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Diaz v. Berryhill

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

September 20, 2017

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


          M. David Weisman, United States Magistrate Judge

         Karan Diaz brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Social Security Administration Commissioner's decision denying her application for benefits. For the reasons set forth below, the Court reverses the Commissioner's decision.


         Plaintiff applied for benefits on August 17, 2012, alleging a disability onset date of August 8, 2012. (R. 94.) Her application was initially denied on May 22, 2013, and again on reconsideration on December 5, 2013. (R. 107, 122.) Plaintiff requested a hearing, which was held by an Administrative Law Judge (“ALJ”) on December 17, 2014 and July 28, 2015. (R. 54-93, 557-604.) On October 22, 2015, the ALJ issued a decision finding plaintiff not disabled. (R. 27-48.) The Appeals Council declined to review the decision (R. 1-4), leaving the ALJ's decision as the final decision of the Commissioner, reviewable by this Court pursuant to 42 U.S.C. § 405(g). See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


         The Court reviews the ALJ's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous, it is not entirely uncritical, ” and the case must be remanded if the “decision lacks evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

         Under the Social Security Act, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520. The Commissioner must consider whether: (1) the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any listed impairment; (4) the claimant retains the residual functional capacity to perform her past relevant work; and (5) the claimant is able to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four. 20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the burden shifts to the Commissioner to establish that the claimant is capable of performing work existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since August 8, 2012, the alleged onset date. (R. 29.) At step two, the ALJ determined that plaintiff has the severe impairments of “rheumatoid arthritis (RA), fibromyalgia, obesity, glaucoma, depression, anxiety, bi-polar disorder, cyclothymia, panic disorder without agoraphobia, and post traumatic stress disorder (PTSD).” (Id.) At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments. (R. 30.) At step four, the ALJ found that plaintiff cannot perform her past relevant work but has the residual functional capacity (“RFC”) to perform light work with, among other exceptions, the “need for only simple routine work that stays the same day-to-day [and] involves no public contact, ” and “no work in coordination with others . . . subject to only occasional interaction with co-workers and supervisors.” (R. 31, 46.) At step five, the ALJ determined that jobs exist in significant numbers in the national economy that plaintiff can perform, and thus she is not disabled. (R. 46-47.)

         Plaintiff contends that the ALJ's RFC determination is erroneous because it does not account for her “moderate difficulties” in maintaining concentration, persistence or pace. (R. 31.) Presumably, the ALJ meant to address this issue by limiting plaintiff to “simple routine work that stays the same day-to-day [and] involves no public contact.” (Id.) The Seventh Circuit has said, however, that “‘confining the claimant to simple, routine tasks and limited interactions with others [does not] adequately capture[] temperamental deficiencies and limitations in concentration, persistence, and pace.'” Taylor v. Colvin, 829 F.3d 799, 802 (7th Cir. 2016) (quoting Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014)). Cf. Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (holding that RFC that limited claimant to “simple, unskilled work” did not adequately address his moderate limitations in concentration and pace).

         The RFC also does not limit plaintiff to work involving “1-2 step job tasks, ” which was the recommendation of the state agency psychologists, whose opinions the ALJ gave “some weight.” (R. 45; see R 104, 119 (agency psychologists stating that plaintiff can “understand and remember work . . . procedures of a simple, routine nature involving 1-2 step job tasks and instructions”).) The ALJ was not required to accept the agency doctors' opinions, but he was required to -- and did not -- explain why he adopted some of their findings and rejected others.[2]See SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996) (instructing ALJs to “explain the weight given to the[] opinions [of agency doctors] in their decisions”); McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011) (“[T]he agency's own regulations and rules require that the ALJ ‘not ignore [agency physician] opinions and must explain the weight given to the[m] in their decisions.'”) (quoting SSR 96-6p); Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004) (an ALJ must “build [an] accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court, we may assess the validity of the agency's ultimate findings and afford a claimant meaningful judicial review”) (quotation omitted). Given these flaws, the case must be remanded for a new RFC determination.

         Plaintiff also argues that the ALJ erred by giving more weight to the opinions of the psychological expert than to those of plaintiff's treating therapist. Plaintiff's therapist, Mr. Brumfield, is a licensed clinical professional counselor, not a physician (see R. 445), and as such he is not an “acceptable medical source” whose opinions are subject to the controlling weight presumption accorded to opinions of treating medical sources. See 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.”); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (stating that licensed clinical social workers and therapists are not “acceptable medical sources”). Nonetheless, the ALJ was still required to evaluate Mr. Brumfield's opinion applying substantially the same factors as those set forth in the “treating physician rule, ” i.e., (1) “How long the source has known and how frequently the source has seen the individual”; (2) “How consistent the opinion is with other evidence”; (3) “The degree to which the source presents relevant evidence to support an opinion”; (4) “How well the source explains the opinion”; (5) “Whether the source has a specialty or area of expertise related to the individual's impairment(s)”; and (6) “Any other factors that tend to support or refute the opinion.” Id. at *4.

         The ALJ said this about Mr. Brumfield's opinion:

The undersigned is assigning no weight to LCPC Brumfield's August 2012 opinion. This source no longer has longitudinal familiarity because the claimant stopped attending therapy over a year ago. Further, his judgments are inconsistent with his own chart notes and the chart notes of the treating psychiatrist who was better equipped to evaluate the claimant's status. His opinion also is ...

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