BENTON v. ASTRUE

Filing 31

ENTRY ON JUDICAL REVIEW: The Commissioner's decision is REVERSED and REMANDED. The Court further recommends the Commissioner reassign this case to a different ALJ (see Entry for additional information). Signed by Magistrate Judge Denise K. LaRue on 8/26/2013.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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

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No. 1:12-cv-00945-DKL-WTL

ENTRY ON JUDICAL REVIEW
Plaintiff Penny Benton (“Benton”) requests judicial review of the decision of
Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration (the “Commissioner”),1 denying Benton’s application for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) disability benefits.
For the reasons set forth below, the Commissioner=s decision is REVERSED and
REMANDED.
I.

BACKGROUND
A. Procedural History
Benton was found to be disabled in February of 2002. On February 20, 2006, the

Social Security Administration (“SSA”) found Benton was no longer disabled and
terminated her Disability Insurance Benefits (“DIB”). At Benton’s request, a hearing
1 Carolyn W. Colvin became the Acting Commissioner of the SSA on February 14, 2013,

while this case was pending. Pursuant to Fed. R. Civ. P. 25(d), she is substituted for the
former Commissioner Michael J. Astrue.

was held with an administrative law judge (“ALJ”). On July 14, 2009, ALJ Albert J.
Velazquez affirmed the agency determination that Benton’s disability had ended.
Benton appealed this decision to the Appeals Council, which vacated and remanded the
hearing decision.
The Appeals Council directed the ALJ to do the following:
•

Obtain Medical Expert testimony from a psychiatrist to clarify whether
Benton’s mental impairment meets or equals a Listing;

•

Further evaluate Benton’s mental impairment in accordance with the fivestep sequential process outlined in 20 C.F.R. 404.1520(a);

•

Give further consideration to Benton’s maximum residual functional
capacity and provide the appropriate rationale with specific references to
evidence in the record; and

•

If warranted by the expanded record, obtain supplemental evidence from
a vocational expert to clarify the effect of the assessed limitations on
Benton’s occupational base.

On September 20, 2010, a second hearing was held in Indianapolis in front of ALJ
Velasquez. On January 25, 2011, the ALJ again found Benton’s disability ended on
February 20, 2006. The Appeals Council denied Benton’s request for review on June 21,
2012, making the ALJ’s decision final for purposes of judicial review. Benton filed her
Complaint with this court on July 11, 2012.
B. Factual Background and Medical History
Benton, who was 40 years old at the time the SSA deemed her disability to have
ended, initially alleged physical and mental impairments. On remand, the Appeals
Council directed the ALJ to further evaluate Benton’s alleged mental impairment.

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Benton has been diagnosed with schizoaffective disorder, a mental illness that
features two conditions: schizophrenia and an affective mood disorder such as major
depression or bipolar disorder.2 She alleges the paranoia, anxiety and stress resulting
from this condition preclude her from engaging in and sustaining basic work activity.
Prior to the alleged onset of disability, Benton held jobs including retail cashier, waitress
and sales clerk and most recently worked part-time as a library helper.
Benton was hospitalized twice with psychotic symptoms such as confusion,
paranoia and delusions. The first incident occurred in February of 2000 and she was
diagnosed with paranoid schizophrenia.

On February 8, 2002, the Commissioner

determined her to be disabled under Listing 12.04. Benton was next hospitalized in
May of 2005, also with a diagnosis of schizophrenia. Following this hospitalization,
Benton began treating with a psychiatrist, Dr. Nicolas. On May 13, 2005, Dr. Nicolas
diagnosed Benton with Psychotic Disorder and noted that she had discontinued her
medication. Dr. Nicholas switched her medication to Abilify in an effort to decrease the
negative side effects.
On January 26, 2006, Benton again treated with Dr. Nicholas, who noted that she
had stopped taking all antipsychotic medications because of negative side effects. Dr.
Nicholas prescribed Riperdal and Effexor XR. On February 23, 2006, Benton received a
medication review evaluation from Dr. Nicholas. He noted that Benton was taking all
medications and was doing well. At the June 7, 2006, medication review, Dr. Nicholas
noted that Benton was working part-time but he did not think she could keep it up.
2 WebMD, http://www.webmd.com/schizophrenia/guide/mental-health-schizoaffective-disorder.

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Dr. Nicholas noted at the August 31, 2006, medication review that Benton
seemed slightly depressed and complained of negative side effects.

Dr. Nicholas

increased her Risperdal dosage to help her with sleep and anxiety problems.

On

February 12, 2007, Dr. Nicholas noted that Benton was taking all her medications but
reported negative side effects from Abilify. At the July 13, 2007, medication review Dr.
Nicholas noted that Benton was taking all medications and was doing well.
On November 9, 2007, Dr. Nicholas noted that Benton had stopped taking her
antipsychotic medications again because she believed they were causing heart
palpitations and shortness of breath. On February 13, 2008, Benton reported to Dr.
Nicholas that she had stopped taking Abilify due to the cost. Dr. Nicholas noted that
she appeared bewildered at times and her insight was limited. On September 12, 2008,
Benton reported to Dr. Nicholas that she had stopped taking Risperdal and was missing
work.

Dr. Nicholas noted Benton was displaying symptoms of paranoia and

schizophrenia. At a follow-up visit on September 26, 2008, Dr. Nicholas noted that
Benton was again taking her medications and her condition had improved.
Benton’s mother attended her November 12, 2008, medication review and
reported that she suspected Benton was not taking her medications correctly.

Dr.

Nicholas encouraged Benton to strictly comply with her medication schedule.

On

December 3, 2008, Benton reported that she was paranoid people were trying to break
into her home.

Dr. Nicholas noted her insight was impaired, but she otherwise

displayed appropriate behavior.

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Benton continued to undergo medication reviews with Dr. Nicholas
approximately every other month through 2009 and monthly in 2010. On September 3,
2010, Dr. Nicholas completed a residual functional capacity assessment for Benton. He
reported that Benton has moderate to severe schizophrenia with paranoid symptoms
that have not responded well to medication. Dr. Nicholas noted she had Marked
Limitations in 17 of the 20 functions.
II.

LEGAL STANDARDS
A.

Standard for Proving Disability

To be eligible for SSI and DIB, a claimant must show he is unable 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). To evaluate a disability claim, an ALJ must use the following five-step
inquiry:
Step One:

Is the claimant currently employed;

Step Two:

Does the claimant have a severe impairment or
combination of impairments;

Step Three: Does the claimant’s impairment meet or equal
any impairment listed in the regulations as
being so severe as to preclude substantial
gainful activity;
Step Four:

Can the claimant perform his past relevant
work; and

Step Five:

Is the claimant capable of performing any work
in the national economy?
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20 C.F.R. §§ 404.1520. See also Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The
individual claiming disability bears the burden of proof at steps one through four.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that burden, then the
SSA has the burden at Step Five to show that work exists in significant numbers in the
national economy that the claimant can perform, given his age, education, work
experience and functional capacity. 20 C.F.R. § 404.1560 (c)(2).
B. Standard for Judicial Review
An ALJ=s decision will be upheld so long as the ALJ applied the correct legal
standard, and substantial evidence supported the decision. Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”

Id. (internal quotation

omitted). This limited scope of judicial review follows the principle that Congress
designated the Commissioner, not the courts, to make disability determinations:
In reviewing the decision of the ALJ, we cannot engage in
our own analysis of whether [the claimant] is severely
impaired as defined by the SSA regulations. Nor may we
reweigh evidence, resolve conflicts in the record, decide
questions of credibility, or, in general, substitute our own
judgment for that of the Commissioner. Our task is limited
to determining whether the ALJ’s factual findings are
supported by substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th 2004). Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is entitled to benefits, the court
must defer to the Commissioner’s resolution of this conflict. Binion v. Chater, 108 F.3d
780, 782 (7th Cir. 1997). The ALJ is required to articulate a minimal, but legitimate,
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justification for her decision to accept or reject specific evidence of a disability. Scheck v.
Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). “An ALJ need not specifically address every
piece of evidence, but must provide a ‘logical bridge’ between the evidence and his
conclusions.” O=Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010) (citation
omitted).
III.

DISCUSSION

Benton claims the ALJ committed various errors that require reversal of the
Commissioner’s decision. Specifically, Benton raises the following three issues: (1)
whether the ALJ erred at Step Three when he determined Benton’s mental impairments
did not meet the Listing 12.03; (2) whether the ALJ’s credibility determination is
patently erroneous; and (3) whether the ALJ’s hypothetical to the vocational expert
accurately reflects Benton’s mental impairments.
A. Listing 12.03 (Schizophrenic, Paranoid and Other Psychotic Disorders)
Benton first argues there is substantial evidence to support her claim that her
combined impairments met or medically equaled Listing 12.03. She further argues the
ALJ ignored evidence that supported a finding that her impairment met each of the
“paragraph B”criteria.
Listing 12.03, which describes schizophrenic, paranoid, and other psychotic
disorders, requires a level of severity tested by either the paragraph B or C criteria.
Benton’s opening brief does not address paragraph C criteria, so the Court will confine
its review to paragraph B as well. The B criteria are satisfied where a claimant's mental

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impairment results in two of the following: marked restriction in activities of daily
living, marked difficulties in maintaining social functioning, marked difficulties in
maintaining

concentration,

persistence,

or

pace;

and

repeated

episodes

of

decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpart P, App. 1 § 12.03
(2010).

In finding Benton’s level of impairment in these areas was only mild to

moderate, Benton asserts the ALJ improperly rejected the September 2010 Residual
Functional Capacity Assessment completed by her treating psychiatrist. [Dkt. 20 at 30.]
The Court agrees.
The ALJ stated that he gave “little weight” to the assessment by Dr. Nicholas
because it was contradicted by the record.

Specifically, the ALJ asserts that Dr.

Nicholas’ assessment of a GAF between 61-70 in July of 2010 indicates no more than
mild limitations, rather than the “marked limitations” he assessed in September. The
ALJ further opined that it is possible Dr. Nicholas’ assessment was influenced by
sympathy for Benton and cited as evidence the fact that his opinion departed
“substantially from the rest of the evidence in the record.” [Tr. at 24.]
After a thorough review of the medical evidence in the record, the Court
disagrees with the ALJ’s finding.

Benton was consistently under the care of Dr.

Nicholas, her treating psychiatrist, from 2005 through the date of the hearing. During
this time, Benton maintained a diagnosis of schizophrenia. While there were periods of
time that medication resolved her symptoms, the record reflects multiple instances
where Dr. Nicholas altered her medication or dosage to ease side effects or increase its
effectiveness and on several occasions he noted problems with the medication regime.
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For example, on July 14, 2010, Dr. Nicholas documented that “the efficacy of the current
medication regime is disappointing” and noted Benton’s mood was “moderately
restricted and slightly tearful” and that her thought content was “impoverished.” [Tr.
p. 514.] Dr. Nicholas made similar notations following two visits in February of 2010.
[Tr. pp. 498and 500.] With these documented concerns, the Court cannot reasonably
find that Dr. Nicholas’ assessment of marked limitations is a substantial departure from
the record, as the ALJ found.
The Court also is hesitant to affirm the ALJ’s finding that Benton does not meet a
Listing in light of the fact that the ALJ clearly disregarded the remand order from the
Appeals Council to obtain the opinion of a psychiatrist. Section 404.977(b) and Section
416.1477(b) of Title 20 of the Code of Federal Regulations provide that “[t]he
administrative law judge shall take any action that is ordered by the Appeals Council.”
Here, the Appeals Council noted in its remand Order that the record was “unclear
regarding the severity of the claimant’s schizoaffective disorder as it affects her ability
to sustain full time work at levels of substantial gainful employment.” [Tr. at 38.] The
Appeals Council ordered the ALJ to “obtain medical expert testimony from a
psychiatrist to clarify whether the claimant’s impairment meets or equals [Listing
12.03].” Id.
Dr. Steiner, the medical expert who testified at the hearing on remand, was a
clinical psychologist, not a psychiatrist. Prior to the beginning of testimony, counsel for
Benton questioned the ALJ about the discrepancy in qualifications and requested a
supplemental hearing to take testimony from a psychiatrist.
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The request was

summarily denied by the ALJ. [Tr. at 600.] Benton’s counsel reiterated his concern
following Dr. Steiner’s testimony and moved to strike the testimony on the grounds
that Dr. Steiner was not a psychiatrist as ordered by the Appeals Council. [Tr. at 632.]
The ALJ denied the motion.
Finally, at the conclusion of the hearing, Benton’s counsel again asked the ALJ to
convene a supplemental hearing to take testimony from a psychiatrist on the issue of
whether Benton met the a listed impairment. The ALJ stated: “I think that’s already
been addressed. That’s repetitive and declined – denied.” [Tr. At 641.] Benton’s
counsel then asked the ALJ to recuse himself from the case and assign a new judge, to
which the ALJ responded, “That request is denied, as well.” [Tr. at 624.]
Based upon the foregoing, the Court finds the ALJ’s conclusion that Benton’s
impairments do not meet or equal the requisite severity under Listing 12.03 is not
supported by substantial evidence and must be reversed. The Court recommends the
Commissioner assign the case to a different ALJ, as the hearing transcript and decision
suggest “an unshakable commitment to the denial of this applicant’s claim.” Sarchet v.
Chater, 78 F.3d 305, 309 (7th Cir. 1996).
B. Credibility of Benton
Benton next argues the ALJ’s negative credibility determination was contrary to
SSR 96-7p. Social Security Ruling 96–7p requires the ALJ to consider the entire record
and give specific reasons for the weight given to the claimant’s statements. The ALJ
should consider: the claimant's daily activities, the severity and intensity of the
claimant's symptoms, precipitating and aggravating factors, medication, treatment, and
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other measures to relieve the claimant's symptoms and their efficacy and side-effects,
and any other factors relevant to functional limitations due to a claimant's symptoms.
See SSR 96–7p; 20 C.F.R. § 404.1529(c)(3).
The ALJ generally asserts Benton’s testimony was not credible because it was
inconsistent with the RFC assessment. Setting aside for the moment Benton’s typical
argument that this “backwards procedure of first determining her residual functional
capacity and then determining credibility” is erroneous, the Court finds alternative
reasons to fault the ALJ’s conclusion. The ALJ noted that Benton’s testimony was
“evasive or vague at times, and left the impression that the claimant may have been less
than entirely candid.” [Tr. at 23.] He further stated that “the claimant has not provided
convincing details regarding factors which precipitate the allegedly disabling
symptoms, claiming that the symptoms ‘come and go.’” Id.

Yet a review of the

transcript of the hearing reflects very little testimony from Benton concerning her
alleged disability, and no questioning from the ALJ about her symptoms.
The ALJ began his questioning with a series of inquiries concerning an EEOC
charge Benton filed against her former employer (a library) and continued through the
termination of her employment from her part-time job as a library helper. The Court
notes the following excerpt from the transcript:
Q:

The – you said that the reason they fired you because you were sick.

A:

I got sick.

Q:

And so, how many days did you miss when you got sick?

A:

It depends. It was maybe like a month. One was a month.
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Q:

You were off for a whole month?

A:

Yes.

Q:

Were you in the hospital?

A:

I was at home.

Q:

You were at home for a month?

A:

Yes.

Q:

And why were you at home for a month?

A:

Because I was sick.

Q:

And what was the, what was the sickness that you had?

A:

I was real tired and so I had to lay down. I was real tired.

Q:

Okay. All right. Thank you, very much. Counsel, any questions?

[Tr. at 611.]
Benton’s counsel proceeded to elicit testimony concerning her treatment with Dr.
Nicholas, symptoms of depression and anxiety and their negative impact on her ability
to work full time. The ALJ concluded his questioning of Benton with questions that
established Benton lived with her mother and did not own a home. While the ALJ
noted in his opinion that Benton could not provide “convincing details” about her
“allegedly disabling symptoms,” at no time did the ALJ even inquire about Benton’s
symptoms.

On the contrary, the ALJ appeared to be more concerned about the

retaliation claim Benton had filed against her former employer and whether she owned
a home than her alleged mental impairments and how they affected her ability to work.

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Although the ALJ is in the best position to determine the credibility of the
claimant, the finding must be supported by the evidence and must be specific enough to
enable the claimant and reviewing body to understand the reasoning.

Arnold v.

Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). Here, the ALJ generally states that Benton’s
testimony is not credible because it is inconsistent with the record evidence, but in
reality the ALJ’s examination of Benton at the hearing was so deficient there is no basis
for that conclusion. The Court concludes the ALJ’s credibility determination is patently
wrong and must be re-evaluated on remand.
C. Hypothetical to Vocational Expert
Finally, Benton argues the ALJ failed to give full consideration to all of her
impairments in determining she is not disabled. Specifically, Benton asserts the ALJ’s
hypothetical to the vocational expert (“VE”) did not accurately describe the
psychological limitations imposed by her schizoaffective disorder. The ALJ’s
hypothetical limited Benton to work of a “simple and repetitive” nature. [Tr. at 634.]
Benton correctly asserts that this limitation is insufficient to account for the moderate to
severe limitations reflected in the record. See O'Connor–Spinner v. Astrue, 627 F.3d 614
(7th Cir. 2010).
In O'Connor–Spinner, the Seventh Circuit explained that “moderate difficulties
normally should be reflected in” the RFC and corresponding hypotheticals to the VE.
O'Connor–Spinner, 627 F.3d at 620 (emphasis added). In that case, the ALJ determined
that the claimant’s depression caused moderate limitations in concentration, persistence
and pace that should have been described to the VE. The Court agrees that Benton’s
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limitations should likewise have been better described to the VE. The Court will take it
a step further and note that the ALJ erroneously placed too much emphasis on Benton’s
part-time work as a library helper to justify his finding of no disability. Several times in
the opinion the ALJ referenced Benton’s employment at the library to illustrate his
conclusion that she is able to maintain full-time employment. He states: “The fact that
the impairment did not prevent the claimant from working at that time strongly
suggests that it would not currently prevent work.” [Tr. at 24.] But at no point in the
opinion did the ALJ explain how working for 20 hours a week – and ultimately being
terminated for excessive absenteeism because she was unable to maintain that schedule
– establishes she would be able to work 40 hours a week on a consistent basis.
The ALJ failed to grasp that having a job is not necessarily inconsistent with a
claim of disability; the claimant “may have a careless or indulgent employer or be
working beyond his capacity out of desperation.” Henderson v. Barnhart, 349 F.3d 434,
435 (7th Cir.2003); see Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir.1998). It is reasonable to
conclude that Benton’s psychological impairment prevented her from maintaining a 20hour a week job and likewise would prevent her from working full time. Had the ALJ
obtained testimony from a psychiatrist, as ordered by the Appeals Council, or fully
described Benton’s limitations to the VE, perhaps there would be more evidence to
support his conclusion. As the record stands, the Court finds there is not enough
evidence to support his finding that Benton is not disabled and the case must be
remanded for further proceedings.

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IV.

Conclusion

The ALJ's decision is being reversed primarily because he failed to properly
obtain and evaluate the evidence. It is the job of the ALJ, not the court, to weigh the
evidence, resolve conflicts, and determine whether the claimant is disabled. Lechner v.
Barnhart, 321 F. Supp. 2d 1015, 1037 (E.D. Wis. 2004). Therefore, the Commissioner’s
decision is REVERSED and REMANDED with instructions to: (1) follow the order of
the Appeals Council and obtain the opinion of a psychiatrist to help evaluate whether
Benton medically equals Listing 12.03; (2) consider all relevant medical evidence and
testimony when assessing Benton’ credibility; and (3) fully account for Benton’s
psychological impairment, including her consistent psychiatric treatment, when
determining her RFC. The Court further recommends the Commissioner reassign this
case to a different ALJ.
SO ORDERED:

08/26/2013
Date: _____________

_______________________________
Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana

Distribution:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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