintiff was born in 1970 and was 42 years on the alleged date of disability.
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(Tr. 207). She had completed 2 years of college and had worked as an inspector in
a shoe factory and as a mail handler. (Tr. 212-214).
In a Function Report submitted in August 2014, plaintiff said she “had issues
dealing with people in general.” She had self -control issues and anxiety attacks,
and was “very emotional.”

(Tr. 254).

She alleged difficulty with memory,

completing tasks, concentration, and getting along with others. (Tr. 259).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in March
2016. (Tr. 43).
Plaintiff lived with her sons who were 29 and 17 years old. She babysat
most days for her two-year-old grandson. (Tr. 47-50).
Plaintiff testified that she could not work because she doesn’t do well dealing
with people. She had mood swings and problems focusing. (Tr. 53). She also
said that she did not “mistreat people” and she was “cordial” when she had to be.
(Tr. 58).
A vocational expert (VE) also testified. The ALJ asked her a hypothetical
question which corresponded to the RFC assessment. The VE testified that this
person could not do plaintiff’s past work, but she could do other jobs that exist in
the national economy.

(Tr. 61-63). She also testified that a person who was

off-task for 20% of the time would be unemployable. (Tr. 65).
3. Relevant Medical Records
Plaintiff was diagnosed with depression and anxiety by a primary care
provider in January 2013. The doctor felt this was likely related to her chronic
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daily marihuana usage. The doctor recommended she stop smoking marihuana
and prescribed Zoloft. (Tr. 305). In June 2013, the doctor recommended that
plaintiff call Illinois Public Aid to find a psychiatrist covered by her insurance. She
noted that plaintiff may have “underlying bipolar.” (Tr. 309).
Plaintiff began receiving mental health treatment at Chestnut Health Systems
in October 2013. She had a history of physical as well as mental abuse by her
son’s father.

Her initial diagnoses were major depressive disorder, mood

disorder, general anxiety disorder, and cannabis abuse, all uncontrolled. She was
prescribed Lexapro. (Tr. 323-326). In December 2013, an Advanced Practice
Nurse (APN) at Chestnut noted that plaintiff had not been taking her Lexapro. (Tr.
340).
In July 2014, plaintiff told an APN at Chestnut that she had stopped smoking
marihuana for about a month. She was taking Geodon, which helped control her
mood fluctuations, but Zoloft was not helping her depression. She was switched
to Wellbutrin. On exam, she was oriented, calm, engaged and cooperative. No
depressive symptoms were noted, and she did not appear anxious. In September
2014, Geodon was discontinued because it made her too sleepy and she was unable
to function. Her mood was quite unstable. On exam, she was slightly hyper at
times. She said she had issues trying to control her anger. She was started on
Olanzapine. (Tr. 412-415).
Plaintiff began seeing APN JoEllen Juenger at Chestnut in October 2014.
She saw APN Juenger a total of 10 times between October 2014 and November
2015. (Tr. 416-444-470). On the majority visits, APN Juenger noted on exam
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that plaintiff had “no deficits” in maintaining attention and concentration, and she
noted no memory deficits. In large part, her early notes reflect normal mental
status exams in that plaintiff was neatly dressed and groomed, she was cooperative,
her mood was euthymic, her thought process was coherent and goal-directed, and
she had no suicidal thoughts or hallucinations. Plaintiff did complain of some
“snapping.” (Tr. 419, 422). However, in May, June, and July 2015, her affect was
anxious, and her mood was dysphoric, and she reported financial and family
stress. (Tr. 456, 460, 463). In September 2015, plaintiff reported that she was
having flashbacks of childhood abuse, but she was also not taking her medications
as prescribed. She “continues to deny the use of marijuana and alcohol.” APN
Juenger

noted

plaintiff

was

anxious

and

tearful

and

had

impaired

attention/concentration. (Tr. 465-466).
A different staff member at Chestnut evaluated plaintiff in September 2015.
He noted that her depression symptoms had been “minimal since being on
medication.” He also noted that she used alcohol and cannabis on a consistent
basis and that she met the criteria for cannabis dependence.
APN Juenger last saw plaintiff in November 2015.

She also noted that

plaintiff’s depression symptoms had been “minimal” since being on medication.
The notes for that date do not include any findings on exam. (Tr. 469-470).
4.

Medical Opinions

On May 28, 2015, APN Juenger completed a form assessing plaintiff’s mental
RFC. (Tr. 406-409). This was the date of plaintiff’s fifth visit with her. APN
Juenger rated her ability to deal with the public, interact with supervisors, deal with
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work stresses, maintain attention/concentration, carry out complex instructions,
and demonstrate reliability as “poor or none.” She said that plaintiff had “fair”
ability to follow work rules, relate to co-workers, use judgment, function
independently, carry out simple instructions, behave in an emotionally stable
manner, and relate predictably in social situations. The form defined “fair” as
“ability to function in this area is seriously limited, but not precluded.”

APN

Juenger predicted that plaintiff would need at least 6 breaks in a workday and
would be late or absent on 2 or more days a month. She also provided an undated
narrative note stating that plaintiff had difficulty making decisions and difficulty
with focusing and with her working memory. Her mood “can be unpredictable.”
(Tr. 410). In March 2016, APN Juenger affirmed her previous opinions, except
that she now indicated that plaintiff’s ability to relate to co-workers and relate
predictably in social situations was poor, and her ability to behave in an
emotionally stable manner was fair to poor. (Tr. 482).
In July 2016, Dr. Efobi, a board-certified psychiatrist, assessed plaintiff’s
mental RFC based on a review of the records. (Tr. 512-517). He indicated that
she had only mild limitations in understanding and carrying out simple
instructions, making simple work-related decisions, and responding appropriately
to work situations and to changes in a routine work setting. She had no-to-mild
limitations in dealing with the general public and moderate limitations in
interacting with supervisors and co-workers.

The form defined “moderate” as

“more than a slight limitation in this area, but the individual is still able to function
satisfactorily.”
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Analysis
Plaintiff argues that the ALJ erred in assessing the weight he gave to the
opinions of Nurse Juenger and Dr. Efobi.
The ALJ considered APN Juenger to be a treating source. Obviously, the
ALJ was not required to credit her opinion because of her status; “while the treating
physician’s opinion is important, it is not the final word on a claimant’s disability.”
Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996)(internal citation omitted).

A

treating source’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. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016), citing
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Plaintiff’s application was filed before March 27, 2017.

The

applicable regulation, 20 C.F.R. § 404.1527(c)(2), provides, in part:
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]
If the ALJ decides not to give the opinion controlling weight, he is to weigh it
applying the factors set forth in § 404.1527(c)(1)-(6).
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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).
Here, the ALJ described APN Juenger’s opinion in detail, noting that she said
that plaintiff had poor ability to deal with the public, interact with supervisors, deal
with

work

stresses, maintain

attention/concentration, carry out

complex

instructions, and demonstrate reliability. He also noted the areas in which APN
Juenger rated plaintiff as only fair. The ALJ then gave the following assessment of
her opinion:
While the undersigned finds that parts of Dr. Juenger’s overall opinion are
consistent with the record, her opinions that the claimant’s ability to
maintain attention/concentration is poor and she requires six or more breaks
during a workday are not supported by her treatment records or any other
evidence contained in the record and therefore warrant little weight.
(Tr. 32).
Plaintiff argues that § 404.1527(c)(2) provides that the ALJ “will always give
good reasons in [the hearing decision] for the weight [given to the] treating source's
opinion.”

She argues that the ALJ failed to do so here because he obviously

rejected substantial parts of her opinion without explaining why.
APN Juenger rated plaintiff as only fair or poor in a number of areas of
mental functioning. The ALJ took issue only with her opinion as to maintaining
attention/concentration and requiring extra breaks. He observed that parts of her
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opinion are consistent with the record, which would be, of course, a reason to
accept those parts.
The Commissioner argues generally in her brief that the ALJ’s RFC
assessment was supported by the evidence, but she does not address plaintiff’s
specific argument regarding APN Juenger’s opinion. The Court agrees that the
ALJ did not give a sufficient explanation of how he weighed her opinion, and why he
rejected parts of her opinion that were, according to him, consistent with the
record.
The ALJ said that he gave “great weight” to Dr. Efobi because he is a
specialist who is familiar with the agency’s policy and regulations, he reviewed the
complete record, and “he provided a detailed explanation with references to the
evidence in the record to support his opinion.” (Tr. 31). Plaintiff takes issue with
the last point, arguing that Dr. Efobi cited to transcript pages that do not support
his opinion.
Plaintiff is correct, as is demonstrated by a few examples. Dr. Efobi cited
Ex. 9F, p. 2, to support his opinion that plaintiff had only mild-to-moderate
limitations in maintaining social functioning. (Tr. 517). However, Ex. 9F, p. 2, is
a narrative statement from APN Juenger stating that plaintiff’s “ability to relate to
co-workers is poor, her ability to behave in an emotionally stable [manner] is fair to
poor, and her ability to relate predictably in social situations is fair to poor.” (Tr.
482). Dr. Efobi cited Ex. 13F, pp. 2-4, to support his opinion that plaintiff had
only mild limitations in activities of daily living. (Tr. 517). However, ex. 13F, pp.
2-4 is the mental RFC assessment form completed by APN Juenger; her opinions do
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not support Dr. Efobi’s opinion that plaintiff had only mild limitations in activities
of daily living.
Again, the Commissioner’s brief does not address plaintiff’s specific
argument. It is apparent that many of the pages cited by Dr. Efobi do not, in fact,
support his opinion.
In view of the disposition of plaintiff’s first point, it is not necessary to analyze
her second argument.

On remand, of course, the ALJ must consider all of

plaintiff’s impairments, severe and nonsevere, in combination. Williams v. Colvin,
757 F.3d 610, 613 (7th Cir. 2014).
The ALJ’s errors require remand. “If a decision “lacks evidentiary support
or is so poorly articulated as to prevent meaningful review,” a remand is required.”
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir., 2012)(internal citation omitted).
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff was disabled during
the relevant period, or that she 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 plaintiff’s application for
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:

December 5, 2018.

s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE

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