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Schlattman v. Colvin

United States District Court, N.D. Illinois, Eastern Division

January 14, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MILTON I. SHADUR, Senior District Judge.

Michael Schlattman ("Schlattman") seeks judicial review pursuant to the Social Security Act ("Act"), more specifically 42 U.S.C. §§ 405(g) and 1383(c)(3), [1] of the final decision by Commissioner of Social Security Michael Astrue ("Commissioner")[2] that denied Schlattman's claim for disability insurance benefits under Title II of the Act. Schlattman has moved to reverse Commissioner's decision and remand for further proceedings, and Commissioner has filed a cross-motion for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Commissioner's motion is denied, Schlattman's motion is granted and the case is remanded for further proceedings consistent with this opinion.

Procedural Background

On August 5, 2009 Schlattman filed an application for disability insurance benefits, alleging an onset of disability on July 31, 2009 (R. 26). Those claims were initially denied on November 4, 2009, and Schlattman's request for reconsideration was denied on April 6, 2010 (id.). Schlattman then filed an April 14, 2010 request for a hearing, and Administrative Law Judge Nadine Overton ("ALJ Overton" or simply "the ALJ") held that hearing (the "Hearing") on April 11, 2011 (id.).

On July 14, 2011 ALJ Overton ruled that Schlattman was not disabled (1) because his impairments did not meet or medically equal any of the impairments listed in the regulations (R. 29) and (2) because those impairments did not prevent Schlattman from performing a significant number of jobs in the national economy (R. 40). Schlattman requested review by the Appeals Council, but his request was denied on October 25, 2012 (R. 7), rendering ALJ Overton's ruling the Commissioner's final decision (Reg. § 404.981). On December 28, 2012 Schlattman filed this action.

General Background

Schlattman, born on June 18, 1965, was 46 years old when ALJ Overton determined that he was not disabled (R. 172). He had been married to Kay McMahon ("Kay") since 1991 (id.). Schlattman has two children, Morgan and Michaela Schlattman, both of whom lived with him at the time of decision (R. 173).

Schlattman has a college education, having received a bachelor's degree in business administration from Eastern Michigan University (R. 57). From 1988 until 2009 Schlattman worked as a product manager for leasing companies and computer resalers (R. 233-38). Schlattman asserts that since 2009 he has been unable to work due to depression, Attention Deficit Hyperactivity Disorder ("ADHD"), fatigue and (most significantly) short-term memory impairments resulting from normal pressure hydrocephalus[3] (R. 223).

Medical Evidence

As early as 2008 Schlattman began complaining of memory problems and continuing issues with his depression (R. 363). In June 2009 Dr. Gregory Trevino reported that Schlattman's symptoms - poor balance and worsening memory - raised the possibility of normal pressure hydrocephalus (R. 401-03). Further testing confirmed that hypothesis (R. 414, 462) and demonstrated degeneration of the lumbar spine (R. 441). To alleviate the symptoms of hydrocephalus, Schlattman was scheduled to have a brain shunt implanted by Dr. Thomas Origitano.

Dr. Origitano ordered Schlattman to receive neuropsychological testing before surgery (R. 510). Accordingly Dr. Dawn Kroencke performed baseline cognitive testing on Schlattman in August 2009, administering a variety of tests over the course of five hours (R. 482). Dr. Kroencke determined that Schlattman had average overall cognitive abilities and intelligence (id.) but that his memory was significantly below average: He scored in the 7th percentile in his General Memory Index, in the 19th percentile in his Immediate Memory Index (R. 483) and in the 2d percentile in Auditory Recognition Delayed Index (R. 485). Dr. Kroencke ultimately diagnosed Schlattman with impaired memory and moderate emotional disturbance, both of which she believed were likely related to his normal pressure hydrocephalus (R. 486).

On September 11, 2009 Dr. Origitano surgically implanted a brain shunt as planned (R. 518). That shunt was later readjusted multiple times in an effort to alleviate Schlattman's symptoms (R. 555), but those symptoms - including worsened nausea - persisted (R. 519-40). Eventually the shunt was replaced entirely (R. 643-44).

On October 27, 2009 Dr. Carl Hermsmeyer reviewed the record for the Illinois Bureau of Disability Determination Services ("state agency") and found that Schlattman had mild limitation in activities of daily living, moderate difficulty in maintaining social functioning and moderate difficulty in maintaining concentration, persistence or pace (R. 597). Dr. Hermsmeyer opined that Schlattman had problems with understanding, remembering and carrying out detailed instructions, but that he retained "the mental capacity to perform simple one and two-step tasks at a consistent pace" (R. 603). Dr. Calixto Aquino, also reviewing the record for the state agency, found that Schlattman could only occasionally balance, should avoid climbing ladders, ropes or scaffolding and would have to avoid concentrated exposure to work hazards (R. 605-12). On reconsideration Drs. Francis Vincent and Russell Taylor affirmed the conclusions of Drs. Hermsmeyer and Aquino (R. 627-29).

Schlattman also underwent sleep testing, which found evidence of hypersomnia (possibly relating to his hydrocephalus) and raised the possibility of using wake-promoting agents (R. 654). Throughout the period following his various surgeries Schlattman continued to complain of memory problems (R. 518-702).

On May 13 and14, 2010 Dr. Kroencke again examined Schlattman's cognitive abilities (R. 720-21). In her June 3, 2010 report on that examination Dr. Kroencke documented Schlattman's continuing declines in verbal and memory abilities (R. 736-45). She found that Schlattman's Verbal Comprehension Index - measuring his ability to solve verbal problems and use knowledge acquired throughout his lifetime - had declined to a statistically significantly degree since the shunt implantation (R. 738). Dr. Kroencke also found "[d]rastic changes in memory capacity from pre-surgery testing... showing an overall striking decline in memory ability" (R. 740). According to test results obtained using the Wechsler Memory Scale-IV, Schlattman's scores in the Immediate Memory Index and Delayed Memory Index placed him in the 7th and 3d percentile ranks respectively (id.). Those results place Schlattman clearly in the "borderline" range, but Schlattman's visual memory (although having declined significantly since his pre-operation testing) was more robust and was assessed as being in the "low average" range (id.).

Ultimately Dr. Kroencke found that while Schlattman's overall cognitive abilities were strong (with "average" performances on the COGNISTAT examination and a Full Scale IQ of 102), Schlattman's memory abilities ranged from low average to borderline (R. 741). Dr. Kroencke also administered the Conners' Continuous Performance Test II and determined that there is a 99.9% chance that Schlattman suffers from a clinical attention deficit (R. 743). She noted that Schlattman's overall cognitive status was in the Average range for all domains except that of memory (R. 743) - a domain in which he experienced severe impairment. Finally she assessed his GAF[4] score as 51-60 (R. 744).

Based on those results Dr. Kroencke diagnosed Schlattman with cognitive disorder-NOS and ADHD (id.). She found that Schlattman was likely to experience difficulties in novel, complex or changing situations but that it was important for him to continue to keep mentally and physically active by doing activities such as puzzles (id.).

In a medical source statement prepared for the Social Security Administration on June 14, 2010, Dr. Kroencke stated that Schlattman had "severe impairment with respect to memory function" and "significant decline" in verbal ability (R. 734). She rated Schlattman as "poor or none" in these eight categories of aptitude for unskilled work: remembering work-like procedures; understanding and remembering very short and simple instructions; maintaining attention for two-hour segments; sustaining an ordinary routine without special supervision; performing at a consistent pace without an unreasonable number and length of rest periods; responding appropriately to changes in a routine work setting; dealing with normal work stress; and being aware of hazards (id.). She rated Schlattman's ability to carry out short and simple instructions as "fair" and his ability to carry out detailed instructions as "good" if the instructions were written (id. at 734-35). Dr. Kroencke also noted that Schlattman's memory had declined to a statistically significant extent from his pre-surgery baseline testing (id. at 735).

On October 10, 2010 another state agency mental health consultant, Dr. David Biscardi, reviewed Schlattman's medical history (including Dr. Kroencke's examinations) and assessed Schlattman's work-related capacities (R. 747-58). Dr. Biscardi opined that Schlattman had "mild" or "moderate" limitations in a variety of domains, including the ability to carry out simple instructions, understand and remember simple instructions and make judgments on complex work-related decisions (R. 748). Dr. Biscardi also concluded that Schlattman would have moderate difficulties in maintaining concentration, persistence or pace (R. 754). He rejected claims of marketed limitations in function as "not supported by the objective evidence" and affirmed the DDS assessment that Schlattman was capable of performing "simple routine competitive work activities" (R. 758).

Schlattman continued to report cognitive difficulties, and his ventricles had not diminished in size (R. 814, 820), so he was admitted to the hospital to undergo right frontal intracranial pressure monitor placement (R. 805). That procedure showed that the shunt had not been malfunctioning and Schlattman was accordingly discharged (id.). Physically Schlattman has few constraints: He has reported that he is able to work out on a stationary bike for 30 minutes each day and remains very active (id.).

Hearing Testimony

Schlattman, his wife and Vocational Expert Aimee Mowery ("VE Mowery") testified at the Hearing. Schlattman testified that he was able to do limited housework, watch television and play solitaire on his computer (R. 53-61), but he has not worked for money since 2009 (R. 58). On "good days" he will do laundry, cook, vacuum and occasionally mow the lawn (R. 61, 64), whereas on "bad days" he primarily remains in bed. Schlattman testified that ...

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