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Suess v. Berryhill

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

September 20, 2017

Gillian Suess Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston, United States Magistrate Judge

         This long-running disability benefits case returns to this Court for a second time. Plaintiff Gillian Suess worked for Honeywell for almost 25 years until she was laid off in April 2002. Over the next several years, she negotiated for and then received severance payments, applied for and received unemployment benefits for seven or eight months, and ran a home business selling watches on eBay. Then, in May 2005, she filed for disability insurance benefits. She alleged that her disability began in April 2002-i.e. the same time she was laid off.

         Her primary impairments are panic attacks and fibromyalgia. Her panic attacks, along with related anxiety, have been a life-long problem. These problems began when she was a child and continued through school and also during her 25-year employment with Honeywell. Despite these problems, she was reasonably able to cope. In school, she handed her work in on time and got mostly straight As. R. 558. On the job, she was able to stay fully employed for 25 years. However, she alleges that her problems worsened at the tail end of her stint at Honeywell. The panic attacks gradually worsened. Also, at some point during this general period, she was diagnosed with fibromyalgia. The fibromyalgia and other, possibly-related conditions (including headaches, irritable bowel syndrome, and carpal tunnel syndrome) added to the problem. She claims that, since stopping work, these problems have continued to worsen and that she now is mostly home-bound and cannot concentrate fully on any task. R. 77.

         This case has a lengthy procedural history, as evidenced by the fact that it is now over twelve years old. To summarize, the first of three administrative hearings was held on July 10, 2007. No medical expert testified. A few weeks later, the administrative law judge (“ALJ”) issued a 12-page decision finding plaintiff not disabled. Plaintiff filed an administrative appeal, and the Appeals Council remanded for a new hearing. On March 30, 2009, the same ALJ who presided over the first hearing held a second hearing. Psychologist Ellen Rozenfeld testified as a medical expert. On May 14, 2009, this same ALJ again found plaintiff not disabled. This decision was 16 pages. Plaintiff then filed an appeal to this Court. On May 10, 2013, Magistrate Judge Mary Rowland of this Court issued a 32-page decision remanding the case for further administrative proceedings. On March 18, 2015, a third administrative hearing was held. This hearing was before a different ALJ. Two experts testified. Dr. James McKenna addressed the fibromyalgia and other physical conditions, and Dr. Michael Carney testified about the mental impairments. On June 26, 2015, this second ALJ issued a 25-page decision finding plaintiff not disabled.

         In this appeal, the parties do not base any of their arguments on the first two ALJ decisions, or on Judge Rowland's decision, and instead focus solely on the third ALJ decision. In this decision, the ALJ concluded that plaintiff's residual functional capacity (“RFC”) was such that she could perform her past relevant work as a data entry clerk. Plaintiff performed data entry for most of career at Honeywell until she was switched late in her career to the computer hot line after the data entry job was downsized. R. 33. The ALJ's decision contains many arguments and rationales, but the overarching theory is that plaintiff's worsening symptoms were caused by the switch to the hotline job that required more interaction with people, thereby exacerbating her anxiety. The data entry job, in contrast, was on the second shift and was quieter with no phone work. R. 40. In further support of this theory, the ALJ noted that plaintiff's condition improved, or at least stabilized, after she stopped working full-time. Another rationale was lack of consistent treatment. The ALJ observed that, over a seven-year period, there were only “three periods of counseling, each less than six months.” R. 592. The ALJ also placed weight on various activities plaintiff engaged in that were allegedly inconsistent with plaintiff's portrayal of herself as home-bound. Finally, the ALJ gave little weight to several opinions from treating physicians.

         In evaluating the ALJ's decision, this Court asks whether it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision's conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). This Court cannot displace the decision by reconsidering facts or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). If there is conflicting evidence about which reasonable minds could differ, this Court “must” defer to the ALJ's interpretation so as long as it one of those reasonable interpretations. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).

         The latter principle is particularly relevant here. In her two briefs, plaintiff has raised numerous arguments attacking some (but not all) aspects of the ALJ's decision. In general, these arguments advance reasonable-some might even say persuasive-arguments about how to interpret disputed evidence. But as the Seventh Circuit has made clear, if the ALJ relies on contrary but reasonable inferences based on this same evidence, this Court may not second-guess that decision.

         Plaintiff's numerous arguments for remand are not arranged under clearly demarcated headings. This Court finds that they can be grouped initially into two broader categories for purposes of discussion. First, the ALJ allegedly placed too much weight on plaintiff's activities and did so by relying on layperson intuitions. Second, the ALJ allegedly failed to give sufficient weight to the opinions of several doctors. After discussing these two lines of argument, the Court will discuss any remaining arguments.

         I. Plaintiff's Activities.

         Plaintiff raises several arguments directed at the ALJ's reliance on plaintiff's various activities. These activities include not only the traditional day-to-day activities, hobbies, and chores considered in most disability cases (here, for example, that plaintiff gardened, did yoga on occasion, walked to the post office, did photography, worked on the computer, did crafts and sewing, occasionally went to the store with her husband) but also other one-off activities (the primary one being plaintiff's role in closing her mother's and stepfather's estates).

         Plaintiff's first argument focuses on the Step Three analysis-specifically, the four Paragraph B criteria in the Section 12 mental health listings analysis. To qualify as disabled under one of these listings, such as 12.06 for anxiety, plaintiff needed to have “marked” limitations in two of the first three categories. The ALJ found that plaintiff had mild limitations in activities of daily living (“ADL”); moderate limitations in social functioning; and mild limitations in concentration, persistence or pace (hereinafter, “concentration”). Plaintiff complains about these findings, arguing that the ALJ “summarized much anecdotal evidence and failed to discuss significant medical evidence” and also reached these conclusions “without the guidance of a psychiatrist or psychologist.” Dkt. #10 at 7.

         As for the latter assertion-that no medical opinions supported the ALJ's Paragraph B conclusions-this argument overlooks the opinion of psychologist Kirk Boyenga, a State Agency consultant, who indicated on one form that plaintiff had mild restrictions in ADLs; mild restrictions in social functioning; and moderate limitations in concentration. R. 378. These findings matched the ALJ's findings except for one difference. Dr. Boyenga flipped the moderate/mild findings, finding that plaintiff had only mild difficulties in social functioning (one step less severe than the ALJ) but had moderate difficulties in concentration (one step more severe than the ALJ). In short, there was a close match. In any event, Dr. Boyenga did not find that plaintiff had marked limitations in either of these categories, much less both. Moreover, on a second form, which breaks down the Paragraph B criteria into sub-categories, Dr. Boyenga found that plaintiff was “not significantly limited” (the lowest category) in five out of eight of categories for concentration; whereas, only three out of eight were checked as “moderately limited.” R. 382. On this same form, Dr. Boyenga provided the following narrative that supports not only the ALJ's Paragraph B findings, but also her later RFC formulation:

Claimant experiences an anxiety disorder and a pain disorder. There is documentation of outpatient treatment by a family doctor, but no indication of psychiatric care. The CE physician reports that claimant has been under-treated, yet is unaware that claimant has refused treatment opportunities in the past that could contribute to significant improvement. Claimant was noted by treatment sources to be more focused on [her] disability application than on pursuing a plan of treatment. The only functional limitations documented by available source[s] occur when claimant has a panic attack. She reports on examination that medication helps alleviate the symptoms. Claimant is fully oriented and free of thought disorder or serious memory problem[s]. She can do chores within physical limitations and does computer sales from her home. Claimant is capable of performing simple and detailed tasks. Social skills are impaired, but allow settings with reduced interpersonal contact. Claimant relates well with family. Adaptation abilities are limited, but allow routine, repetitive tasks. Claimant can follow instructions. Travel is reported to be limited, but claimant is able to go to familiar locations.

R. 384. Although the ALJ did not quote this passage, the ALJ referred to the Boyenga evidence.

         Plaintiff's next argument is that the ALJ essentially cherry-picked the evidence about her activities. This is an argument often made by claimants who point out qualifications and counter-evidence supposedly overlooked by an ALJ. This is certainly a valid line of argument. The Seventh Circuit has repeatedly cautioned that, unlike with work activities, a claimant often can perform household activities under a more flexible standard and then these activities are typically judged by a lower standard of performance. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Hamilton v. Colvin, 525 Fed.Appx. 433, 438 (7th Cir. 2013) (“We have admonished ALJs to appreciate that, unlike full-time work, the ‘activities of daily living' can be flexibly scheduled”). However, this does not mean that such activities are entirely irrelevant. It is true that it will rarely be possible to draw a straight line from a single discrete activity-such as gardening-to the bottom-line conclusion that a claimant was not disabled. But this does not mean that these activities, when considered as part of a larger mosaic of different types of evidence, have no relevance. It is a matter of proportionality. Here, after reviewing the ALJ's decision in its totality, this Court finds that the ALJ did not commit an error requiring a remand.

         Plaintiff focuses on certain activities and complains that they were merely “modest” and not inconsistent with her claim of rarely leaving the home. Plaintiff also raises factual qualifications, such as the fact that she felt pain and fatigue the next day after gardening. All these points may be true, but they do not establish that the ALJ was relying on an unfairly onesided view of the evidence. For example, the fact that plaintiff was sore after gardening does not change the fact that she felt able enough to engage in the activity in the first place and that she got out of the house to do so; in addition, the ultimate issue in this case is whether plaintiff could work a sedentary job such as a data entry clerk, one arguably involving less physical exertion than gardening. This Court agrees that these particular day-to-day activities would not be enough evidence by themselves, but there is no suggestion that they ALJ believed they were determinative on their own.

         It is also important to note that the ALJ also relied on other, non-typical activities to bolster these facts. These included vacationing at a family cabin, working out of her home after the onset date, composing a “detailed business letter” to Honeywell in August 2002, and, most significantly, managing her mother's and stepfather's medical problems and then their legal estates after they passed away in short succession in the fall of 2007. R. 601.

         Plaintiff does not comment on the business letter.[2] As for the vacation, plaintiff argues that going to the cabin was not relevant because it is not clear what activities plaintiff did there or whether they were “strenuous.” Dkt. #10 at 19. Here again, context and weight are important. One of the issues is whether plaintiff could leave the home. In this one instance, she did so. It is true that she later told her doctor that she had some anxiety with the “noisy” people there, but the fact that she was willing to venture out among people is itself a factor that could be deemed relevant. As for the home business, the ALJ stated the following: “Even if not [substantial gainful activity], this work activity implies that her daily activities have been at times, greater than she alleged during the period under adjudication.” R. 588. Again, the ALJ did not place great weight on this one fact. Plaintiff argues that the ALJ failed to establish how often plaintiff did this work and how much effort was required. However, the ALJ noted that plaintiff earned $1, 375 in 2003 and $971 in 2004. This implies some degree of organization and follow-through. Plaintiff has claimed that she could not even concentrate long enough to read a short article or follow the plotline of a television show.

         Perhaps the key piece of evidence, at least in terms of activities, was plaintiff's role in taking care of her mother and stepfather, which included multiple visits to a hospital out of town and then involved a myriad of activities in handling their legal estates. This effort took place over a period of months, perhaps even longer than a year. Much of the evidence about these activities comes from the notes of Dr. Zehra Rowjee, a board-certified psychiatrist at the FHN Family Resource Counseling Center. Plaintiff saw Dr. Rowjee multiple times during this period for medication management.[3] The ALJ mentioned this evidence repeatedly throughout the opinion. See R. 595, 599, 600, 601. It is worth quoting Dr. Rowjee's observations in some detail. Dr. Rowjee made the following comments:

• Plaintiff “has to handle all the legal paperwork and the insurance issues [for her mother's ...

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