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Bertha M v. Saul

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

September 17, 2019

BERTHA M.,[1] Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff applied for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i), 423, 1381a, 1382c, about four years ago. (Administrative Record (R.) 190-202). She claimed that she became disabled as of December 25, 2014, due to severe depression. (R. 218). Over the ensuing three years, plaintiff’s application was denied at every level of administrative review: initial, reconsideration, administrative law judge (ALJ), and appeals council. It is the ALJ’s decision that is before the court for review. See 20 C.F.R. §§404.955; 404.981. Plaintiff filed suit under 42 U.S.C. § 405(g), and the parties consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636( c) on June 7, 2018. [Dkt. #6]. The case was reassigned to me six months later, on January 10, 2019. [Dkt. # 21]. Plaintiff asks the court to reverse and remand the Commissioner’s decision, while the Commissioner seeks an order affirming the decision.


         Plaintiff was born on October 16, 1980 (R. 192), and was just 34 when she claims she became unable to ever work again. (R. 192). She has a high school education, and work experience as a retail store supervisor, inventory counter and, most recently, as massage therapist. (R. 232). She says left that job at Christmastime in 2014 when she had a nervous breakdown and attempted suicide. (R. 48). She had stopped taking her medication, inflicted “two very superficial lacerations on her left wrist”, and was hospitalized for a couple of weeks. (R. 364). At the time it was noted that her symptoms were not consistent with a diagnosis of PTSD. (R. 447). She later explained she thought her depression had a “seasonal component.” (R. 452). Four days later she felt “great.” (R. 416). She told the ALJ that she had been using cocaine once a week at the time, but stopped in May 2015. (R. 42). Conversely, she told her mental healthcare providers that she hadn’t been using drugs at all or had used cocaine a single time. (R. 444, 455, 572).

         Plaintiff also thought her problems had to do with her brothers not appreciating her and disliking her boyfriend of that time, who was a drug abuser. (R. 475, 556). Plaintiff left that relationship about four months later (R. 590). More recently, she had a boyfriend who was stable and reliable, although she complained that he was boring. (R. 644). Stress over finances also contributed to her problems, although she reported having a “steady income” but not a “working income.” (R. 475, 567). As a result, she said she planned on seeking disability and unemployment insurance. (R. 475, 567). She was also angry she was not getting a tax refund in 2015 because she had not repaid her student loans. (R. 473, 565).

         The medical record in this case is relatively small, as these cases go, covering about two and a half years of therapy following plaintiff’s hospitalization. While consisting of 400 pages or so, records are duplicated two and three times throughout. (R. 330-736). The records are in the usual jumble, and this may have led to some confusion. Both the ALJ (R. 21) and the plaintiff [Dkt. # 10, at 3] refer to treatment records from a Dr. Peggy Chou, but the records they cite appear to be from Dr. Castelino (R. 455-57). Dr. Chou does report that she saw plaintiff every two months from May 2015 through November 2016 (R. 594), but the only other mention of the doctor comes in a note from another mental healthcare provider in January 2017. (R. 613, 623). The record appears to include no treatment notes from Dr. Chou; there are treatment notes from Dr. Castelino (R. 454-58), and therapists, Daniel Sasuta (R. 439-53), Sha-Ron Frizzle (R. 459-95), and Daniel Jean (R. 608-735).

         As is generally the case with plaintiffs claiming disability based on psychological issues like depression or anxiety, page after page of therapists’ notes show that plaintiff is sometimes depressed, sometimes better, sometimes fine. Invariably, a plaintiff – like many people – will have issues with family, spouses, and significant others. There’s not much in records like these to suggest whether a plaintiff can work or cannot. A perfect example of this is a note from March 9, 2015, where Therapist Frizzle reported that plaintiff “seemed to be in good spirits but still seemed to be very depressed.” (R. 480). What an ALJ, or a reviewing court, is supposed to make of contradictory entries like that is a puzzle.

         But, aside from the usual, it should be noted that throughout her treatment, based on the GAF scores various mental health professionals assigned her, from January 8, 2015 on, plaintiff was stable. Every session, month after month and sometimes week after week, her GAF score was at least 55. (R. 466, 469, 475, 480, 503, 505, 576, 578, 582, 594, 613). A GAF between 51 and 60 reflects “‘Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).’” Jelinek v. Astrue, 662 F.3d 805, 807 (7th Cir. 2011)(quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Text Revision (DSM–IV–TR) 34 (4th ed. 2000). Compare this to the general notion that “GAF scores bounce around a great deal, however, because they depend on how the patient happens to feel the day he's examined.” Voigt v. Colvin, 781 F.3d 871, 875 (7th Cir. 2015). This is the record the ALJ was tasked to consider.

         After an administrative hearing – at which plaintiff, represented by counsel, and a vocational expert testified – the ALJ determined plaintiff was not disabled. The ALJ found that plaintiff had one severe impairment: depressive disorder. (R. 17). Plaintiff was also obese, but it was not severe as it caused no more than minimal limitations to plaintiff’s ability to perform basic work activities. The ALJ went on to determine that plaintiff’s psychological impairment caused a mild limitation in understanding, remembering, or applying information; a moderate limitation in interacting with others; a moderate limitation in concentrating, persisting, or maintaining pace; and a moderate limitation in adapting or managing herself. (R. 18-19). But, because not one area was affected to a marked level, the ALJ found that plaintiff’s psychological impairments, either singly or in combination, did not meet or equal a listed impairment assumed to be disabling in the Commissioner’s listings. (R. 19).

         The ALJ then stated that the plaintiff had the residual functional capacity to perform work at all extertional levels with the following nonexertional limitations due to her psychological impairment: “simple, routine repetitive tasks in a low-stress environment, defined as having few if any changes in the work setting and few if any simple work-related decisions; no contact with the public; only occasional contact with co-workers but no tandem or team tasks where one production step depends on another; and would need a ten-minute break every two hours, which can be accommodated by routine breaks and lunch.” (R. 19). The ALJ next noted plaintiff’s laundry list of alleged symptoms: anxiety attacks, nightmares, irritability, paranoia, difficulty concentrating/focusing, short attention span, limited ability to complete tasks or understand instructions, difficulty getting along with others, week-long manic episodes every few weeks, and drowsiness for two hours after taking her medications. (R. 20). She then found that plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for reasons explained in this decision.” (R. 24).

         The ALJ then carefully and at length discussed the medical evidence, noting both normal and abnormal findings. (R. 20-25). The ALJ also assessed the medical opinion evidence. The psychiatrist that examined plaintiff in connection with her application for benefits found she could communicate with co-workers and supervisors, follow and retain most instructions, perform simple, routine tasks, but would have difficulty handling moderate work stress. The ALJ accorded significant weight to this opinion as it came from an experienced psychiatrist with knowledge of disability standards. (R. 24). Next, the ALJ noted that plaintiff’s treating therapist found that she was markedly limited in her ability to concentrate and unable to function in a competitive work setting. The ALJ accorded this opinion moderate weight, saying it was not consistent with the treatment notes, was in response to prompts on a form, and was the result of a relatively short treatment relationship. (R. 24). The ALJ also accorded only moderate weight to the opinion of plaintiff’s psychiatrist that plaintiff would be disabled due to a number of significant limitations because these were not congruent with the psychiatrist’s treatment notes and with other findings. (R. 25). Finally the ALJ said that the record generally supported the opinion of the state agency reviewing physician and firmly supported the opinion of the state agency reviewing psychologist. (R. 25).

         Next, the ALJ determined that plaintiff could not return to her past work because is was semiskilled and required more contact with the public than she was now capable of. (R. 26). Then, the ALJ – relying on the testimony of the vocational expert – found that given her residual functional capacity, plaintiff could perform the following jobs that exist in significant numbers in the national economy: laundry laborer (DOT #361.687-018), industrial cleaner (DOT #381.687-018), and machine packager (DOT #920.685-078). (R. 27). Accordingly, the ALJ concluded that plaintiff was not disabled and was not entitled to benefits under the Act. (R. 29-30).


         If the ALJ’s decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,402 U.S. 389, 401 (1971); Beardsley v. Colvin, 758 F.3d 834, 836 (7th Cir. 2014). To determine whether substantial evidence exists, the court reviews the record as a whole but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts or the credibility of witnesses. Beardsley, 758 F.3d at 837. “Where conflicting evidence allows reasonable minds to differ as to whether a ...

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