Smith v. Commissioner of Social Security

ALEXANDRA A. S.,1 )

)

Plaintiff, )

)

vs. ) Civil No. 3:19-cv-01074-GCS2

)

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

In accordance with 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final

agency decision denying her application for Disabled Adult Child (“DAC”) benefits

pursuant to 42 U.S.C. § 423.

PROCEDURAL HISTORY

Plaintiff applied for benefits in December 2015, alleging disability beginning on

December 25, 2012. She later amended her onset date to her eighteenth birthday,

November 10, 2013. After holding an evidentiary hearing, an Administrative Law Judge

(“ALJ”) denied the application in October 2018. (Tr. 15-31). The Appeals Council denied

1 In keeping with the court’s usual practice, Plaintiff’s full name will not be used in this

Memorandum and Order due to privacy concerns. See FED. R. CIV. PROC. 5.2(c) and the Advisory

Committee Notes thereto.

2 This case was assigned to the undersigned for final disposition upon consent of the parties

pursuant to 28 U.S.C. § 636(c). See (Doc. 12, 20).

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Administrative remedies have been exhausted and a timely complaint was filed in this

Court.

ISSUE RAISED BY PLAINTIFF

Plaintiff raises the following issue:

The ALJ erred in assessing Plaintiff’s statements about the intensity,

persistence and limiting effects of her symptoms.

APPLICABLE LEGAL STANDARDS

To qualify for DAC benefits, a claimant who is over the age of 18 must have a

disability which began before she reached the age of 22. See 20 C.F.R. § 404.350(a)(5).

Under the Social Security Act, a person is disabled if she has an “inability 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 twelve months.” 42 U.S.C. §

423(d)(1)(a).

The usual sequential analysis applies here. See 20 C.F.R. § 404.1520(a)(2). To

determine whether a plaintiff is disabled, the ALJ considers the following five questions

in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have a severe

impairment? (3) Does the impairment meet or medically equal one of a list of specific

impairments enumerated in the regulations? (4) Is the plaintiff unable to perform her

former occupation? and (5) Is the plaintiff unable to perform any other work? See 20 C.F.R.

§ 404.1520(a)(4).

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plaintiff is disabled. A negative answer at any step, other than at step three, precludes a

finding of disability. The plaintiff bears the burden of proof at steps one through four.

Once the plaintiff shows an inability to perform past work, the burden then shifts to the

Commissioner to show the plaintiff’s ability to engage in other work existing in

significant numbers in the national economy. See Zurawski v. Halter, 245 F.3d 881, 886 (7th

Cir. 2001).

It is important to recognize that the scope of judicial review is limited. “The

findings of the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Thus, this Court must determine

not whether Plaintiff was, in fact, disabled at the relevant time, but whether the ALJ’s

findings were supported by substantial evidence and whether any errors of law were

made. See Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Supreme

Court defines substantial evidence as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(internal citations omitted).

In reviewing for “substantial evidence,” the entire administrative record is taken

into consideration, but this Court does not reweigh evidence, resolve conflicts, decide

questions of credibility, or substitute its own judgment for that of the ALJ. Burmester v.

Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However, while judicial review is deferential,

it is not abject; this Court does not act as a rubber stamp for the Commissioner. See Parker

v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010).

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The ALJ followed the five-step analytical framework described above. He

determined that Plaintiff had not been engaged in substantial gainful activity since the

alleged onset date.

The ALJ found that Plaintiff had severe impairments of affective, anxiety, and

personality disorders, and a history of substance abuse.

The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to

perform the full range of work at all exertional levels with the following non-exertional

limitations: simple, routine, repetitive tasks in a work environment free of fast-paced

quota requirements involving only simple work-related decisions with few, if any, work

place changes; no interaction with the public; and only brief, superficial interaction with

co-workers.

Plaintiff had no past relevant work. Based on the testimony of a vocational expert

(“VE”), the ALJ found that Plaintiff was not disabled because she was able to do jobs that

exist in significant numbers in the national economy.

THE EVIDENTIARY RECORD

The Court has reviewed and considered the entire evidentiary record in

formulating this Memorandum and Order. This summary of the record discusses only

the evidence relevant to Plaintiff’s arguments.

1. Agency Forms

Plaintiff claimed disability because of mental issues, depression, bipolar, general

anxiety, social anxiety, IBS, GERD, fibromyalgia, and limited focus on daily tasks. In

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reported that she had worked part-time as a personal assistant paid by the Illinois

Department of Rehabilitation. She did this work from August 2011 to October 2014 and

from May to August 2015. (Tr. 274).

In January 2016, Plaintiff reported that her ability to work was limited because a

lack of focus and motivation made it difficult to complete tasks. She was mentally and

physically exhausted all the time. She said she was afraid to go anywhere alone. She

regularly went into “fugue states” and “dissociative states.” She described a “normal

day” as “to stay in bed mostly, or go to my boyfriends [sic] and lay down to watch

movies.” On a good day, she loved to cook and bake. She did laundry for herself and her

mother and vacuumed and washed dishes. Her mother handled her “paperwork”

because she got too overwhelmed. People made her nervous. (Tr. 257-269).

2. Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in April 2018.

(Tr. 40).

Plaintiff lived with her mother and grandmother. Her boyfriend was staying with

them. (Tr. 44). She graduated from high school a semester early and took a few classes at

community college. She dropped some of the college classes because she could not keep

up with all of it. She could not return to college because she had a lot of anxiety as well

as physical issues. (Tr. 48-49). Plaintiff explained that she graduated from high school

early because she became unable to go to school and was taught from home. She said that

her teachers made it easy for her to finish. (Tr. 67).

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care of plants. She worked there for less than one hundred hours total. She worked as a

caregiver for her aunt in 2013 and 2014. She made over $7,000.00 in that job. She stopped

doing that because her mental and physical issues were “too intense.” (Tr. 50-53).

Plaintiff testified she would be unable to do the Plant Stand job because she had

an extremely difficult time communicating and socializing. She got “confused” and

“lost.” (Tr. 66).

Plaintiff started a business making soap in June 2016. She had a booth at a craft

fair for one day. Her mother and boyfriend were there with her. It was very stressful. (Tr.

68-70). She was unable to go to a store by herself because her anxiety had gotten worse.

She felt she would be unable to live on her own because she would not be able to take

care of herself. (Tr. 72-73).

A VE testified that there are no jobs for a person who could have no contact with

the public, co-workers, or anyone else. Similarly, there would be no jobs for a person who

needs constant direction or redirection or who would be off task for more than 10 percent

of the workday. (Tr. 96-98).

3. School Records

In February 2013, Plaintiff was approved by her high school to attend school from

home with the assistance of a home teacher. She had been “experiencing emotional issues

and resorted to cutting.” She was under the care of a psychiatrist who prescribed

medication for major depressive disorder/recurrent and bipolar affective disorder. (Tr.

360).

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Dr. Yanamadala, a psychiatrist, began treating Plaintiff in January 2013 when she

was 17 years old. She had been depressed for a month and had been cutting herself. Her

grades had dropped, and she had poor concentration, poor energy, crying spells and was

isolating. The doctor recommended “homebound.” He diagnosed major depressive

disorder, recurrent, without psychotic features, and prescribed Trazodone, Depakote,

and Lexapro. (Tr. 492-496).

Dr. Yanamadala continued to see Plaintiff through June 2016. His records are

somewhat confusing because the notes repeat observations from earlier visits, making it

difficult to discern exactly when the events described took place. (Tr. 497-549, 552-557).

Overall, his records indicate that Plaintiff’s symptoms waxed and waned, and he changed

her medications several times. Her mother attended appointments with her. On exam,

she generally had intact concentration and memory, logical and goal directed thought

processes, intact judgment and insight, and normal reasoning. She was not suicidal and

had no hallucinations or violent thoughts. Her mood was sometimes low, sad, and/or

anxious, and she sometimes had helpless and hopeless thought content. She denied

substance abuse. At times, the doctor noted she was working twenty hours a week, taking

classes at community college, had a boyfriend, and was going to the gym. In December

2015, the doctor noted that Plaintiff had stopped taking Topamax; he recommended that

she increase the dosage of Pristiq, but she refused. Plaintiff was not going to school or

working, and she was applying for social security disability. (Tr. 544). In June 2016, Dr.

Yanamadala added a note that Plaintiff had tapered herself off all medications except

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counselor and did not want any new medications. (Tr. 553).

In September 2016, Plaintiff saw her primary care physician, Dr. Stabell, for a

“THC application” to treat her “total body pain.” The doctor noted that her psychiatrist

had left the area, and Plaintiff wanted her to take over prescribing Trazodone. Dr. Stabell

recommended that she see another psychiatrist. Her mood was stable, and her anxiety

disorder was stabilized “remaining in a structured home environment.” She noted that

Plaintiff had been “on marijuana treatment” for mood issues since she was a young child

and she wanted to “become legal with her marijuana use.” Neuro-psychiatric exam was

grossly normal. (Tr. 639-641). The doctor completed a certification form for medical

cannabis, certifying that Plaintiff was diagnosed with severe fibromyalgia and residual

limb pain.3 (Tr. 740-741).

Plaintiff was seen at Center Pointe Hospital in November 2016 with her mother,

seeking outpatient treatment for anxiety and depression. She said she had increased

anxiety and depression for the past year, and daily panic attacks. She said she had

attempted suicide twice, most recently in 2013. She was seeing Dr. Sanjay Nigam, a

psychiatrist, and Mike Homan, a therapist. The diagnoses were bipolar disorder without

psychotic features and generalized anxiety disorder. The doctor recommended

admission to an intensive outpatient therapy program, but Plaintiff and her mother were

3 “Residual limb pain, sometimes called stump pain, is a type of pain felt in the part of a limb that

remains after an amputation.” https://www.mayoclinic.org/diseases-conditions/residual-limb-

pain/cdc-20447167, visited on September 16, 2020. There is no indication in the medical records that

Plaintiff had a limb amputated.

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In October 2016, Plaintiff complained to therapist Homan of agitation, anxiety,

manic episodes, and mood swings. (Tr. 706). In December 2016, she appeared to have

“accepted the need for medication at this time.” (Tr. 708). About two weeks later, he noted

she was taking Trazodone. (Tr. 710). In January 2017, she reported that Trazodone was

helping, and she was able to regulate her moods much better. (Tr. 713).

Plaintiff told Dr. Stabell in March 2017 that she had seen the new psychiatrist and

was learning neurocognitive techniques that “helped her immensely with mood

management.” (Tr. 636). This is presumably a reference to Dr. Nigam.4 Dr. Stabell noted

that Plaintiff was back on Olanzapine (Zyprexa) and was also taking Trazodone. (Tr. 637).

In October 2017 Plaintiff reported that she was not taking any psychiatric medications.

Plaintiff said she was nervous and anxious and felt agitated, confused, and unable to

concentrate. Dr. Stabell advised her to return to Dr. Nigam and restart her medications.

(Tr. 632-633). In December 2017, Plaintiff told Dr. Stabell that she was much less anxious

since restarting Trazadone and Xanax. She was seeing a nurse practitioner at the

psychiatrist’s office. Dr. Stabell noted that Plaintiff came to the office unattended by her

mother for the first time, and she was “quite a bit calmer than any previous visit.” Plaintiff

was well-behaved and “very adult” in her conversation. (Tr. 615-617).

Plaintiff began seeing a new primary care physician, Dr. Chiang, in January 2018

4 There are no office notes signed byDr. Nigam in the record. The record does contain notes from a

nurse practitioner at Southern Illinois Associates who rendered psychiatric care during this period. (Tr.

744-788). These notes may be from Dr. Nigam’s office, but they are very blurry and barely legible.

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boyfriend. She was taking Xanax and Trazodone. (Tr. 717-721).

In April 2018, a few days before the hearing, Plaintiff went to Chestnut Health

Systems to establish care with a new psychiatrist. She was evaluated by an advanced

practice nurse (“APN”). Plaintiff was wearing earmuffs and holding a stuffed owl. She

said she had a medical cannabis card for fibromyalgia. She had been taking Xanax only

as needed. Her goal was to be free of pharmaceuticals. She had discontinued several

medicines over the past few years because she did not feel well or feel like herself. She

said she was unable to work because of illness, but, if she were able, she would like to

start an allergen-friendly café. On exam, she was oriented, and her attitude was

cooperative and receptive. Memory was intact. She averted her eyes. Her affect was

anxious, and her mood was worried. Her thought process was coherent and goal directed

and her thought content was appropriate. She denied suicidal ideation. Insight was fair

and judgment was “Fair. Poor.” The APN rated Plaintiff’s ability to participate in

treatment as high and her willingness to participate as moderate. The APN recommended

that Plaintiff take Xanax daily as prescribed and to continue taking Trazodone. (Tr. 733-

737).

5. State Agency Consultants’ Mental RFC Assessment

State agency consultants assessed Plaintiff’s Mental RFC based on a review of the

record in February and July 2016. They rated Plaintiff as “moderately limited” in ability

to carry out detailed instruction; ability to maintain attention and concentration for

extended periods; ability to perform activities within a schedule, ability to maintain

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a workday and workweek without interruptions from psychological symptoms. They

concluded that Plaintiff was capable of performing simple, routine, and unskilled

vocational activities with reduced social demands. (Tr. 111-113, 139-140).

ANALYSIS

Plaintiff takes issue with the ALJ’s assessment of the reliability of her subjective

statements.

The “credibility findings” of the ALJ are to be accorded deference, particularly in

view of the ALJ’s opportunity to observe the witness. See Powers v. Apfel, 207 F.3d 431,

435 (7th Cir. 2000). Social Security regulations and Seventh Circuit cases “taken together,

require an ALJ to articulate specific reasons for discounting a claimant's testimony as

being less than credible, and preclude an ALJ from ‘merely ignoring’ the testimony or

relying solely on a conflict between the objective medical evidence and the claimant's

testimony as a basis for a negative credibility finding.” Schmidt v. Barnhart, 395 F.3d 737,

746-747 (7th Cir. 2005).

SSR 16-3p, effective March 28, 2016, superseded SSR 96-7p on evaluating the

claimant’s statements about her symptoms. SSR 16-3p does not change the prior

standard; rather, it emphasizes that:

In evaluating an individual's symptoms, our adjudicators will not assess an

individual's overall character or truthfulness in the manner typically used

during an adversarial court litigation. The focus of the evaluation of an

individual's symptoms should not be to determine whether he or she is a

truthful person. Rather, our adjudicators will focus on whether the evidence

establishes a medically determinable impairment that could reasonably be

expected to produce the individual's symptoms and given the adjudicator's

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related activities . . . .

SSR 16-3p, 2016 WL 1119029, at *10.

As did SSR 96-7p, the new SSR requires the ALJ to consider the entire record, and

to consider a number of factors in assessing the claimant’s credibility, including the

objective medical evidence, the claimant’s daily activities, medication for the relief of

pain, and “any other factors concerning the individual’s functional limitations and

restrictions due to pain or other symptoms.” SSR 16-3p, at *7.

The ALJ is required to give “specific reasons” for his evaluation of Plaintiff’s

statements. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to

describe the plaintiff’s testimony; the ALJ must analyze the evidence. Ibid. See also Terry

v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)(noting that the ALJ “must justify the credibility

finding with specific reasons supported by the record.”) If the adverse credibility finding

is premised on inconsistencies between plaintiff’s statements and other evidence in the

record, the ALJ must identify and explain those inconsistencies. See Zurawski v. Halter,

245 F.3d 881, 887 (7th Cir. 2001). “The determination or decision must contain specific

reasons for the weight given to the individual's symptoms, be consistent with and

supported by the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated the individual's

symptoms.” SSR 16-3p, at *9.

Here, the reasons given by the ALJ for rejecting Plaintiff’s statements are not

supported by the record and are not valid.

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consistent with the medical evidence and other evidence in the record. (Tr. 23). He then

went on to identify what he considered to be inconsistencies.

First, the ALJ noted that in “initial paperwork” Plaintiff said she had never

worked, but on later forms she identified some part-time work that she had done. Plaintiff

identified this part-time work in a form submitted only one month after the first form.

This hardly appears to be a serious attempt to mislead the agency, and the ALJ

determined that her part-time work was not substantial gainful activity in any event. The

ALJ also erroneously equated her part-time and temporary work with an ability to work

full-time, noting the DOT descriptions of the jobs she had done. (Tr. 24). However, an

ability to work part-time or for a short period of time is not incompatible with disability.

See Goins v. Colvin, 764 F.3d 677, 679 (7th Cir. 2014). The ALJ overstated Plaintiff’s

“business” selling bath products. She testified that she had a booth at a craft fair for one

day, and her mother and boyfriend were with her the whole time. (Tr. 69-70). Similarly,

her work at the Plant Stand consisted of 3 to 12 hours of work a week during the summer

of 2017. (Tr. 347). And, the ALJ ignored the fact that the ability to assist her grandmother

and aunt with household chores does not necessarily contradict her claim that her mental

impairments would not permit her to work outside the home environment. “We have

remarked the naiveté of the Social Security Administration's administrative law judges

in equating household chores to employment.” Hughes v. Astrue, 705 F.3d 276, 278 (7th

Cir. 2013). Likewise, her stated desire to open an allergen-friendly café if she were able

does not contradict her claim that she is not able to work. See Hill v. Colvin, 807 F.3d 862,

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The ALJ repeatedly noted that Plaintiff completed high school early. (Tr. 21, 22, 25,

28). However, Plaintiff does not allege that she is disabled because of low intellectual

ability. She testified that her teachers made it easy for her to graduate and she did not

even have to take most final exams. (Tr. 67-68). Her ability to finish high school a semester

early while homebound because of psychiatric symptoms does not contradict her

allegations.

The ALJ said that Plaintiff had been “non-compliant” with treatment

recommendations, noting that she had stopped taking prescribed medications. He said

that failure to follow prescribed treatment can be considered evidence that the claimant

does not believe that her impairments are as debilitating as she claims. (Tr. 24). He failed

to note that therapist Homan worked with her to get her to accept the need for

medication. (Tr. 708). Further, she explained to the APN at Chestnut Health Systems that

she had stopped medications at times because she did not like the way they made her

feel. (Tr. 733-737). The ALJ’s observation “ignores one of the most serious problems in the

treatment of mental illness—the difficulty of keeping patients on their medications.”

Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010).

Lastly, the ALJ made much of Plaintiff’s inconsistent statements to healthcare

providers about her marijuana use. (Tr. 25, 26-27). This is the kind of assessment of overall

character or truthfulness prohibited by SSR 16-3p, supra.

An ALJ’s decision must be supported by substantial evidence, and the ALJ’s

discussion of the evidence must be sufficient to “provide a ‘logical bridge’ between the

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evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (internal

citations omitted). The Court must conclude that the ALJ failed to build the requisite

logical bridge here. Instead, he relied on factors that were irrelevant and misconstrued

the significance of others. His assessment of Plaintiff's allegations cannot stand.

The Court wishes to stress that this Memorandum and Order should not be

construed as an indication that the Court believes that Plaintiff was disabled during the

relevant period or that she should be awarded benefits. On the contrary, the Court has

not formed any opinions in that regard and leaves those issues to be determined by the

Commissioner after further proceedings.

CONCLUSION

The Commissioner’s final decision denying Plaintiff's application for Disabled

Adult Child benefits is REVERSED and REMANDED to the Commissioner for rehearing

and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. § 405(g).

The Clerk of Court is directed to enter judgment in favor of Plaintiff.

IT IS SO ORDERED.

DATE: September 24, 2020. Digitally signed by

Skink. Dine es 7020,09.24

08:28:35 -05'00'

GILBERTC.SISON

United States Magistrate Judge

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