United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
David Weisman United States Magistrate Judge
Nicholas Fidler brings this action pursuant to 42 U.S.C.
§ 405(g) for judicial review of the Social Security
Administration Commissioner's decision denying his
application for benefits. For the reasons set forth below,
the Court reverses the Commissioner's decision.
applied for benefits on January 14, 2014, alleging a
disability onset date of October 30, 2013. (R. 19.) His
application was denied initially on April 3, 2014 and upon
reconsideration on October 30, 2014. (R. 19.) Plaintiff
requested a hearing, which was held by an Administrative Law
Judge (“ALJ”) on July 19, 2016. (R. 19.) On
October 18, 2016, the ALJ issued an unfavorable decision
finding Plaintiff not disabled. The Appeals Council declined
to review the decision on July 19, 2017, 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
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)). While generous, this
standard “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).
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. Under the
regulations, the Commissioner must consider: (1) whether the
claimant has performed any substantial gainful activity
during the period for which he claims disability; (2) if not,
whether the claimant has a severe impairment or combination
of impairments; (3) if so, whether the claimant's
impairment meets or equals any listed impairment; (4) if not,
whether the claimant retains the residual functional capacity
(“RFC”) to perform his past relevant work; and
(5) if not, whether he is unable 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, and if that burden is met, the burden
shifts at step five to the Commissioner to provide evidence
that the claimant is capable of performing work existing in
significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).
one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since October 30, 2013, the
alleged onset date. (R. 21.) At step two, the ALJ found that
Plaintiff has the following severe impairments:
“anxiety disorder and an affective disorder.” (R.
21.) At step three, the ALJ found that Plaintiff “does
not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments.” (R. 22.) This finding led the ALJ to
conclude at step four that Plaintiff has the residual
functional capacity to “perform a full range of work at
all exertional levels” with certain exceptions. At step
five, the ALJ determined that jobs existed in significant
numbers in the national economy that Plaintiff could perform,
and thus he is not disabled. (R. 28-29.)
Given to Treaters' Opinions
contends that the ALJ improperly rejected the opinion of
Plaintiff's treating psychotherapist, Dr. Rebeck. An ALJ
is required to give a treating physician's opinion
controlling weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R §
404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739
(7th Cir. 2011). The ALJ must give good reasons for the
weight that she assigns a treating physician's opinion.
Bates v. Colvin, 736 F.3d 1093, 1101 (7th Cir.
2013); Roddy v. Astrue, 705 F.3d 631, 636-37 (7th
Cir. 2013). If an ALJ chooses not to give a treating
physician's opinion controlling weight, “the
regulations require the ALJ to consider the length, nature,
and extent of the treatment relationship, frequency of
examination, the physician's specialty, the types of
tests performed, and the consistency and supportability of
the physician's opinion.” Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009); see also 20
C.F.R. § 404.1527(c).
March of 2014, Dr. Rebeck noted that Plaintiff had a
diagnosis of phobia, panic disorder, and depression. (R.
359.) She opined that Plaintiff had a “depressed mood,
” was unable to “reliably” drive alone and
“completely unable to drive distances beyond 15 minutes
or on expressways, ” unable to use public
transportation unless accompanied by his wife (and even then
it is difficult for him), and unable to go places alone
without his safe person for “more than a few
hours.” (R. 356-57; 359.) She also noted that Plaintiff
had serious limitations with (1) the ability to understand
and remember instructions on a sustained basis, (2) the
ability to respond appropriately to colleagues and customary
work pressures, and (3) the ability to perform tasks on an
autonomous and sustained basis. (R. 356-57.) At the time of
Dr. Rebeck's assessment, Plaintiff had visited her two
times a week for several months.
failed to provide sufficient justification for only giving
“some weight” to one of Dr. Rebeck's reports
and “little weight” to another. (R. 26.) The ALJ
inaccurately notes that one of Dr. Rebeck's reports
(Exhibit 2F) identifies Plaintiff's “main
problem” as reliably driving alone. (R. 26.) While this
was certainly a concern reflected in Dr. Rebeck's report,
it was far from the “main” concern in light of
all of the other limitations identified, including difficulty
interacting with others and autonomously performing simple
tasks. Similarly, the ALJ's decision to
afford Dr. Rebeck's additional opinion (Exhibit 3F)
“little weight” lacks adequate reasoning.
(Id.) She disregarded the opinion because it
allegedly conflicted with a report from the Plaintiff's
former wife that suggested Plaintiff could stay home alone
without issue. (Id.) Dr. Rebeck's report,
however, is not in conflict with Plaintiff's former
wife's account. As discussed above, Dr. Rebeck's
report indicates that Plaintiff is unable to drive short
distances alone, has difficulty coping with new people and
experiences, and is unable to reliably stay at home alone.
(R. 359.) This assessment aligns with Plaintiff's former
wife's account that Plaintiff struggles to go places by
himself (R. 218), work (R. 218), drive long distances (R.
220), manage stress (R. 223), and is only able to go to the
grocery store if she accompanies him (R. 221). Accordingly,
the ALJ's stated rationales for her valuations of Dr.
Rebeck's opinions are not supported by the record.
Dr. Rebeck's opinions were not entitled to controlling
weight, the ALJ was still required to evaluate them in
accordance with the regulatory factors. Had the ALJ
considered the fact that Dr. Rebeck treated Plaintiff twice a
week for several months and rendered consistent opinions
supported by the record, the ALJ may have given Dr.
Rebeck's opinions more weight.
also improperly dismissed the opinion of Plaintiff's
treating therapist, Janice Litvene, that noted Plaintiff
avoids interactions with others, experiences “panic and
fear increases” in social settings, and has trouble
taking his son outside (parks, libraries, etc.). (R. 431.)
Ms. Litvene also noted “extreme” restriction of
daily living activities, maintaining social functioning, and
maintaining concentration, persistence, or pace. (R. 433.)
These opinions are consistent with the opinions of other
treating sources regarding Plaintiff's significant
limitations. Despite this fact, the ALJ disregarded Ms.
Litvene's opinion because the record did not provide
“evidence of the claimant being extremely limited in
activities of daily living, social functioning and
concentration, persistence and pace.” (R. 27.) The ALJ
relies on, among other things, Plaintiff's ability to
care for his son, ...