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Karafezieva v. Colvin

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

August 4, 2016

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


          SHEILA FINNEGAN United States Magistrate Judge.

         Plaintiff Nadya Karafezieva seeks to overturn the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a brief explaining why the case should be reversed or remanded. The Commissioner responded with arguments in support of upholding the decision. After careful review of the record, the Court agrees with Plaintiff that the case must be remanded for further proceedings.


         Plaintiff applied for SSI on July 13, 2011 alleging that she became disabled on December 31, 1995 due to high blood pressure and panic attacks. (R. 137, 159). The Social Security Administration denied her application initially on November 29, 2011, and again upon reconsideration on April 10, 2012. (R. 65-71, 76-79). Plaintiff filed a timely request for hearing and appeared before Administrative Law Judge Judith S. Goodie (the “ALJ”) on March 28, 2013. (R. 46). The ALJ heard testimony from Plaintiff, who was assisted by an interpreter and a non-attorney representative, and from vocational expert Julie L. Bose (the “VE”). (Id.).

         Shortly thereafter, on May 7, 2013, the ALJ denied Plaintiff’s claim for SSI benefits, finding that she is capable of performing a significant number of jobs available in the national economy. (R. 26-41). The Appeals Council granted Plaintiff’s request for review, at which point she retained counsel and had an opportunity to submit new evidence to support her claim. (R. 132-35). On December 18, 2014, the Appeals Council affirmed the ALJ’s decision to deny benefits, and Plaintiff now seeks judicial review under 42 U.S.C. § 405(g). (R. 4-6).

         In support of her request for reversal or remand Plaintiff argues that: (1) the Appeals Council failed to properly consider the opinion from State agency psychiatrist Kenneth M. Levitan, M.D., resulting in a flawed residual functional capacity (“RFC”) assessment; (2) the Commissioner did not develop the record as required for an unrepresented claimant; and (3) the Commissioner erred in evaluating Plaintiff’s statements regarding the severity of her symptoms. As discussed below, the Court finds that the mental RFC determination is not supported by substantial evidence, and the case must therefore be remanded.


         Plaintiff was born in Bulgaria on July 24, 1952, was 60 years old at the time of the administrative hearing and the ALJ’s decision, and 62 years old at the time of the Appeals Council’s decision. (R. 137). She graduated from high school in Bulgaria and has a college degree in international tourism. (R. 51, 159). After moving to the U.S. in 2002, she also completed schooling as a nursing assistant but never found a job in that field. Now a naturalized U.S. citizen, Plaintiff lives alone in a church facility and has some ability to speak and understand English. (R. 51, 137, 147, 160). Her daughter and young granddaughter live nearby. There is no record of Plaintiff working in the U.S., but it appears that she spent 19 years as a currency exchange border clerk in Bulgaria until hotels in the area shut down and the Communist government ended. (R. 51, 54, 233).

         A. Medical History

         1. 2010

         The first available medical record is from September 28, 2010 when Plaintiff saw Roseann Gager, M.D., at John H. Stroger, Jr. Hospital of Cook County (“Cook County Hospital”) for medication refills. Plaintiff reported having surgery on July 22, 2010 due to a hallux abducto valgus (bunion) on her right foot, but had no associated complaints. Dr. Gager diagnosed borderline hypertension (“HTN”), and instructed Plaintiff to continue her current medication (unidentified) and return in two months. (R. 231). Less than two weeks later, on October 8, 2010, Plaintiff went back to Dr. Gager seeking refills of diazepam (Valium), which she said she had been taking for anxiety since living in Bulgaria. (R. 230). Dr. Gager diagnosed anxiety and told Plaintiff to consider a psychiatric consultation. She also determined that Plaintiff’s HTN was uncontrolled and increased her dosage of a medication called enalapril. (Id.).

         Plaintiff next saw Dr. Gager on November 24, 2010 for medication refills. Her HTN was controlled at that time and her anxiety had improved with diazepam. Plaintiff declined a psychiatric consultation and Dr. Gager instructed her to return in 3 months. (R. 229).

         2. 2011

         Approximately 6 months later, on May 25, 2011, Plaintiff went back to Dr. Gager for another medication refill. She had no complaints and a mental status examination showed appropriate mood and affect with normal judgment. (R. 224). Dr. Gager diagnosed Plaintiff with HTN that was “[n]ot well controlled, ” and anxiety disorder, not otherwise specified, that was “[w]ell controlled.” (R. 226). Dr. Gager instructed Plaintiff to continue taking diazepam as needed and return in one month. (R. 227). There is no record that Plaintiff saw Dr. Gager as scheduled, but she did apply for disability benefits on July 13, 2011.

         On September 26, 2011, Plaintiff started seeing Suraj Pazhoor, M.D., at Cook County Hospital. She complained of ongoing depression and sobbing, and said that when she got upset she panicked and took extra blood pressure medication. (R. 220). The treatment note reflects that Plaintiff was taking a variety of medications at that time, including Elavil (amitriptyline) for depression, diazepam for anxiety, and enalapril and metoprolol for HTN. (R. 220-21). Dr. Pazhoor diagnosed uncontrolled HTN and increased the metoprolol dosage. (R. 221). He also diagnosed stable depression, added sertraline (Zoloft) to Plaintiff’s medication regimen, and referred her for a psychiatric evaluation. (R. 222).

         A few days later, on October 1, 2011, Kenneth M. Levitan, M.D., performed a psychiatric evaluation of Plaintiff for the Bureau of Disability Determination Services (“DDS”). (R. 232-35). Plaintiff told Dr. Levitan that she can speak and understand English but not read or write it very well. She complained of anxiety since moving to the U.S. in 2002, depression for the previous 5 years, and panic attacks occurring once a month, each lasting approximately 20 minutes. (R. 232). Though Plaintiff reported getting along with other people, she denied having any friends. (R. 233). With respect to daily activities, Plaintiff said she went to the store, occasionally cooked, cleaned her apartment and bathed. (R. 234).

         On examination, Dr. Levitan observed that Plaintiff “related in a very sad and anxious way, ” and though she was “controlled at first, ” she became “increasingly more upset in a dramatic-like way as the interview progressed.” (Id.). She spoke and understood basic English but Dr. Levitan had to repeat himself often and simplify things for her. Plaintiff exhibited difficulty concentrating, fair recent and remote memory, limited insight into her problems, and good judgment. Dr. Levitan had trouble assessing her ability to think abstractly because English is not her native language, but said she appeared to have “an about average intelligence.” (Id.).

         Based on his evaluation, Dr. Levitan diagnosed Plaintiff with mixed anxiety-depression, noting that he could not rule out major depression. He opined that Plaintiff can perform “simple and routine tasks”; “would have difficulty handling regular work pressure and stress”; can “communicate in basic ways with co-workers and a supervisor”; and can “follow, understand, and retain simple instructions in English.” (R. 234-35). Dr. Levitan indicated that Plaintiff would benefit from outpatient psychiatric care and antidepressant medications. (R. 234).

         On October 12, 2011, Richard J. Hamersma, Ph.D., completed a Psychiatric Review Technique of Plaintiff for DDS. (R. 236-48). He found that Plaintiff has mixed anxiety-depression that causes mild restriction in activities of daily living; mild difficulties in maintaining concentration, persistence or pace; and no difficulties in maintaining social functioning. (R. 241, 246). The following month, on November 8, 2011, Liana G. Palacci, D.O., performed an Internal Medicine Consultative Examination of Plaintiff for DDS. (R. 250-53). Plaintiff described a history of HTN diagnosed 15 years earlier, and a history of depression and panic disorder diagnosed 5 year earlier. (R. 250-51). She reported seeing a psychiatrist once a month (this is not supported by the medical record), taking sertraline for depression, and experiencing frequent crying spells and 2 panic attacks per week. (R. 251). Plaintiff’s physical examination was normal, (R. 251-52), and her mental examination showed normal memory, fund of knowledge, ability to perform calculations, judgment and affect. (R. 252). She was also “able to relate a clear, concise, coherent medical history without apparent cognitive difficulties.” (Id.). Dr. Palacci diagnosed well-controlled HTN and history of depression and panic disorder. (R. 252-53).

         On November 29, 2011, consultative examiner Vidya Madala, M.D., reviewed Plaintiff’s medical record for DDS and determined that her HTN is not a severe impairment and has no more than a minimal effect on her ability to perform basic work activities. (R. 254-56). Charles Wabner, M.D., affirmed this determination in early April 2012. (R. 264).

         3. 2012

         Plaintiff returned to Dr. Pazhoor on January 20, 2012 for a scheduled follow-up visit. (R. 258-59). Dr. Pazhoor diagnosed well-controlled HTN and depression, and instructed Plaintiff to start taking Elavil at bedtime to help with sleep and anxiety issues. (R. 260). Shortly thereafter, on March 14, 2012, Plaintiff started seeing Annamma J. Mathew, CNP at Cook County Hospital for psychiatric treatment of depression and panic attacks. (R. 301). Plaintiff told Dr. Mathew that she woke up frequently throughout the night and never got more than 4 or 5 hours of sleep even with amitriptyline. (R. 302). She reported that her most recent panic attack occurred 1.5 months earlier following an argument with a store cashier, and resulted in shortness of breath, palpitations, and chest pain. (Id.). She also described having no interests, feeling hopeless and disappointed, not liking to be around noise or people, and suffering from low energy, poor concentration and feelings of guilt. (Id.).

         On examination, Plaintiff exhibited linear and goal-oriented thought process, good insight, fair judgment, and normal speech, with no psychomotor agitation or retardation, but her mood was “not good” and her affect was depressed. (R. 303). Dr. Mathew diagnosed Plaintiff with panic disorder and assigned her a GAF score of 41-50.[1] In addition to altering her medication regimen (increasing the sertraline, ...

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