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Dempsey v. Berryhill

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

September 19, 2017

CURTIS J. DEMPSEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the U.S. Social Security Administration, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          MARIA VALDEZ United States Magistrate Judge

         This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying Plaintiff Curtis Dempsey's (“Plaintiff”) claims for Social Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff's motion for summary judgment [Doc. No. 10] is denied and the Commissioner's cross-motion for summary judgment [Doc. No. 18] is granted.

         BACKGROUND

         I. Procedural History

         Plaintiff filed an application for SSI on October 24, 2011, alleging a disability onset date of September 23, 2010, due to lead poisoning, attention deficit disorder (“ADD”), bronchitis, depression, and a stutter. (R. 180-85, 194.) His initial application was denied on December 19, 2011, and again at the reconsideration stage on April 27, 2012. (R. 75-76.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on May 30, 2012. (R. 95-97.) The hearing was held on June 25, 2014. (R. 38-74.) Plaintiff appeared at the hearing with his non-attorney representative and offered testimony. (Id.) A vocational expert and medical expert also appeared and offered testimony. (Id.) On September 24, 2015, the ALJ issued an unfavorable written decision, finding Plaintiff is not disabled. (R. 14-37.) The Appeals Council (“AC”) denied review on February 4, 2016, leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005); Herron v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994); (R. 1-6).

         II. Medical Evidence

         Plaintiff was born on June 14, 1990 and was twenty-four years old at the time of his administrative hearing. (R. 180.) He completed one year of high school and has no prior work experience. (R. 46, 49.)

         A. Medical Records

         Plaintiff's first examination of record is a Formal Mental Status Evaluation performed by Dr. Dennis Karmitis, Psy.D., on December 1, 2011, where Plaintiff reported that he suffered from ADD, sadness, and depression. (R. 255-58.) In order to formulate his assessment, Dr. Karamitis asked Plaintiff to answer several questions and perform mental exercises. (Id.) In general, Plaintiff was reluctant to participate in the examination, and reported that he did not know his own marital status or the meaning of the words “job”, “condo”, and “hobby.” (Id.) When asked, he was unable to name five large cities or correctly name the current President of the United States. (R. 257.)

         Plaintiff stated that his daily activities typically consisted of sleeping, watching television, and looking out the window. (R. 256.) Plaintiff specifically noted that he did not cook or assist with household chores. (Id.) He explained that his mother often had to remind him to take care of his personal hygiene, and Dr. Karamitis noted that his grooming and hygiene were acceptable for the setting. (R. 256-57.) Dr. Karamitis stated that Plaintiff had no evidence of cognitive difficulties relative to his mental processing, and then diagnosed him with depressive mental disorder. (R. 258.)

         Shortly after his examination with Dr. Karamitis, on December 15, 2011, Plaintiff's record was reviewed by Dr. Michele Womontree, Psy.D., a non-examining consultant. (R. 259-272.) Based in part on the findings of Dr. Karamitis, Dr. Womontree found that Plaintiff had the medically determinable impairment of depressive disorder which would result in mild difficulties in his ability to maintain both social functioning and concentration, persistence, or pace. (R. 262-69.)

         About four months later, on April 16, 2012, Plaintiff presented for a second psychological examination, this time with Dr. Henry Fine, M.D. (R. 273-76.) Plaintiff reported that he had ADD, and went on to explain that his troubles in school were a result of lead poisoning as a child. (R. 273.) He also presented with bronchitis. (R. 274.) In contrast to his examination with Dr. Karamitis, Plaintiff's attitude and degree of cooperative were good. (R. 273.) Plaintiff's speech was understandable with no obvious stuttering, and his grooming was neat. (R. 274.) At this examination, Plaintiff was able to name five large cities, and correctly reported that Obama was the President of the United States. (R. 275.) However, when asked how a bush and a tree are alike, Plaintiff stated “What is a bush.” (Id.) Dr. Fine determined that Plaintiff suffered from a complex learning disability with ADHD symptoms, related to his lead poisoning and complicated by dysthymic disorder, as well as bronchitis. (R. 276.)

         Eight days later, on April 24, 2012, Plaintiff was evaluated by Dr. Leon Jackson, Ph.D., a non-examining consultant. (R. 277-79.) In his evaluation, Dr. Jackson considered the April 2012 statements provided by Dr. Fine, but ultimately affirmed the opinion of Dr. Womontree due to the lack of severe findings or longitudinal history. (R. 278-79.)

         On October 11, 2013, Plaintiff presented to Jenny Lemus, M.H.P., at Mount Sinai Hospital (“Mount Sinai”), after experiencing symptoms of depression and increased anger. (R. 287.) Plaintiff was asked to list his strengths and interests, to which he responded, in part, by stating that he liked to drive and cook. (R. 292.) Upon review, Ms. Lemus determined that Plaintiff had poor insight with current mental health needs. (Id.) Her findings were later signed by Catherine Ortiz, Psychotherapist, L.C.S.W., L.P.H.A. (R. 293.)

         On December 4, 2013, Plaintiff returned for another evaluation at Mount Sinai, but was seen by Tracy McDonald, N.P., for problems sleeping, decreased appetite, and decreased energy. (R. 294.) He stated he often felt angry, was easily irritated, yelled, and “g[ot] into other people's faces.” (Id.) His anger episodes typically lasted for one hour. (Id.) Ms. McDonald noted that Plaintiff was appropriately dressed and exhibited fair grooming and hygiene. (R. 295.) Plaintiff was noted to be independent at shopping, housekeeping, accounting, food preparation, and transportation; however, his independence in transportation was limited due to his panic and anxiety. (Id.) His thought processes were logical, goal oriented, and coherent. (Id.) Despite knowing that some of his behaviors were inappropriate, Ms. McDonald noted that Plaintiff did not seem motivated to change. (Id.)

         In addition to the foregoing evidence, Plaintiff's record also contains a function report, completed by Plaintiff.[2] (R. 199-207.) In his report, Plaintiff explained that he relied on his mom to help remind him to bathe himself, cook his meals, perform housework, and take him outside one per month. (R. 200-202.) He explained that he does not spend time with others or get along with authority figures. (R. 203-05.) In a similar report, Plaintiff's sister indicated that he had also suffered from a stutter “all of his life.” (R. 222.)

         Plaintiff's record also contains two slips from Richard J. Daley College which indicate Plaintiff's achievement levels in math and reading as of August 2012. (R. 235-36.) The scores reveal that he performed at a beginning fourth grade level in math and a late fifth grade level in reading. (Id.)

         B. Plaintiff's Testimony

         Plaintiff was present and testified at his June 2014 administrative hearing. He testified that he could not work because he struggles to stay focused, is easily distracted, and suffers from anger issues. (R. 61.)

         In order to manage his anger, Plaintiff stated that that he attended monthly, one hour sessions with a psychologist. (R. 56-57.) As of the date of his hearing, he testified that he had met with his psychologist at least six times. (R. 57.)

         At one point, Plaintiff had obtained a driver's license; however, he explained that he had subsequently misplaced it, and therefore no longer drove. (R. 48.)

         For about one month, Plaintiff attended GED courses at a Richard J. Daley College, with his cousin, two to three times per week. (R. 58.) He stated that he did not feel confident commuting to school on his own and that he was generally uncomfortable using public transportation individually because he had gotten lost before. (R. 49, 59.)

         He also explained that he did not cook. (R. 60-61.)

         C. ME's Testimony

         Medical and psychological expert, Ellen Rozenfeld (the “ME”) was also present and testified at Plaintiff's hearing. After review of the medical evidence of record, the ME opined that Plaintiff's record was consistent with a diagnosis of learning disorder (R. 64.) Although the ME did not have access to any IQ scores, she based her finding on Plaintiff's records from Richard J. Daley College which indicated he was below his peers in reading and math abilities. (Id.) She stated the record likewise supported diagnoses of depressive disorder and dysthymic disorder. (R. 64-65.) She explained that with regards to the evidence of file, Plaintiff did not meet or equal any of the listings. (R. 65.)

         She then assigned Plaintiff a moderate limitation in his activities of daily living, social functioning, and in ...


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