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Zitko v. Colvin

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

February 14, 2017

THOMAS ZITKO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Thomas Zitko brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Commissioner's decision denying his application for disability benefits. For the reasons set forth below, the Court affirms the Commissioner's decision.


         Plaintiff applied for disability benefits on February 27, 2008, alleging a disability onset date of January 1, 2001. (R. 335.) The application was initially denied on June 12, 2008, and again on reconsideration on November 21, 2008. (R. 199-200.) Plaintiff requested a hearing, which was held before an Administrative Law Judge (“ALJ”) on July 23, 2010. (R. 159-98.) On March 15, 2011, the ALJ denied plaintiff's application and found him not disabled under the Social Security Act. (R. 204-17.)

         On May 1, 2012, the Appeals Council remanded the case to the ALJ for a new hearing, which was held on December 21, 2012. (R. 88-158, 222-25.) On February 21, 2014, the ALJ issued a decision finding plaintiff not disabled. (R. 29-80.) The Appeals Council denied review (R. 9-12), making the ALJ's decision the final decision of the Commissioner, reviewable by this Court under 42 U.S.C. § 405(g). See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


         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 he 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 his past relevant work; and (5) if not, whether he 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 he applied for benefits. (R. 35.) At step two, the ALJ found that plaintiff had the severe impairment of “Major Depression with Psychotic Features.” (Id.) At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (R. 74.) At step four, the ALJ found that plaintiff had the RFC:

[T]o perform a full range of work at all exertional levels . . . with the following limitations: The claimant is able to write his name but is functionally illiterate. He is able to maintain concentration leading to on task productivity with a moderate limitation, which I peg at a residual of 90% of the workday. He could have occasional contact with supervisors and co-workers but should have no contact with the general public. He has no problems with attendance. He should avoid working at unprotected heights and with dangerous unguarded machinery. He should not use sharp objects in the workplace. . . .

(R. 76.) At step five, the ALJ found that jobs exist in significant numbers in the economy that plaintiff can perform, and thus he is not disabled. (R. 79.)

         Plaintiff contends that the ALJ erred in “ascrib[ing] slight weight” to plaintiff's credibility. (See R. 77.) Defendant recently issued new guidance for evaluating symptoms in disability claims, which supersedes SSR 96-7p and “eliminate[es] the use of the term ‘credibility'” to “clarify that subjective symptom evaluation is not an examination of an individual's character.” See SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16, 2016). Though SSR 16-3p was issued after the ALJ's decision in this case, it is appropriate to apply it here because it is a clarification of, not a change to, existing law, see Pope v. Shalala, 998 F.2d 473, 483 (7th Cir, 1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999) (stating that courts give “great weight” to an agency's expressed intent to clarify a regulation), and is substantially the same as the prior regulation. Compare SSR 96-7p, 1996 WL 374186 (July 2, 1996), with SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). Under either regulation, the ALJ “is in the best position to determine the credibility of witnesses.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). Thus, the Court will “overturn a credibility determination only if it is patently wrong” id., that is, it “lacks any explanation or support.” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).

         The ALJ's skepticism stemmed, in part, from the fact that the evidence supporting plaintiff's claim came from an October 2009 examination he had for the express purpose of obtaining disability benefits. (R. 42-43; see R. 548 (stating that the exam was to “assess [plaintiff's] cognitive functioning, personality functioning and psychiatric status in light of his Social Security claim”).) On the basis of that exam, Dr. Puntini said that plaintiff: (1) is “severely depressed”; (2) has “auditory hallucinations”; (3) had been “unable to function normally” since his father's death in 2003; (4) spends seven to eight hours a day in the fetal position; (5) “relies on his mother to make all of his decisions” because he “can't function on [his] own”; (6) has intellectual functioning “in the Mentally Retarded range”; (7) has reading skills at the “pre-school level”; and (8) has poor “interpersonal functioning.” (R. 548-60; see R. 186-93 (testimony of independent medical examiner, Dr. Cools, from the first hearing endorsing Dr. Puntini's conclusions).)

         The ALJ said, however, that plaintiff's medical records from December 2005 to October 2009 cast serious doubt on these conclusions. Those records show that plaintiff repeatedly visited doctors' offices and hospital emergency rooms seeking medication to treat a blood clot in his leg, and for treatment of injuries he sustained in a car accident and from a dog bite, without manifesting symptoms of, seeking treatment for, and/or indicating he had, any mental impairment. (R. 35-41; see R. 468-78, 509-11, 513-17, 524-46, 579-88, 590-96, 600-43, 645-48.) Moreover, on April 30, 2008, an agency consultative examiner found that plaintiff was “oriented in all 3 spheres, ” “normal” in “[m]emory, fund of knowledge, calculations . . . [, ] judgment . . . . [, ] [a]ppearance, behavior and ability to relate during the examination, ” and “appropriate, polite, pleasant and cooperative and able to relate a clear, concise, coherent medical history without apparent cognitive difficulties.” (R. 481-82.) Based on the exam, and a photocopy of a March 2005 prescription from Dr. Cordero that said plaintiff “had a history of chronic depression . . . for which he was getting Zoloft, ” the examiner concluded that plaintiff had “[w]ell controlled depression.” (R. 479-82.) Similarly, in June 2008, after reviewing plaintiff's records, agency consultant, Dr. Hollerauer concluded that plaintiff had “‘well controlled'” depression, with no limitations in activities of daily living and social functioning, no episodes of decompensation, and only ...

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