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Alma v. Berryhill

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

July 10, 2017

ROBIN ALMA Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner Social Security Defendant.

          MEMORANDUM OPINION AND ORDER

          Susan E. Cox United States Magistrate Judge

         Plaintiff Robin Alma (“Plaintiff”) seeks to overturn the final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment. After careful review of the record, the Court now grants Plaintiff's motion and remands the case for further proceedings.

         PROCEDURAL HISTORY

         Plaintiff applied for DIB and SSI on December 13, 2010, alleging that he became disabled on October 1, 2008. (R. 319). After the request was denied initially and upon reconsideration, Administrative Law Judge Jose Anglada (the “ALJ”) held a hearing on August 31, 2012 at which Plaintiff and a vocational expert (“VE”) testified. (R. 122-62). On October 26, 2012, the ALJ issued a written decision finding found that Plaintiff was not disabled. (R. 188-204). The Appeals Council remanded the case on February 11, 2014 and instructed the ALJ to evaluate a third-party report submitted by Plaintiff's wife, reconsider Plaintiff's residual functional capacity (“RFC”) with specific references to the record, and pose more carefully-constructed hypothetical questions to the VE. (R. 210-23). The ALJ then held a supplemental hearing on September 22, 2014. (R. 43-82). Plaintiff and a VE again provided testimony. The ALJ issued a second written decision on October 31, 2014, once again finding that Plaintiff is not disabled. (R. 15-35). The Appeals Council denied review on December 30, 2015, making the ALJ's decision the Commissioner's final decision. (R. 1-5). Plaintiff now seeks judicial review of the ALJ's denial of benefits.

         FACTUAL BACKGROUND

         Plaintiff was 46 years old at the time of the second administrative hearing. He last worked as the manager of a hotel food and bar service department before quitting due to his mental impairments. Plaintiff, who is obese and has a long history of alcohol and cocaine use, described his primary restrictions as severe neck pain and difficulties stemming from bipolar disorder.

         A. MEDICAL HISTORY

         Plaintiff sporadically complained of spasms in his neck muscles and related pain to his treating physician Dr. Syed Akhter in 2009 and 2010. A February 23, 2012 radiology report revealed multilevel degenerative disc changes in Plaintiff's neck, including facet and uncinated arthritis. (R. 787). On July 14, 2012, an MRI of the cervical spine showed diffuse spondylosis and degenerative changes with an osteophyte complex at all levels from C2-C3 through C6-C7. (R. 789). Dr. Akhter prescribed the narcotic pain medication Vicodin and the anti-inflammatory meloxicam to treat Plaintiff's pain. He also recommended an orthopedic consultation, but Plaintiff reported that he could not find a specialist who would accept his Medicaid insurance. (R. 791). The record does not reflect Plaintiff's condition from the fall of 2012 through 2013, but by January 2014 Dr. Akhter noted chronic neck pain that radiated through Plaintiff's left arm at a level of seven out of ten with medication and nine out of ten without medication. (R. 1047). Dr. Akhter continued to prescribe both Vicodin and meloxicam, though Vicodin was no longer covered by Plaintiff's insurance. (R. 1046). Dr. Akhter therefore added the pain medication Norco to Plaintiff's medication regimen. (R. 1045). By the time of Dr. Akhter's last treatment notes in March and May 2014, Plaintiff reported that his pain levels continued to be seven to eight out of ten and that he was still unable to find an orthopedic surgeon who would accept Medicaid. (R. 1041).

         The great majority of the medical record concerns Plaintiff's mental health history. Plaintiff was admitted to St. Joseph's Hospital in February 2008 for outpatient treatment after drinking alcohol and taking cocaine for the past seven months. (R. 437). He reported that he had been off psychiatric medication for the past two years and had been experiencing panic attacks since 2000. After his release, Plaintiff continued to receive treatment from his primary care physician Dr. Akhter, who described “very severe” panic attacks in August 2008 and noted ongoing anxiety throughout his treatment notes. (R. 593). Dr. Akhter treated Plaintiff with the tranquilizer Xanax, which he continued to prescribe throughout 2008. (R. 586-96). Despite that treatment, however, Plaintiff presented at St. Elizabeth's Hospital in September 2008 complaining that he was hearing voices and feeling depressed. (R. 452). He was subsequently admitted for six days of psychiatric treatment for mood swings, hostility, and noncompliant medication management. Plaintiff was diagnosed with bipolar disorder without psychosis and alcohol abuse and was treated with Depakote, Seroquel, Ativan, Zoloft, Xanax and various non-psychotropic medications. (R. 449).

         The record does not show what follow-up care Plaintiff received, but by August 2009 he began individual therapy at the Community Counseling Centers of Chicago (“Community Counseling”). His intake form reflects that Plaintiff continued to take Depakote, Seroquel, Xanax, and Zoloft. (R. 506). Psychiatrist Dr. Ahmed noted that Plaintiff was only sleeping two to three hours each night. Plaintiff received multiple treatment sessions at Community Counseling throughout late 2009, 2010, and 2011 while, at the same time, receiving treatment and prescription medications from his primary physician Dr. Akhter. An entry dated November 12, 2010 states that Plaintiff had been given Seroquel, Zoloft, and Xanax from Dr. Akhter but had discontinued treatment with Dr. Ahmad because his depression prevented Plaintiff from making his appointments. (R. 480). Plaintiff's diagnosis fluctuated throughout this period to some degree. In October 2010 it was bipolar disorder with severe psychotic features, including hearing voices, nightmares, mania, and sleep that was restricted to two to four hours each night. (R. 459-63). At other times, the diagnosis included instead a mood disorder with an unspecified psychosis and a panic disorder without agoraphobia. (R. 458). Plaintiff's psychiatric symptoms persisted even though the Community Counseling notes state that his cocaine dependence was in full remission by June 2010 and his alcohol abuse was in partial remission. (R. 458).

         At some point in late 2010, Plaintiff no longer received Xanax prescriptions from Dr. Akhter and was given Klonopin instead from a different treating source. He reported that his anxiety levels increased as a result. (R. 471). By March 2011, Plaintiff reported that he was not sleeping for up to three days at a stretch and that he was again hearing voices. (R. 477). As a result, Plaintiff's counselor sent him to the emergency room for immediate psychiatric intervention. (R. 477). Plaintiff was subsequently admitted to St. Mary of Nazareth Hospital on March 16, 2011 for depression with suicidal ideation and auditory hallucinations. (R. 666). Blood tests showed no traces of alcohol or illicit drug use. (R. 666). Psychiatrist Dr. Shephali Patel diagnosed Plaintiff with bipolar disorder with severe episodes accompanied by psychosis and assigned a Global Assessment of Functioning (“GAF”) score of 20 to 30. (R. 667). Plaintiff was released after five days of treatment and began to receive monthly medical consultations at Community Mental Health Services. The treatment notes from that agency contain few descriptive entries but report sleeplessness, extreme agitation, and depression that were treated with Thorazine, Klonopin, Trazedone, Abilify, and Lithium. (R. 714-25).

         Plaintiff's mental health treatment in 2012 was primarily with Dr. Akhter, who continued to note depression, anxiety, and a bipolar disorder, together with medications to treat those conditions. (R. 791-801). There are no records for 2013. On January 7, 2014, however, Plaintiff was admitted to the Advocate Illinois Masonic Medical Center for suicidal thoughts, auditory hallucinations, severe depression, and poor sleep. (R. 928). He was currently taking twenty medications to treat his physical and psychiatric symptoms. (R. 869). Psychiatrist Dr. Rajeev Panguluri recommended that Plaintiff's psychotropic medications should include Abilify, Trazedone, Xanax, and Lexapro. (R. 869). Plaintiff subsequently began outpatient treatment at Advocate Illinois with psychiatrist Dr. Zachary Friedman and other treaters. Dr. Friedman noted on January 22, 2014 that Plaintiff had not slept for two days. (R. 916). Consequently, Plaintiff's medication regimen was changed by February 2014 to include Abilify, Buspar, Sertraline, Restoril, Xanax, and Trazodone. (R. 912). Despite these medications, Plaintiff had difficulty leaving his home for treatment due to ongoing anxiety. (R. 898, 904). In the last treatment note dated May 13, 2014, however, Plaintiff reported that the recent addition of the bipolar medication Latuda had reduced his mood swings and permitted him to sleep up to five hours a night. (R. 896).

         B. THE ALJ'S DECISION

         Applying the familiar five-step evaluation procedure for disability cases, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of October 1, 2008. (R. 18). His severe impairments at step two were degenerative disc disease of the cervical spine, obesity, an affective mood disorder, and polysubstance abuse disorder. (R. 18). At step three, the ALJ concluded that Plaintiff's obesity and neck impairments did not meet or medically equal a listed impairment, either singly or in combination. (R. 19). Plaintiff's mental impairments, however, met the requirements of listing 12.04 (affective disorders) and listing 12.09 (substance abuse disorder) because Plaintiff experienced marked restrictions in his social functioning and concentration, persistence, and pace when he used drugs and alcohol. (R. 19-20). Because such a finding meant that Plaintiff would be disabled, the regulations required the ALJ to determine if Plaintiff would continue to be disabled if he did not have a substance abuse disorder. See 20 C.F.R. § 404.1535(b)(1). The ALJ concluded that substance abuse materially contributed to Plaintiff's mental functioning and that he would not meet or equal a listed impairment if he did not use drugs or alcohol. (R. 20-21). Accordingly, the ALJ continued with the five-step analysis.

         Before moving to step four, the ALJ found that Plaintiff's testimony concerning the severity of his symptoms was not fully credible. The ALJ also gave only some weight to the report issued by Plaintiff's wife and to the written opinion of consulting psychiatrist Dr. Kenneth Levitan. (R. 27-28). Great weight was given to the physical RFC report issued by non-examining expert Dr. Julio Pardo. (R. 27). The ALJ assigned moderate weight to an RFC report submitted by Plaintiff's treating physician Dr. Syed Akhter but dismissed a mental RFC issued by treating psychiatrist Dr. Michael Reinstein by giving it slight weight. (R. 28, 31). The ALJ further adopted and rejected parts of a report given by treating psychiatrist Dr. Zachary Friedman. (R. 31-32).

         The ALJ then formulated a complex RFC assessment that fell into two parts. He concluded that if Plaintiff stopped abusing drugs and alcohol, then prior to July 2012 he would be able to perform light work with no additional exertional or non-exertional restrictions. Multiple mental restrictions, however, would be required. Plaintiff could not focus for extended periods of time; could only have casual contact with the general public and co-workers; would be restricted to “dealing with things as opposed to people”; and could be off-task for five percent of the time. (R. 22). That RFC changed, however, as of July 2012 based on the ALJ's conclusion that Plaintiff's neck condition had worsened at that time. The ALJ now found that Plaintiff could carry out what he identified as sedentary work, though he also concluded that Plaintiff could stand and walk for six hours during an eight-hour workday. Numerous non-exertional limitations were also identified. As for the mental RFC, the ALJ removed the restriction that Plaintiff could be off-task for five percent of each workday. (R. 28-29). Based on these findings, the ALJ found at step four that Plaintiff could not perform his past relevant work as a hotel manager and bartender. (R. 32). Relying on the testimony of the VE, the ALJ further found that a significant number of jobs existed in the national economy that Plaintiff could perform both before and after July 2012. (R. 32-33). He therefore concluded that Plaintiff was not disabled.

         LEGAL STANDARD

         Judicial review of the Commissioner's final decision is authorized by Section 405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this decision, a court may not engage in its own analysis of whether Plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (citation omitted). Nor may it “displace the ALJ's judgment by reconsidering facts or evidence or making credibility determinations.” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The court's task is to determine whether the ALJ's decision is supported by substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (quoting Skinner, 478 F.3d at 841)).

         In making this determination, the court must “look to whether the ALJ built an ‘accurate and logical bridge' from the evidence to her conclusion that the claimant is not disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). The ALJ need not, however, “provide a complete written evaluation of every piece of testimony and evidence.'” Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013) (quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (internal citations and quotation marks omitted)). Where the Commissioner's decision “'lacks evidentiary support or is so poorly articulated as to prevent meaningful review, ' a remand is required.” Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)).

         To recover DIB or SSI under Titles II and XVI of the Social Security Act, a claimant must establish that she is disabled within the meaning of the Act. Keener v. Astrue, 2008 WL 687132, at *1 (S.D. Ill. Mar. 10, 2008).[1] A person is disabled if she is unable to perform “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a); Crawford v. Astrue, 633 F.Supp.2d 618, 630 (N.D. Ill. 2009). In determining whether a claimant suffers from a disability, the ALJ conducts a standard five-step inquiry, which involves analyzing “(1) whether the claimant is currently employed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment is one that the Commissioner considers conclusively disabling; (4) if the claimant does not have a conclusively disabling impairment, whether he can perform his past relevant work; and (5) whether the claimant is capable of performing any work in the national economy.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (citing 20 C.F.R. ยง 404.1520). ...


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