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Schlattman v. Berryhill

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

April 10, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.



         Plaintiff Michael Ray Schlattman (“Plaintiff”) appeals the decision of the Commissioner of Social Security (“Defendant, ” or the “Commissioner”) to deny his application for disability benefits. The parties have filed cross-motions for summary judgment. For the following reasons, Plaintiff's motion is denied [dkt. 15], the Commissioner's motion is granted [dkt. 16], and the Administrative Law Judge's decision is affirmed.


         I. Procedural History

         On August 13, 2009, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), alleging disability due to normal pressure hydrocephalus[2] and an array of cognitive impairments, including memory loss, depression, and attention deficit disorder. (R. 172, 223.) After his claim was denied at all stages of the administrative process, Plaintiff appealed to this Court. On January 14, 2014, District Court Judge Milton Shadur vacated the Commissioner's decision and remanded Plaintiff's matter to the Commissioner for new proceedings. (R. 1031-1050; see Schlattman v. Colvin, No. 12 C 10422, 2014 WL 185009 (N.D. Ill. January 14, 2014).

         The Social Security Appeals Council remanded the case for further proceedings pursuant to the District Court's Order, after which a new Administrative Law Judge (“the ALJ”) received additional evidence and held a new hearing on November 13, 2014. (911-994, 1057.) On December 9, 2014, the ALJ issued a new denial of Plaintiff's claim, finding that, although Plaintiff's impairments left him unable to perform his prior work as a product manager, he was not under a disability as defined by the Social Security Act. (R. 860-882.) The Appeals Council then denied Plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner. (R. 841.) It is this second ALJ decision that is currently under review by this Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

         II. Factual Background

         A. Medical History Through First Hearing Date

         Plaintiff, who was 44 years old when he filed his application, earned a bachelor's degree in business administration then worked for approximately twenty years as a computer hardware broker. (R. 57-59, 233.) After reporting ongoing issues with his memory and balance, Plaintiff underwent a series of neurological tests and scans which, in July 2009, confirmed a diagnosis of normal pressure hydrocephalus. (R. 363-364, 401, 404, 411-417, 426-427, 489, 572-73.) In September 2009, neurosurgeon Thomas Origitano, M.D. surgically installed a shunt into his brain to drain fluid. (R. 514-518.) The shunt subsequently required several adjustments, each resulting in either under drainage or over drainage. (R. 539, 555, 632.) Dr. Origitano replaced the shunt in a second surgery on January 2010. (R. 632-633. 639-642.) This second surgery was successful at relieving Plaintiff's hydrocephalus. (R. 1168, 1188, 1201.) Plaintiff has also experienced sleep difficulties which were treated for some time with a CPAP then more recently with a dental device. (R. 1125-1133.)

         Plaintiff underwent three rounds of comprehensive neuropsychological testing with clinical psychologist Dawn Kroencke, Ph.D., the first occurring in the month prior to his September 2009 surgery. Throughout five hours of testing, Plaintiff was cooperative and pleasant, and he diligently and conscientiously performed all of the tasks assigned to him. (R. 482-492.) He displayed no clinically significant problems with his overall cognitive abilities, and his language skills were intact. (R. 482-483.) On the Wechsler Abbreviated Scale of Intelligence (WASI), Plaintiff's scores were in the average range for Verbal, Performance, and Full Scale IQ. (R. 483.) He scored in the low average range on a test of immediate memory but only in the borderline range in a test of delayed memory. (R. 483.) According to Dr. Kroencke, the discrepancy between the two memory scores implied that Plaintiff could learn new information initially, but that his ability to retain information was poor. (R. 483-484.) He tested in the low average range in auditory memory and in the average range in visual memory, suggesting that he would perform better on tasks involving visual information. (R. 484.) He was able to perform more complex attentional tasks better than he could perform tasks requiring less attention, and he was able to handle distractions. (R. 485.) His emotional status was depressed, with test results suggesting dissatisfaction with his current life and feelings of sadness, which he attributed to his memory problems and financial struggles. (Id.) A personality index suggested anxiety, depression, and social withdrawal due to situational stress stemming from his diagnosis. (R. 486.) Dr. Kroencke assigned him a Global Assessment of Functioning (“GAF") score of 70[3]and suggested that Plaintiff use maps, notes, and other visual cues to aid his memory. (R. 487.) Dr. Kroencke met with Plaintiff and his wife on September 8, 2009, to discuss his test results and see how he was faring in the face of his anticipated surgery. (R. 729.)

         Plaintiff returned for a repeat evaluation on May 13 and 14, 2010, five months after his second surgery.[4] (R. 736.) This evaluation repeated the same battery of tests that had been performed in August 2009, together with the Continuous Performance Test, a measure of attention. (R. 736, 742.) While Plaintiff's IQ still tested within the average range, his verbal comprehension index had decreased to a statistically significant extent. (R. 737-738.) Additionally, his memory scores had declined significantly. (R. 739-741.) Dr. Kroencke noted that, although he showed statistically significant drops in visual memory, he was still likely to work better with visual than with auditory information. (R. 740.) At the same time, he displayed no significant cognitive dysfunction. (R. 741.) A personality inventory revealed that he was depressed, agitated, and nervous, and that his level of subjective distress appeared to have increased since the surgery. (R. 742.) Finally, the Continuous Performance Test indicated clinical attention deficit suggestive of poor attentional capacity. (R. 742-743.) Dr. Kroencke assigned Plaintiff a GAF score of 51-60[5] and recommended that he undergo individual psychotherapy in order to process his emotions and develop coping strategies. (R. 744.) She opined that he was likely to experience difficulties in novel, complex and changing situations which are reliant on verbal abilities and would require increased structure and support. She recommended that important information and to-do lists be presented in diagram or picture form. She also stressed the importance of remaining mentally, physically, and socially active with endeavors such as puzzles and group hobbies. (R. 744.) She noted that, depending on the course of his hydrocephalus, a continued decline in cognitive abilities was possible. (Id.)

         From November 2010 through March 2011, Claimant underwent speech therapy with speech-language pathologist Cindy Burton. (R. 760-802.) Goals of the therapy included developing his auditory and visual processing skills, increasing his attention and memory, and improving his executive functioning with organizing and planning tasks. (R. 766, 779.) Over the course of therapy, he learned to use compensations to assist with processing, attention, and memory. (R. 789-790, 801.) In January, he was helping a friend set up an Excel spreadsheet for a work project, and in February he successfully used the planning and organizing techniques he had been taught to complete a bathroom project . (R. 799.) He acknowledged that, overall, tasks at home were going well. (R. 802.) Plaintiff was discharged from therapy on February 24, 2011, with all but his executive-function goals met. (R. 801-802.)

         B. Opinion Evidence

         On October 27, 2009, state agency reviewer Carl Hermsmeyer, Ph.D. reviewed early portions of Plaintiff's file and diagnosed a nonspecified cognitive disorder that caused him moderate difficulties in maintaining social function; moderate difficulties in maintaining concentration, persistence, or pace; and mild restriction in his activities of daily living. (587-588, 597.) Dr. Hermsmeyer opined that Plaintiff was not significantly limited in most areas of work-related mental functioning. (R. 601-602.) However, he was moderately limited in the abilities to understand and remember detailed instructions, to carry out detailed instructions, and to maintain attention and concentration for extended periods. (R. 601.) Dr. Hermsmeyer opined that Plaintiff retained the mental capacity to perform simple and routine tasks and to perform simple one and two step tasks at a consistent pace. (R. 599, 603.) Medical consultant Calixto Aquino, M.D. opined on November 2, 2009 that Plaintiff had no exertional limitations, but he could never climb ladders, ropes, or scaffolds, could only occasionally balance, and should avoid concentrated exposure to hazards in the workplace. (R. 607-609.) Two other medical consultants later affirmed the findings of Dr. Hermsmeyer and Dr. Aquino. (R. 629.)

         On June 11, 2010, a month after his second battery of neuropsychological tests, Dr. Kroencke completed a medical source statement regarding Plaintiff's ability to do work-related activities. (R. 734.) She assessed as “poor or none” his ability to perform the following tasks: remember work-like procedures; understand and remember very short and simple instructions; maintain attention for two hour segments; sustain an ordinary routine without special supervision; perform at a consistent pace without an unreasonable number and length of rest periods; respond appropriately to changes in a routine work setting; deal with normal work stress; be aware of normal hazards and take appropriate precautions; understand and remember detailed instructions; and deal with the stress of semiskilled and skilled work. His ability to carry out very short and simple instructions was rated as “fair.” (R. 734.) At the same time, she opined that Plaintiff had “good” abilities to carry out detailed instructions if they were written; to set realistic goals or make plans independently of others if given enough time; and to accept instruction from supervisors and get along with his coworkers or peers. (R. 735.) He had an “unlimited” or “very good” ability to interact appropriately with the general public and maintain socially appropriate behavior. (R. 735.)

         In October 2010, reviewing psychologist David Biscardi, Ph.D. reviewed Plaintiff's file and found that he had only mild restriction of his activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. (R. 754.) He described the findings of the earlier state consultants as “reasonable and consistent with [the medical evidence]”and agreed that Plaintiff “was capable of simple routine competitive work activities.” (R. 758.) He found that the objective evidence and Plaintiff's activities of daily living did not support the marked limitations in functioning articulated in Dr. Kroencke's opinion. (Id.)

         C. Additional Medical Evidence

         After Plaintiff's first appeal to this Court and subsequent remand of his matter, he submitted additional records to the ALJ. (R. 1125-1162.) Brain scans performed in 2013 and 2014 showed no signs of hydrocephalus. (R. 1188, 1191- 1192.) Plaintiff's records include notes from psychiatric mental health nurse practitioner Christine Dahl, who helped him manage his depression, irritability, and ADD symptoms from October 2011 through July 2012. (R. 1252-1262.) At the time of his initial evaluation in October 2011, Plaintiff still experienced difficulties with memory, focus, and balance, and was frustrated from his inability to do the things he was able to do before his illness. (R. 1259, 1261.) Still, he was doing projects at home and taking his daughters to school every morning. (R. 1262.) Although Ms. Dahl gave him information for state rehabilitative services, Plaintiff did not think he could work. (R. 1262.) In November 2011, Ms. Dahl noted that Plaintiff was “active with 2 part-time jobs, ‘books' for a softball team and helping [with] a bowling league.” (R. 1258.) In December, she noted that Plaintiff continued performing both “part-time jobs, ” running household errands, caring for his special-needs child, and preparing for the holidays. (R. 1257.) In January 2012, Plaintiff reported ongoing problems with short-term memory and focus, but was able to drive and could balance his checkbook. (R. 1256.) He stated that an insurance-provided neuropsychological exam[6] had found he could return to work, but he did not want to work due to poor memory and concentration. (Id.) In February 2012, he reported that he used reminders on his phone to recall tasks or appointments. (R. 1255.) In March, he confirmed that his memory was still poor, though he was seeing some improvement in concentration, focus, and organization. (R. 1254.) He continued to help the bowling league and to help with household errands and chores. (Id.) Ms. Dahl suggested he pursue volunteer opportunities, but he stated he was already too busy. (Id.) By July 2012, Plaintiff felt overwhelmed with his disability appeal and financial stress, but was enjoying time with friends and family. (R. 1253.)

         Dr. Kroencke, who had last seen Plaintiff three years earlier, met with Plaintiff and his wife for an update appointment on March 7, 2013. (R. 1206.) Plaintiff's wife believed that his cognitive decline had continued. She reported that it was hard for her husband to remember verbal instructions, he needed to write things down and put alarms on his cell phone, he had a worse attention span, his processing speed was slower when answering questions, he was forgetting the names of people with whom he was familiar, and he was making calculation errors when balancing the checkbook. (R. 1206-1207.) Plaintiff endorsed mild to moderate levels of depression and mild anxiety symptoms. (R. 1207.) Dr. Kroencke assigned him a then-current GAF score of 61-70, reflecting mild functional impairment, an improvement from his May 2010 low score of 51-60.

         Two weeks later, Plaintiff again completed his third series of cognitive and psychological tests at Dr. Kroencke's office. (R. 1208-1209.) Though testing continued for over four hours with just one break, the examiner[7] observed no signs of concentration or attention problems, testing fatigue, or distress. (R. 1209.) Plaintiff's WAIS test results demonstrated an increase in intellectual level to the “high average” IQ range, an increase that the examiner attributed to a decrease psychosocial stress since his earlier testing. (R. 1209-1210.) Plaintiff's verbal IQ in particular rated in the “superior” range. (Id.) His memory scores also showed significant improvement to the average and above-average range, though his response times were variable and slow, suggesting he might have difficulty responding to changing tasks. (R. 1211.) Cognitive tests remained in the average range, with mildly impaired attention abilities and all other cognitive skills intact. (R. 1210.) Dr. Kroencke opined that Plaintiff was “likely to experience difficulties in novel, complex, and changing situations which are reliant on verbal abilities” and would need “increased structure and support.” (R. 1212.) The report concluded with recommendations that Plaintiff pursue psychotherapy in order to cope with his stressors, continue to use to-do lists and visual reminders, increase his social outlets, remain physically active, and engage in mentally stimulating activities such as puzzles and card games. (R. 1212.)

         In August 2013, Dr. Kroencke reviewed Plaintiff's test results and wrote a letter to his attorney regarding his disability case, but this letter does not appear in the file. (R. 1205.) When Dr. Kroencke met with Plaintiff and his wife the following week to review Plaintiff's test scores, Plaintiff's wife expressed confusion over the increase in his memory scores and ...

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