United States District Court, N.D. Illinois, Eastern Division
FINNEGAN United States Magistrate Judge.
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.
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”).
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).
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.
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).
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.).
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).
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.
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).
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).
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
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.
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).
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).
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.).
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. In addition to
altering her medication regimen (increasing the sertraline,