Maples v. Commissioner of Social Security
Filing
29
OPINION AND ORDER: The Court GRANTS the Brief in Support of Plaintiff's Complaint to Review Decision of Commissioner of Social Security Administration 21 , REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 8/23/2018. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SONYA LEANNE MAPLES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.
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CAUSE NO.: 1:17-CV-423-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Sonya Leanne
Maples on October 9, 2017, and a Brief in Support of Plaintiff’s Complaint to Review Decision of
Commissioner of Social Security Administration [DE 21], filed by Plaintiff on May 9, 2018.
Plaintiff requests that the January 12, 2017 decision of the Administrative Law Judge denying her
claim for supplemental security income be reversed and remanded for further proceedings. On June
14, 2018, the Commissioner filed a response, and Plaintiff filed a reply on June 25, 2018. For the
following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On June 19, 2014, Plaintiff filed an application for supplemental security income, alleging
disability beginning November 26, 2007. The application was denied initially and on
reconsideration. Administrative Law Judge Stephanie Katich (“ALJ”) held a hearing. In attendance
at the hearing were Plaintiff, Plaintiff’s boyfriend, Plaintiff’s attorney, and an impartial vocational
expert. On January 12, 2017, the ALJ issued a written decision denying benefits, making the
following findings:
1.
The claimant has not engaged in substantial gainful activity since June 19,
2014, the application date.
2.
The claimant has the following severe impairments that cause more than a
minimal limitation in the ability to perform basic work activities, therefore
they are considered to be severe: degenerative disc disease of the cervical
spine (Exhibit 20F/48), myofascial pain syndrome (Exhibit 22F/8),
psychogenic nonepileptic seizures (Exhibits 20F/12), COPD (Exhibit 22F/8),
Hashimoto’s thyroiditis (Exhibit 22F/8), lupus erythematosus (Exhibit
22F/8), chronic kidney disease (Exhibit 22F/13), bipolar disorder (Exhibit
10F/7), PTSD (Exhibit 21F/2), cannabis use disorder (Exhibit 15F/4),
schizoaffective disorder (Exhibit 21F/2), rheumatoid arthritis (Exhibit
16F/3), fibromyalgia (Exhibit 22F/8), and ankylosing spondylosis (Exhibit
16F/3).
3.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.
4.
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) except for the following limitations. The claimant can
occasionally balance, stoop, kneel, crouch, and crawl. She should avoid
concentrated exposure to hazards such as dangerous moving machinery,
unprotected heights, and uneven terrain. She should avoid concentrated
exposure to fumes, odors, dusts, gases, and other similar respiratory irritants.
The claimant can understand, remember, and carry out simple instructions.
She can make judgments on simple work related decisions. She can respond
appropriately to occasional interactions with co-workers, supervisors, and the
general public. She can respond appropriately to usual work situations. She
can deal with routine changes in a work setting.
5.
The claimant is unable to perform any past relevant work.
6.
The claimant was born [in 1969] and was 45 years old, which is defined as
a younger individual age 18-49, on the date the application was filed.
7.
The claimant has at least a high school education and is able to communicate
in English.
8.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills.
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9.
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
10.
The claimant has not been under a disability, as defined in the Social Security
Act, since June 19, 2014, the date the application was filed.
(AR 18-29).
The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the
final decision of the Commissioner. See 20 C.F.R. § 416.1481. Plaintiff filed this civil action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c) for review of the Agency’s decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See Boiles v.
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Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000);
Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an
ALJ’s finding that a claimant is not disabled within the meaning of the Social Security Act is not
whether the claimant is, in fact, disabled, but whether the ALJ “uses the correct legal standards and
the decision is supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v.
Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse the decision
“without regard to the volume of evidence in support of the factual findings.” White v. Apfel, 167
F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the
reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing
court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
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DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A).
To be found disabled, the claimant’s impairment must not only prevent her from doing her previous
work, but considering her age, education, and work experience, it must also prevent her from
engaging in any other type of substantial gainful activity that exists in significant numbers in the
economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. § 416.920(a)(4). The steps are: (1)
Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled, and the
claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have an impairment
or combination of impairments that are severe? If no, the claimant is not disabled, and the claim is
denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet or equal a listed
impairment in the appendix to the regulations? If yes, the claimant is automatically considered
disabled; if no, then the inquiry proceeds to step four; (4) Can the claimant do the claimant’s past
relevant work? If yes, the claimant is not disabled, and the claim is denied; if no, then the inquiry
proceeds to step five; (5) Can the claimant perform other work given the claimant’s residual
functional capacity (RFC), age, education, and experience? If yes, then the claimant is not disabled,
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and the claim is denied; if no, the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(i)-(v); see also
Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s residual
functional capacity (RFC). The RFC “is an administrative assessment of what work-related activities
an individual can perform despite [her] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th
Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676
(7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps
one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 885-86; see
also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
In her appeal, Plaintiff argues that the ALJ made several errors in assessing Plaintiff’s
residual functional capacity, namely that the ALJ did not properly consider the records of Plaintiff’s
treating sources, including Dr. Teresa Greiner and the treatment team at Northeastern Center; the
ALJ gave improper weight to the opinion of a treating chiropractor; the ALJ did not properly
consider Plaintiff’s subjective statements; and the ALJ did not account for Plaintiff’s moderate
limitations in concentration, persistence, and pace.
The residual functional capacity (“RFC”) is a measure of what an individual can do despite
the limitations imposed by her impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004);
20 C.F.R. § 416.945(a). The determination of a claimant’s RFC is a legal decision rather than a
medical one. 20 C.F.R. § 416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four
and five of the sequential evaluation process and must be supported by substantial evidence. SSR
96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.
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“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, at *1.
“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence
includes medical history; medical signs and laboratory findings; the effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts
to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In
arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.” Id. The “ALJ must also consider the combined effects of all the claimant’s
impairments, even those that would not be considered severe in isolation.” Terry v. Astrue, 580 F.3d
471, 477 (7th Cir. 2009); see also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
The Court considers each of Plaintiff’s arguments in turn.
A. Assessment of Treating Physician Records
First, Plaintiff argues that the ALJ erred in analyzing the treatment records by drawing her
own conclusions from the medical evidence in place of the stated medical conclusions of the treating
sources. Indeed, a comparison of the ALJ’s discussion of these treatment records with the records
themselves shows that the ALJ discussed only those portions of certain records that appear to
support the RFC while failing to discuss the records consistent with Plaintiff’s allegations of
disability. See Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (finding that the ALJ “was
inappropriately selective in choosing the evidence on which she based her opinion” because the ALJ
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“identified pieces of evidence in the record that supported her conclusion that Mr. Scrogham was
not disabled, but she ignored related evidence that undermined her conclusion”); Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
1.
Dr. Greiner and the Treatment Team at Northeastern Center
On May 21, 2014, Plaintiff was seen at Northeastern Center, a counseling center, by the
“Treatment Team,” which included Dr. Greiner, intake therapist Ms. Andres, director Ms. Jones, and
case facilitator Ms. Sikorski, and was diagnosed with bipolar disorder, manic, moderate and post
traumatic stress disorder. (AR 671).
On June 16, 2014, Dr. Greiner completed a “Psychiatric Evaluation,” which indicated that
Plaintiff was being treated for bipolar disorder. (AR 666). Prior to that visit, Plaintiff had not
received psychiatric care for the prior six years other than through her primary care. Id. Dr.
Greiner’s “Assessment and Diagnosis” was bipolar disorder depressed; post traumatic stress
disorder, cognitive disorder not otherwise specified, probably secondary to medical problems; and
rule out borderline personality disorder. (AR 667). Dr. Greiner noted that Plaintiff’s stressors were
homelessness, poor social support system, abuse as a child and adult, and loss of companion support
animal. Id. Dr. Greiner assigned a GAF of 50. Id. Dr. Greiner recommended proper treatment for
Plaintiff’s seizure disorder and requested records to determine whether there was some somatization.
Id. Dr. Greiner recommended neuropsychological testing because Dr. Greiner “question[ed] whether
she is competent,” specifically as to whether Plaintiff could manage her own funds should she
receive disability benefits. Id. Dr. Greiner changed Plaintiff’s medication from Effexor to Fetzima,
and from Ambien to Seroquel. Id. Dr. Greiner directed Plaintiff to discuss weaning off Klonopin as
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her seizures stabilized. Id. Dr. Greiner wrote that Plaintiff “[n]eeds intensive services from
Northeastern Center.” (AR 668).
On August 19, 2014, Plaintiff was again treated at Northeastern Center by the same
Treatment Team. (AR 669). The diagnosis was changed to bipolar disorder, depressed, moderate and
post traumatic stress disorder. (AR 669). The treatment note indicated that Plaintiff’s GAF increased
because she was engaged in services. Id. Plaintiff was evaluated by the treatment team at
Northeastern Center on November 11, 2014, January 26, 2015, March 5, 2015, April 15, 2015, June
8, 2015, August 27, 2015, November 11, 2015, January 27, 2016, April 4, 2016, June 6, 2016, and
received therapy throughout that time period. (AR 894-966).
More recently, on April 4, 2016, the treatment record lists Plaintiff as needing help with
mental illness issues, help with depression, help with relationships, help with tension or stress, and
help with problem solving. (AR 902). Her diagnoses included post traumatic stress disorder,
unspecified somatic symptom and related disorder, and schizoaffective disorder, depressive type,
unspecified. (AR 903).
In the most recent treatment record, dated June 6, 2016, Plaintiff’s recovery needs were listed
as help with mental illness issues, help with depression, help with relationships, help with tension
or stress, and help with problem solving. (AR 894). Plaintiff reported recent “severe symptoms of
PTSD such as forgetfulness, frequent black outs, loss of time, confusion, and rapid behavior
changes.” Id. Her diagnoses remained the same. (AR 895). The “Review of Goals/Objectives Over
Past 90 Days” indicates that Plaintiff had made some progress in her thought disturbances, had not
been talking about the government injecting chips in her body, and had been thinking rationally the
last few appointments. (AR 896). Regarding her symptoms of depression, the record indicates that
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Plaintiff reported she is doing well with her depression and takes her medications to help with
depression. Id. The record provides that Plaintiff was observed to be in good spirits in all meetings.
Id. Regarding the goal of decreasing symptoms of traumatic stress, Plaintiff reported that she was
doing well and sleeping better, which allowed her to make progress on her traumatic stress. Id.
Notably, Plaintiff reported that she was doing well in her life other than her medical issues. Id.
Regarding her physical/medical problems, it was noted that Plaintiff is making progress as she is
going to her appointments but “always reports new findings or other issues that lead her to another
physician or specialist so nothing is really getting done.” (AR 897). As for increasing community
connection and involvement, progress was being made as Plaintiff had assistance to help her make
her housing payments and had food stamps, and Plaintiff had reached out to a lawyer about her
disability case. Id. Regarding her social and interpersonal skills, Plaintiff reported improvement and
better communication with her fiancé. Id. It was noted that Plaintiff used good eye contact and tone
of voice during conversation but that she can be very flamboyant and sometimes animated when
talking. Id.
However, as argued by Plaintiff, despite the treatment notations regarding some progress,
the same records show Plaintiff as having achieved less than one quarter of the target goal for each
of the functional areas discussed above. (AR 897-900). Under “Alteration in Mood –Depression,”
Plaintiff’s “Current” rating was “10” with a “Target” rating of “100.” (AR 897). On the same scale,
the Current/Target Rating for “Community Connection” was 14/100, (AR 898), for “Physical
Health” was 5/100, (AR 899), for “Psychosis/Thought Disturbances” was 5/100, id., for
“Social/Interpersonal Deficits” was 20/100, (AR 900), and for “Traumatic Stress” was 22/100, id.
Although these June 2016 ratings were an improvement over the April 2016 ratings, see (AR 905-
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908), the ratings do not appear to support a level of functioning necessary to engage in work-related
activities on a regular and continuing basis. The ALJ did not discuss these ratings.
Plaintiff argues that the findings in these treatment records should have been the focus of the
ALJ’s discussion on the combined impairments at issue in this case. Plaintiff contends that, instead
of discussing the treating doctor and clinicians’ medical assessments based on their treatment of
Plaintiff, the ALJ focused on certain facts within the records and comes to different or impermissible
conclusions about Plaintiff’s impairments. Indeed, it appears that the ALJ’s discussion of the
Northeastern Center records serves only to discredit Plaintiff without considering the extent to which
they support Plaintiff’s alleged limitations regarding her mental health. For example, the ALJ noted
that Plaintiff “reported that she was unemployed, not looking for work, and was trying to obtain
disability.” (AR 22). It is unclear how this statement about Plaintiff’s situation undermines the
severity of her alleged impairments.
The ALJ then commented that there are contradictions in Plaintiff’s self reports to the
Treatment Team, noting that Plaintiff reported that her ex-boyfriend had physically, emotionally,
and sexually abused her, but in a different record stated that they were engaged to be married and
getting along well, and then stated that she did not trust him, felt trapped in the relationship, but
stayed because of his financial support. Id. The ALJ is correct that these reports are in the record,
but it is not clear how they are contradictory. It appears from the reports that Plaintiff’s
circumstances changed; there is no statement by a treating source to suggest that Plaintiff was
untruthful about her personal relationships.
The ALJ also noted that the records “consistently indicated that the claimant was making
progress, thinking rationally, was in good spirits, was doing well, sleeping better, and had a
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significant reduction in symptoms.” (AR 22). Importantly, the ALJ did not discuss the
“Current/Target” ratings listed above that show that Plaintiff was at less than twenty-five percent
of her target recovery, despite treatment for over a year, nor did the ALJ discuss the fact that
Plaintiff continued to receive therapy with those ratings. (AR 897-900). The fact that Plaintiff
improved over time does not indicate the level of recovery that she achieved.
Next, the ALJ noted the treating comment that Plaintiff “was attending her medical
appointments but when she went she ‘always reports new findings or other issues that lead her to
another physician or specialist so nothing is really getting done.’” (AR 22) (quoting AR 897)
(6/6/2016). It is unclear how this report detracts from Plaintiff’s allegations regarding her
impairments if treating physicians were making new findings and referring her to other physicians.
See (AR 897). Also, the tone of the treatment record reflects Plaintiff’s frustration with the lack of
progress regarding her physical health and does not indicate any disbelief of Plaintiff by the author.
(AR 897). The ALJ then wrote that it was “further noted that the claimant was unable to produce
documentation of her ‘many physical and medical problems with new ones arising all the time.’”
(AR 22) (citing AR 904) (4/4/2016). First, the second statement quoted by the ALJ was made in a
separate treatment note a month earlier than the first quoted statement. See (AR 897, 904). Second,
the treating source again does not appear to pass judgment on the veracity of Plaintiff’s
representation regarding her ability to produce physical treatment records; rather, the treatment
record provides: “Sonya reports to having many physical and medical problems with new ones
arising all the time. [The treater] though has not seen proof of Dr’s records so she cannot confirm.”
(AR 904).
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For a second time, the ALJ then commented that Plaintiff’s “focus on obtaining disability
was noted throughout the records.” (AR 22). Again, it is unclear how the intent to obtain disability
benefits by someone who allegedly has disabling impairments is a basis for discrediting the severity
of the impairments.
The ALJ wrote: “It was also noted that the claimant presented as needing significant help
from others for her housing, food, financial, and other basic life needs, yet she was able to figure out
finding and retaining a lawyer to assist with her disability claim entirely of her own accord.” (AR
23) (emphasis added). It again appears that the ALJ juxtaposed two concepts to discredit Plaintiff
in a manner not supported by the record itself. The ALJ drew the information from the June 2016
treatment record, under the treatment goal titled “Increase Community Connection/Involvement,”
which provides: “Sonya is making progress on this goal and objective as she has CANI to help her
with her house payments and receives food stamps. She also has reached out to a lawyer on her own
for her disability case.” (AR 897). Thus, the treatment record understands both sets of actions by
Plaintiff as positive steps toward improving her community connection, whereas the ALJ used them
to suggest that Plaintiff is gaming the system. The ALJ failed to note that Plaintiff’s then-current
rating for the goal of “Increase Community Connection/Involvement,” which was for Plaintiff to
identify and link to community services offered in her area, was only 14 with a target rating of 100.
(AR 898).
Next, the ALJ wrote, without analysis, “She was noted to be ‘very flamboyant’ or ‘very
dramatic’ in her approach to others.” (AR 23). It is not clear what meaning the ALJ takes from these
clinical observations or how this description of Plaintiff’s behavior distracts from her claims of
mental impairments, which include diagnoses of bipolar disorder or schizoaffective disorder,
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unspecified somatic symptom and related disorder, depression, and post traumatic stress disorder.
See, e.g., (AR 895) (6/6/2016), (AR 903) (4/4/2016), (AR 911) (1/27/2016), (AR 919) (11/11/2015),
(AR 927) (8/27/2015), (AR 935) (6/8/2015), (AR 943) (4/15/2015), (AR 950) (3/5/2015), (AR 958)
(1/26/2015), (AR 963) (11/12/2014).
Next, again without analysis, the ALJ noted that Plaintiff was “diagnosed with rule-out
borderline personality disorder.” (AR 23) (citing AR 667). It is not clear how this diagnosis
constitutes a normal finding or detracts from Plaintiff’s reported symptoms. Rather, it suggests that
during the initial evaluation of Plaintiff on June 16, 2014, Dr. Greiner considered the possibility that
Plaintiff suffered from borderline personality disorder in addition to her bipolar disorder and
depression. (AR 666-67).
Then, the ALJ wrote, “It was noted that there was a question regarding whether or not the
claimant’s seizures were medical or psychological in nature.” (AR 23). It is not clear how this
detracts from Plaintiff’s description of her mental health symptoms. As discussed below, Dr. Hamdi
believed that Plaintiff was having psychogenic nonepileptic seizures. (AR 833). Even if the seizures
had a psychological component, it appears that Plaintiff still required treatment; no treating source
indicated that Plaintiff was faking her seizures. See Boiles v. Barnhart, 395 F.3d 421, 422 (7th Cir.
2005) (discussing psychogenic nonepileptic seizures and noting that they “resemble epileptic
seizures but are not attributable to epilepsy or abnormal electric activity in the brain”); Walgren v.
Colvin, No. 12 C 6378, 2013 WL 4659565, at *13 (N.D. Ill. Aug. 29, 2013) (discussing medical
literature on psychogenic nonepileptic seizures or “PNES”). It appears that the ALJ interpreted Dr.
Hamdi’s treatment records as suggesting that Plaintiff’s seizures did not really occur. See (AR 25).
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Next, the ALJ commented, “The notes also indicated that the claimant’s alleged symptoms
did not necessarily match up with her self-reports of her medical treatment.” (AR 23). The ALJ then
gave one example: “For example, she reported severe depression and some mania, but stated she was
not on any mood stabilizing medication.” (AR 23). However, Plaintiff’s list of medications over the
course of her treatment at Northeastern Center, from November 11, 2014, through June 6, 2016,
include Lamictal, a mood stabilizing anticonvulsant medication. (AR 895-963); see
https://www.mayoclinic.org/diseases-conditions/bipolar-disorder/expert-answers/bipolar-treatme
nt/faq-20058042 (last visited August 23, 2018). Plaintiff was also treated with Lexapro and
topiramate. (AR 895, 903, 910-11, 919, 927, 935, 943, 950). The ALJ did not discuss any of these
medications.
Then, the ALJ recognized that Plaintiff “was participating in treatment as a requirement of
being in transitional housing. She had previously been homeless.” (AR 23). From this fact, the ALJ
concluded, “The claimant was deemed in need of services to maintain her eligibility for the housing
program, which is distinctly different from being found disabled in regards to the ability to work and
earn a substantial gainful activity level of income. The claimant expressed motivation to comply
with treatment in order to maintain her housing and financial assistance.” (AR 23). It is unclear how
Plaintiff’s receipt of mental health treatment as a condition of maintaining housing assistance means
that she does not actually suffer from the mental impairments that her treatment team at Northeastern
Center diagnosed and treated for over two years.
Based on the foregoing, the ALJ selected certain statements throughout the Northeastern
Center records to conclude that Plaintiff was not believable or was not as limited as she alleges. But
in doing so, the ALJ did not discuss those portions of the record that support Plaintiff’s allegations
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and the ALJ did not discuss the treating doctor’s own findings and diagnoses. Nowhere in the ALJ’s
discussion of the Northeastern Center treatment records did the ALJ discuss Dr. Greiner’s June 2014
diagnosis, including her opinion about Plaintiff’s inability to handle finances. (AR 667).
The ALJ selectively considered certain treatment records without discussing the record
favorable to Plaintiff. Contrary to the Commissioner’s argument, Plaintiff is not asking the Court
to reweigh the evidence but rather is asking that the ALJ be required to consider the favorable
evidence in the first instance and also to properly consider and explain the weight given to the other
records. As a result, the ALJ did not build a logical bridge between these treatment records and the
RFC. Remand is required for the ALJ to consider all aspects of the Northeastern Center treatment
records, including those portions that support Plaintiff’s allegations such as the low ratings for
achievement of Plaintiff’s recovery goals and Dr. Greiner’s medical findings.
2.
Dr. Hamdi
Likewise, Plaintiff argues that the ALJ erred by focusing on the possibility that Plaintiff’s
seizures may have a psychological basis without acknowledging that such seizures nevertheless
require treatment. Dr. Hamdi, Plaintiff’s treating neurologist, diagnosed Plaintiff with “psychogenic
non-epileptic seizures.” (AR 833). Plaintiff criticizes the ALJ for interpreting the data from the
medical studies performed by Dr. Hamdi to essentially suggest that Plaintiff’s seizures were not real
when Dr. Hamdi did not offer that opinion. (AR 25). As noted above, even if the seizures had a
psychological component, Plaintiff may still have required treatment. See Boiles, 395 F.3d at 422;
Walgren, 2013 WL 4659565, at *13. This is not an instance in which the ALJ weighed a treating
physician opinion on functional limitations in light of contrary medical evidence. Rather, the ALJ
impermissibly interpreted the underlying data to disbelieve Plaintiff regarding her seizures despite
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Dr. Hamdi’s diagnosis. See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (finding that the ALJ
played doctor, “a clear no-no” (citing Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.
2003); Rohan v. Chater, 98 F.3d 966, 90 (7th Cir. 1996))). Moreover, Dr. Hamdi opined that “true
epileptic seizures cannot be completely ruled out” and continued Plaintiff on seizure medication.
(AR 836). If the ALJ had relied on Dr. Hamdi’s medical diagnosis, then the ALJ would have
considered the functional limitations that result from the diagnosis. Remand is required for the ALJ
to properly consider Dr. Hamdi’s diagnosis of psychogenic nonepileptic seizures.
3.
Fibromyalgia
Finally, regarding Plaintiff’s fibromyalgia, the ALJ wrote, “Regarding the claimant’s
symptoms of fibromyalgia, while physical examinations showed multiple active tender points, her
actual range of motion was only mildly reduced, muscle strength was normal, and there was no
evidence of atrophy, fasciculations, or involuntary movements.” (AR 22). In support, the ALJ cites
generally Exhibit 37F, which, contrary to the ALJ’s discussion, does not correlate the severity of
Plaintiff’s fibromyalgia symptoms with the physical examination findings cited by the ALJ.
Exhibit 37F contains the treatment records from Dr. David Lutz. The exhibit also contains
a June 23, 2015 MRI of the brain for right hand numbness with an impression of no acute
intracranial abnormality. (AR 1323). The exhibit contains a July 6, 2015 health and physical exam
record for treatment for ankylosing spondilitis, fibromyalgia, and lupus with Plaintiff reporting
chronic pain and fatigue, describing her pain as sharp, stabbing, and dull and rating her pain as 4,
5, 6, 7, and 8 on a scale of 0 to 10 with 0 representing “no pain” and 10 representing “unbearable.”
(AR 1316). Plaintiff reported that standing for long periods increases her pain and that sitting,
resting, and sleep decrease her pain. Id. The exhibit also contains a November 26, 2015 head CT for
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a seizure that same day and a history of seizures; the impression was “no acute intracranial
abnormality.” (AR 1322).
Exhibit 37F contains a December 7, 2015 examination report from Dr. Lutz, in which
Plaintiff reported neck pain that ranges from four to eight on a scale of one to ten, with ten being the
worst pain. (AR 1310). Plaintiff reported that prolonged standing flares the symptoms and that
sitting and rest reduces symptoms. Id. Dr. Lutz observed decreased cervical range of motion, which
is consistent with Plaintiff’s complaints of neck pain, both of which the ALJ failed to note. Dr. Lutz
noted active tender points in the cervical paraspinals and upper trapezius ridges. Id. And then, Dr.
Lutz made the examination findings of mildly reduced range of motion, normal muscle strength, and
no evidence of atrophy, fasciculations, or involuntary movements that were listed by the ALJ. Id.
Nowhere did Dr. Lutz opine that those findings are inconsistent with his diagnosis of fibromyalgia.
Under “Recommendations,” Dr. Lutz prescribed a comprehensive spine rehabilitation program that
included physical therapy with a notation regarding Plaintiff’s ankylosing spondylitis diagnosis as
well as trigger point injections. (AR 1311). Dr. Lutz then wrote that further testing and treatment
for her problem or other future musculoskeletal/pain/neurological problems may include radiological
imaging, electromyography, bloodwork, etc. and that future treatments may include medication
management, steroid injections, spine intervention procedures, and rehabilitation. Id.
On December 18, 2015, Plaintiff received trigger point injections from Dr. Lutz, who
encouraged Plaintiff to follow up with physical therapy. (AR 1306). On June 23, 2016, Dr. Lutz
authored another report, indicating that Plaintiff had returned for follow up, last having seen him in
December 2015. (AR 1300). Plaintiff reported to Dr. Lutz that she had some improvement with
trigger point injections and with the rehabilitation program, with partial improvement of twenty-five
percent. Id. Dr. Lutz noted “active trigger points in bilateral cervical paraspinals and bilateral upper
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trapezius ridges.” Id. Dr. Lutz’s impressions were cervicalgia, fibromyalgia, myalgia, myositis,
history of lupus, “history of ankylosing spondylitis, followed by Rheumatology.” Id. Dr. Lutz’s
impression was that Plaintiff would continue to work with physical therapy and that he would offer
her another set of trigger point injections, which he believed were medically indicated. Id.
Thus, it appears that the ALJ came to a medical conclusion about the severity of Plaintiff’s
fibromyalgia by referencing certain physical examination findings by Dr. Lutz. Yet, Dr. Lutz did
not indicate that the two were related. And, despite the December 2015 examination findings, Dr.
Lutz nevertheless administered trigger point injections and recommended physical therapy and then
in June 2016 found that another round of trigger point injections was medically indicated. The ALJ’s
analysis of Plaintiff’s fibromyalgia related pain is not supported by substantial evidence.
4.
Treating Chiropractor
Regarding Plaintiff’s physical impairments, Plaintiff argues that the ALJ erred by
emphasizing the opinion of her treating chiropractor. Plaintiff is correct that in two places in the
decision, the ALJ quoted chiropractor Dr. Nathaniel Gasdorf’s statement: “This patient is trying to
get disability benefits when she has all the capacity in the world to work. There is NO REASON she
cannot work. NONE. So it is my opinion that Miss Sonya L. Maples has no restrictions and can
work just like everyone else.” (AR 24, 26, 27) (quoting Ex. 14F/1-8). And, the ALJ referenced Dr.
Gasdorf’s statement a third time in assessing Plaintiff’s credibility. (AR 27). Plaintiff argues that the
ALJ gave undue weight to this opinion, even though a chiropractor is not an “acceptable medical
source.” SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006). Plaintiff fails to acknowledge that the ALJ
cited SSR 06-03p, recognizing that Dr. Gasdorf was not an acceptable source for establishing
Plaintiff’s medically determinable impairments but that a chiropractor’s opinions may nevertheless
be used to establish the severity of a claimant’s symptoms. (AR 26). Plaintiff also fails to
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acknowledge the ALJ’s discussion of the treatment records, specifically that Dr. Gasdorf treated
Plaintiff for a short period of time during which he observed Plaintiff not complying with treatment,
skipping appointments, and complaining that she was not feeling better when she missed
appointments but reporting reduction in symptoms after attending a treatment session and that Dr.
Gasdorf found that Plaintiff’s allegations were not supported by the medical findings, including xrays. (AR 24, 26-27). The ALJ gave this opinion significant weight.
It was not improper for the ALJ to rely on Dr. Gasdorf’s opinion and treatment records in
determining the severity of Plaintiff’s symptoms. Nevertheless, it appears that the ALJ gave special
significance to Dr. Gasdorf’s opinion that Plaintiff can work, given the quotation two times of Dr.
Gasdorf’s strong opinion. It is not the Court’s place to reweigh the evidence; however, on remand,
it is suggested that the ALJ consider the nature of Dr. Gasdorf’s statements and their importance in
light of all the evidence.
B. Subjective Symptoms
In making a disability determination, the ALJ must consider a claimant’s statements about
her symptoms, such as pain, and how the symptoms affect her daily life and ability to work. See 20
C.F.R. § 416.1529(a); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). Subjective allegations of
disabling symptoms alone cannot support a finding of disability. Id. The ALJ must weigh the
claimant’s subjective complaints, the relevant objective medical evidence, and any other evidence
of the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
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(7)
Other factors concerning functional limitations due to pain or other
symptoms.
See 20 C.F.R. § 416.929(c)(3); see also SSR 16-3p, 2017 WL 5180304, at *3. The “subjective
symptom evaluation is not an examination of an individual’s character.” SSR 16-3p, 2017 WL
5180304, at *2.
The Court has already discussed some aspects of the ALJ’s assessment of Plaintiff’s
credibility in relation to her mental impairments. Plaintiff argues that the ALJ also erred in assessing
Plaintiff’s “noncompliance” in relation to her physical impairments. (AR 24). The ALJ noted that
Plaintiff continued to smoke despite having COPD and against medical advice, was noncompliant
because she did not take some medications prescribed to alleviate her symptoms, including reducing
or discontinuing her medications without consulting or informing her doctor, and did not follow diet,
exercise, or other at-home self-care recommendations. Id. Plaintiff argues that these assertions of
noncompliance are misplaced given that her main impairment is psychological. On remand, the ALJ
is directed to consider whether there is a psychological component to Plaintiff’s purported
noncompliance regarding care for her physical ailments.
C. Moderate Limitations in Concentration, Persistence, and Pace
Plaintiff argues that both the RFC and the hypothetical posed by the ALJ to the vocational
expert failed to account for Plaintiff’s moderate limitations in concentration, persistence, and pace.
See Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014). At step three of sequential analysis, the
ALJ found that Plaintiff had moderate limitations in concentration, persistence, and pace, citing
Plaintiff’s “difficulty focusing and persisting with some tasks to completion.” (AR 19). In the RFC,
the ALJ limited Plaintiff to simple instructions/decisions and to routine changes in the work setting.
(AR 20). Plaintiff argues that these limitations do not account for the “ups and downs” of her bipolar
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disorder and other psychological disorders. Although the ALJ discussed the medical records at
length, the ALJ did not offer any analysis of how she determined that Plaintiff’s “difficulty focusing
and persisting with some tasks to completion” is addressed by the limitation to simple instructions
and routine changes in the work setting.
In O’Connor-Spinner, the Seventh Circuit Court of Appeals held that terms like “‘simple,
repetitive tasks’ on their own will not necessarily exclude from the VE’s consideration those
positions that present significant problems of concentration, persistence and pace.” 627 F.3d at 620
(emphasis added). This is because the ability to learn how to do a task of a certain complexity is not
the same as the ability to do the given task over a sustained period of time. Id. at 620. Although no
“specific terminology” is required, the hypothetical question posed to the vocational expert must
account in substance for the specific limitations of the claimant. Id. at 619 (noting that courts have
upheld a hypothetical when “it was manifest that the ALJ’s alternative phrasing specifically
excluded those tasks that someone with the claimant’s limitations would be unable to perform”); see
also Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015); Yurt,758 F.3d at 856, 858-59; Stewart v.
Astrue, 561 F.3d 679, 684 (7th Cir. 2009); Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008). In
this case, it is not clear how Plaintiff’s moderate limitations in concentration, persistence, or pace
are sufficiently addressed in the RFC and the hypothetical. On remand, the ALJ is directed to
provide this explanation in the residual functional capacity discussion.
Finally, the Court notes that, in this section of the brief, Plaintiff appears to argue that the
ALJ did not consider her impairments in combination, stating in the title of the section that the “ALJ
erred in not incorporating limitations from all the medically determinable impairments, both severe
and non-severe” and by citing SSR 96-8p for the requirement that the ALJ must consider limitations
and restrictions imposed by all of an individual’s impairments. (AR 13-14). However, Plaintiff’s
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argument in this section addresses only her mental impairments and the incorporation of moderate
limitations in concentration, persistence, and pace in the RFC. In this context, Plaintiff has not
identified any other limitations that the ALJ failed to consider.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Brief in Support of Plaintiff’s
Complaint to Review Decision of Commissioner of Social Security Administration [DE 21],
REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter
for further proceedings consistent with this Opinion and Order.
So ORDERED this 23rd day of August, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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