United States District Court, C.D. Illinois, Springfield Division
KATHY L. POWELL, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
RICHARD MILLS, U.S. District Judge
an action for judicial review of the final decision of
Defendant Commissioner of Social Security, denying Plaintiff
Kathy L. Powell's application for disabled Widow's
Insurance Benefits and Supplemental Security Income (SSI)
under Titles II and XVI of the Social Security Act.
are the Plaintiff's Motion for Summary Judgment and the
Defendant's Motion for Summary Affirmance.
INTRODUCTION AND PROCEDURAL BACKGROUND
March 8, 2013, a hearing was held before Administrative Law
Judge (ALJ) Ben Barnett. The Plaintiff was born in 1954 and
was 58 years old at the time of the hearing. The Plaintiff
states that she has a seventh-grade education. The ALJ
determined she has a combination of medical problems
including bipolar disorder II, cocaine dependence in
sustained full remission, antisocial personality disorder,
borderline intellectual functioning, attention deficit
disorder (ADHD), and panic disorder with agoraphobia.
See 20 C.F.R. §§ 404.1520(c) and
Plaintiff's application for Widow's Insurance
Benefits was filed on February 1, 2011 and her application
for SSI was filed on December 9, 2010, alleging disability
beginning on November 19, 2010. Her claims were denied
initially and on reconsideration.
April 10, 2013, the ALJ issued a decision. The ALJ found that
Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
further found that Plaintiff has the residual functional
capacity (RFC) to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: limited to simple, routine, repetitive tasks;
limited to a low stress job defined as no more than
occasional changes in the work setting and occasional
decision making; no production rate or pace work; no
interaction with the public; and brief and superficial
interaction with coworkers and with no tandem tasks.
found that although the Plaintiff was unable to perform any
past relevant work pursuant to 20 C.F.R. § 404.1565 and
416.965, there are jobs that exist in significant numbers in
the national economy that the Plaintiff can perform, given
her age, education, work experience and residual functional
capacity. See 20 C.F.R. §§ 404.1569,
404.1569(a), 416.969 and 416.969(a).
the ALJ found that Plaintiff has not been under a disability
since November 19, 2010, and issued an unfavorable decision
Appeals Council denied the Plaintiff's Request for Review
on July 23, 2013, thus making the ALJ's decision the
final decision of the Commissioner.
Plaintiff contends for a number of reasons that the
Commissioner's decision is not supported by substantial
evidence. First, the Appeals Council failed to consider
certain new and material evidence that was submitted which
would have warranted changing the ALJ's decision. Second,
the ALJ's mental RFC assessment is deficient as a matter
of law because the ALJ erroneously dismissed the findings
made by Dr. Frank Froman, who has worked as a Social Security
consultative examiner. Third, the ALJ committed reversible
error in according no weight to treating nurse and mental
health professional Bessie Goerlich, MHP. Fourth, the ALJ
erred in determining that Plaintiff's mental impairment
did not meet a Listing. Finally, the Plaintiff asserts the
ALJ's credibility determination was patently erroneous.
Plaintiff testified she worked six weeks as a cleaner for the
Quincy Civic Center and Motel before being fired after having
anxiety attacks. Moreover, the Plaintiff worked for First
Class Cleaning for two and a half months before getting fired
after an argument with the supervisor and upon having an
anxiety attack. The Plaintiff is a widow with three adult
children. She is 5'4" and weighs 168 pounds after
losing 10-12 pounds due to loss of appetite. The Plaintiff
lives in a mobile home with her daughter, who has a
disability, and her grandson. The Plaintiff does not have a
medical card, though she does receive food stamps.
Plaintiff dropped out of school during the eighth grade
school year. She repeated both her sixth and seventh grade
years and was in “CDP” classes, which the
Plaintiff was unable to define. The Plaintiff does not read
very well, though she is able to read familiar street signs.
Plaintiff testified she cannot work because of her mood
swings and slow comprehension. She has been diagnosed as
bipolar and has four bad days a week. On a bad day, the
Plaintiff has a number of mood swings and ups and downs. In
such situations, she goes to her room or leaves the house. On
certain days, she stays in bed in order to avoid people. The
Plaintiff has crying spells and feels depressed. On her two
or three good days per week, the Plaintiff cleans and plays
with her grandson. The Plaintiff has problems with her anger
and does not leave the mobile home on bad days.
Plaintiff testified that little things make her nervous. The
Plaintiff thinks people are watching her and sometimes shops
at late hours in order to avoid people. When the Plaintiff
has worked, she avoided break rooms because there were too
many people around. The Plaintiff has problems with her
temper on a daily basis.
Plaintiff testified she sometimes has panic attacks. She
feels nervous and tries to think of things to avoid having a
panic attack. When people tell her two or three things to do,
the Plaintiff panics because she cannot remember what she was
told. When her supervisor at the Quincy Civic Center
admonished her, the Plaintiff had an anxiety attack and
hollered at her supervisor. At First Class Cleaning, the
Plaintiff was told he was performing a task wrong. The
Plaintiff got mad and hollered at co-workers and was fired.
Plaintiff testified she has had other panic attacks at work.
She has also had panic attacks because of family issues. The
Plaintiff says she has had panic attacks two to three times
per week since later 2010.
Standard of review
as here, the Appeals Council denies review, the ALJ's
decision stands as the final decision of the Commissioner.
See Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir.
2010). The Act specifies that “the findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). “Substantial evidence” is
defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir. 2014)
(citations omitted). Although the Court's task is not to
re-weigh evidence or substitute its judgment for that of the
ALJ, the ALJ's decision “must provide enough
discussion for [the Court] to afford [the Plaintiff]
meaningful judicial review and assess the validity of the
agency's ultimate conclusion.” Id. at
Appeals Council and new and material evidence
Plaintiff alleges the Appeals Council failed to consider new
and material evidence which would have warranted changing the
mental health records covering April through June 2013 were
submitted to the Appeals Council but were not included in the
district court record. The Appeals Council acknowledged that
Plaintiff had submitted additional ...