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Howard v. Berryhill

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

September 6, 2017

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


          SIDNEY I. SCHENKIER United States Magistrate Judge.

         Claimant Kesia Yvette Howard ("claimant" or "Ms. Howard") has filed a motion for summary judgment seeking reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Supplemental Security Income benefits ("SSI") (doc. #15: Pl.'s Mot. for Summ. J.). The Commissioner has filed a motion seeking affirmance of the decision denying benefits (doc. #23: Def.'s Mot. for Summ. J.). For the following reasons, we grant Ms. Howard's motion for remand and deny the Commissioner's motion.


         On October 25, 2011, Ms. Howard applied for SSI, claiming that she became disabled on July 26, 2011 due to asthma, sleep apnea, vision problems, memory problems, anemia, arthritis in her knees and fibroids (R. 384, 394, 417, 421). After her claim was initially denied, Ms. Howard filed a request for reconsideration, which was denied on April 5, 2012 (R. 229, 234, 239). Ms. Howard subsequently requested a hearing by an Administrative Law Judge ("ALJ"), which was held on December 18, 2012 (R. 175, 243). On January 25, 2013, the ALJ ruled that Ms, Howard was not disabled, and she filed a request for review (R. 178, 284). On May 13, 2014, the Appeals Council remanded the case for further consideration of: (1) new evidence related to Ms. Howard's learning disability and General Ability Index; (2) Ms. Howard's obesity; and (3) how Ms. Howard's assessed limitations were specifically supported in the ALJ's determination of her RFC (R. 194, 196).

         Following two additional hearings on September 8, 2014 and May 28, 2015, [3] the ALJ issued a written opinion on August 26, 2015, finding Ms. Howard was not disabled from October 25, 2011 through the date of the decision (R. 220). The Appeals Council upheld the ALJ's determination on April 7, 2016, making the ALJ's determination the final opinion of the Commissioner (R. 1-7). See 20 C.F.R. § 404.981; Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).


         Ms. Howard was born on April 11, 1965 and was 50 years old at the time of her final hearing in May 2015 (R. 136). She completed the eighth grade and had taken some classes towards her GED, but had not finished the program (R. 137).[4] She never married and has three adult children, one of whom lives with her (Id.). Ms. Howard previously worked as a driver for a youth program, a lunch room attendant, and a security guard, although not at the level of substantial gainful activity (R. 138-142, 219). Between 2001 and 2006, Ms. Howard also worked as a "parent patrol" at Limb Blue High School while one of her children attended there (R. 78, 79, 444). In a Work History Report she completed in connection with her application for benefits, Ms. Howard wrote that this job involved assisting teachers, patrolling hallways, and greeting school guests (R. 446).

         Because (as we discuss below), our decision to remand rests on the ALJ's treatment of Ms. Howard's mental impairments, we will only briefly summarize her physical issues. Ms. Howard has a history of asthma, which is treated primarily through medication management; she has no recent hospital visits related to complications from asthma (R. 554). Ms, Howard had surgery for uterine fibroids in August 2011 and has arthritis in her knees; she had surgery on her left knee in 1995 (R. 547, 938). While diagnostic testing in 2011 and 2012 (MRI and x-ray) revealed degenerative changes from osteoarthritis in her knee, Ms. Howard's pain and tenderness was generally managed with medication and regular physical therapy (R. 587, 599, 600, 617, 733, 915, 918, 944, 946).

         On December 1, 2011, Charles Carlton, M.D., examined Ms. Howard in connection with her claim for benefits (R. 554). Dr. Carlton's report summarized his examination of Ms. Howard with respect to both her physical and mental health (R. 556). The entirety of Dr. Carlton's mental status evaluation of Ms. Howard stated "[g]eneral observations are as noted above. She was alert and oriented to time, place and person. She describes no history of treatment for depression or psychiatric disorders" (R. 556). Dr. Carlton also noted that Ms. Howard complained of memory problems, but his report does not reflect that he tested Ms. Howard's memory (Id.).

         In December 2011, Lionel Hudspeth, Psy.D, completed a psychiatric review technique for Ms. Howard, based on Dr. Carlton's examination and not upon his own examination of Ms. Howard (R. 563-72). Dr. Hudspeth opined that Ms. Howard did not have any mental health impairments and thus he did not complete a Paragraph B assessment (R. 563). Dr. Hudspeth's written summary of his findings identifies Ms. Howard's allegations of memory problems as her only potential mental health issue; he found that she was not credible with respect to her allegations of memory problems but did not explain why he made this finding (R. 575). On April 4, 2012, agency doctor David Voss, PhD, affirmed Dr. Hudspeth's findings on the ground that Ms. Howard reported no psychiatric disorders or treatment (R. 607).

         Ms. Howard underwent several days of psychological and intelligence testing between January 11, 2013 and February 19, 2013 to determine the possibility of a learning disorder, after a referral from Richard J. Daley College, which she was attending to obtain her GED (R. 652). The testing report showed that Ms. Howard was alert and oriented for situation, time, place and person, her mood was calm, and she was cooperative and friendly (R. 653). Ms. Howard's memory was grossly intact and she had average insight and judgment (Id.). Ms. Howard was judged to have index scores of 70 in verbal comprehension, 85 in perceptual reading, 86 in working memory, 59 in processing speed, and 70 in general ability, leading to a full scale IQ of 67 (Id.). The report cautioned that given the large spread among the individual indexes, Ms. Howard's generally ability index of 70 was a better estimate of her overall functioning than the IQ of 67 (R. 653-54). The report summarized that claimant's intellectual functioning was in the borderline/extremely low range and her verbal and performance abilities were significantly disparate (R. 658). Ms. Howard's anxiety could also contribute to her academic functioning (Id.). The report listed diagnoses of a reading disorder and a disorder of written expression (Id.).

         At the request of the ALJ, state agency consultant Harvey I. Friedson, Psy.D, performed a mental status examination on Ms. Howard on December 3, 2014 (R. 899). His report reflects that Ms. Howard was cooperative, with relevant and coherent speech (R. 901). She had some range of affect and cried during the exam (Id.). Dr. Friedson's testing of Ms. Howard's memory consisted of asking her how she had gotten to the appointment; she correctly responded that her son had driven her (Id.). Dr. Friedson diagnosed Ms. Howard with "depressive disorder" and added that his diagnosis would include borderline intellectual functioning (R. 902). On a Medical Source Statement of Ability to Do Work-Related Activities (Mental), Dr. Friedson opined that Ms. Howard was moderately limited in her ability to understand, remember, and carry out simple instructions and to make judgments on simple work-related decisions (R. 904). He assessed her as markedly limited in her ability to understand, remember, and carry out complex instructions and make judgments on complex work-related decisions (Id.). Dr. Friedson also judged Ms. Howard to be moderately limited in her ability to interact appropriately with the public, coworkers, and supervisors and to respond appropriately to usual changes in her work setting (R. 905). When asked to identify the factors that supported his assessment, Dr. Friedson wrote "9th grade education, no diploma, slow learner, chronic pain, medical issues" (R. 904).

         At the hearing on May 28, 2015, after considering the additional evidence of Ms. Howard's learning disability and mental health impairment, the ALJ gave the vocational expert ("VE") a hypothetical that asked her to consider an individual with the plaintiffs age, education and work history, who could lift 20 pounds occasionally and 10 pounds frequently, could stand and walk six hours in an eight-hour day and sit for six hours in an eight-hour day but who needed the opportunity to alternate between sitting and standing for up to two hours each, although not necessarily at will (R. 31-32).[5] The hypothetical claimant also had additional limitations of being unable to understand, remember, and carry out detailed and complex job tasks, and was limited to casual contact with general public, coworkers and supervisors (Id.). The VE responded that such an individual would be able to perform light, unskilled work as a laborer, a small parts assembler or as an inspector, for which approximately 105, 000 positions existed nationwide (R. 32, 33). However, the VE testified that all of the jobs identified would be ruled out if the individual were to be off task for 15 percent or more of the workday or miss more than one day per month (R. 33).

         In his opinion dated August 26, 2015, the ALJ followed the familiar five-step process for determining disability, 20 C.F.R. § 404.1520(a)(4), and 416.920(a) (R. 204-08). After considering the new evidence of claimant's learning disability and Dr. Friedson's report, and further considering plaintiffs obesity, her need to alternate between sitting and standing, and other functional limitations, the ALJ found that Ms. Howard was not disabled within the meaning of the Social Security Act (the "Act") (R. 202, 203). The ALJ determined that Ms. Howard had not engaged in substantial gainful activity since the date of her application and that she had the following severe impairments: asthma, obesity, arthritis, history of learning ...

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