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Dolan v. Colvin

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

November 1, 2016

John Dolan, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          IAIN D. JOHNSTON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff John Dolan brings this action under 42 U.S.C. §405(g), challenging the denial of social security disability benefits.

         On February 1, 2012, plaintiff filed his applications, claiming a disability due to back pain and psychological problems. On December 11, 2013, a hearing was held before an administrative law judge (“ALJ”). Plaintiff testified that he was 46 years old and was living with his sister and, before then, had moved often. R. 33 (“I'm basically homeless. I've been bouncing around home to home sleeping on couches for the better part of the last couple of years.”).

         The ALJ asked about plaintiff's work history. He worked in car sales in 1998, but was mostly self-employed doing odd jobs from 1996 to 1999. He tried to start his own construction business at one point. His longest job was telemarketing for a dating service from 2002 to 2008. It became “very grueling” sitting for eight hours a day and he had to stop. R. 35. Afterwards, he tried doing “small remodeling type jobs and you know, handyman jobs and stuff, but there's just not any work out there.” R. 37.

         The ALJ next asked plaintiff about his other problems such as anxiety, chronic obstructive pulmonary disease (“COPD”), and depression. She posed a hypothetical question, asking which of these three ailments plaintiff would “erase” if he could magically do so. R. 40. Plaintiff found the question difficult, calling it a “really tough decision” and stating that he would “probably” pick “depression and the bipolar” because he had “no social circle any longer.” R. 41. Plaintiff testified that he started taking a new bipolar medication prescribed by a doctor at the Crusader Clinic, but that he had been “on meds off and on for [his] entire adult life.” R. 43, 46. The ALJ asked whether the medications helped. Plaintiff responded: “it's like a roller coaster. Some days they work, some days I don't feel like they're doing much of anything.” R. 46.

         The ALJ asked plaintiff what treatments plaintiff had received for his back pain. He stated that his recent doctor told him that he could receive cortisone shots (which cost between $1, 200 and $1, 500 a shot) and that he also was a “candidate for surgery.” R. 56. Plaintiff stated that he did not pursue these options because he did not have insurance or the ability to pay for them. The ALJ asked plaintiff what his pain level was when he woke up and his medications had worn off. Plaintiff stated the following: “It's definitely [] ¶ 10, yeah, it's a 10.” R. 58. The ALJ seemed to find this answer unbelievable as she stated the following: “I mean, maybe you don't get the way it works. 10 pain is when the 10 is so unbearable that if they said, we have a pill that will stop the pain, but you will cease to breathe.” R. 58. Plaintiff responded that he would not take such a pill because that would be suicide, and then reaffirmed his answer that he sometimes suffered a 10-level pain. He admitted that he had not been to the emergency room recently. The ALJ asked whether a doctor had prescribed or given plaintiff a cane or a walker. Plaintiff again raised his lack of insurance: “I found that without any kind of insurance[, ] without any kind of medical card, it seems that the doctors want to give you the limited possible care[.]” R. 59.

         The ALJ next asked about plaintiff's COPD and whether he was still smoking. Plaintiff testified that he had been trying to cut down and finally quit altogether a month before the hearing. The ALJ questioned plaintiff about how he had been able to quit, and plaintiff stated that he took Wellbutrin and chewed gum as a substitute.

         The ALJ then asked about a reference in a medical record about plaintiff doing home repair on March 23, 2009 and then another reference to him carrying 90-pound bundle of shingles up to a roof. When questioned as to how he could do this work with a bad back and breathing problems, plaintiff stated that he probably split the 90-pound bundle in half and that he sometimes had good days and probably tried to do things he should not have been doing. Plaintiff admitted that, during 2009 to 2011, he tried doing various jobs to support himself. In 2012, he worked a couple of months for a dating service in Schaumburg but it was too painful with the time sitting on the job plus sitting during the long commute. The ALJ brought up the fact that plaintiff lost his driver's license many years ago because of two DUIs. Plaintiff stated that his license was never returned because he could not afford the $3, 000 it would cost to pay lawyers.

         On April 18, 2014, the ALJ found plaintiff not disabled. The ALJ found that plaintiff had three medically determinable impairments-back pain, bipolar disorder, and ADHD-but then found that none of them qualified as severe at Step 2 of the five-step process. In this appeal, plaintiff argues that the ALJ erred by essentially imposing a too strict standard at this early stage of the five-step process. This Court agrees. In several recent cases, the Seventh Circuit has emphasized that the Step 2 inquiry is only “a de minimis screening for groundless claims.” See Meuser v. Colvin, ___ F.3d ___, 2016 WL 5682715, *4 (Oct. 3, 2016); O'Connor-Spinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016) (“The Step 2 determination is ‘a de minimis screening for groundless claims' intended to exclude slight abnormalities that only minimally impact a claimant's basic activities.”); Thomas v. Colvin, 826 F.3d 953, 960 (7th Cir. 2016). In Meuser, the Seventh Circuit remanded because the ALJ, in considering whether schizophrenia was a severe impairment, applied a too demanding standard at Step 2 by “conflat[ing] Steps 2, 4, and 5.” 2016 WL 5682715 at *4. Similarly, in O'Connor-Spinner, the Seventh Circuit remanded, holding that a diagnosis of “major depression, recurrent severe” satisfied the test at Step 2. 832 F.3d at 697 (“[w]e have not found a published opinion from any circuit in which an ALJ declared that major depression was not a severe impairment”). The Court noted that it would be “nonsensical” to hold otherwise, given that such a diagnosis “by definition” shows that the claimant had “significant distress.” Id. Based on these cases alone, plaintiff here would have a good argument for remand because, among other things, the psychological consultant Dr. Renzi diagnosed plaintiff with major depression, albeit moderate and not severe. R. 472.[1]

         In any event, this Court need not decide this case on this ground alone because it agrees with plaintiff's three other arguments for remand, which are the following: (1) the ALJ improperly analyzed the objective medical evidence; (2) the ALJ conducted a skewed credibility determination, and (3) the ALJ cursorily rejected the State Agency medical opinions. These arguments correspond to the three main parts of the ALJ's analysis. See R. 16-19.

         I. Objective Evidence

         In the first part of her analysis, the ALJ considered the objective medical evidence, discussing (separately and in the following order) plaintiff's back pain, COPD, and depression. This was the key part of the opinion as it was used to later discredit the opinions of the State Agency doctors and to undermine plaintiff's credibility. However, the ALJ's analysis is flawed because the ALJ cherry-picked the evidence, inaccurately summarized medical records, and interpreted technical medical findings without the benefit of a medical opinion.

         These errors can be best illustrated by looking more closely at the analysis of plaintiff's back pain. The ALJ devoted two paragraphs to this issue. Here is the entire reasoning:

The medical evidence shows a history of L5-S1 degenerative changes, documented by MRI findings from April 2010 (5F/30), for which he was treated with pain medication. His back pain appears to have resolved by August 2010, as there is no mention of pain at that time (5F/10) and there is no recurrence mentioned until March 2012. At that time, when he presented to the local clinic stating that he had fallen down the stairs two weeks earlier. Although he reported pain in his back at “9/10, ” x-ray imaging was negative ...

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