United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER [1]
IAIN
D. JOHNSTON UNITED STATES MAGISTRATE JUDGE.
Plaintiff
John B. seeks Social Security disability benefits based on
anxiety and depression that allegedly make it difficult for
him to leave his house alone or to complete tasks on a
consistent basis. To treat these problems, plaintiff has been
seeing a psychiatrist who has been prescribing a series of
medications for over a year, but this treatment has not yet
provided satisfactory relief. After a hearing, an
administrative law judge (“ALJ”) found that
plaintiff was not disabled, largely because plaintiff was
able to do activities supposedly inconsistent with his
claimed limitations. The Court finds that a remand is
required because the ALJ's characterization of plaintiff
as an independent self-starter is strongly at odds with the
descriptions given by plaintiff and his wife. To be clear,
the Court is not reweighing the evidence. The Court is
remanding the case because the ALJ's decision is based on
clear factual errors.
BACKGROUND
Sometime
in 2010, plaintiff started complaining to his primary
physician, Dr. James Koepsell, about nausea, sleep problems,
and anxiety. R. 282. Medical tests were performed, but they
did not reveal any obvious physical causes. Dr. Koepsell then
began prescribing psychiatric medications. For example, in
July 2011, he prescribed Cymbalta, but plaintiff reported
that it had not helped his anxiety. R. 287. Other medications
were tried under Dr. Koepsell's supervision. See
R. 288 (“prozac so far has not helped but has no side
effects”); R. 292 (“Zyprexa has increased his
appetite, ” but he “still feels
nauseated.”).
On
January 31, 2015, plaintiff filed Title II and Title XVI
applications for Social Security disability benefits. He was
then 34 years old.
Dr.
Koepsell eventually referred plaintiff to a psychiatrist. In
May 2015, plaintiff began treatment with Dr. Syed Irfan. R.
414. Over the next year, Dr. Irfan met with plaintiff once or
twice a month and prescribed and then adjusted various
medications in an effort to find a satisfactory solution.
On July
24, 2015, plaintiff visited consultative examiner Peter
Thomas, a psychologist, who interviewed plaintiff and
prepared a report. Ex. 6F. He made various observations,
noting for example that plaintiff was “significantly
anxious and tense” and “became tearful” at
times during the interview. R. 327. Dr. Thomas diagnosed
plaintiff with “Major Depressive Disorder, single
episode, severe.” R. 329.
On
November 15, 2016, Dr. Irfan completed a mental impairment
questionnaire supporting plaintiff's disability claim.
Ex. 11F. He opined, among other things, that plaintiff had
extreme limitations in social functioning and marked
limitations in concentration, persistence or pace. R. 417.
On
December 17, 2016, the administrative hearing was held.
Plaintiff was represented by counsel. The ALJ called a
vocational expert but did not call a medical
expert.[2] The hearing was relatively short.
Plaintiff testified that he was married and living with four
children, “one of [his] own and three
stepchildren.” R. 30. The children were then 6, 11, 13,
and 14 years old. Plaintiff had graduated from high school,
and last worked in the mail room at an insurance company but
had to quit because of his psychological problems. He stated
that his anxiety made him very uncomfortable around people,
even just standing next to them. He had constant negative
thoughts running through his head making him feel bad. When
asked whether the medications prescribed by Dr. Irfan were
helping, he answered “no.” R. 35.
Plaintiff
testified that he did not help cook any meals at home for his
children and generally did not do any cleaning or laundry or
yard work. When his children were at school, he just
“[sat] on the couch and [tried] to make the thoughts
stop.” R. 36. He sometimes watched television but did
so just for “a couple minutes” to take his mind
off his negative thoughts. Id. He sometimes went to
dinner with friends, and two friends sometimes came over to
his house to play cards and board games. He smoked marijuana
twice a day to help with a stomach ailment that made him
nauseated. In the past two years, his family has gone on
vacations, but plaintiff did not go because the
“anxiety of the thought of being with strange people or
in a strange setting was too much.” R. 43. At the most
recent Thanksgiving at his wife's family's house, he
stayed in the basement without interacting with the adults.
On
March 17, 2017, the ALJ found plaintiff was not disabled. The
ALJ found that plaintiff had the following severe
impairments: “persistent depressive disorder with
intermittent major depressive disorder, social anxiety
disorder, obsessive-compulsive disorder, and marijuana
abuse.” R. 12. The ALJ found that plaintiff did not
meet any Section 12.00 psychological listing. The ALJ applied
the new paragraph B criteria that became effective March 24,
2017. Specifically, the ALJ found that plaintiff had moderate
limitations in each of the four categories: (i)
understanding, remembering, or applying information; (ii)
interacting with others; (iii) concentrating, persisting or
maintaining pace; and (iv) adapting or managing oneself. R.
13-14.
In the
residual functional capacity (“RFC”) analysis,
the ALJ found that plaintiff could do the full range of work
except that he could only “understand, remember and
carryout simple, routine and repetitive tasks; use judgment
limited to simple work related decisions; occasionally
interact with supervisors; and have brief and superficial
interaction with coworkers and the public.” R. 15. The
ALJ found that plaintiff was not credible based on his
activities and the objective evidence. As for the medical
opinions, the ALJ gave “little weight” to Dr.
Irfan's opinion because it was supposedly at odds with
his own treatment notes and with plaintiff's activities.
The ALJ gave “little weight” to Dr. Thomas's
consultative report, which stated that plaintiff had
“significant difficulties” in functioning,
because this statement was vague. R. 18. The ALJ gave great
weight to the opinion of state agency psychologist Ellen
Rozenfeld who limited plaintiff to simple repetitive tasks in
a socially undemanding setting. The ALJ found that this
finding was consistent with the objective evidence and with
plaintiff's activities.
ANALYSIS
Plaintiff
raises three arguments for remand. The first is that the ALJ
found that plaintiff had moderate limitations in
concentration, persistence, or pace but then failed to
account for this limitation in either the RFC or in the
hypothetical questions posed to the vocational expert. This
is the often-raised argument based on Seventh Circuit cases,
such as Yurt and O'Connor-Spinner,
holding that a limitation to simple tasks does not
necessarily address problems with maintaining concentration
over longer periods. The second argument is that the ALJ
relied on a distorted picture of plaintiff's activities.
The third argument is that the ALJ erroneously disregarded
Dr. Irfan's opinion. Because the Court finds that the
second argument is the most encompassing and that it
justifies a remand by itself, the Court will begin with and
mostly focus on it.
The ALJ
found that plaintiff could do various activities inside and
outside the home that were supposedly inconsistent with his
self-reported statements about what he could do. Before
looking more closely at this rationale, a few background
points should be noted. First, this was an important
rationale supporting the overall decision, maybe even the
most important one. The ALJ referred to it throughout the
decision. It was mentioned early on in the listing analysis
and then was thereafter repeatedly pulled out, as a kind of
“go to” rationale.” For example, it was
cited as one of the two main reasons for rejecting Dr.
Irfan's opinion and for accepting Dr. Rozenfeld's
opinion-even though neither doctor focused much on this
rationale. In sum, to the extent that this rationale rested
on factual errors or distortions, these cannot be dismissed
as trivial errors. See Jones v. Astrue, 623 F.3d
1155, 1160 (7th Cir. 2010) (“Rather than nitpick the
ALJ's opinion for inconsistences or contradictions, we
give it a commonsensical reading.”).
Second,
the ALJ's findings are based entirely on statements made
by plaintiff or his wife. These statements fall into three
categories: (i) plaintiff's hearing testimony; (ii)
various written statements-specifically, three function
reports completed by plaintiff and his wife (Exs. 10E, 11E,
12E), and a letter written by plaintiff's wife (Ex. 9E);
and (iii) a few statements the ALJ culled from treatment
notes or from the consultative examiner's report. There
was thus a stockpile of similarly worded statements the ALJ
could draw from, making it more likely that inadvertent
discrepancies might be found. See Powers v. Apfel,
207 F.3d 431, 435 (7th Cir. 2000) (cautioning that the
“many interviews and forms required to apply for
disability benefits should not be viewed as traps for
slightly varied accounts of daily activities”). The
relevant question to be assessed here is whether the
ALJ's summary of these many statements was accurate,
complete, and fair. See Roddy v. Astrue, 705 F.3d
631, 639 (7th Cir. 2013) (analysis of daily activities
“must be done with care”). Spoiler alert-it was
not.
Third,
it will be helpful to catalogue the different limitations
plaintiff is claiming. He asserts that he is only comfortable
unless he is “at home and no one is bothering
him”; he has difficulty going out in public without a
family member, and when he does go out, he isolates himself
and “stays in a corner”; he has problems
concentrating and staying on task and often requires
reminders to get things done; he is generally not motivated
to do much of anything; and he would have difficulty show up
consistently for work. Dkt. #11 at 7. These are the
contentions the ALJ thought were contradicted by
plaintiff's activities.
With
these points in mind, the Court turns to the ALJ's
findings. Starting at the most concrete level, the ALJ found
that plaintiff was doing the following specific activities:
driving his children to school; attending his son's
soccer game; going to dinner with friends; shopping in a
store; attending church; visiting grandparents; exercising
weekly at the YMCA; preparing simple meals; washing clothes;
changing the oil in the car; taking out the trash; and
managing the household finances. R. 14-16. Moving up the
ladder of abstraction, the ALJ found that plaintiff was
taking care of his children, managing the household finances,
and engaging in social activities with friends. Perhaps the
most general statement came at the end of the decision where
the ALJ stated that plaintiff could engage in
“independent and sustained activities” of daily
living. R. 18. Collectively, these statements give the
impression that plaintiff was a self-starter doing many
chores and activities while actively taking care of four
children.
However,
after reading the source materials relied on by the ALJ, the
Court finds that the ALJ mischaracterized the evidence. In
too many instances, the ALJ engaged in cherrypicking by
choosing the most unfavorable verbal formulations taken from
many possible choices and then by aggressively turning them
into broader blanket propositions. See Pierce v.
Colvin,739 F.3d 1046, 1050 (7th Cir. 2014) (remanding
because the ALJ's credibility determination
“misstated some important evidence and misunderstood
the import of other evidence”). At the same time, the
ALJ ignored or blandly summarized statements favorable to
plaintiff. Se ...