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Perry v. Colvin

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

March 26, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


SIDNEY I. SCHENKIER, Magistrate Judge.

Plaintiff Christine Michelle Perry seeks reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") (doc. #15). The Commissioner opposes the motion and seeks affirmance of the decision denying benefits (doc. #23).[3] For the following reasons, we deny Ms. Perry's motion and affirm the Commissioner's decision.


We begin with the procedural history of this case. Ms. Perry filed for SSI and DIB on January 20, 2009, alleging that she became unable to work on January 1, 2007 due to various disabilities (R. 344-50).[4] Her applications were denied initially and upon reconsideration (R. 182-85, 190-92, 194-95). Ms. Perry then requested, and was granted, a hearing before an Administrative Law Judge ("ALJ"), and three separate hearings took place between December 1, 2010 and June 8, 2011 before ALJ Regina Kossek (R. 200-01, 167-76, 116-66, 42-115). At the third hearing, Ms. Perry amended her date of onset to January 17, 2008 (R. 46). The ALJ issued an opinion denying benefits on July 26, 2011 (R. 23-36). The Appeals Council then denied Ms. Perry's request for review, making the ALJ's ruling the final decision of the Commissioner (R. 1-6). See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


We begin with a summary of the administrative record. Part A briefly sets forth Ms. Perry's background, followed by her physical health medical record in Part B and her mental health medical record in Part C. Part D discusses the testimony provided at three separate hearings before the ALJ, and Part E sets forth the ALJ's written opinion. Finally, Part F discusses information provided to the Appeals Counsel following the ALJ's final determination.


Ms. Perry was born on July 9, 1971 (R. 344). She is divorced and has two sons, neither of whom live with her (R. 141). During the relevant time period, Ms. Perry often lived with her mother (R. 137). She has a high school degree plus several years of college work.[5] Ms. Perry worked as a manager at Cash America from 2005 to 2007, but was terminated because her employer felt she was "not producing the way [she] was when [she] initially started" (R. 139). Most recently, she worked as a manager at Harvard Collection Services, but again was discharged for lack of productivity ( Id. ). She currently is unemployed and is supported by her mother (R. 137-39). Ms. Perry suffers from depression and HIV and has a history of substance abuse.


The medical record begins in early 2008 with a Psychosocial Assessment completed by Resurrection Health Care in connection with the provision of outpatient behavioral health services (R. 535-54). During this initial assessment dated January 19, 2008, Ms. Perry reported to a drug and alcohol counselor that she was seeking treatment for depression and alcohol dependence (R. 551). She informed the counselor that she had never been married, had completed high school, had lost her job, and felt anxious and depressed, all of which led her to drink as a coping mechanism (R. 536, 538). She denied any past drug use (R. 548). Ms. Perry then attended two hospital-based group therapy sessions in February 2008 and shared with the group her struggles to abstain from alcohol (R. 553-54).

On December 30, 2008, Ms. Perry arrived at the emergency room of Saints Mary and Elizabeth Medical Center complaining of abdominal pain and suicidal thoughts (R. 431). The emergency room triage and nursing notes from her admission indicate that Ms. Perry is HIV positive, has a history of substance abuse, felt depressed, was going through a divorce, and had lost custody of her children to the Department of Children and Family Services (R. 431-38). The notes also indicate that Ms. Perry was intoxicated upon her admission and that she tested positive for cannabis (R. 438, 440). She remained hospitalized for 18 days, during which time she received a psychiatric evaluation from Dr. Hisham Sadek (R. 442-43). Dr. Sadek diagnosed Ms. Perry with "[m]ajor depressive disorder, recurrent and chronic with psychotic features, " as well as with alcohol and cannabis use/abuse over a 15 to 20 year period, and he assigned her a GAF score of 30 ( Id. ).[6] He further indicated that Ms. Perry has a history of previous psychiatric hospitalizations for "intense depressive signs and symptoms, feelings of helplessness and hopelessness, thoughts and ideas that life is not worth living, and commanding intentions of self-injurious behavior" (R. 442).[7] Upon discharge, Dr. Sadek instructed Ms. Perry to continue taking her various medications, including Lexapro (antidepressant), Seroquel (antidepressant), Buspar (anti-anxiety), Trazadone (antidepressant), and Campral (alcohol dependence), and to follow-up with him in a few weeks (R. 557).

In the months following Ms. Perry's hospitalization, a host of doctors completed psychiatric evaluations at the request of the Bureau of Disability Determination Services ("DDS"). Dr. Ronald Hershow, Ms. Perry's infectious disease doctor, completed a Psychiatric Report on March 3, 2009 and provided diagnoses of major depressive disorder without psychotic features, HIV, untreated mood and substance abuse issues, divorce, and stress over her HIV status (R. 458-61). He further noted that she had been hospitalized in late 2007 for depression, alcohol abuse/dependence, and suicidal ideation, and he found her to have "serious limitations" with respect to her ability to respond appropriately to supervision, coworkers, and work pressures; to perform tasks on a sustained basis; or to initiate, sustain, or complete a task (R. 460-61).

Dr. Henry Fine completed a Psychiatric Evaluation of Ms. Perry that same month (R. 462-65). In doing so, he reviewed available medical reports and spent 45 minutes with Ms. Perry. Dr. Fine observed her to be neat but unusually dressed (wearing, among other things, different colored gloves, which she kept on during the interview) and having a flat affect (R. 462, 465). He noted that she came to the examination alone via public transportation (R. 462). During the interview, Ms. Perry recounted roughly three psychiatric hospitalizations starting in 2007, the same year she claimed to have received her HIV diagnosis ( Id. ).[8] She described as her main complaints fatigue, lack of motivation, social isolation, crying spells, poor concentration, poor sleep, and weight loss due to her HIV (R. 462-63). Dr. Fine noted that Ms. Perry denied some of the facts charted in the medical record, such as auditory hallucinations and alcohol abuse (R. 465). Finally, Dr. Fine provided diagnoses of HIV, major depression, rule out psychotic features, rule out schizophrenia, and rule out substance abuse and alcohol ( Id. ).

Dr. J.V. Rizzo, a psychologist, completed a Psychiatric Review Technique in April 2009 based on the medical records, the reports of Drs. Hershow and Fine, and the documents Ms. Perry submitted in support of her disability application, including several self-completed functional reports wherein she stated that she is able to care for her children, prepare simple meals, shop for food and clothes, handle money, and attend church, but that she tires easily and needs constant reminding from her mother to take her medications and do "simple things" (R. 377-84). Based on a review of all these documents, Dr. Rizzo concluded that Ms. Perry's impairments do not meet or equal a mental listing as the "sources do not support [the] severity levels reported by [the] claimant" (R. 478). Dr. Rizzo also completed a Mental Residual Functional Capacity Assessment in which he found Ms. Perry to be "markedly limited" in her ability to carry out detailed instructions, and "moderately limited" in her ability to understand and remember detailed instructions, to maintain attention and concentration for extended periods, to perform activities within a schedule, to be punctual, and to interact appropriately with the general public (R. 480-81). In sum, Dr. Rizzo concluded that Ms. Perry has severe mental impairments and environmental stressors but that "she retains the mental ability to conduct an ordinary range of daily activities" and "is able to carry out simple, unskilled tasks and instructions with ordinary supervision" (R. 482). These findings largely were echoed by DDS physician Dr. Victoria Dow and DDS psychologist Dr. Donna Hudspeth, who opined in July 2009 pursuant to an Illinois Request for Medical Advice that Ms. Perry has the ability to perform unskilled work (R. 507).

On June 4, 2009, Ms. Perry went to the Emergency Room of St. Mary of Nazareth Hospital after taking an overdose of the anti-depressant drug Elavil (R. 491). Ms. Perry complained of feeling depressed and suicidal, and of hearing voices commanding her to harm herself ( Id. ). The psychiatric evaluation from this hospital stay assigned a GAF of 30 and provided diagnoses of major depression with recurrent and chronic suicidal ideation, as well as alcohol and cannabis abuse (R. 491). Ms. Perry remained hospitalized for two days ( Id. ).

On November 5, 2009, Ms. Perry arrived by ambulance at a hospital in Michigan after ingesting opiates and other narcotics (R. 592). Nursing notes from the admission indicate that she swallowed anywhere from four to six Vicodin, half a bottle of Dayquil, and half a pint of vodka (R. 596). She explained that she felt depressed and overwhelmed but denied suicidal ideation (R. 597). Even so, the hospital provided a "suicide risk intervention" by removing her clothing, belongings, and room equipment, and by placing her near the nursing desk (R. 615). She was discharged the next day (R. 591).

In March 2010, Ms. Perry again presented to the Emergency Room of St. Mary of Nazareth Hospital, this time with feelings of depression, suicidal ideation, paranoia, and commanding thoughts of self-harm (R. 581). During her three-day hospital stay, she tested positive for cannabis (R. 584). Ms. Perry's Psychiatric Discharge Summary assigned her a GAF score of 30 and provided a discharge diagnosis of Major Depressive Disorder, recurrent and chronic, with a history of substance abuse (R. 583).

The record also contains a number of treatment notes from Dr. Sadek pertaining to his treatment of Ms. Perry between February 2009 and February 2011. Unfortunately, many of the records are illegible, although it is possible to make out some of his hand writing. For instance, in an April 6, 2010 notation, Dr. Sadek assigned Ms. Perry a GAF score of 45, listed her diagnosis as "major depression rec[current] chronic severe, " and recorded Cymbalta, Ambien, and Seroquel among her medications (R. 665). Further, on June 23, 2010, Dr. Sadek completed a form letter addressed to "To Whom It May Concern" in which he checked a box stating: "My patient is currently not using drugs and/or alcohol and remains disabled" (R. 629). Dr. Sadek also filled-out a Psychiatric/Psychological Impairment Questionnaire on Ms. Perry's behalf on February 15, 2011 (R. 632-39). Here, he noted a current GAF score of 30, a "guarded" prognosis, and clinical findings of disturbances to memory, appetite, mood, and sleep; recurrent panic attacks; anhedonia; feelings of guilt/worthlessness; and suicidal ideation or attempts (R. 633). Dr. Sadek rated her "moderately" or "markedly" limited in numerous categories pertaining to understanding and memory, sustained concentration and persistence, social interactions, and adaptation (R. 635-37). He noted medications of Cymbalta and Seroquel (R. 637). Finally, he found her incapable of even a "low stress" job due to chronic mental illness (R. 638-39).


According to the medical notes of infectious disease doctor Ronald Hershow, Ms. Perry received an HIV diagnosis in 1997 and took various HIV medications beginning that year (R. 711). It is unclear when she first began receiving care from Dr. Hershow, but she left his practice in September 2007 and did not return until August 2008, at which time she came in for a check-up ( Id. ). At this appointment, Dr. Hershow listed HIV, marijuana use, alcohol abuse, and depression among Ms. Perry's various problems ( Id. ). Dr. Hershow smelled "noticeable alcohol" on Ms. Perry's breath, and liver function tests performed one week earlier showed markedly elevated levels indicative of alcohol use ( Id. ). Ms. Perry, however, assured him that she had lessened her alcohol intake during the past few months by switching from "hard" to "soft" alcohol ( Id. ). She also told Dr. Hershow that she did not attend Alcoholics Anonymous ("AA") because it was inconvenient, that she was relying instead on a substance abuse counselor, and that she had stopped taking her anti-depressants because she did not like how they made her feel (R. 712). Dr. Hershow encouraged Ms. Perry to re-engage with psychiatric care and to explore AA ( Id. ). He also confronted her on the dangers of alcohol to her liver and to her ability to adhere to her HIV medications ( Id. ).[9]

Ms. Perry had several follow-up appointments with Dr. Hershow in September 2008. At her first appointment, she reported that she had "a nice visit to Tennessee" and had plans to start school soon (R. 696). She further reported that alcohol counseling conflicted with school and that she believed she could control her alcohol consumption by "keeping busy" and with the help of her mother ( Id. ). Dr. Hershow expressed doubt with these strategies and encouraged other options like AA ( Id. ). He also noted that in 2007, Ms. Perry had a viral load (detectable HIV virus) of less than 50, whereas more recent tests indicated an increase in her viral load to 16, 000 (R. 697). The treatment notes from this time period also reflect that Ms. Perry had been told (likely by one of the doctors of pharmacology with whom he worked) to halt her HIV medications due to elevated liver enzymes indicating alcohol use ( Id. ). At a second appointment two weeks later, Ms. Perry told Dr. Hershow of her plans to start school and claimed that she had good control over her alcohol use (R. 700). She also complained of sciatic pain in her right buttock (R. 697).

Between October 2008 and August 2009, Ms. Perry missed four appointments with Dr. Hershow (R. 694, 692, 690, 688). She kept her January 26, 2010 appointment, however, and reported to Dr. Hershow that she had been receiving HIV care at St. Elizabeth's Hospital (R. 685). She reported medication and financial hardships, a weight loss down to 98 pounds (that she rebounded from by regaining 30 pounds by the time of this appointment), and missed doses of her HIV medications (R. 685-86). She also reported increased problems with depression, sciatic pain, three hospitalizations, increased alcohol use, and problems maintaining her HIV treatments due to frequent trips out of state and "alternated living in Chicago and Detroit" (R. 686). She made similar reports during a follow-up visit in March 2010, but this time also reported that she had cut her binge drinking down from one to two times a week to just one, and that her fiance helped keep her "in check" (R. 683). She admitted to seeing her psychiatrist at St. Elizabeth's Hospital only infrequently and felt her depression was not improving (R. 684). Dr. Hershow urged her to discuss her frustrations with her therapist and to continue with treatment ( Id. ). Ms. Perry then missed two April appointments but kept an April 27, 2010 appointment during which she reported that her depression had lessened, that she had made strides in decreasing her alcohol intake, and that she had gotten engaged (R. 675). She also stated that she was continuing with psychiatric care at St. Elizabeth's Hospital ( Id. ). Dr. Hershow observed that she was "notably improved today in mood and affect" and that her sciatica was "quiescent" (R. 676).

On November 23, 2010, following a seven-month hiatus that included missed visits, Dr. Hershow re-examined Ms. Perry (R. 647-48). She reported abstention from alcohol but worsening depression, crying spells, non-adherence to psychiatric care visits and her HIV medications due to the loss of her medical card, as well as family troubles - her mother had asked her to move out and she had lost contact with her children (R. 648). Dr. Hershow's notes reveal that he doubted Ms. Perry's abstinence or her adherence to psychiatric medications (R. 650). Dr. Hershow reported that Ms. Perry had not taken her HIV medications for eight months and had significantly elevated blood pressure, stress headaches, and a slight weight loss (R. 649-50). He stated that "depression remains a major issue and patient has had numerous recent hospitalizations for depressive episodes and suicide attempts" (R. 650). Dr. Hershow then completed an AIDS/HIV Impairment Questionnaire ("HIV Questionnaire") in which he diagnosed Ms. Perry with an on-going HIV-infection, depression, hypertension, a history of alcohol abuse, and a "guarded" prognosis (R. 511). He found no evidence of weight loss or a wasting disease (R. 514). Dr. Hershow listed various medications and their relative doses but no associated side-effects (R. 515). He found her depression to be "severe, " that she "frequently" experienced pain, fatigue, or symptoms severe enough to interfere with attention and concentration, and that she is incapable of even a low-stress job (R. 516). Dr. Hershow opined that Ms. Perry was limited to lifting no more than 10 pounds, sitting no more than two hours out of an eight-hour work-day, and standing/walking no more than one hour out of an eight-hour work-day (R. 515).

That same day, Ms. Perry also received an annual gynecological exam (R. 642-43). The gynecological report from that visit reflects that she had she underwent a "surveillance" Pap smear and was instructed to schedule an ultrasound to evaluate left adnexal fullness (R. 643). The note also states that she has asymptomatic HIV ( Id. ).

An infectious disease note completed on December 7, 2010 memorializes a meeting between Maria Schwarber, RN, and Dr. Hershow relative to Ms. Perry's November 10, 2010 lab results, as well as Nurse Schwarber's subsequent telephone conversation with Ms. Perry requesting that she return to the clinic for medication management (R. 654). Ms. Perry stated that she was in Detroit and could not return to Chicago until later in the month ( Id. ). She denied nausea, vomiting, diarrhea, or any other problems, and she further stated that she had not started her HIV medications as instructed because she "couldn't afford it" ( Id. ).[10]

Ms. Perry saw Dr. Hershow again on January 18, 2011, and told him that "much had improved" in her life since her last visit on November 23, 2010 (R. 749). She reported "feeling at peace" and claimed an improved relationship with her mother, continued abstention from alcohol, adherence to her HIV medication regime, and a cessation of headaches, but also a flare-up of sciatica that "comes and goes" (R. 748-50). In an addendum dated February 8, 2011, Dr. Hershow added to the record that Ms. Perry's viral load was "elevated at 33, 356 despite avowed excellent adherence at last visit. CD4 cell count has decreased to [the] 400 range. Will question carefully about adherence at next visit, and check genotype study" (R. 752).

Finally, the medical record contains a letter from Dr. Hershow dated March 11, 2011 and addressed to Ms. Perry's attorney for inclusion in the medical record (R. 782-83). In this letter, which served to affirm and clarify the contents of his HIV Questionnaire, Dr. Hershow stated that he did not have any equipment in his office with which to objectively assess Ms. Perry's ability to sit, stand, and walk for specific lengths of time (R. 782). Instead, he assessed these capabilities by interviewing Ms. Perry and then coupling her responses with his own assessment ( Id. ). Using this methodology, Dr. Hershow confirmed his conclusion that Ms. Perry's impairments, as documented in the HIV Questionnaire, remained accurate ( Id. ). He further reported that he had met with Ms. Perry on May 9, 2011 and that she told him she had not taken her psychiatric medications for two months because she could not afford them, thus leading to a continuation, or a worsening, of her depression ( Id. ). Ms. Perry further reported days when she could not get out of bed, stand for long periods, or carry "weights" ( Id. ). Dr. Hershow's letter also referred to a May 11, 2011 appointment, at which Ms. ...

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