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Bivins v. Colvin

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

May 26, 2015

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



Plaintiff Melissa Bivins brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security denying her application for Supplemental Security Income under the Social Security Act, 42 U.S.C. § 423. (Compl.) [Dkt 1.] Plaintiff moved for summary judgment [dkt 14] and filed a supporting memorandum (Pl.'s Mem.) [dkt 15]. The Commissioner filed a cross-motion for summary judgment [dkt 19] with a memorandum in support (Def.'s Mem.) [dkt 20]. Plaintiff replied. (Pl.'s Reply.) [Dkt 21.] The parties consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 5.] For the reasons set forth below, Plaintiff's motion is granted and the Commissioner's motion is denied.


Plaintiff first applied for benefits in November 2010, and the agency denied her claim initially and on reconsideration. (R. 59-60, 130.)[1] Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ") and represented herself at the hearing held in April 2012. (R. 36.) In September 2012, the ALJ denied Plaintiff's request for benefits. (R. 17-29.) Because the Appeals Council declined Plaintiff's request for review (R.1-3), the ALJ's decision is the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


Plaintiff was 23 years old when she applied for benefits on the basis that she had become disabled by bipolar disorder in July 2010. (R. 130, 152.) She attended school through the eighth grade. (R. 153.) She was employed in short-term stints as a waitress, retail associate, and cashier before applying for benefits. ( Id. )

Medical History Before Hearing

In October 2002, eight years before the alleged onset of her disability, Plaintiff was hospitalized for a week after "having aggressive outbursts at home and exhibiting out of control behavior." (R. 320.) She was 15 years old. ( Id. ) Dr. Sidney Moragne diagnosed her with post-traumatic stress disorder and depression, explaining that she was a "chronic run away" who had "a history of being physically abused by her mother and a history of being sexually abused while on the run on two different occasions." (R. 319-20.) The doctor noted that Plaintiff denied using drugs or alcohol, but that her older brother has a substance-abuse problem. (R. 320.) During the same hospitalization, however, Plaintiff admitted to a social worker that she had used marijuana, cocaine, and alcohol. (R. 335.) Under "medications and usage, " the doctor listed an antidepressant. (R. 321.) He discharged Plaintiff to her home and said that she would return to school. (R. 322.)

Six years later, in May 2008, Dr. Jeffrey Tilkin and Dr. Bruce McNulty evaluated Plaintiff, then age 20, when police brought her to the emergency room at Swedish Covenant Hospital after she got into a violent fight with her parents. (R. 341-47.) She admitted to drinking alcohol and smoking one pack of cigarettes per day, and she smelled of alcohol. (R. 341, 346.) Dr. McNulty diagnosed her with alcohol abuse and behavior disorder. (R. 341.) Dr. Tilkin diagnosed her with recurrent major depression, intermittent explosive disorder, alcohol abuse, and nicotine dependence, and prescribed her an antidepressant. (R. 347.) Dr. Tilkin also noted that she had previously been prescribed the same medication but that her brother had taken all of it. (R. 346.)

In May 2010, psychologist Stephan Romm began treating Plaintiff. (R. 396, 400.) He noted that she "gets angry very easily and overreacts to little things, then when she crashes, she cries." (R. 400.) She admitted to using alcohol daily, cocaine four times per week, and marijuana once per week "all except when pregnant until this year." (R. 401.) She also was irritated, agitated, and had lost weight. (R. 400.) Plaintiff's alleged disability began within two months of this visit. (R. 130.)

In January 2011, both Plaintiff and a friend of Plaintiff completed function reports describing her limitations. (R. 167-82.) Plaintiff's friend commented that she responds in a "very negative" or "aggressive" way when told what to do. (R. 167.) He noted, however, that she cares for her son by cleaning and feeding him. (R. 168.) He said that Plaintiff is very smart but that she was not doing well in her current living condition and could use help. (R. 174.) Plaintiff confirmed her friend's account that she feeds and bathes her son, but also stated that she was always tired, had mood swings and panic attacks, and had trouble remembering when to take her medications. (R. 175-77.)

Plaintiff also visited a doctor in January 2011 with complaints of panic attacks occurring one to two times per day. (R. 431.) A doctor assessed her as having panic attacks "superimposed on bipolar" disorder. ( Id. ) She refused outpatient treatment. ( Id. ) The doctor ordered the level of her thyroid stimulating hormone tested, and it was found to be low. ( Id. ) She was discharged the same day with a prescription for Xanax for her anxiety. (R. 365, 431.)

In February 2011, psychologist Roberta Stahnke evaluated Plaintiff in relation to her application for benefits. (R. 358-62.) Plaintiff told Dr. Stahnke that her panic attacks had decreased from two to three times daily to about once or twice a week, but that an attack can last up to 45 minutes. (R. 359.) She said that she takes care of her son during the day, but that she sleeps up to 12 hours or more per day and other people watch her son during that time. (R. 359-60.) Dr. Stahnke noted that Plaintiff "reportedly raises [her son] herself but she is obviously getting help from her friend and from other members of his household." (R. 360.) Plaintiff also said that she quit drinking alcohol one year earlier and quit using marijuna and cocaine before that. ( Id. ) She reported Xanax as her only medication and told Dr. Stahnke that "it works for controlling her anxiety and panic." (R. 359.) Dr. Stahnke diagnosed Plaintiff with bipolar disorder and panic disorder, and opined that her substance-abuse problems were "in full sustained remission." (R. 361.)

In March 2011, a state-agency physician, Dr. David Gilliland, reviewed Plaintiff's medical records and assessed her limitations. (R. 380-83.) He concluded that she had "no significant mental limitations in ability to understand, remember, and carry out simple instructions" and was "mentally capable of performing simple repetitive tasks with limited contact with general public." (R. 382.) Dr. Lionel Hudspeth affirmed that opinion in May 2011, concluding that there had been no significant medical changes in the meantime. (R. 386.)

In September 2011, Dr. Meredith Ulmer submitted a letter verifying that Plaintiff had been diagnosed with bipolar disorder in January of that year. (R. 387.) Dr. Ulmer also noted that Plaintiff was having "a very hard time retaining work" and that medical professionals were "currently working on pharmacological management of her condition." ( Id. ) Two days later, Dr. Ulmer saw Plaintiff for nausea and again assessed her bipolar disorder. (R. 421.) The doctor noted that Plaintiff reported her "worst symptoms [were] mood fluctuations and anxiety." ( Id. ) During the visit, Plaintiff's mood, thought content, cognition, and memory were all normal. ( Id. ) Dr. Ulmer prescribed Depakote for the bipolar disorder, noting that Plaintiff tried antidepressants when she was younger but they did not work at that time. (R. 421-22.) Four months later, in January 2012, Plaintiff told Dr. Ulmer that the depression and anxiety associated with her bipolar disorder were worsening and asked to increase her medication dosage. (R. 419.) Dr. Ulmer again observed that Plaintiff's mood, cognition, and memory were normal, but nonetheless doubled her dosage of Depakote (from 250mg to 500mg). (R. 420.)

In February 2012, Plaintiff returned to Dr. Romm, after not visiting him for one and a half years, on the recommendation of her primary care physician. (R. 390.)[2] She reported losing weight and waking up "several times a week from intense nightmares" related to her childhood trauma. ( Id. ) She said that Depakote reduced her anger and another medication, Buspirone, helped with her anxiety, but that she was "noticing the sadness more" now that the anger was alleviated. ( Id. )[3] A few weeks later, Dr. Romm laid out ...

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