SORRELS v. BERRYHILL

Filing 28

ORDER and Conclusion: The ALJ's decision is REVERSED. The case is REMANDED for proceedings consistent with this order. Final judgment shall issue by separate document. Signed by Judge Sarah Evans Barker on 6/7/2018.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LAURA SORRELS,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Deputy Commissioner )
for Operations, Social Security Administration, 1
)
)
Defendant.
)

No. 1:17-cv-01917-SEB-MPB

ORDER
Plaintiff Laura Sorrels (“Sorrels”) appeals the final decision of the Deputy
Commissioner for Operations (“Deputy Commissioner”) of the Social Security
Administration (“SSA”) denying her April 30, 2014, applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”). 2 R. (Dkt. 13) at 14. The
applications were initially denied on August 19, 2014, R. at 116, and upon
reconsideration on October 15, 2014. R. at 128. The administrative law judge (“ALJ”)
conducted a hearing on March 17, 2016, R. at 29, resulting in a decision on June 27,
2016, that Sorrels was not disabled and thus not entitled to receive DIB or SSI. R. at 11.

1

On March 6, 2018, the President was notified that, effective November 17, 2017, Nancy A.
Berryhill could no longer serve as the Acting Commissioner of the Social Security
Administration pursuant to the Federal Vacancies Reform Act of 1998. Government
Accountability Office, https://www.gao.gov/products/D18772#mt=e-report (last visited Apr. 27,
2018). The case caption has been updated to reflect the Deputy Commissioner’s current title.
2

In general, the same legal standards apply no matter whether the claimant seeks DIB or SSI
benefits. However, these standards are set forth in separate statutory and regulatory sections.
Parallel citations are supplied where necessary.

1

The Appeals Council denied review on April 5, 2017, and the Deputy Commissioner’s
decision became final. R. at 1. On June 9, 2017, Sorrels timely filed this action seeking
judicial review of that decision pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. §
1383(c)(3). Dkt. 1.
For the reasons below, the decision is reversed and the case remanded for action
consistent with this order.
Background 3
The ALJ followed the five-step sequential evaluation set forth by the SSA, see 20
C.F.R. § 404.1520(a)(4)(i) to (v), in concluding that Sorrels is not disabled. Specifically,
the ALJ found as follows:
• Preliminarily with respect to Sorrels’s DIB claim, Sorrels last met the
insured status requirements on June 30, 2005. R. at 16.
• At Step One, Sorrels had not engaged in substantial gainful activity 4
since February 15, 2004, the alleged disability onset date. Id.
• At Step Two, Sorrels suffered from the following severe impairments:
osteoarthritis of the bilateral knees, fibromyalgia, bipolar disorder, and
anxiety. Id.
• At Step Three, Sorrels did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the
listed impairments. R. at 17.
• At Step Four, Sorrels had the residual functional capacity (“RFC”) to
“perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),
except that she is able to lift and carry twenty pounds occasionally and
ten pounds frequently. [Sorrels] can stand and/or walk six hours of an
3

The discussion of Sorrels’s medical history and treatment includes sensitive and otherwise
confidential medical information. To the extent possible, we detail here specific facts only as
necessary to address the parties’ arguments.
4

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. § 404.1572(a).

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eight-hour workday and sit for six hours of an eight-hour workday.
[Sorrels] must alternate positions for 1-2 minutes every 30 minutes.
[Sorrels] can occasionally climb ramps, stairs, ladders, ropes, and
scaffolds. [Sorrels] can occasionally balance, stoop, kneel, crouch and
crawl. [Sorrels] must avoid moderate use of moving machinery and
exposure to unprotected heights. [Sorrels] is able to understand,
remember, and follow simple to mildly complex instructions. [Sorrels]
is restricted to work that involves brief, superficial interactions with
fellow workers and the public. [Sorrels] is able to sustain attention and
concentration skills to carry out work-like tasks with reasonable pace
and persistence. The work must not require driving. The work must
allow a flexible pace free of fast-paced production. [Sorrels] must be
allowed to be off­task 2-5 minutes every hour. The work must
accommodate one absence per month.” R. at 19.
• At Step Five, relying on the testimony of the vocational expert (“VE”)
and in light of Sorrels’s age (41), education (high-school equivalency
and medical assistant degrees), past work experience (none relevant),
and RFC, there were jobs that existed in significant numbers in the
national economy which Sorrels could have performed through the date
of the decision. R. at 23–24.
Standard of Review
Upon review of the Deputy Commissioner’s decision,
[w]e will uphold [it] if it applies the correct legal standard and
is supported by substantial evidence. Castile v. Astrue, 617
F.3d 923, 926 (7th Cir. 2010). Substantial evidence is “‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). A decision
denying benefits need not discuss every piece of evidence,
but if it lacks an adequate discussion of the issues, it will be
remanded. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
2009). Our review is limited to the reasons articulated by the
ALJ in her decision. Larson v. Astrue, 615 F.3d 744, 749 (7th
Cir. 2010).
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). In determining whether the
decision was properly supported, we neither reweigh the evidence nor assess the

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credibility of witness, nor substitute our judgment for the Deputy Commissioner’s. Lopez
ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Analysis
Sorrels presents a single issue for review: whether the ALJ properly assessed the
weight to be given to the medical opinion of one of Sorrels’s treating psychiatrists, Dr.
Zeba Madni (“Madni”). We agree the ALJ did not and her decision was therefore
unsupported by substantial evidence.
“An ALJ must give ‘controlling weight’ to a treating source’s opinion if it is ‘wellsupported by medically acceptable clinical and diagnostic techniques and is not
inconsistent with other substantial evidence.’” Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011) (quoting 20 C.F.R. § 404.1527(c)(2)). 5 “An ALJ who does not give controlling
weight to the opinion of the claimant’s treating physician must offer ‘good reasons’ for
declining to do so.” Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (quoting 20
C.F.R. § 404.1527(c)(2)).
If the ALJ does articulate good reasons for failing to give controlling weight to a
treating physician’s opinion, it is “still . . . necessary to determine what weight [her]

5

We note that the SSA’s regime for evaluating medical evidence has been substantially revised,
including elimination of the treating source rule and rescission of certain Social Security Rulings
cited here, for claims filed after March 27, 2017. See generally Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5,844 (Jan. 18, 2017) (codified at 20 C.F.R. §
404.1520c). As Sorrels’s claim was filed before March 27, 2017, however, we continue to apply
Section 404.1527 and cases relying on it.
We note further that, effective March 26, 2012, Section 404.1527(d) has been
redesignated Section 404.1527(c). How We Collect and Consider Evidence of Disability, 77 Fed.
Reg. 10,651, 10,656 (Feb. 23, 2012). Where the cases refer to the original designation, we have
supplied the redesignation.
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opinion [is] due under the applicable regulations.” Id. at 751 (citing 20 C.F.R. §
404.1527(c)(2)). The SSA has interpreted this regulatory directive to mean that, “[i]n
many cases, a treating source’s medical opinion will be entitled to the greatest weight and
should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p,
1996 WL 374188, at *4 (July 2, 1996). In any event, if the treating physician’s opinion is
not given controlling weight, “[a]n ALJ must 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 support for the physician’s opinion.” Larson,
615 F.3d at 751 (citing inter alia Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see
20 C.F.R. § 404.1527(c)(2)(i) to (ii), (c)(3) to (6).
Here, the record discloses that Madni has been treating Sorrels since 2013, with
access to treatment records stretching back to 2004. On October 2, 2015, Madni
completed a form medical source statement which opined, as relevant here, that Sorrels
suffered marked impairment of
• “[t]he ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods”;
• “[t]he ability to interact appropriately with the general public”;
• “[t]he ability to accept instructions and respond appropriately to criticism from
supervisors”;
• “[t]he ability to travel in unfamiliar places or use public transportation”; and
• “[t]he ability to set realistic goals or make plans independently of others[.]”

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R. at 1032–33. Madni opined further that, “on the average,” Sorrels was “likely to be
absent from work as a result of [her] impairments or treatment . . . [m]ore than four days
per month.” R. at 1034.
In her controlling-weight analysis, the ALJ made no finding as to whether Madni’s
opinion was supported by medically acceptable clinical and diagnostic techniques and
stated no grounds for concluding that it was not. The ALJ did find that Madni’s opinion
was inconsistent with other substantial evidence in three respects: first, Madni’s
assessment of Sorrels’s “social limitations” was inconsistent with “objective evidence of
record, which documents no clinical manifestations of social dysfunction”; second,
Madni’s assessment of the same was inconsistent with Sorrels’s “reports of shopping
weekly and attending other errands and appointments”; third, Madni’s “opinion regarding
the claimant’s inability to use public transportation [was] inconsistent with [Sorrels’s]
subjective reports of using public transportation for errands and appointments.” R. at 22.
These findings of inconsistency were not supported by substantial evidence.
First, we cannot perceive any basis in the record for the ALJ’s conclusion that the
“objective evidence . . . documents no clinical manifestations of social dysfunction . . . .”
Id.; also R. at 18 (“[N]o treating clinician has noted clinical signs of social
dysfunction.”). To the contrary, Madni and Sorrels’s previous treating doctors noted
several such manifestations. See R. at 807 (“violent behavior when manic”; “irritable,
argumentative”), 827 (“difficulty maintaining work pace”; “[p]resents restless with leg
shaking, nervous manner, depressed mood, congruent affect”), 866 (“anxious”; “panic
attack last week”), 871 (“anxious in crowds”; “occasional panic attack”), 874 (“anxious”;
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“panic attack”), 883 (same), 895 (“Affect anxious”), 932 (“severe anxiety”), 935
(“presenting anxious and irritable”), 943 (“feels overwhelmed by . . . anxiety”; “difficulty
with controlling anger”), 957 (“Affect—anxious”), 971 (“has lately been isolating
herself”; “Affect—anxious”). While the ALJ was free to weigh this evidence in her
consideration of Madni’s opinion, she was not free to assert its nonexistence. Moore v.
Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
Second, the ALJ perceived a conflict between Madni’s assessment of Sorrels’s
social limitations and Sorrels’s self-reports that the ALJ did not justify. In the context of
Sorrels’s here-relevant impairment, bipolar disorder, there is no necessary inconsistency
between the “marked” social impairments Madni found, on the one hand, and Sorrels’s
reports of weekly shopping and attending doctor’s appointments, on the other. See Punzio
v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) (“[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 over all condition.”), 712 (“[An] ability to struggle through the activities
of daily living does not mean that [one] can manage the requirements of a modern
workplace.”); Bauer v. Astrue, 532 F.3d 606, 607–08 (7th Cir. 2008) (“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. . . . [T]he judge noted that the plaintiff dresses appropriately [and] shops
for food [among other small responsibilities]. This is just to say that the plaintiff is not a
raving lunatic who needs to be locked up.”).
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While such a conflict or inconsistency may in fact have existed, the ALJ did not
support her finding that it did with substantial or, indeed, any evidence. The ALJ appears
simply to have assumed that a person who is capable of weekly grocery shopping trips,
or, worse, who is capable of seeking out necessary medical treatment, does not suffer
“marked” social impairments. That cannot be true and is not true here.
Third and finally, the ALJ perceived a conflict between Madni’s finding of a
“marked” impairment of Sorrels’s “ability to travel in unfamiliar places or use public
transportation,” R. at 1033, on the one hand, and Sorrels’s “reports of using public
transportation for errands and appointments[,]” on the other. R. at 22. Again, no conflict
necessarily exists and the ALJ’s decision did not support its finding of a conflict with
substantial evidence.
Madni did not opine that Sorrels was incapable of using public transportation; she
opined that Sorrels suffered a “marked” impairment of her “ability to travel in unfamiliar
place or use public transportation.” R. at 1033 (emphasis added). Even setting aside the
ambiguity created by the use of the disjunctive on the form statement, as noted above, in
the context of mental illness the bare capacity to perform a task does not exclude the
possibility that a patient’s illness markedly impairs her ability to do so. Indeed, as
revealed on the self-reporting form cited by the ALJ herself, Sorrels reported that while
she is capable of using public transportation, she does not “like to leave [her] house,”
does not “like to be around other people [because she] get[s] panic attacks,” cannot drive
because she “get[s] panic attacks,” finds it difficult to “go out alone,” and completes her
weekly shopping trips “as fast as [her] body will let [her] because [she] just want[s] to get
8

home[.]” R. at 215. Such “cherry-picking” of evidence in support of the ALJ’s ultimate
conclusion does not survive substantial-evidence review. Punzio, 630 F.3d at 710.
Even if, moreover, the ALJ’s decision not to give Madni’s opinion controlling
weight had been supported by substantial evidence, her decision to give it “minimal”
weight was entirely unsupported by the mandatory application of the relevant regulatory
factors. See Larson, 615 F.3d at 751 (“Apart from the ALJ’s unhelpful statement that Dr.
Rhoades’s opinion was entitled to ‘some weight,’ the ALJ said nothing regarding this
required checklist of factors.” (emphasis added)).
Had the ALJ given Madni’s opinion controlling or even greater than “minimal”
weight, the result for Sorrels may well have been different. Specifically, Madni opined
that Sorrels’s impairments or treatment would require her to miss more than four days of
work per month. The VE testified that local and national employers’ “[t]olerance for
absence ranges between one and three days a month. However, if an individual continues
to miss two or more days a month they would not be able to maintain competitive
employment.” R. at 63. As noted above, the ALJ determined that Sorrels’s RFC required
her to miss no more than one day of work per month. R. at 19. Moreover, Madni opined
that Sorrels’s “ability to accept instructions and respond appropriately to criticism from
supervisors” was “markedly” impaired. R. at 1033. Such a finding, if accepted by the
ALJ, would have weighed heavily in Sorrels’s favor. See SSR 85-15, 1985 WL 56857, at
*4 (Jan. 1, 1985).
Accordingly, this case must be remanded for reconsideration of the issues relating
to the appropriate weight to be given to Dr. Madni’s opinion(s).
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Conclusion and Order
For the reasons explained above:
The ALJ’s decision is REVERSED.
The case is REMANDED for proceedings consistent with this order under
sentence four of 42 U.S.C. § 405(g). Final judgment shall issue by separate document.
Fed. R. Civ. P. 58(a).
IT IS SO ORDERED.

6/7/2018
Date: ______________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Michael G. Myers
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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