United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert, Magistrate Judge
Javier Negron ("Claimant") seeks review of the
final decision of Respondent Carolyn W. Colvin, Acting
Commissioner of Social Security ("the
Commissioner"), denying Claimant's applications for
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act ("the Act") and for
Supplemental Security Income under Title XVI of the Act.
Pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, the
parties have consented to the jurisdiction of the United
States Magistrate Judge for all proceedings, including entry
of final judgment. [ECF No. 6.] The parties have filed
cross-motions for summary judgment pursuant to Federal Rule
of Civil Procedure 56. [ECF Nos. 12, 22.] For the following
reasons, Claimant's motion is granted and the
Commissioner's motion is denied. The decision of the
Commissioner is reversed, and the case is remanded for
further proceedings consistent with this Memorandum Opinion
January 10, 2012, Claimant filed applications for DIB and
SIS, alleging a disability onset date of date of November 1,
2011, due to hepatitis, high blood pressure, enlarged
gallbladder, intestinal swelling, depression, hearing voices,
anxiety, panic attacks, and sleeping problems. (R. 150-63,
195.) Claimant subsequently amended his applications to
allege an onset date of August 1, 2011. (R. 164-65.) The
claims were denied initially on February 24, 2012 and upon
reconsideration on May 30, 2012. (R. 88-96, 100-07.) On July
30, 2012, Claimant requested a hearing before an
Administrative Law Judge (the "ALJ"). (R. 108.)
Claimant appeared unrepresented at a hearing on August 9,
2013. (R. 28-37.) The ALJ informed Claimant of his right to
counsel and adjourned the hearing in order to allow Claimant
time to obtain counsel. Id. A second hearing was
then held on December 4, 2013. (R. 38-87.) At that hearing,
Claimant, represented by counsel, appeared and testified.
Id. Claimant's mother, Claimant's former
wife, a medical expert (the "ME"), and a vocational
expert (the "VE") also appeared and testified.
February 13, 2014, the ALJ issued a written decision denying
Claimant's applications for DIB and SSI and finding that
he was not disabled under the Act. (R. 12-21.) The opinion
followed the required five-step sequential evaluation process
and also conducted a Drug Addiction and Alcoholism
("DAA") analysis. At step one, the ALJ found that
Claimant had not engaged in substantial gainful activity
since his alleged onset date of August 1, 2011. (R. 14.) At
step two, the ALJ found that Claimant had the severe
impairments of depression, alcoholic hepatitis, high blood
pressure, and substance addiction disorder. (R. 15.) At step
three, the ALJ found that Claimant's mental impairments,
including the substance abuse disorder, meet Listings 12.04
and 12.09. (R. 15-16.) The ALJ concluded that with substance
use, the "paragraph B" criteria were met. (R. 15.)
Specifically, the ALJ determined that Claimant had moderate
restrictions of daily living, marked difficulties in social
functioning, marked difficulties in concentration,
persistence or pace, and no episodes of decompensation.
Id. The ALJ found that even absent substance use,
Claimant's remaining limitations would cause more than a
minimal impact on his ability to perform basic work
activities and therefore, the Claimant would continue to have
a severe impairment or combination of impairments. (R. 16.)
The ALJ concluded that in the absence of his substance use,
Claimant would not have an impairment or combination of
impairments that met or medically equaled 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, 416.926). (R. 16-17.) In
evaluating the paragraph B criteria in the absence of
substance use, the ALJ found Claimant had mild restrictions
in activities of daily living, mild difficulties in social
functioning, moderate difficulties in concentration,
persistence, or pace, and no episodes of decompensation. (R,
step four, the ALJ found that absent substance use, Claimant
would have the residual functional capacity ("RFC")
to perform medium work except that he would be precluded from
performing complex skilled work activity. (R. 17.) Based on
this RFC, the ALJ determined at step four that Claimant could
perform his past relevant work as an industrial cleaner in
the absence of substance use. (R. 20.) The ALJ further found
that Claimant's substance use disorder was a contributing
factor material to the determination of disability because
the Claimant would not be disabled if he stopped using
substances. Id. Based on this determination, the ALJ
found that Claimant was not disabled under the Act. (R.
20-21.) The Social Security Appeals Council denied
Claimant's request for review, and the ALJ's decision
became the final decision of the Commissioner. (R. 1-6.)
See Nelms v. Astrue, 553 F.3d 1093, 1097
(7th Cir. 2009). Claimant now seeks review in this
Court pursuant to 42 U.S.C. § 405(g). See Haynes v.
Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
STANDARD OF REVIEW
decision by an ALJ becomes the Commissioner's final
decision if the Appeals Council denies a request for review.
Sims v. Apfel, 530 U.S. 103, 106-107 (2000). Under
such circumstances, the district court reviews the decision
of the ALJ. Id. Judicial review is limited to
determining whether the decision is supported by substantial
evidence in the record and whether the ALJ applied the
correct legal standards in reaching his decision.
Nelms, 553 F.3d at 1097.
evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971). A
"mere scintilla" of evidence is not enough.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). Even when there is adequate evidence in the record to
support the decision, however, the findings will not be
upheld if the ALJ does not "build an accurate and
logical bridge from the evidence to the conclusion."
Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
If the Commissioner's decision lacks evidentiary support
or adequate discussion of the issues, it cannot stand.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
"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). Though the
standard of review is deferential, a reviewing court must
"conduct a critical review of the evidence" before
affirming the Commissioner's decision. Eichstadt v.
Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may not,
however, "displace the ALJ's judgment by
reconsidering facts or evidence." Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Thus,
judicial review is limited to determining whether the ALJ
applied the correct legal standards and whether there is
substantial evidence to support the findings. Nelms,
553 F.3d at 1097. The reviewing court may enter a judgment
"affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g).
asserts that the ALJ made four errors. First, Claimant argues
that the ALJ did not properly evaluate his treating
psychiatrist's opinions. Second, he contends that the
ALJ's credibility determination is flawed. Third,
Claimant claims that the ALJ's DAA materiality
determination is not supported by substantial evidence.
Fourth, he argues that the ALJ's RFC assessment does not
adequately account for Claimant's limitations in
concentration, persistence, and pace. For the reasons
discussed below, the Court agrees that the ALJ failed to
properly evaluate the opinions of the treating psychiatrist
and the materiality of Claimant's substance use. The
Court further finds that the ALJ erred in assessing
Claimant's RFC by failing to account for his difficulties
in concentration, persistence, and pace. Because these errors
require reversal and remand, the Court need not address
whether the ALJ erred in his credibility determination.
The ALJ Did Not Properly Evaluate the Opinions Of The
19, 2012, Claimant began psychiatric treatment with Dr. Syed
Anwar at Ecker Center for Mental Health. (R. 492.) Dr. Anwar
noted that Claimant had recently been hospitalized because of
his heroin addiction. Id. At the time of his
hospitalization, Claimant had been hearing voices.
Id. Dr. Anwar stated that once Claimant was detoxed,
he was doing better. Id. Dr. Anwar indicated that
Claimant was taking too much Ativan (sedative) and had been
given Seroquel (antipsychotic) in the hospital. Id.
Dr. Anwar prescribed Seroquel XR 150 mg at night and directed
Claimant to continue Celexa (antidepressant) 20 mg a day and
Ativan 2 mg at night and to discontinue Risperdal
(antipsychotic). Id. Dr. Anwar instructed Claimant
to return in a couple of months. Id.
returned to see Dr. Anwar on October 16, 2012 with complaints
of depression and anxiety. (R. 495.) Dr. Anwar noted that
Claimant had been doing fair and denied having any suicidal
or homicidal thoughts. Id. Claimant indicated that
he stopped taking Seroquel because it made him feel worse.
Id. Claimant reported that he was not taking any
medications. Id. Dr. Anwar prescribed Zyprexa
(antipsychotic) 5 mg and Prozac (antidepressant) 20 mg a day
and directed Claimant to return in three months. Id.
On November 15, 2012, Claimant was hospitalized due to
escalating depression with suicidal ideation, including
thoughts of jumping in front of a train. (R. 497.)
was seen for a follow-up with Dr. Anwar on February 12, 2013.
(R. 499.) Claimant reported that he had been doing well and
that his mediations had been helping. Id. Claimant
also said the voices were under control and he had been
sleeping and eating well. Id. Dr. Anwar continued
Zyprexa 5 mg at bedtime and told Claimant to return in three
months. Id. Claimant was next seen by Dr. Anwar on
May 21, 2013. (R. 500.) Claimant stated that he had been
doing well with no side effects from his medications.
Id. Claimant reported no paranoia and no
hallucinations. Id. Dr. Anwar prescribed Geodon
(antipsychotic) 80 mg twice a day and Trazodone
(antidepressant and sedative) 150 mg 2 at night and
instructed Claimant to return in three months. Id.
than a month, on June 18, 2013, Claimant returned to Dr.
Anwar for a follow-up appointment. (R. 501.) Claimant
reported that he stopped taking Geodon because it was making
him restless and anxious. Id. Claimant was hearing
some voices again. Id. Claimant talked about
depression, but Dr. Anwar noted that he thought Claimant
seemed to be experiencing more hallucinations. Id.
Claimant also reported that he had been drinking on and off.
Id. Dr. Anwar wrote: "Alcohol is a major issue,
and I told him to stop drinking." Id. Dr. Anwar
prescribed Trazodone 150 mg 2 at night and Risperdal 2 mg at
bedtime and directed Claimant to stop his other medications.
28, 2013, Claimant attempted to jump in front of a train and
was hospitalized. (R. 621.) Claimant reported being angry
about everything and hearing command hallucinations telling
him to kill himself Id. He was diagnosed with
psychosis not otherwise specified and alcohol abuse. (R.
577.) Claimant was discharged per his request on August 5,
2013. (R. 580.) At a follow-up appointment with Dr. Anwar on
September 10, 2013, Claimant reported doing fair and that his
mood had been fairly stable. (R. 625.) He was not suicidal,
homicidal or psychotic. Id. Claimant was sleeping
with the Trazodone but felt the ...