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John B. v. Saul

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

November 7, 2019

John B., Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          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 ...


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