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Busse v. Berryhill

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

May 2, 2018

JOHN BUSSE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          SIDNEY I. SCHENKIER United States Magistrate Judge

         Plaintiff, John Busse, has filed a motion for summary judgment seeking reversal or remand of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying his claim for Social Security disability benefits (docs. #10: Pl.'sMot. for Summ. J., #11: Mem. in Support). The Commissioner has filed a response asking the Court to affirm its decision (doc. #18: Def.'s Resp.). For the reasons that follow, we grant Mr. Busse's motion.


         Mr. Busse applied for disability insurance benefits on May 30, 2013, alleging he became disabled on July 13, 2011 (R. 210, 212-18). His date last insured was December 31, 2017 (R. 19). Mr. Busse's claim was denied initially (R. 100-03), and again on reconsideration (R. 106-08). An Administrative Law Judge ("ALJ") held a hearing on July 14, 2015 (R, 61-69), but separated from the agency before rendering an opinion (R. 39). Another ALJ held a de novo hearing on February 25, 2016 (Id.). On April 21, 2016, the ALJ issued a written opinion finding Mr. Busse was not disabled from My 13, 2011 through the date of the decision (R. 16-30). The Appeals Council denied Mr. Busse's request for review, making the ALJ's determination the final decision of the Commissioner (R. 1-4, 14). 20 C.F.R. § 404.981; Cullinan v. Berryhill, 878 F.3d 598, 603 (7th Cir. 2017).


         Mr. Busse was born on November 23, 1958 and earned a high school diploma (R. 212, 265, 496). He began working for Caterpillar, Inc. in September 1988 (R. 337). Mr. Busse worked as a numerical control machine operator and set-up person through the end of his employment in 2011 (R. 55-56).[3]He was discharged from Caterpillar on July 13, 2011 for not meeting the expectations laid out in a May 9, 2011 Performance Improvement Plan (R. 376, 379).[4] Mr. Busse has not worked since his termination from Caterpillar (R. 42, 71, 351).

         Mr. Busse's alleged onset date is the same date that his employment was terminated, July 13, 2011 (R. 212, 379). In his Disability Report, dated June 17, 2013, Mr. Busse wrote that he stopped working "[b]ecause of [his] condition(s), " which he identified as bipolar disorder, depression and anxiety (R. 264). In his August 20, 2013 Function Report, Mr. Busse stated that he has been "under the care of multiple professionals in the 'mental health field' since 1994 and being on medication to treat depression, ADHD, bipolar disorder and anxiety for almost 20 years now has taken its toll on my mind" (R. 287). More specifically, Mr. Busse claimed he has "a very meager/poor 'short term memory'; [which] combined with [his] feeble concentration skills made it difficult for [him] to process tasks from start to finish in a single setting" (Id.). With regard to his social activities, Mr. Busse wrote that he had become "more of a recluse; staying home more to avoid confrontation and large groups of people" (R. 292). In addition, Mr. Busse noted that he "[has] problems" with authority figures and he takes "medication for anxiety to handle 'life, ' I don't like stress and don't perform well under it" (R. 293). Finally, Mr. Busse explained that since losing his job, he has gained over 50 pounds and is "very self-aware of my larger size and don't like it at all" (R. 294).

         While Mr. Busse's mental health history dates back to at least 1994, when he began medication and outpatient psychiatric treatment (R. 43, 287, 496), this Court will focus on those facts relevant to Mr. Busse's alleged disability beginning with his alleged onset date in July 2011. Mr. Busse has primarily been under the care of two doctors relevant to his claim: a psychiatrist, John Goldin-Mertdogan, M.D., as well as a psychologist, Timothy Buhrt, Psy.D. (R. 339).


         Mr. Busse began treatment with Dr. Goldin-Mertdogan in July 2008 (R. 508). Mr. Busse saw Dr. Goldin-Mertdogan regularly, with at least 29 visits taking place after Mr. Busse's alleged onset date (R. 604-10). In late July 2011, Dr. Goldin-Mertdogan diagnosed Mr. Busse with bipolar affective disorder, attention deficit disorder with hyperactivity ("ADHD") and other personality disorders (R. 400). Dr. Goldin-Mertdogan also prescribed Ability, Topamax, Adderall and Lexapro during this visit (Id.). At a follow-up visit a month later, Dr. Goldin-Mertdogan discontinued Adderall, added Xanax and Vyvanse, and continued Mr. Busse's other medications (R. 399). The next month, Dr. Goldin-Mertdogan switched Mr. Busse from Vyvanse back to Adderall (R. 398). Dr. Goldin-Mertdogan maintained the same diagnoses and medications through mid-March 2012 (R. 395-97).

         Dr. Goldin-Mertdogan's treatment records show a trend of waxing and waning symptoms documenting both positive and negative self-reports from Mr. Busse as well as positive and negative observations by the doctor. For example, on June 22, 2012, Dr. Goldin-Mertdogan noted signs of insomnia and depression, as well as a blunted affect, a mood of "35 to 40/100, " and poor energy level and motivation (R. 394). Dr. Goldin-Mertdogan increased Mr. Busse's Lexapro dosage and refilled his remaining prescriptions (Id.). Mr. Busse's visits on July 19, 2012, September 13, 2012, November 15, 2012, March 8, 2013, and May 23, 2013 revealed positive observations, including an "improved mood" and "brighter and calmer affect" (R. 384-85, 389-92). Despite Dr. Goldin-Mertdogan's positive observations, Mr. Busse complained that he continued to have difficulty falling asleep (R. 384). Dr. Goldin-Mertdogan restated his initial diagnoses and prescribed Xanax and Ativan (Id.).

         In his January 11, 2013 and March 1, 2013 treatment notes, Dr. Goldin-Mertdogan observed that Mr. Busse's mood had worsened (R. 386, 388). During their January meeting, Mr. Busse stated his "unemployment benefits were suddenly cut off a few weeks ago" and Dr. Goldin-Mertdogan advised him to apply for social security disability insurance through Medicare (R. 388). The following month, Mr. Busse reported that he had run out of prescription medications and could not afford many of them (R. 387). At their March 1, 2013 appointment, Mr. Busse continued to express that he was upset his unemployment benefits had been cut off and Dr. Goldin-Mertdogan indicated that "[patient] assistance forms were completed and signed" (R. 386). In visits on August 8, 2013 and October 4, 2013, Dr. Goldin-Mertdogan observed increased anxiety, a worried, upset, and stressed-out mood, an "agitated and nervous" affect, and poor attention and concentration (R. 462-63). At the August visit, Dr. Goldin-Mertdogan prescribed Strattera, increased the Xanax prescription daily dosage, and continued Ativan (R. 463); in October, he increased the Strattera dosage and continued Ativan and Xanax (R. 462).

         On March 10, 2014, Dr. Goldin-Mertdogan opined as part of a Non-Exertional Impairment Questionnaire that Mr. Busse was "unable to work due to [b]ipolar [and] ADHD" (R. 515). He also completed a Psychiatric/Psychological Impairment Questionnaire, diagnosing Mr. Busse with bipolar disorder and ADHD, and assigning a Global Assessment Functioning Score ("GAF") of 60 (R. 508).[5] He noted that Mr. Busse's lowest GAF score within that year was 40 (Id.). Dr. Goldin-Mertdogan listed symptoms including poor focus, inattention, labile mood swings, hopelessness, worthlessness, anxiety, fear, paranoia, irritability, anger, amotivation, and difficulty completing tasks as his "primary" symptoms (R. 509-10). The doctor further found that Mr. Busse was "markedly limited" in his "ability to set realistic goals or make plans independently" (R. 511), his impairments were ongoing (R. 512), and that he was "[i]ncapable of even iow stress"' (Id.). Finally, Dr. Goldin-Mertdogan estimated that Mr. Busse would be absent from work more than three times per month as a result of these impairments (R. 513).

         Several subsequent 2014 visits again yielded both positive and negative observations and self-reports. On March 14, 2014, Mr. Busse reported becoming increasingly tearful with depressed moods and feeling "extremely anxious over small things" (R. 460). Dr. Goldin-Mertdogan's observations at that visit, however, included "no insomnia, decreased anxiety, no depression . . . calmer mood, calmer and brighter affect ... no tearfulness . . . [and] less frustrated moods;" but Dr. Goldin-Mertdogan noted that Mr. Busse also exhibited poor attention and concentration (Id.), On June 13, 2014, Mr. Busse reported that "his moods have been depressed lately" with passive suicidal thoughts, and Dr. Goldin-Mertdogan prescribed Adderall, Ativan, Xanax, Abilify, Celexa and Topamax (R. 502). On August 8, 2014, Mr. Busse reported that he felt it was "highly unlikely [he could] return to work because he has poor short term memory and forgets regular conversations with people, " and he couldn't finish tasks such as mowing his lawn without distraction (R. 538). Dr. Goldin-Mertdogan also reported that Mr. Busse's "moods have been somewhat less depressed lately without any suicidal thoughts" (Id.).

         On April 10, 2015, Mr. Busse stated that he felt a lack of motivation, and Dr. Goldin-Mertdogan increased his Adderall dosage (R. 543). On My 10, 2015, Mr. Busse reported his mood as anxious and his affect appeared "tense and constricted" (R. 545). Three days later, Dr. Goldin-Mertdogan completed a Mental Impairment Questionnaire in which he noted multiple symptoms, identifying as marked limitations Mr. Busse's ability to understand, remember, and carry out detailed instructions and perform activities within a schedule and consistently be punctual (R. 548-51). Additionally, he estimated that Mr. Busse was likely to be absent from work more than three times per month as a result of these impairments (R. 551). On October 8, 2015 and January 15, 2016, Dr. Goldin-Mertdogan described Mr. Busse's mood as "anxious and down, " with a blunted affect, although his attitude was "cooperative and pleasant" (R. 597, 599).


         Dr. Buhrt began treating Mr. Busse at least as early as December 2008 (R. 517). Mr. Busse testified at his July 14, 2015 hearing that he saw Dr. Buhrt at least once a month, but closer to every week or two if his life was "in shambles" (R. 65, 604-10). On September 21, 2011, Dr. Buhrt observed Mr. Busse to be moderately depressed, worried, sad, deflated, annoyed, pessimistic and negative, diagnosing him with recurrent moderate major depressive disorder (R. 577). Dr. Buhrt's observations were identical in November 2011, but his June and July 2012 and January 2013 progress notes indicate that Mr. Busse had become severely depressed and moderately anxious (R. 573-76). On July 3, 2013, Dr. Buhrt observed that Mr. Busse's mood, energy, feelings of worthlessness or guilt, and ability to think or concentrate had worsened (R. 572). Mr. Busse reported his mood as depressed, his affect was "dysphoric, " and his insight and judgment as compromised (Id.). That said, Dr. Buhrt described Mr. Busse as "cooperative, friendly, and engaging with good eye contact and normal attention, focus and activity levels" (Id.). Dr. Buhrt's progress notes reiterated these negative and positive observations through November 17, 2014, though one progress note described his mood as irritated rather than depressed (R, 562-71). On April 13, 2015, his mood was described as "irritated with affect as somewhat restricted and blunted, but context responsive" (R. 561).

         On May 15, 2015, Dr. Buhrt completed a Mental Impairment Questionnaire in which he reiterated his diagnosis of major recurrent depressive disorder and also diagnosed Mr. Busse with ADHD (R. 517-21). He assigned Mr. Busse a GAF score of 50 (R. 517). Dr. Buhrt identified Mr. Busse's most frequent and/or severe symptoms as depressed mood, anhedonia, weight gain, sleep difficulties, fatigue, feeling of worthlessness, and diminished ability to think or concentrate (R. 519). He further opined that Mr. Busse had marked limitations in his ability to remember locations and work-like procedures, understand and remember detailed instructions, maintain attention and concentration for extended periods, and perform activities within a schedule and consistently be punctual (R. 520). Finally, he estimated that Mr. Busse would be absent from work more than three times per month as a result of these impairments (R. 521).

         On May 18, 2015, Mr, Busse described his mood as "O.K." (R. 558), yet from late June to late August 2015, Dr. Buhrt's progress notes continued to indicate Mr. Busse was depressed, sad, or irritated with a dysphoric or anxious affect (R. 553-57). In a letter addressed to Mr. Busse's counsel, dated September 27, 2015, Dr. Buhrt concluded:

Given the numerous years Mr. Busse has struggled with fluctuating levels of depression, despair, anxiety, and agitation, he would be unable to maintain consistent employment .... Mr. Busse has worked diligently to address his physical and emotional difficulties through medication and outpatient counseling. Unfortunately, the level [of] psychological distress that ...

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