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Shered v. Berryhill

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

April 27, 2018

Tammie M. Shered Plaintiff,
Nancy A. Berryhill, Acting Director of Social Security, Defendant.



         Plaintiff Tammie M. Shered (Plaintiff) last had substantial gainful activity (SGA) in 2002, when she was a teacher's aide.[1] The Plaintiff's disability claim involves her complaints of migraines, dizziness, photophobia, mental impairments, and social limitations. R. 521. The extent of these medical impairments and how they impact the Plaintiff's residual functional capacity (RFC) is at issue.


         To summarize the somewhat lengthy procedural history, the Plaintiff originally filed her claim for disability in July 2008 alleging an onset date of February 1, 2004. R. 479, 522. The Administrative Law Judge (ALJ) denied the claim in 2010; the Appeals Council denied a request for review; a complaint was filed in the U.S. District Court for the Northern District of Illinois in 2011; and the case was remanded. R. 479. In 2013, the ALJ issued another unfavorable decision; the Appeals Council denied review; and in August 2015, the U.S. District Court once again remanded the case. R. 479. The Appeals Council issued its remand order in November 2015. The ALJ issued the third unfavorable decision in May 2016, and the Appeals Council declined to assume jurisdiction in October 2016, resulting in the Plaintiff's present appeal, filed in December 2016.

         The ALJ's decision in May 2016 found that the Plaintiff did not engage in substantial gainful activity (SGA) during the period from her alleged onset date of February 1, 2004 through her date last insured of March 31, 2011 (step one); and that through her date last insured, the Plaintiff had the severe impairments of open angle glaucoma bilaterally, blindness in her left eye, and hypertension (step two).[2]

         The ALJ determined that the Plaintiff had the non-severe impairments of obesity and depression. The ALJ also found that the mental residual functional capacity (RFC) assessment used at steps four and five of the sequential evaluation process required a more detailed assessment. R. 498. The ALJ found that the record did not support the Plaintiff's claim of labyrynthitis associated with symptoms of vertigo that required her to lie down during the day. R. 494. The ALJ briefly discussed the opinion of consultative examiner Dr. Therese Lucietto-Sieradzki (“CE”). The ALJ gave the CE's opinion little weight as the CE appeared, in the purview of the ALJ, to have based her opinion primarily on the Plaintiff's subjective reports and presentation as well as an incomplete examination. R. 494. Additionally, the ALJ stated that although the Plaintiff had reported memory loss to the CE, the documented mental status examinations in the record routinely showed that the Plaintiff's memory was intact. R. 494.

         At step three, the ALJ's decision in May 2016 also found that the Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. 404.1520(d), 404.1525, and 404.1526.

         It is the ALJ's analysis and determinations that followed that are the primary subject of the Plaintiff's present appeal. The ALJ determined, before step four, that the Plaintiff had the RFC to perform light work, except that the Plaintiff should never climb ladders; could frequently climb stairs, balance, crouch, crawl, kneel, and stoop; cannot operate a forklift or heavy equipment due to monocular vision; cannot engaged in fine assembly due to limited depth field; and should avoid all unprotected heights and moving machinery. R. 499. In making this determination, the ALJ stated that he considered all symptoms and the extent to which those symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, and that he also considered opinion evidence.[3]

         The ALJ summarized the Plaintiff's characterization of disability at a March 2016 administrative hearing held before the ALJ, noting that the Plaintiff's representative maintained that the Plaintiff's disability primarily stemmed from her dizziness, recurrent migraine headaches, photophobia, and depression and anxiety. R. 500. The ALJ also summarized the Plaintiff's testimony that she had bouts of dizziness at least once a month that required her to lie down, that her vision and photophobia had worsened over the past fifteen years, that she experienced migraine headaches once a week, and that her depression and anxiety caused her to socially withdraw once or twice a week.

         In all-to-familiar, canned administrative jargon, the ALJ concluded that the Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that the Plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record. R. 500. In support of this conclusion, the ALJ discussed the Plaintiff's hypertension, blindness in one eye and open angle glaucoma bilaterally, and grip in her hands. The ALJ also discussed the opinion evidence of the medical expert Dr. James McKenna, the State Agency medical consultants Dr. Charles Kenney and Dr. Ernst Bone, and the third party Adult Functioning report made by the Plaintiff's brother-in-law Mr. Tommy Shered. Notably, the ALJ failed to discuss the Plaintiff's depression, which the ALJ had previously characterized as a medically determinable mental impairment (R. 494). The failure is even more critical because the ALJ noted that the discussion previously provided about the Plaintiff's depression was in the context of rating the severity of her mental impairments and that the mental RFC assessment at steps four and five required a more detailed analysis (R. 498).

         The ALJ next determined that the Plaintiff was capable of performing past relevant work as a teacher's aide through her date last insured and that the work did not require the performance of work-related activities precluded by the Plaintiff's RFC (step four). R. 503. This finding at this step yielded the result that the Plaintiff was not disabled.


         In this appeal, the Plaintiff makes four arguments relating ultimately to the sufficiency of the ALJ's determinations regarding the Plaintiff's RFC. The Plaintiff argues that the ALJ erred in (1) violating the law of the case doctrine with regard to the Plaintiff's alleged need to lie down during the day, (2) failing to explain why he did not include restrictions in his assessment of the Plaintiff's RFC that stemmed from the psychological testing Northern Illinois University (NIU) conducted, (3) assessing the intensity, persistence, and limiting effects of the Plaintiff's symptoms, and (4) finding that the Plaintiff could perform past relevant work. In turn, the Government argues that there is no law of the case in this civil action; the ALJ properly considered the Plaintiff's mental limitations; the ALJ properly assessed the Plaintiff's alleged symptoms; and the ALJ properly found that the Plaintiff could perform her past relevant work. Because the issue of whether the ALJ properly considered the Plaintiff's medically determinable mental impairments when determining the Plaintiff's RFC is sufficient to require remand, an issue that arises within the Plaintiff's first argument and has bearing on subsequent arguments, this issue will be the primary focus of this opinion.

         But initially, the Court addresses the law-of-the case argument. This Court's August 2015 remand order did not establish law of the case. Said remand order was in response to the parties' agreed motion and included instructions for the ALJ to follow on remand, but did not include any findings made by the Court. See Key v. Sullivan, 925 F.2d 1056, 1061 (7th Cir. 1991)(holding that “the law of the case doctrine comes into play only with respect to issues previously determined, ” and that “[i]f an issue is left open after remand, the lower tribunal is free to decide it”); Angevine v. Sullivan, 881 F.2d 519, 522 (7th Cir. 1989)(stating that to determine whether the Government violated the law of the case on remand, the Court must carefully consider the scope of the district court's remand order). Nevertheless, the instructions included in the August 2015 remand, if followed by the ALJ in the ...

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