HOOD v. COLVIN
ORDER on Complaint for Judicial Review: The court REVERSES the ALJ's decision denying Ms. Hood's benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C.§ 405 (g) (sentence 4) as detailed above (SEE ORDER). Final Judgment will issue accordingly. Signed by Magistrate Judge Debra McVicker Lynch on 3/13/2018.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KIMBERLY S. HOOD,
NANCY A. BERRYHILL,
Order on Complaint for Judicial Review
Plaintiff Kimberly Hood applied for disability insurance benefits (“DIB”)
and/or supplemental security income (“SSI”) from the Social Security
Administration (“SSA”) on August 16, 2013, alleging an onset date of July 9, 2013.
[Filing No. 14 at Tr. 199.] Her application was initially denied on January 9, 2014,
[Tr. 124], and upon reconsideration on February 20, 2014, [Tr. 138]. Administrative
Law Judge James Myles (the “ALJ”) held a hearing on August 26, 2015. [Tr. 39-65].
The ALJ issued a decision on September 2, 2015, concluding that Ms. Hood was not
entitled to receive disability insurance benefits or supplemental security income.
[Tr. 16.] The Appeals Council denied review on October 18, 2016. [Tr. 1.] On
November 22, 2016, Ms. Hood timely filed this civil action, asking the court to
review the denial of benefits pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c).
[Filing No. 1.]
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits
… to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214 (2002).
“The statutory definition of ‘disability’ has two parts. First, it requires a certain
kind of inability, namely, an inability to engage in any substantial gainful activity.
Second, it requires an impairment, namely, a physical or mental impairment, which
provides reason for the inability. The statute adds that the impairment must be
one that has lasted or can be expected to last … not less than 12 months.” Id. at
When an applicant appeals an adverse benefits decision, this court’s role is
limited to ensuring that the ALJ applied the correct legal standards and that
substantial evidence exists for the ALJ’s decision. Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review,
“[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ “is
in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539
F.3d 668, 678 (7th Cir. 2008), this court must afford the ALJ’s credibility
determination “considerable deference,” overturning it only if it is “patently wrong.”
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. §
404.1520(a)(4)(i)-(v), evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the
[Commissioner]; (4) whether the claimant can perform her past work;
and (5) whether the claimant is capable of performing work in the
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in
original).1 “If a claimant satisfies steps one, two, and three, she will automatically
be found disabled. If a claimant satisfies steps one and two, but not three, then she
must satisfy step four. Once step four is satisfied, the burden shifts to the SSA to
establish that the claimant is capable of performing work in the national economy.”
Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s
residual functional capacity (“RFC”) by evaluating “all limitations that arise from
medically determinable impairments, even those that are not severe.” Villano v.
Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ “may not dismiss a
line of evidence contrary to the ruling.” Id. The ALJ uses the RFC at Step Four to
determine whether the claimant can perform her own past relevant work and if not,
at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 404.1520(iv), (v). The burden of proof is on the claimant for Steps One
In general, the legal standards applied are the same regardless of whether a
claimant seeks DIB or SSI. However, separate, parallel statutes and regulations
exist for DIB and SSI claims. Therefore, citations in this order should be considered
to refer to the appropriate parallel provision as context dictates. The same applies
to citations of statutes or regulations found in quoted decisions.
through Four; only at Step Five does the burden shift to the Commissioner. See
Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to
support the ALJ’s decision, the court must affirm the denial of benefits. Barnett,
381 F.3d at 668. When an ALJ’s decision is not supported by substantial evidence,
a remand for further proceedings is typically the appropriate remedy. Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An award of benefits “is
appropriate where all factual issues have been resolved and the record can yield but
one supportable conclusion.” Id. (citation omitted).
Ms. Hood was 45 years old at the time she applied for disability insurance
benefits and/or supplemental security income. [Tr. 199.] She has completed nine
years of high school and does not have any past relevant work. [Tr. 27 and 30.]
The ALJ followed the five-step sequential evaluation set forth by the Social
Security Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that
Ms. Hood is not disabled. [Tr. 31.] The ALJ found as follows:
At Step One, the ALJ found that Ms. Hood has not engaged in substantial
gainful activity2 since July 9, 2013, the alleged onset date. [Tr. 21.]
At Step Two, the ALJ found that Ms. Hood has the following severe
impairments: kidney disease with a history of pyelonephritis, nonalcoholic
Substantial gainful activity is defined as work activity that is both substantial (i.e.,
involves significant physical or mental activities) and gainful (i.e., work that is
usually done for pay or profit, whether or not a profit is realized). 20 C.F.R. §
steatohepatitis (NASH) liver disease, obesity, gastroparesis, bipolar disorder,
depression, and a history of a learning disorder. [Tr. 21.]
At Step Three, the ALJ found that Ms. Hood does not have an impairment or
combination of impairments that meets or medically equals the severity of
one of the listed impairments. [Tr. 22.]
After Step Three but before Step Four, the ALJ found that Ms. Hood has the
RFC to “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except: [a]fter standing and/or walking for 30 minutes, the claimant requires
an opportunity to sit for two minutes or work seated. After sitting for 30
minutes, the claimant requires an opportunity to take a stretch break at the
workstation. The claimant can occasionally crouch, balance, [stoop], climb,
kneel and crawl but should avoid ladders, ropes, and scaffolds. The claimant
requires restroom access in the work area. The claimant should avoid
moderate exposure to workplace hazards. The claimant can have superficial
interpersonal contact in the workplace. Lastly, the claimant is limited to
routine, unskilled work.” [Tr. 25.]
At Step Four, the ALJ concluded that Ms. Hood does not have any past
relevant work. [Tr. 30.]
At Step Five of the analysis, the ALJ found based on vocational expert (“VE”)
testimony that considering Ms. Hood’s age, education, and RFC, there were
jobs that existed in significant numbers in the national economy that Ms.
Hood could have performed through the date of the decision. [Tr. 30.]
Ms. Hood makes two primary assertions of error in the ALJ’s decision, but
consideration of only the first is necessary to the resolution of her appeal.
A. The ALJ’s determination to give Dr. Subhan’s opinion little weight
cannot be sustained.
Ms. Hood argues that the ALJ erred at Step Three and Step Five by failing to
comply with 20 C.F.R § 404.1527(b) and not affording “adequate weight” to the
medical source statements of Ms. Amanda Whitten, her treating therapist, and Dr.
Abdul Subhan, M.D., her treating psychiatrist. [Filing No. 17 at 31.] Ms. Hood
argues that rather than the ALJ giving “little weight” to the opinions, he should
have given controlling weight to the opinions. [Filing No. 17 at 31]. She further
argues that the weight given the opinions led to an improper conclusion that she
does not meet listing 12.04 and an improper RFC finding that did not include the
need for absences from work. [Filing No. 17 at 32-33.] Lastly, Ms. Hood contends
that the ALJ should have used the factors set out at 20 C.F.R. § 404.1527 to
determine the weight to be given the opinions. [Filing No. 17 at 34.]
The Commissioner argues that the ALJ reasonably gave limited weight to the
opinions, provided good reasons that are not patently erroneous, and did not need to
discuss expressly every factor listed in the regulation. [Filing No. 20 at 10-12.]
Ms. Hood’s argument invokes the treating physician rule. In Scott, the
Seventh Circuit explained that a “treating doctor’s opinion receives controlling
weight if it is ‘well-supported’ and ‘not inconsistent with the other substantial
evidence’ in the record.” Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (citing
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d
299, 306 (7th Cir. 2010)). “An ALJ must offer ‘good reasons’ for discounting the
opinion of a treating physician.” Id. (citing Martinez v. Astrue, 630 F.3d 693, 698
(7th Cir. 2011); Campbell, 627 F.3d at 306). “And even if there had been sound
reasons for refusing to give [a treating physician’s] assessment controlling weight,
the ALJ still would have been required to determine what value the assessment did
merit.” Id. at 740 (citing Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010)). “If an
ALJ does not give a treating physician’s opinion controlling weight, the regulations
require the ALJ to consider the length, nature, and extent of the treatment
relationship, frequency of examination, the physician’s specialty, the types of tests
performed, and the consistency and supportability of the physician’s opinion.” Id.
(citing Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); 20 C.F.R. § 404.1527(c)).
The ALJ stated in relevant part:
I also considered the opinions in Exhibit 14F and 19F, which are given
limited weight. On February 14, 2014, the claimant's therapist, Ms.
Whitten, (SSR 06-3p) and physician, Dr. Abdul Subhan, opined that
the claimant has bipolar disorder, which moderately affect[s] her daily
functioning. Moreover, the opinion reflects that the claimant would
have difficulty interacting with others, difficulty working, would be off
task during the workday, and would miss more than three days of
work per month. In addition, the opinion contains various limitations
per the claimant’s self-reports.
Subsequently, on August 18, 2015, Abdul Subhan, M.D., opined that
the claimant would be would be on task less than 85% of the workday.
Further, the claimant would be absent from work more than three
days per month secondary to her mental health symptoms.3 However,
issues like absences for example, are purely speculative and the
opinion really provides no medical basis to support such extreme
limitations. Moreover, the treatment notes (Ex. 5F and 13F;
suggesting routine treatment) the claimant's activities (attending
Bingo weekly, driving a vehicle, and some childcare for her
granddaughter with her daughter in the vicinity) and her hearing
demeanor are consistent with the mental residual functional capacity.
The VE testified that two days a month was the maximum an individual could be
absent from work and retain competitive employment, inclusive of days where the
individual left earlier than expected. The VE was not asked about employer
expectations as to the percentage of a day an employee would need to remain on
task to retain competitive employment. [Tr. 63.]
The medical source statements at Exhibit 14F and 19F were filled out by Ms.
Whitten, who is not an “acceptable medical source,” but were reviewed and
endorsed by Dr. Subhan, who is an acceptable medical source according to the
The ALJ does not explicitly reference the factors used to evaluate Dr.
Subhan’s opinion. The court notes at the outset that some of the factors specified in
the regulations would generally support giving weight to the opinion of Dr. Subhan,
given that he is a mental health specialist who has examined Ms. Hood personally
and been her treating provider for the predominance, if not the entirety, of the
period at issue spanning more than two years. [Tr. 571-626; Tr. 743-807 (see 20
C.F.R § 404.1527(c)(1), (2), and (5)).] There is no rule that the ALJ must always
adopt an opinion supported by these specific factors. At most, they create a
rebuttable presumption that can be overcome by reasonable conclusions supported
by substantial evidence. However, the court finds that the ALJ did not provide
adequate reasons to decline giving Dr. Subhan’s opinion either controlling or
1. There is no reason on its face to discount Dr. Subhan’s opinion.
The ALJ rejected Dr. Subhan’s opinion endorsing disabling limitations that
Ms. Hood would be on task less than eighty-five percent of the workday or absent
from work more than three days per month secondary to mental health symptoms,
because “issues like absences for example, are purely speculative and the opinion
regulations. [Tr. 634 and Tr. 812 (citing 20 C.F.R. § 404.1502).] The regulations
treat the sources differently in some respects. For example, controlling weight can
be given only to a medical opinion from an acceptable medical source. However, the
regulations utilize the same factors to weigh opinion evidence regardless of that
distinction. See 20 C.F.R. § 404.1527. Given the ambiguity regarding the source of
the multiple opinions and the fact that neither the ALJ nor the parties in this suit
make any substantive distinctions, the Court will analyze the one opinion at
Exhibit 19F and further attribute that opinion to Dr. Subhan for sake of clarity and
really provides no medical basis to support such extreme limitations.” [Tr. 29.] The
ALJ’s reasoning could be interpreted as discounting the opinion on its face. The
regulations do instruct an ALJ to consider the “supportability” of an opinion, by
evaluating the “relevant evidence” the source provides, “particularly medical signs
and laboratory findings.” 20 C.F.R. § 404.1527(c)(3) (“The better an explanation a
source provides for a medical opinion, the more weight we will give that medical
opinion.”) To begin with, the limitations themselves are not patently “extreme” on
their face, such that one could immediately conclude that the limitations are
unreasonable (for example when obviously contradicted, that a claimant could lift or
carry zero pounds, stand, sit or walk less than one hour combined in an eight-hour
day, or was literally incapable of leaving the house at all). It’s not unreasonable to
conclude that episodic symptoms tied to Ms. Hood’s conditions, bipolar disorder and
depression, could cause her to be off-task during a portion of an eight-hour day or
cause her to miss more than three days of work a month. Additionally, the court is
not persuaded that limitations of this type are “purely speculative” either. While
it’s true that limitations of this type cannot be as readily verified by objective
testing as certain exertional or postural restrictions tied to a claimant’s physical
capacity, the Seventh Circuit has noted the unique nature of mental impairments,
the severity of which are not easily measured through traditional medical tests.
Ziegler v. Astrue, 336 Fed. Appx. 563, 569 (7th Cir. 2009) (“a psychiatrist's
examination will often involve little more than analyzing self-reported symptoms”).
See also Medina v. California, 505 U.S. 437, 451 (1992) (“Our cases recognize that
‘[t]he subtleties and nuances of psychiatric diagnosis render certainties virtually
beyond reach in most situations,’ because ‘[p]sychiatric diagnosis ... is to a large
extent based on medical ‘impressions' drawn from subjective analysis and filtered
through the experience of the diagnostician.’“) (quoting Addington v. Texas, 441
U.S. 418, 430 (1979)).
More importantly, the ALJ’s conclusion that “the opinion really provides no
medical basis” is entirely unsupported. Dr. Subhan’s opinion is replete with
medical bases used to justify the episodic limitations. The opinion references
ongoing depressive symptoms, manic symptoms, and “psychotic symptoms of
hallucinations, delusions [and] paranoia.” [Tr. 808.] The opinion notes depressive
episodes of varying frequency with symptoms “severe to the point of client reporting
there are days she cannot leave her house.” [Tr. 808.] “At times, client can choose
behavior (such as leaving her house) despite her mood. At times she cannot. Client
seems to most lose control of her mood when psychotic symptoms [are] present.”
[Tr. 808.] When specifically asked to explain the basis for being on task less than
eighty-five percent of the day, the opinion notes that Ms. Hood “reports continued
daily visual hallucinations and paranoia despite reported [medication] compliance.
When client experiences visual hallucinations, she becomes panicked and is unable
to focus.” [Tr. 809.] The opinion further explains that Ms. Hood’s “depression [and]
psychotic symptoms have impacted work attendance in the past per client report. It
seems likely this would continue to be the case as symptoms have at times kept
client from taking her nephew to school, other family stepped in to do so.”5 [Tr.
809.] The opinion also references visual hallucinations and paranoia manifest by
Ms. Hood—seeing people as “evil eyed” and being out to get her affecting her
interactions, “particularly if she does not feel she can leave.”6 [Tr. 810.] The
opinion again reiterates later that a possible employment issue related to both
symptoms of depression and paranoia would be attendance related. [Tr. 811.] The
explanation supporting the opinion is not inadequate.
2. Dr. Subhan’s Opinion is consistent with his treatment notes.
The ALJ also concluded that “treatment notes (Exs. 5F and 13F; suggesting
routine treatment),” claimant’s activities, and her hearing demeanor are consistent
with his RFC (which did not include Dr. Subhan’s limitations concerning absences
Treatment notes support that Ms. Whitten provided therapy when a severe
depressive episode interrupted Ms. Hood’s ability to reliably get her nephew to and
from school, such that her mother had to take over. [Tr. 772.]
Ms. Hood’s testimony in response to ALJ questioning was consistent with this
Q Okay. If you were in a job sitting and you were required to
perform, be productive for eight hours do you think you could do that
for a week without missing?
Q What would be the thing most likely to cause you to interfere
with your work if you were to be there eight hours?
A The only thing I have mostly it scares me with that is the
thinking things and stuff like that. I go through and get scared and
have to leave real quick. I went to Arby's and I liked it there and, but I
was so scared to go back because I thought they was out for me and
they kept calling for me to come back because my boss didn't like me
and I loved the job.
and being on task). [Tr. 29-30.] The ALJ’s conclusion implies that because the
listed evidence is consistent with his RFC, it is inconsistent with Dr. Subhan’s
opinion. The regulations do instruct the ALJ to consider “consistency” with “the
record as whole” when determining the weight that should be given a medical
opinion. 20 C.F.R § 404.1527(c)(4). The ALJ does not articulate in his discussion of
the opinion evidence how the treatment records are inconsistent. This court,
though, must read the decision as a whole and, in particular, determine whether a
prior portion of the ALJ’s analysis summarizing Ms. Hood’s mental health
allegations and treatment history could provide additional support for his
conclusion. [See Tr. 27-28.] But the court finds that the ALJ’s discussion of that
evidence is problematic—for a host of reasons.
First, two of the ALJ’s conclusions are logically flawed. The ALJ is required
to provide a “logical bridge” between the evidence and his conclusions. Young v.
Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004). In discounting Ms. Hood’s credibility
as to the severity of her condition, the ALJ takes particular care to note that the
“record reflects intermittent anxiety symptoms,” “ongoing” psychotic symptoms that
affect functioning “at times,” including “some visual hallucinations, paranoia, and
delusional thoughts,” specifically seeing “red eyes on people,” but that “testimony
suggested this was episodic.” [Tr. 28.] The apparent inference is that Ms. Hood’s
condition is not disabling because her symptoms are episodic rather than constant
(or at least more frequent). The court finds it doubtful that ongoing symptoms of
the type the ALJ describes would not support the severity of Ms. Hood’s condition.
Moreover, the ALJ hassupported his conclusion by noting that Ms. Hood’s
symptoms are episodic, but then reasons later in the decision that there is no
evidence to support Dr. Subhan’s episodic limitations.
Second, the decision reflects a fundamental misunderstanding of bipolar
disorder. “A person suffering from bipolar disorder has violent mood swings, the
extremes of which are mania—a state of excitement in which [she] loses contact
with reality and exhibits bizarre behavior—and clinical depression, in which [she]
has great difficulty sleeping or concentrating.” Bauer v. Astrue, 532 F.3d 606, 607
(7th Cir. 2008). “A person who suffers from a mental illness will have better days
and worse days, so a snapshot of any single moment says little about her overall
condition.” Punzio, 630 F.3d at 710. The ALJ “thought the medical witnesses had
contradicted themselves when they said the plaintiff's mental illness was severe yet
observed that she was behaving pretty normally during her office visits. There was
no contradiction; bipolar disorder is episodic.” Kangail v. Barnhart, 454 F.3d 627,
629 (7th Cir. 2006). Bipolar disorder “responds erratically to treatment.” Bauer,
532 F.3d at 609. “ALJs assessing claimants with bipolar disorder must consider
possible alternative explanations before concluding that non-compliance with
medications supports an adverse credibility inference.” Jelinek v. Astrue, 662 F.3d
805, 814 (7th Cir.2014). Here, the record supports that Ms. Hood has a pattern of
stopping medications and decompensating, evidently because she feels better, even
though others will point out she feels better because she is taking medication. [Tr.
404.] Ms. Hood was doing fairly well and holding down employment, but ran into
problems that were discussed at a therapy visit shortly before the period at issue:
[Client] has been working for a year fulltime at Arby's and this is
where the issues are ongoing. [Client] is feeling threatened by her
[assistant] manager who has somehow found out about her psych
history and using it against her. [Client] has not been to work in the
midst of this stress for a week.
[Client] is having work related issues that as described to this
interviewer by the [client] could easily be interpreted as paranoid
delusions. [Client’s] daughter however reports that the story [client]
tells about work does have a basis in fact. Family is though worried
that the stress of these facts may tip the balance and send [client] into
a severe regression.
[Tr. 453.] The family’s concerns were realized as Ms. Hood’s paranoia went from
affecting her attendance to severe decompensation and ultimately intervention from
legal and medical authorities when she required an emergency impatient detention.
[Tr. 397.] None of the ALJ’s cited reasons for questioning the severity of Ms. Hood’s
bipolar disorder—a history of noncompliance prior to the admission, evidence of
good response to treatment, declining a medication adjustment, evidence of normal
presentation during examinations, her hearing demeanor, and conflicting GAF
scores that are at times in the moderate range—actually conflict with Ms. Hood’s
claims that she would have difficulty sustaining work because of episodic
symptoms. [Tr. 27-28.]
Third, while the ALJ acknowledges some ongoing and intermittent
symptoms, the decision fails to explore evidence supporting the frequency of those
psychotic symptoms, as well as depressive episodes and their impact on Ms. Hood’s
functioning. On May 21, 2014, it was noted that Ms. Hood “does continue to
experience psychotic features for brief times 2-3 times/month including momentary
visual hallucination and longer-lasting delusional thought.” [Tr. 790.] On
September 4, 2014, Dr. Subhan noted Ms. Hood’s “therapist schedule[d] this
appointment as she is having some visual hallucinations, ‘[p]eoples eyes changes
into devils eye’ and it is happening 2-3 times per week.” [Tr. 778.] Dr. Subhan also
noted that Ms. Hood spends her time “sleeping and staying at home mostly.” [Tr.
778.] On October 2, 2014, Ms. Hood agreed with her therapist “that she should be
able to spend an extra two hours out of bed per day.” [Tr. 774.] On December 3,
2014, during a therapy session, Ms. Hood’s acuity level was described as “urgent”
and as to her current functioning, it was noted that “[client] presents with bipolar
[disorder], symptoms of experiencing both mania and depression, current
[symptoms] being depressed. Depression [symptoms] include depressed mood,
isolating behavior, fatigue, lack of interest, lack of motivation, lack of energy,
difficulty completing ADL's [activities of daily living], and emotional reactivity.
[Client] also experiences ongoing psychotic [symptoms] of visual hallucinations, i.e.,
seeing people's eyes 'flash' in an 'evil way' and paranoia. [Client’s] insight into
[symptoms] seems to be improving.” [Tr. 772.] On March 12, 2015, it was noted
that Ms. Hood had improved to the point she experienced “significant depression”
two to three days a month rather than four to five days. [Tr. 760.] On April 11,
2015, “[client] reports currently being in a deep depression,” “[client] reports
[medication] compliance,” “[client] reports increased isolation and spending more
time in bed.” [Tr. 754.] At the next visit, Ms. Whitten recommended that Ms. Hood
give her daughter the ability to schedule a medication review on her behalf if she
“has another severe depressed episode.” [Tr. 752.] On July 20, 2015, Ms. Hood’s
progress was described as “[client] reports [medication] compliance and is engaged
in outpatient [treatment]. [Client] reports ongoing psychotic [symptoms] and
reports that these [symptoms] impact her functioning at times. For example,
[client] will experience [visual intrusions], become paranoid that [people] are ‘out to
get her’ and will unfriend [people] on social media. Depression [symptoms] also
remain present approximately 3/7 days/week.” [Tr. 744.] Not only do the treatment
notes supports ongoing and episodic symptoms that affect Ms. Hood’s functioning,
they also provide specific indications of the frequency of those symptoms in support
of Dr. Subhan’s corresponding limitations.
Fourth, the ALJ also fails to confront other conflicting evidence. The Seventh
Circuit has “repeatedly held that although an ALJ does not need to discuss every
piece of evidence in the record, the ALJ may not analyze only the evidence
supporting [his] ultimate conclusion while ignoring the evidence that undermines
it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (citing Terry v. Astrue, 580
F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009);
Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). For example, the ALJ cites to a
fairly normal mental status examination on August 15, 2013, shortly after Ms. Hood
was hospitalized and resumed compliance. [Tr. 27 (citing Tr. 595).] However, in
the very next visit on October 17, 2013, Ms. Whitten’s mental status examination of
Ms. Hood was notable for depressed and anxious mood with an abnormal thought
process. [Tr. 586.] The ALJ also cites to one instance where Ms. Hood declined any
medication adjustments, “suggesting her symptoms were manageable.” [Tr. 28.]
However, after the abnormal mental status examination in October 2013, Dr.
Subhan increased her Invega dosage at the next medication management
appointment. [Tr. 576.] The ALJ makes no mention in the decision of this
medication change or any other medication changes. On September 5, 2014, Dr.
Subhan also added Buspar to her mental health medications for complaints of
visual hallucinations. [Tr. 776.] On March 25, 2015, Dr. Subhan added Lamictal to
her medications. [Tr. 757.] Dr. Subhan noted that Ms. Hood was sleeping thirteen
hours per day and “has taken Seroquel, Buspar and higher dose of Trileptal without
benefit. Agreeable to try Lamictal to address Bipolar depression.” [Tr. 756.] The
continuing need for medication adjustments during the period at issue undermines
the ALJ’s conclusion that Ms. Hood’s symptoms were manageable.
Fifth, to the extent that the ALJ suggests Ms. Hood’s treatment is “routine”
as a reason for giving limited weight to Dr. Subhan’s opinion, [Tr. 29], and
references that “two years have elapsed since the claimant’s symptoms have risen to
the level where she required impatient treatment,” [Tr. 28], the court notes that
this type of reasoning is undermined by Seventh Circuit precedent. In Voigt, the
court explained that impatient treatment is reserved only for specific concerns, not
unlike Ms. Hood’s own incident in the beginning of the period at issue, and that it
was impermissible “medical conjecture” for an ALJ to draw conclusions about the
severity of a claimant’s condition simply from the absence of ongoing
hospitalizations. Voigt v. Colvin, 781 F.3d 871, 876 (7th Cir. 2015). Ms. Hood
regularly sees a psychiatrist for medication management, as well as a therapist for
psychotherapy. As noted above, in addition to regularly scheduled appointments
with each, additional appointments can and have been scheduled to address
increased or severe symptoms. Ms. Hood’s family has also been engaged in her
treatment and supportive of her compliance with it. The ALJ does not cite any
evidence of record indicating that more aggressive treatment has been
recommended or declined. Other than noting the absence of additional
hospitalizations, the ALJ does not explain how Ms. Hood’s treatment regimen is
deficient, such that it gives reason to doubt Dr. Subhan’s opinion. Furthermore, the
issue is symptomatic of another problem with the ALJ’s decision.
The ALJ summarizes Ms. Hood’s treatment records and repeatedly concludes
“these most recent treatment notes are not suggestive of marked limitations.” [Tr.
28.] “We have made clear, however, that ALJs are not qualified to evaluate medical
records themselves, but must rely on expert opinions.” Moreno v. Berryhill, No. 171954, 2018 WL 914954, at *5 (7th Cir. Feb. 16, 2018) (citing Meuser v. Colvin, 838
F.3d 905, 911 (7th Cir. 2016) (remanding because the ALJ improperly “played
doctor”); Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014 (prohibiting ALJs from
“playing doctor” by summarizing the results of a medical exam without input from
an expert). However, in addition to all the problems with the ALJ’s analysis the
court has already pointed out, his actual RFC finding lacks a basis. The ALJ gave
“some weight” to the reviewing opinions of the state-agency medical consultants,
noting that they are “generally consistent with the record as a whole.” [Tr. 29.]
However, based on the dates of their opinions it’s obvious that neither consultant
reviewed the most updated treatment records from Ms. Whitten and Dr. Subhan,
[Tr. 743-807], or their most recent treating opinion, [Tr. 808-12]. [See Tr. 89 and
105.] Additionally, their identical narratives included the following limitations:
While [claimant’s] symptoms may present some impediment to work
situations with large numbers of people, it does seem that the
[claimant] could deal with environments that have fewer persons in
them and where stress levels are limited.
[Tr. 89 and 105.] But the ALJ’s RFC does not limit the work environment in any
way to provide for an inability to deal with large numbers of people. [Tr. 25.] Not
only did the ALJ rely on his own assessment of the degree of limitation reflected in
the updated medical records, he apparently concluded that Ms. Hood was less
limited than any expert opinion of record.
3. The ALJ failed to develop how Ms. Hood’s daily activities are
inconsistent with Dr. Subhan’s opinion.
The ALJ’s use of Ms. Hood’s daily activities is unavailing to discount Dr.
Subhan’s opinion. Those included “attending Bingo weekly, driving a vehicle, and
some childcare for her granddaughter with her daughter in the vicinity.” [Tr. 2930.] In Bjornson, the Seventh Circuit explained that the “critical differences
between activities of daily living and activities in a full-time job are that a person
has more flexibility in scheduling the former than the latter, can get help from other
persons (in this case, Bjornson's husband and other family members), and is not
held to a minimum standard of performance, as she would be by an employer. The
failure to recognize these differences is a recurrent, and deplorable, feature of
opinions by administrative law judges in social security disability cases.” Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (See Punzio, supra, 630 F.3d at 712
[additional citations omitted]). The record does not necessarily indicate that these
activities are even ongoing. Ms. Hood testified at the hearing that she had not
babysat for her daughter in over a year. [Tr. 46.] Even when she was babysitting,
her daughter was home at the time, but was freed up to get things done around the
house. More importantly, the activities themselves say little about Ms. Hood’s
ability to sustain work over the course of day or maintain competitive levels of
For the foregoing reasons, the court finds merit in Ms. Hood’s argument that
the ALJ improperly gave “limited weight” to the opinion of Dr. Subhan. Dr.
Subhan’s opined limitation that Ms. Hood would need to be absent more than three
days per month does not appear directly contradicted in the record, such that
controlling weight may be appropriate. Regardless, the ALJ did not give good
reasons to support the weight that the opinion was given. The court finds remand
to be the appropriate remedy to reevaluate Ms. Whitten and Dr. Subhan’s opinions.
B. The court need not address Ms. Hood’s Listing argument.
Ms. Hood also argues that the ALJ’s improper consideration of Dr. Subhan’s
opinion led to an improper conclusion that listing 12.04 was not met or equaled and
further that the ALJ improperly decided the issue of equivalence without expert
guidance as to the complete record. Having found remand already required by the
issue addressed above, the court need not reach this argument and declines to do so
here. On remand, in addition to reevaluating the opinion evidence above, the
agency should make every effort to evaluate the complete medical record with
For the reasons detailed herein, the court REVERSES the ALJ’s decision
denying Ms. Hood’s benefits and REMANDS this matter for further proceedings
pursuant to 42 U.S.C.§ 405(g) (sentence 4) as detailed above. Final Judgment will
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
All ECF-registered counsel of record by email through the Court’s ECF system
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