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Leonard Kidd v. Michael J. Astrue

October 30, 2012


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on the parties' cross motions for summary judgment. For the reasons stated below, Plaintiff Gladys Fountain's (Fountain) and Defendant Social Security Administration's (SSA) motions for summary judgment are denied, and Fountain's alternative motion to remand is granted. This matter is remanded to the SSA for further proceedings consistent with this opinion.


Fountain contends that her alleged onset date of disability is December 9, 2006 (AOD), and that her medical impairments include heart problems, high blood pressure, depression, anxiety, schizophrenic behavior, back pain, and arthritis in her legs, knees, and arms. Fountain indicates that on the AOD, she was 50 years old, and that prior to the AOD, she had worked as a Machine Operator for approximately sixteen years. Fountain filed concurrent applications for Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on September 7, 2007. Fountain's applications for DIB and SSI were both denied on January 25, 2008, and again upon reconsideration on July 8, 2008. Fountain timely requested a hearing, and on January 7, 2010, a hearing was held before an administrative law judge (ALJ), at which Fountain testified. On February 25, 2010, the ALJ denied Fountain's DIB and SSI claims, finding that Fountain was not disabled and that she retained the residual functioning capacity (RFC) to perform light work. Fountain timely filed a Request for Review with the SSA's Appeals Council, which was denied on August 19, 2011. On October 19, 2011, Fountain filed the instant appeal from the ALJ's ruling. The parties have now filed cross-motions for summary judgment.


Pursuant to 42 U.S.C. § 405(g), a party can seek judicial review of administrative decisions made under the Social Security Act. When an ALJ's decision is deemed to be "the final action of the Social Security Administration, the reviewing district court examines the ALJ's decision to determine whether substantial evidence supports it and whether the ALJ applied the proper legal criteria." Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011).


An ALJ examines a claim of disability under a five-step process. Craft v. Astrue, 539 F.3d 668, 673-74 (7th Cir. 2008). In step one, the ALJ "considers whether the applicant is engaging in substantial gainful activity." Id. In step two, the ALJ "evaluates whether an alleged physical or mental impairment is severe, medically determinable, and meets a durational requirement." Id. In step three, the ALJ "compares the impairment to a list of impairments that are considered conclusively disabling." Id. If the applicant's impairment satisfies "or equals one of the listed impairments, then the applicant is considered disabled" and the inquiry ends. Id. If the inquiry continues, in step four, the ALJ "assesses an applicant's" RFC "and ability to engage in past relevant work." Id. In step five, the ALJ "assesses the applicant's RFC, as well as his age, education, and work experience to determine whether the applicant can engage in other work" and "[i]f the applicant can engage in other work, he is not disabled." Id.

In the instant action, Fountain argues that the ALJ erred: (1) by failing to acknowledge at step two of the inquiry that Fountain's mental health problems are a severe impairment, (2) by making an improper credibility determination, and (3) by making an improper RFC determination.

I. Assessment of Mental Impairment

Fountain argues that the ALJ erred by failing to recognize that Fountain's mental impairment constitutes a severe impairment, and by failing to render an appropriate RFC based on the combination of Fountain's severe physical and mental impairments. The Supreme Court has recognized that the impairment severity regulation in step 2 is "a de minimis screening device. . . ." Johnson v. Sullivan, 922

F.2d 346, 347 (7th Cir. 1990)(citing Bowen v. Yuckert, 482 U.S. 137 (1989)); see also Hughes v. Astrue, 2011 WL 5867978, at *10 (N.D. Ill. 2011)(stating that "[t]he severe impairment requirement has been termed a de minimis requirement designed to weed out frivolous claims"). In the instant action, the ALJ found that Fountain has the following severe impairments: arthralgia with joint discomfort and back pain; hypertension, controlled on medication, not always compliant; and obesity. . . ." (AR 17, 24). The ALJ did not list Fountain's mental impairment as a severe impairment. (AR 17, 24). Nor did the ALJ provide an adequate justification in step two of the analysis explaining why she determined Fountain's mental impairment to be nonsevere. (AR 24).

In finding Fountain's mental impairment to be nonsevere, the ALJ indicated that she substantially relied on the "Paragraph B" criteria, found at 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00 et seq. (AR 24). With respect to such criteria, the ALJ stated that "the evidence shows that [Fountain] has only mild limitations in her activities of daily living, social functioning, and concentration, persistence or pace," and that Fountain "has experienced no episodes of decompensation of extended duration." (AR 24). In coming to such conclusions, the ALJ merely noted that Fountain "testified that she did not seek follow up treatment for her mental impairments because she was feeling better," and that Fountain's "mini mental status examination at her consultative examination was within normal limits." (AR 24).

In the first instance, the court notes that Fountain's actual testimony indicates that she did not return to Stroger Hospital for mental health treatment after June 2009 for a variety of reasons, including that the psychiatrist she was seeing left the hospital, that Fountain "thought [she] was doing better, because [she] had stopped [or reduced] the medication," and that she instead returned to her treating physician, Dr. Antonio Senat, M.D. (Senat), to further address her mental health problems. (AR 62-63)(emphasis added). The record does not reflect that the ALJ adequately considered all of the reasons presented by Fountain for her failure to seek follow-up mental health treatment before concluding, largely on that basis, that Fountain's mental impairment was nonsevere. See SSR 76-7p (stating that "the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other ...

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