Richey v. Commissioner of Social Security

Filing 16

ORDER signed by Judge J P Stadtmueller on 8/18/14 VACATING the decision of the Commissioner of Social Security and REMANDING CASE to the Social Security Administration for a rehearing. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TROY LEWIS RICHEY,
Plaintiff,
v.

Case No. 13-CV-1072-JPS

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

ORDER
Defendant.
Plaintiff Troy Lewis Richey brings this suit under 42 U.S.C. § 405(g) for
judicial review of a final decision of the Social Security Administration
denying his applications for Supplemental Security Income and Disability
Insurance Benefits for lack of disability. (Docket #1); (Tr. 1-6); (Tr. 9-22).
In particular, Plaintiff appeals from the adverse orders issued by: (i)
Administrative Law Judge Carla L. Waters (“ALJ Waters”) on May 24, 2013
(finding Plaintiff not disabled) (Tr. 9-22); and (ii) the Appeals Council on
August 22, 2013 (denying Plaintiff’s request for review of ALJ Waters’
decision) (Tr. 1-6).
Plaintiff argues, inter alia, that ALJ Waters breached her duty to
develop a full and fair record with regard to his sole mental impairment:
anxiety.1
In the course of ALJ Waters’ “fact-finding proceeding” (held
approximately one month before her written decision issued), Plaintiff
testified that “anxiety attacks” “affect[ed] [him] a lot” on a daily basis. (Tr.

1

ALJ Waters found that Plaintiff had “the following severe impairments:
degenerative disk [sic] disease of the cervical and lumbar spines [sic], sleep apnea,
obesity, status post arthroscopic left knee surgery, chronic obstructive pulmonary
disease and ulcerative colitis.” (Tr. 14).

71). Plaintiff explained that he was prescribed Sertraline (the generic form of
Zoloft) for his anxiety but “had to stop taking it” due to a potential
cardiovascular complication. (Tr. 63). In response, ALJ Waters proceeded to
ask questions about the findings of Plaintiff’s cardiologist (id.), prodding no
further about Plaintiff’s anxiety. See (Tr. 63 and 71).
In finding Plaintiff’s anxiety not severe, ALJ Waters’ written decision
reasons, in relevant part, as follows:
According to the record, the claimant has reported having
feelings of anxiety “on and off” since his divorce. However,
during the relevant period, the claimant has not required much
medical care for these symptoms. Contrary to the claimant’s
testimony that he experiences nightly anxiety attacks, on one
of the few occasions that the claimant mentioned his feelings of
anxiety to a health care provider, in October 2012, he stated
that his symptoms were “not too bothersome” (Exhibit 9F).
Therefore, because the record does not contain any medically
acceptable clinical or laboratory diagnostic techniques or
findings substantiating a diagnosis based on the claimant’s
anxiety symptoms or an indication that the claimant’s
symptoms caused work-related limitations for the requisite
12-month period, his reported symptoms, standing alone,
cannot be considered a severe impairment.”
(Tr. 15).
“Although a claimant has the burden to prove disability, the ALJ has
a duty to develop a full and fair record. See Thompson v. Sullivan, 933 F.2d
581, 585 (7th Cir.1991). Failure to fulfill this obligation is ‘good cause’ to
remand for gathering of additional evidence. Id. at 586.” Smith v. Apfel, 231
F.3d 433, 437 (7th Cir. 2000).
Here, the portion of ALJ Waters’ written decision finding Plaintiff’s
anxiety not severe contains only one citation to the evidentiary record: Exhibit
9F. (Tr. 15-16). Exhibit 9F comprises Dr. Kshama Keshava Bhat’s notes

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concerning Plaintiff’s initial and follow-up examinations on six dates
spanning from October 10, 2012, to December 3, 2012. (Tr. 367-392). Dr.
Bhat’s notes dated October 15, 2012, refer Plaintiff to a specialist for further
consideration of his “ANXIETY DISORDER NOS [(Not Otherwise
Specified)]” (Tr. 376). Dr. Bhat’s notes on Plaintiff’s next four follow-up visits
each contain the same notation with regard to Plaintiff’s anxiety: “awaiting
to be seen by WCMH [sic].” (Tr. 378, 382, 385, and 389); (Docket #12, p. 11 at
n. 37). The last of these notes in Exhibit 9F—dated December 3,
2012—indicates that Dr. Bhat prescribed Plaintiff Sertraline to address his
anxiety while Plaintiff continued to wait for a specialist mental health
consultation. (Tr. 389).
To be sure, “[a]lthough an ALJ need not mention every snippet of
evidence in the record, the ALJ must connect the evidence to the conclusion;
in so doing, [s]he may not ignore entire lines of contrary evidence.” Arnett v.
Astrue, 676 F.3d 586, 592 (7th Cir. 2012). Here, the ALJ’s written
decision—which cited only Exhibit 9F to support her finding that Plaintiff’s
anxiety was not severe—failed to account for the aforementioned evidence
within that very same exhibit explaining the absence of diagnostic evidence:
Plaintiff was waiting for a specialist mental health examination.
Moreover, for each of Plaintiff’s six follow-up visits after being
prescribed Sertraline for his anxiety (December 18, 2012, through February
15, 2013), Dr. Bhat’s treatment notes reflect that Plaintiff was still “awaiting
to be seen by WCMH [sic]” for his anxiety, however Plaintiff was told (by
whom, the record is not clear) to stop taking Sertraline due to premature
ventricular contractions. (Tr. 443, 447, 452, 455, 459, and 467)2; (Docket #12,

2

These pages in the administrative transcript form part of Exhibit 12F.

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p. 11 at n.37). The last of these notations—February 15, 2013—precedes
Plaintiff’s testimony before ALJ Waters on April 30, 2013 (Tr. 48) by only two
and a half months, yet ALJ Waters’ written decision accounts for none of
these updates.
Therefore, the Court is obliged to conclude that ALJ Waters’ written
decision ignored treatment notes documenting ten follow-up visits by
Plaintiff to Dr. Bhat—both in Exhibit 9F (which ALJ Waters cited approvingly
to justify finding Plaintiff’s anxiety not severe) and Exhibit 12F—each of
which explains the dearth of clinical or diagnostic findings addressing the
“anxiety attacks” that Plaintiff testified “affect[ed] him a lot” on a daily basis:
Plaintiff was waiting to be seen by a mental health specialist at WCMH.3
The Department of Justice seeks to defend ALJ Waters’ written
decision by reasoning that Plaintiff “is presumed to have made his best case
before the ALJ” because he was represented by counsel. Skinner v. Astrue, 478
F.3d 836, 842 (7th Cir. 2007); (Docket #13 at 11). But here, evidence that
Plaintiff was awaiting specialist evaluation for his anxiety was already in the
record in both Exhibits 9F and 12F—ALJ Waters’ written decision simply
ignored it, going so far as to cite Exhibit 9F approvingly in discounting
Plaintiff’s anxiety testimony “because” of the absence of clinical or diagnostic
findings. (Tr. 15).
With the benefit of the foregoing analysis, the Court is obliged to
conclude that the bridge ALJ Waters drew between the absence of clinical or
diagnostic findings concerning Plaintiff’s claimed anxiety attacks and the
record (in particular, Exhibit 9F, cited approvingly by ALJ Waters) was

3

Although this acronym does not appear to be defined in the record, it
would appear to be a reference to Waukesha County Mental Health Center in
Waukesha, Wisconsin.

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illogical. “If the evidence on which the ALJ relied does not support her
conclusion, the decision cannot be upheld.” Blakes ex rel. Wolfe v. Barnhart, 331
F.3d 565, 569 (7th Cir. 2003) (citation omitted).4

4

Apart from the foregoing analysis, the Court will address one particularly
troublesome portion of the government’s brief in this case.
“Under the Chenery doctrine, the Commissioner's lawyers cannot defend the
agency's decision on grounds that the agency itself did not embrace. See SEC v.
Chenery Corp., 318 U.S. 80, 87–88, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Parker v. Astrue,
597 F.3d 920, 922 (7th Cir.2010).” Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
Here, the Department of Justice (“DOJ”) appears to defend ALJ Waters’
development of the record with regard to Plaintiff’s claimed anxiety by citing
various evidence in the administrative transcript not addressed in ALJ Waters’
written decision. Compare (Tr. 12-22) with (Docket #13 at 12). That brief was filed by
the government on May 5, 2014, over one year after Judge Posner admonished the
government for “[c]haracteristically, and sanctionably…violat[ing] the Chenery
doctrine” in a brief filed in Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013).
However, the offending brief in this case was filed by the government
approximately three months before Judge Posner once again highlighted this issue
in Hanson v. Colvin, ___ F. Supp. 3d ___, 2014 WL 3732910 (7th Cir. July 30, 2014),
writing:
We are particularly concerned about the Chenery violations
committed by the government because it is a recurrent feature of the
government's defense of denials of social security disability benefits,
as this court has noted repeatedly. See, e.g., Pierce v. Colvin, 739 F.3d
1046, 1050 (7th Cir. 2014); Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir.
2013); Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012); Shauger v.
Astrue, 675 F.3d 690, 697 (7th Cir. 2012); Martinez v. Astrue, 630 F.3d
693, 698 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir.
2010); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010); Larson v.
Astrue, 615 F.3d 744, 749 (7th Cir. 2010); McCleskey v. Astrue, 606 F.3d
351, 354 (7th Cir. 2010); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.
2010). This is professional misconduct and if it continues we'll have
to impose sanctions.
In the wake of the Seventh Circuit’s admonitions, the DOJ should consider
uniting each evidentiary citation in its opposition briefs with a parallel citation to
the corresponding page in the agency’s written decision.

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Thus,
IT IS ORDERED that the decision of the Commissioner of Social
Security be and the same is hereby VACATED;
IT IS FURTHER ORDERED that this cause be and the same is hereby
REMANDED to the Social Security Administration, pursuant to Sentence
Four of 42 U.S.C. § 405(g), for a rehearing; and
IT IS FURTHER ORDERED that, on remand, the ALJ shall issue a
new decision consistent with all applicable rules and regulations as
interpreted in relevant Seventh Circuit case law.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 18th day of August, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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