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Powell v. Colvin

United States District Court, C.D. Illinois, Springfield Division

January 12, 2017

KATHY L. POWELL, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


          RICHARD MILLS, U.S. District Judge

         This is 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.

         Pending are the Plaintiff's Motion for Summary Judgment and the Defendant's Motion for Summary Affirmance.


         On 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 416.920(c).

         The 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.

         On 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).

         The ALJ 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.

         The ALJ 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).

         Accordingly, the ALJ found that Plaintiff has not been under a disability since November 19, 2010, and issued an unfavorable decision denying benefits.

         The 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.

         The 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.


         The 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.

         The 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.

         The 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.

         The 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.

         The 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.

         The 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.


         A. Standard of review

         When, 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 856-57.

         B. Appeals Council and new and material evidence

         The Plaintiff alleges the Appeals Council failed to consider new and material evidence which would have warranted changing the ALJ's decision.

         These 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 ...

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