United States District Court, N.D. Illinois
April 16, 2004.
MARY F. FERERE, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Mary Ferere, now 37 years old, suffers from depression and an anxiety
disorder. She alleges that those impairments, combined with an injury to
her right knee sustained in September of 2000, prevent her from being
able to hold down a job. On March 19, 2001, she applied to the Social
Security Administration ("SSA") for Disability Insurance Benefits, but
the SSA denied her application. After unsuccessfully pursuing an appeal
through the SSA's processes, Ms. Ferere filed suit in this Court, seeking
review of the decision to deny her benefits. The case is before the Court
on cross-motions for summary judgment.
Facts & Procedural History
Mary Ferere applied for Disability Insurance Benefits on March 19,
2001, claiming that, as of October 7, 2000, she was unable to work
because of depression, anxiety, an injured right knee, and hypertension. Record at 57. The SSA denied her claim initially
on July 17, 2001, and upon reconsideration on November 7, 2001. Record at
24-27, 29-31. After she requested a hearing, her case was assigned to
Administrative Law Judge Gerard J. Rickert, who held the requested
hearing on September 23, 2002.
At the hearing before the ALJ, Ms. Ferere, who was represented by
counsel, testified first. In response to questions from the ALJ, Ms.
Ferere testified that she is 5' 6" tall and weighs 250 pounds, and that
she lives with her disabled husband and her two minor daughters in a
house owned by her parents. Id. at 143-45. She testified that she
graduated from high school, and then took some general business courses
at a junior college. Id. at 145.
With respect to her past work experience, Ms. Ferere testified that she
had worked as a lab technician for Silliker Labs from June of 1983 until
October of 2000, when she was fired because her "illness was taking
longer than [the company] anticipated." Record at 146. She testified that
she has not worked at all since leaving the lab. Id. Ms. Ferere testified
that, as a lab technician, she was responsible both for physically
setting up research studies or experiments, and for analyzing and
reporting the research data and findings; the job required her to spend
most of the day on her feet and to lift up to 15 pounds on a daily
basis. Id. at 160-62. With respect to her impairments, Ms. Ferere first testified that she
suffers from an injured right knee and from hypertension. She testified
that her knee still bothers her "[f]rom time to time," that it throbs if
she walks long distances or if the weather changes, and that she is
unable to put too much weight on it; she testified that sometimes when
she walks up stairs, her knee feels like it is going to "collapse." Id.
at 147-48, 155. She admitted, however, that her knee problem was not what
was preventing her from working. Id. at 155. In fact, she testified that
she was no longer under a doctor's care for her knee, and that she had
not seen a doctor about her knee for at least a year. Id. at 148. She
also testified that her hypertension was controlled with medication. Id.
Along those lines, she testified that, at the time of the hearing, she
was taking Zestril for her blood pressure and Zoloft for her depression
and anxiety; she also testified that she took Ativan on an as-needed
basis, about three times a week, and that she took Tylenol to relieve her
knee pain. Id. at 147-48.
Ms. Ferere testified that she also suffers from depression and
anxiety, which surfaced shortly before she stopped working. Record at
148. She testified that she had been seeing a psychiatrist once a month,
and was in the process of being set up with a therapist. Id. at 149. With
respect to the symptoms of her depression, she testified that she
"feel[s] very down," she thinks about harming herself, feels guilty or worthless almost every
day, and has trouble sleeping at night, often waking in the middle of the
night; she testified that some days she simply cannot function because
the medication makes her so tired. Id. at 149-51. She testified that her
mind races and she has difficulty concentrating or thinking, she is less
interested in things than she should be, and she has panic attacks a
couple of times a week, which generally last, about 10 to 15 minutes.
Id. at 150, 157. She testified that, when she is experiencing a panic
attack, she has to either go outside to get some air or think pleasant
thoughts. Id. at 157. She testified that she used to feel like somebody
was watching her, and she experiences auditory hallucinations "once in a
great while." Id. at 156. She testified that she experiences headaches,
has trouble making quick decisions, and has a hard time handling the
daily stresses of life; she testified that her husband's health issues,
issues relating to her children and her home life make her feel "very
nervous and shaky inside," Id. at 158-59.
With respect to her daily activities, Ms. Ferere testified that, in a
typical day, she wakes up around 7:00 a.m., naps from about 10:00 a.m.
until about 3:00 p.m., and then goes to bed around 10:00 or 11:00 p.m.
Record at 151, 157. She testified that she does very little housework
(some sweeping, maybe a little mopping), and prepares basically only
microwave meals; her husband does most of the cooking and the laundry. Id. at 151. She
testified that she will drive short distances, but is afraid to drive
alone because of her panic attacks. Id. at 152. She testified that she
has no hobbies, rarely visits with friends or neighbors and is not active
in her kids' schools or any other organizations, though she does attend
her kids' parent/teacher conferences; she watches very little
television, does not read, attends church only about once a month, and no
longer uses her home computer. Id. at 152-53. She testified that she
spends most of her time sleeping and maybe walking a little; she is able
to bathe and dress herself. Id. at 153.
After Ms. Ferere testified, the ALJ heard from Thomas Grzesik, a
vocational expert. Initially, the ALJ asked VE Grzesik how he would
characterize Ms. Ferere's past work and whether, in his opinion, she was
still able to perform that work. On the former, VE Grzesik testified that
he would characterize Ms. Ferere's past work as "light in physical demand
and semiskilled," and, on the latter, he testified that she was no longer
capable of doing that job. Record at 163-64.
Next, the ALJ asked VE Grzesik whether, given her limitations, Ms.
Ferere might be able to do other jobs. Specifically, the ALJ asked the VE
to consider what jobs might be available for someone who: (1) was 36
years old; (2) had completed high school and taken a few college courses;
(3) had Ms. Ferere's past work experience; (4) was limited on an exertional basis
to the light level of exertion; (5) could lift no more than 10 pounds
frequently or 20 pounds occasionally; (6) suffers deficiencies in
concentration such that she is limited to relatively simple repetitive
tasks involving, at most, two or three steps; and (7) because of anxiety
concerns, cannot engage in work activity that involves significant
dealings with the general public or "stiff time/rate productions
pressures." Record at 163-64. VE Grzesik testified that a person described
as such would be able to work as a material handler, a machine tender or
a hand packager, and that all of those jobs existed in relative abundance
in the Chicago area. Id. at 165. VE Grzesik clarified, however, that none
of these jobs nor any other jobs in the economy as far as he knew
would accommodate a lengthy nap in the middle of the workday. Id. at
165-66. He also testified that, if Ms. Ferere needed more than three
breaks in the course of the day or needed prolonged breaks during the
workday, she was essentially unemployable. Id. at 166. Additionally, in
response to questions from Ms. Ferere's attorney, VE Grzesik testified
that the types of jobs he identified might not be available to someone
who was unable to maintain attention and concentration for extended
periods, to someone who was unable to perform activities within a
schedule, or maintain regular attendance and be punctual, to someone who was unable to sustain an ordinary routine without special, supervision,
or to someone who became distracted when working with or near others.
Record at 167-68. Finally, VE Grzesik testified that the need to withdraw
from the workplace because of panic attacks, even as seldom as one time
per week, could impact a person's ability to perform any job. Id. at 169.
In addition to the testimony given by Ms. Ferere and VE Grzesik, the
ALJ considered medical records documenting Ms. Ferere's impairments,
including progress notes and assessments from Ms. Ferere's treating
psychiatrist, Dr. Aida Spahic-Mihajlovic, The record contains a
psychiatric report, completed by Dr. Spahic-Mihajlovic at the behest of
the SSA on April 20, 2001, indicating that she saw Ms. Ferere on a
monthly basis beginning January 9, 2001. Record at 91. In that report,
Dr. Spahic-Mihajlovic noted that Ms. Ferere had complained of
sluggishness, tearfulness, sleep disruption, significant weight loss and
anhedonia*fn1, all worsening over time since about September of 2000.
Id. According to Dr. Spahic-Mihajlovic, Ms. Ferere reported having
difficulty caring for herself and her children, and working outside the
home. Id. She indicated that Ms. Ferere suffered from a major depressive
disorder, moderate to severe, and from a panic disorder, and she
indicated that, because of these disorders, Ms. Ferere would "likely have difficulty
interacting w/co-workers, responding to supervision & managing typical
work stressors." Id. at 93. Despite this, Dr. Spahic-Mihajlovic noted
that Ms. Ferere's thought processes, memory and mental capacities were
within normal limits. Id. at 92-93,
The record also contains Dr. Spahic-Mihajlovic's progress notes, the
notes she made documenting each appointment she had with Ms. Ferere. In
all, the record contains progress notes from fifteen appointments,
beginning on January 9, 2001 and ending on July 15, 2002. A patient
intake form from the first appointment on January 9 indicates that Ms.
Ferere was referred to Dr. Spahic-Mihajlovic for depression, and that her
chief complaints at the time were sluggishness, low morale, crying
everyday, sleep disturbances (including difficulty falling asleep and
early morning waking), weight loss, and anhedonia. Record at 112, At the
time, Dr. Spahic-Mihajlovic indicated that Ms. Ferere had a GAF score of
70, Id. at 114, meaning that she put her at a 70 on the Global Assessment
of Functioning Scale, a "hypothetical continuum of mental
health-illness." Diagnostic and Statistical Manual of Mental Disorders,
p, 32 (4th ed. 1994). A score of 70 would put Ms. Ferere at the uppermost
(healthiest) end of the range indicating "[s]ome mild symptoms (e.g.,
depressed mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful
interpersonal relationships." Id. (emphasis in original).
The record shows that Dr. Spahic-Mihajlovic next saw Ms. Ferere on
February 1, 2001; at that time, Dr. Spahic-Mihajlovic noted that Ms.
Ferere's orientation, speech, memory, thought processes, affect and
judgment were all. within normal, limits, her attention and concentration
were good, her associations were intact, and she had no suicidal or
homicidal ideations. Record at 116. In fact, the only negative symptoms
noted in the February progress notes were medication-related headaches
(which Dr. Spahic-Mihajlovic addressed), a depressed mood, and problems
with tremors. Id. As with the last visit, Dr. Spahic-Mihajlovic
recommended that Ms. Ferere return in one month for a follow-up visit,
and Ms. Ferere next saw Dr. Spahic-Mihajlovic on March 12, 2001.
According to the progress notes from that appointment, Ms. Ferere's
condition was essentially unchanged, except that Dr. Spahic-Mihajlovic
now characterized her mood as depressed and anxious (not just
depressed). Record at 117. Dr. Spahic-Mihajlovic also noted that Ms.
Ferere reported experiencing dizzy spells. Id. In the "Follow-up Plan"
section of the notes, Dr. Spahic-Mihajlovic indicated that Ms. Ferere
would return for a follow up visit in one month and continue on long term
disability for another one to two months. Id.
The record shows that Ms. Ferere next saw Dr. Spahic-Mihajlovic on May
2, 2001. According to the progress notes from that appointment, Ms.
Ferere's condition was unchanged, except that she described her mood as
more anxious than depressed. Id. at 118. At that appointment, Ms. Ferere
reported that she had been fired from her job, and that she had
experienced a panic attack about two weeks prior to the appointment. Id.
Ms. Ferere next saw Dr. Spahic-Mihajlovic on June 4, 2001. The notes from
that day indicate, again, that Ms. Ferere's condition was largely the
same. Although she apparently reported feeling "more depressed," Dr.
Spahic-Mihajlovic indicated that her orientation, speech, movement,
memory, attention, thought processes, affect, mood and judgment were all
within normal limits, her associations were intact and she was
experiencing no suicidal or homicidal ideations. Id. at 119. progress
nodes from June 27, 2001 show that Ms. Ferere reported experiencing
headaches, mood swings and anxiety attacks, and continued to express
concern about her medication. Id. at 120, Again, Dr. Spahic-Mihajlovic
indicated that her orientation, speech, movement, memory, attention,
thought processes, affect, mood and judgment were all within normal
limits. Id. at 119. Progress notes from July 23, 2001 indicate that Ms.
Ferere reported feeling depressed and that she was "still crying"; Dr.
Spahic-Mihajlovic noted that Ms. Ferere's mood was depressed, but otherwise placed her within normal limits. Id. at
121. Progress notes from August 20, 2001 indicate that Ms. Ferere
reported her anxiety attacks were worsening; she reported feeling very
down and depressed, and feeling that she "can't go back to work at this
time." Id. at 122. Despite these reports from her patient, Dr.
Spahic-Mihajlovic indicated that Ms. Ferere's mood was within normal
limits. Id. According to Dr. Spahic-Mihajlovic's progress notes from
September 19, 2001, Ms. Ferere reported that her anxiety attacks were
triggered by her medication. Id. at 123. On that date, Dr.
Spahic-Mihajlovic indicated that Ms. Ferere's mood was depressed but that
everything else was within normal limits. Id. In the September 19
progress notes, Dr. Spahic-Mihajlovic also indicated that Ms. Ferere had
been on disability for the last six months, and that she was going to
suggest that Ms. Ferere go back to work on a part-time basis. Id.
Progress notes from October 20, 2001 indicate that Ms. Ferere's mood
continued to be depressed, and that her attention had slipped to fair;
otherwise, Dr. Spahic-Mihajlovic placed Ms. Ferere within normal limits.
Id. at 124. Progress notes from December 17, 2001 show that Ms. Ferere
was feeling "down in the dumps" and forgetful; she was experiencing
anxiety once a week and having a little trouble sleeping. Id. at 125.
Dr. Spahic-Mihajlovic indicated that Ms. Ferere's mood was depressed and
that her affect was blunted, but that she was otherwise within normal limits. Id. Progress notes from
January 30, 2002 show that Ms. Ferere was feeling "sluggish, depressed,"
"confused," and "not with it," and that she had just learned that her
husband had cancer. Id. at 126. Dr. Spahic-Mihajlovic indicated that Ms.
Ferere's attention had slipped to fair, her associations were now only
loose (not intact), she was experiencing some abnormal thoughts
(preoccupations), and her mood was depressed. Id. The record shows that,
by March 25, 2002, Ms. Ferere's associations were once again intact; her
attention remained fair, her affect remained flat, her mood remained
depressed and she continued to experience preoccupations. Id. at 127. By
May 13, 2002, her attention, affect, and mood were once again within
normal limits, her associations were once again intact and she was no
longer having abnormal thoughts. Id. at 128.
The latest progress notes in the record are dated July 15, 2002, On
that date, Dr. Spahic-Mihajlovic indicated that Ms. Ferere's affect was
once again blunted, but everything else was within normal limits. Id. at
130. Dr. Spahic-Mihajlovic instructed Ms. Ferere to return in two
months, id., though any later appointments would have been beyond the
scope of the record, which was closed on the date of the hearing. Also on
July 15, Dr. Spahic-Mihajlovic prepared an "Individualized Treatment
Plan" with Ms. Ferere, confirming the major depressive disorder and panic disorder diagnosis and reiterating the GAF score of
70. Id. at 131. In the Plan, Dr. Spahic-Mihajlovic indicated that Ms.
Ferere's depressed mood and somatic complaints were moderately severe,
and that her functional disturbance level was mild in severity. Id.
Finally, the record contains Psychiatric Review Technique and Mental
Residual Functional Capacity Assessment forms prepared by Dr. Terry
Travis on June 21, 2001. Record at 94-111. On the Psychiatric Review
Technique form, Dr. Travis confirmed that Ms. Ferere suffers from
depression and anxiety disorders, and he indicated that, in his view, she
is mildly limited in daily living activities, and in her ability to
maintain concentration, persistence or pace, and moderately limited in
social functioning abilities. Record at 104. On the Mental Residual
Functional Capacity Assessment form, Dr. Travis indicated that, in his
view, Ms. Ferere was "not significantly limited" in most aspects of the
categories defined as "understanding and memory," "sustained
concentration and persistence," and "social interaction," and that she
was "not significantly limited" in all aspects of "adaptation." Id. at
108-09. Dr. Travis indicated that Ms. Ferere was "moderately limited" in
a few areas, including her ability to understand, remember and carry out
detailed instructions, her ability to maintain attention and
concentration for extended periods, her ability to interact appropriately
with the general public, and her ability to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. Id. Dr.
Travis' assessments were affirmed by Dr. Erika B. Altman, who reviewed
the record and the assessments for the SSA on October 26, 2001. Id. at
The ALJ issued his decision on October 25, 2002, finding that Ms.
Ferere was not disabled and denying her claim for benefits. In
particular, the ALJ found that, although Ms. Ferere
has a "severe" affective and anxiety disorder, the
record does not contain evidence that satisfies both
sections A and B, or section C of the Listings.
Specifically, with respect to the claimant's affective
disorder, the record does not show repeated episodes
of decompensation, a residual disease process, or a
current history of inability to function outside of a
highly supportive living arrangement. With respect to
the claimant's anxiety disorder, the record does not
show a complete inability to function independently
outside her home as contemplated by section 12.06C.
Record at 16, The ALJ determined that Ms. Ferere's primary impairments
were anxiety and depression, but found that those impairments were not,
as characterized by her treating psychiatrist, totally debilitating.
Record at 17. The ALJ recognized that Ms. Ferere "may have `moderate'
difficulty with social interactions and the ability to concentrate and
attend, however. Id. at 18. And, accordingly, he determined that "she
should be limited to simple, repetitive work activity [and] should not
have sustained dealing with the general public [or] perform work that
requires time/rate pressures." Id. Given these limitations, the ALJ concluded that Ms. Ferere could not perform
her past relevant work as a lab technician. Id. He agreed with the VE,
however, that Ms. Ferere was still capable of performing a significant
number of other jobs, including that of material handler, machine tender
and hand packager. Id.
The ALJ's decision became the final agency decision when the Appeals
Council denied review on March 6, 2003, See 20 C.F.R. § 416.1481, Ms.
Ferere then filed this lawsuit, seeking review of the agency's decision
and an award of benefits. The parties consented to proceed before a
magistrate judge, and the case was reassigned to this Court on July 3,
2003. Thereafter, both parties moved for summary judgment. Ms Ferere
asks the Court to reverse the Commissioner's denial of her claim for
benefits, or, in the alternative, to remand the case to the Commissioner
for further proceedings. The Commissioner has filed a cross-motion for
summary judgment, asking the Court to affirm the ALJ's findings.
Disability Insurance Benefits are available only to claimants who can
establish "disability" under the terms of the Social Security Act. The
social security regulations provide a five-step sequential analysis for
determining disability for purposes of eligibility for benefits. Under
the regulations, the ALJ is required to evaluate, in sequence, (1)
whether the claimant is currently 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 in 20 C.F.R. Part 404, Subpart
P, Appendix l; (4) whether the claimant can perform her past work; and
(5) whether the claimant is capable of performing work in the national
economy. Clifford v. Apfel, 221 F.3d 863, 868 (7th Cir. 2000) (citing
Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995)). The claimant bears
the burden of proof at steps one through four; at step five, the burden
shifts to the Commissioner. Id. (citing Knight, 55 F.3d at 313).
A district court reviewing an ALJ's decision under the above analysis
must affirm if the decision is supported by substantial evidence and free
of legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002). Where, however, "the Commissioner's decision lacks
evidentiary support or is so poorly articulated as to prevent meaningful
review, the case must be remanded," Steele, 290 F.3d at 940. In the
Seventh Circuit, an ALJ must "build an accurate and logical bridge from
the evidence to [his] conclusions so that [the Court] may afford the
claimant meaningful review of the SSA's ultimate findings.'" Blakes ex
rel. Wolfe v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). It is not
enough that the record contains evidence to support the ALJ's decision;
if the ALJ does not rationally articulate the grounds for that decision, the Court must remand.
Steele, 290 F.3d at 941.
Applying the five-step analysis spelled out above, ALJ Rickert first
determined that Ms. Ferere had not engaged in substantial gainful
activity since her alleged onset date. Record at 15. At step two, the ALJ
found that Ms. Ferere suffered from a combination of impairments
notably, degenerative joint disease of the right knee, depression and
anxiety, obesity and high blood pressure that was "severe" within the
meaning of the Social Security Act and Regulations. Id. at 15-16. But,
the ALJ found, her impairments did not meet or medically equal a listed
impairment. Id. at 16. As a predicate to his findings at steps four and
five, the ALJ determined that Ms. Ferere "should be limited to simple,
repetitive work activity"; that she "should not have sustained dealing
with the general public and she should not perform work that requires
time/rate pressures." Record at 18. Based on that assessment, the ALJ
determined that Mr. Ferere was incapable of performing her past relevant
work as a lab technician. Id. He concluded, however, that given her age,
education and functional limitations, she could still perform a
significant number of light, unskilled jobs in the national economy, and
was, therefore, not disabled and not entitled to benefits. Id.
Ms. Ferere argues that the ALJ's decision must be reversed or remanded for, essentially, two reasons; (1) the ALJ failed to
give controlling weight to the mental functional capacity assessment
given by Ms. Ferere's treating psychiatrist; and (2) the ALJ failed to
consider certain evidence concerning the impact her impairments had on
her daily life, as well as the testimony of the vocational expert
concerning what affect her limitations would have on her ability to work.
The Court considers each argument in turn.
As Ms. Ferere correctly points out, "[a] treating physician's opinion
regarding the nature and severity of a medical condition is entitled to
controlling weight if it is well supported by medical findings and not
inconsistent with other substantial evidence." Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000) (citing 20 C.F.R. § 404.1527(d)(2)).
Unfortunately for Ms. Ferere, however, that does not appear to be the
case here. On August 26, 2002, Dr. Spahic-Mihajlovic completed an SSA
form entitled "Medical Source Statement of Ability To Do Work-Related
Activities (Mental)," indicating that Ms. Ferere suffered from
debilitating depression, sleep deficits and an anxiety/panic disorder.
Record at 133. She further indicated that, as a result of those
impairments, Ms. Ferere was largely unable to understand, remember and
carry out instructions and largely unable to respond appropriately to
supervision, co-workers, and work pressures in a work setting. Id. at
133-34. In particular, Dr. Spahic-Mihajlovic noted, Ms. Ferere was "unable to handle even normal
daily stress, mood swings, paranoia, persistent depression." Id. at 134.
The ALJ gave this assessment little weight because, in his view, the
conclusion that Ms. Ferere's impairments were totally debilitating was
not supported by the evidence, Ms. Ferere's arguments notwithstanding,
the Court finds that the ALJ's determination on this issue is supported
by substantial evidence.
Dr. Spahic-Mihajlovic's progress notes, which appear to have been
prepared either during or shortly after each appointment, cover the
period from January 9, 2001 to July 15, 2002, And significantly, although
certain aspects of her demeanor and mood may have gotten better or worse
over time, the GAF score Dr. Spahic-Mihajlovic assigned to Ms. Ferere
never changed during the course of treatment: Dr. Spahic-Mihajlovic put
her at a 70 on January 9, 2001, and she put her at a 70 on July 15, 2002.
Record at 114, 131. In short, nothing in the intake form, the initial
progress notes, or any of the subsequent progress notes suggests that Dr.
Spahic-Mihajlovic considered Ms. Ferere to be totally disabled; indeed,
on March 12, 2001, she indicated that she thought Ms. Ferere would remain
on disability for only another month or two, and, on September 19, 2001,
she indicated that she thought Ms. Ferere should go back to work. Record
at 117, 123. The ALJ determined that, to the extent Dr. Spahic-Mihajlovic's
work-related activities assessment indicated that Ms. Ferere was totally
incapable of working, that assessment was unsupported in the record
evidence, including Dr. Spahic-Mihajlovic's own notes and records. And,
after reviewing the progress notes and the remainder of the record, the
Court cannot say that that determination was unreasonable. Accordingly,
the Court cannot upset the ALJ's decision on this basis.
Ms. Ferere next argues that the ALJ's decision should be reversed or
remanded because he failed to address her allegations concerning pain and
other symptoms. and because he failed to consider whether, and to what
extent, these symptoms would affect her ability to hold down a job. Here,
the Court must agree.
At the hearing, Ms. Ferere testified that she spent half of her day
sleeping, that she starts feeling really drowsy around 10:00, three hours
after she wakes up, and that then she doesn't get up until about 3:00 in
the afternoon. Record at 153, 157. She also testified that she
experiences panic attacks, on average, a couple of times a week. Id. at
150. And, significantly, the VE testified that, panic attacks occurring
even once a week, if they occurred outside of a scheduled break, might
preclude gainful activity. Record at 169. He also testified that no job in
the national economy would accommodate the need for a prolonged nap in
the middle of the day. Id. at 165. Thus, if the testimony of Ms. Ferere and the VE is to be believed,
Ms. Ferere is precluded from holding down any job.
In his decision, the ALJ did not specifically address the evidence and
testimony about Ms. Ferere's alleged nap requirements and panic attacks.
And while the parties seem to think that the ALJ chose not to mention
this evidence because he disbelieved Ms. Ferere's testimony, the Court is
unable to determine whether that is, in fact, the case. The ALJ discussed
Ms. Ferere's credibility with respect to her knee pain, but he did not
discuss her credibility with respect to her testimony about her
depressive symptoms. And while an ALJ's credibility determinations are
generally entitled to substantial deference, that is true only when the
ALJ explicitly makes such findings and explains them in a way that
affords meaningful review. See Steele v. Barnhart, 290 F.3d 936, 942 (7th
Cir. 2002); Social Security Ruling 96-7p (1996). See also Zblewski v.
Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1983) (Courts must defer to an
ALJ's credibility determinations only when explicitly made and
explained; it is not "merely `helpful' for the ALJ to articulate reasons
(e.g., lack of credibility) for crediting or rejecting particular sources
of evidence . . .[i]t is absolutely essential for meaningful appellate
review"), Here, the ALJ did not satisfy this standard.
Given the unrebutted testimony from the hearing, the ALJ should have at least considered how Ms. Ferere's napping requirements and
panic attacks might have impacted her ability to hold down a regular job,
and he does not appear to have done so. Moreover, to the extent the ALJ
rejected Ms. Ferere's testimony concerning her napping requirements and
her panic attacks because he found her to be less than fully credible, he
was required to explain his findings in this regard, and, again, he
failed to do so.
The Court recognizes that valid reasons may well exist to doubt Ms.
Ferere's testimony concerning her need to nap for five hours each day and
the frequency and impact of her alleged panic attacks. But it is the
ALJ's job, not the job of this Court, to point to specific medical
evidence that undermines Ms. Ferere's testimony. The ALJ could have, for
example, cited Dr. Spahic-Mihajlovic's progress notes as evidence that
Ms. Ferere reported panic attacks occurring much less often, and that she
did not report any issues with napping impeding her ability to function,
He did not do so. In fact, as the Court has already noted, he did not
address the issue at all. This was inappropriate, and the Court must,
therefore, remand the case for further proceedings.
For the reasons set forth above, the Court finds that the ALJ failed to
build an accurate and logical bridge between the record evidence and his ultimate conclusion that Ms. Ferere is capable of
performing a substantial number of jobs in the national economy. In
particular, he failed to explain how a person who requires a five-hour nap
in the middle of the day, and who experiences panic attacks on average
two times per week, could sustain regular employment. To the extent the
ALJ found Ms. Ferere's testimony about her symptoms to be unbelievable,
he failed to explain why this was so. Accordingly, the Court must grant
Ms. Ferere's Motion for Summary Judgment, and deny the Commissioner's
Motion for Summary Judgment. The matter is remanded for further
proceedings consistent with this opinion.