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Thompson v. Colvin

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

February 6, 2017

CATRINA THOMPSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. David Weisman United States Magistrate Judge

         Plaintiff Catrina Thompson appeals the Commissioner's decision denying her application for Social Security benefits. For the reasons set forth below, the Court reverses the Commissioner's decision.

         Background

         Plaintiff filed an application for benefits on May 22, 2013. (R. 74.) Her application was denied initially on September 9, 2013, and again on reconsideration on June 3, 2014. (R. 74, 87.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on August 11, 2015. (R. 29-65.) On August 15, 2015, the ALJ issued a decision denying plaintiff's application. (R. 12-22.) The Appeals Council denied review (R. 1-3), leaving the ALJ's decision as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

         Discussion

         The Court reviews the ALJ's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous, it is not entirely uncritical, ” and the case must be remanded if the “decision lacks evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

         Under the Social Security Act, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether the claimant's impairment meets or equals any listed impairment; (4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her past relevant work; and (5) if not, whether she is unable to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is capable of performing work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since February 15, 2013. (R. 14.) At step two, the ALJ found that plaintiff has the severe impairments of “congestive heart failure, obesity, non-ischemic cardiomyopathy, and status post implantation of defibrillator.” (Id.) At step three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (R. 16.) At step four, the ALJ found that plaintiff cannot perform her past relevant work but has the residual functional capacity (“RFC”) to perform sedentary work with additional restrictions. (R. 14-21.) At step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that plaintiff can perform, and thus she is not disabled. (R. 21-22.)

         Plaintiff contends that the ALJ improperly concluded, despite an agency doctor's contrary opinion, that plaintiff's anxiety disorder is a non-severe impairment. With respect to this issue, the ALJ said:

I appreciate that a state agency reviewing doctor found that the claimant's depression and anxiety were severe impairments and assessed moderate limitations in maintaining concentration, persistence or pace. However, I do not assign any weight to this opinion, based on the longitudinal record. This opinion by the state agency reviewing doctor appears to be based on the psychological consultative examination in May 2014, when the claimant appeared sad and depressed and could not recall items after three and five minute delays. However, the same month, the claimant was started on Lexapro[1] prescribed by her primary physician, who did not perform a mental status examination. The record does not contain any updated records from her primary physician. I also note that at the hearing, the claimant testified that for the past four months, she has been taking paralegal classes online for 2-3 hours per day and this is going well.
This suggests greater abilities in maintaining concentration, persistence or pace than assessed by the state Agency psychological consultant. Given the longitudinal record, I find that the claimant's depression and anxiety are not severe impairments.

(R. 16) (citations omitted).

         The agency doctor did not examine or treat plaintiff, and thus the ALJ only had to credit his opinion if it was supported by, and consistent with, the record as a whole. See 20 C.F.R. § 404.1527(c). The agency doctor's opinion is neither, because as the ALJ pointed out, it is based on an examination of plaintiff that occurred before she started taking anti-depressants and is contradicted by her testimony that she spends several hours a day taking on-line classes. Moreover, though not mentioned by the ALJ, the Court notes that the agency doctor is an obstetrician, not a psychologist (see R. 86-87); Social Security Administration, Program Operations Manual System, DI 24501.004 Medical Specialty Codes, available at https://secure.ssa.gov/poms.nsf/lnx/0424501004 (last visited November 28, 2016), and his opinion is internally inconsistent. Though he characterizes plaintiff's mental impairments as “severe, ” he also states that they impose only a “mild” restriction on her activities of daily living and ability to maintain social functioning, and a “moderate” restriction on her ability to maintain persistence, concentration or pace. (R. 79-80.) In short, the record supports the ALJ's rejection of the agency doctor's opinion.

         Plaintiff also argues that the ALJ erred in rejecting the opinion of plaintiff's treating physician, Dr. Meeks. (See R. 17.) An ALJ must give a treating physician's opinion controlling weight if “it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). “If an ALJ does not give a treating physician's opinion controlling weight, the regulations require [him] to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and ...


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