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Anthony S. v. Saul

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

January 2, 2020

Anthony S., Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          Lisa A. Jensen, United States Magistrate Judge

         In this disability benefits appeal, everyone agrees that plaintiff, who is now 55 years old, has struggled for years in several life domains. A rough biographical sketch establishes this point. Since 2000, plaintiff has not worked at any job for a sustained period, earning only de minimis amounts of reportable income in a few of these years. He has a history of abusing alcohol and crack cocaine, although he allegedly stopped using these substances several years ago. He has had domestic disputes and legal problems. In 2013, he served his most recent prison sentence, a 5-month term for possession of a controlled substance. Dkt. #19 at 2. Over his lifetime, he has been arrested at least 35 times, at least according to his own recollection.[2] He continues to have anger outbursts and problems with authority figures, fearing they are out to get him. Although he claims these problems existed since he was 12 years old, he also states that they were exacerbated in 2009 when his son was shot and killed by Rockford police in a church daycare center. R. 336. For plaintiff, this was a devastating event. Afterwards, he began hearing voices, specifically his son's voice, and became more distrustful and has spent much time ruminating about the alleged injustice. He has a history of suicide attempts, the most recent one in 2011, which allegedly led to a three-week stay at a facility. Id. at 3. At the time of the administrative hearing, he was living in a homeless shelter. On a brighter note, he got married in 2014. His new wife has diligently been assisting him in pursuing disability benefits.

         Although both sides agree on this factual template, they differ on how to best explain plaintiff's life difficulties. Plaintiff offers a psychological or medical explanation. After being released from prison in November 2013, he began treatment at Rosecrance Ware Center. A psychiatrist, Dr. Michael Kuna, diagnosed him with bipolar disorder and post-traumatic stress disorder (“PTSD”) and prescribed medications to treat these conditions.[3] Plaintiff also began participating in group therapy. Dr. Kuna completed a mental RFC questionnaire in which he opined, among other things, that plaintiff had marked limitations in several categories, had three episodes of decompensation in a 12-month period, and would likely be absent from work four or more days a month. R. 691, 693. In a nutshell, plaintiff's argument is that his psychological conditions were the root cause of his problems.

         The administrative law judge (“ALJ”) had a different take. She found that plaintiff was not a credible witness and that Dr. Kuna's opinion was unsupported. Although she agreed at Step Two that plaintiff had severe psychological impairments-including bipolar disorder, PTSD, and personality disorder-the ALJ found that plaintiff still had the ability to do light work. The ALJ offered a series of non-medical explanations to account for plaintiff's dysfunctional periods. The ALJ did not itemize these explanations into a neat list. Instead, these rationales emerged, mostly from the ground up, during the course of the ALJ's lengthy summary of plaintiff's medical visits. Based on this Court's reading of the decision, the ALJ relied on the following rationales or contentions.

         First, plaintiff's conditions were fully controlled by his medications. Second, plaintiff's doctors made many “normal” findings during office visits. Third, plaintiff often reported that he was feeling okay. Fourth, plaintiff did activities inconsistent with his allegations, particularly with his claim that he couldn't tolerate being around other people. These activities included sometimes going to his daughter's basketball games; helping to organize a rally to protest his son's killing; living in a homeless shelter; and participating regularly in group therapy. Fifth, plaintiff made inconsistent “presentations” or statements. One prominent example the ALJ relied on was that plaintiff, when interviewed by the consultative examiner (psychologist Dianna Kucera), refused to talk to her or to make eye contact. He let his wife do all the talking. The ALJ believed this behavior was “markedly inconsistent” with his “usual presentation” when seeing his treating doctors. R. 36. Sixth, the ALJ pointed to situational factors to explain certain facts.

         Although the ALJ's rationales have an ad hoc quality to them, with no single theory explicitly tying them together, there is a deeper lurking rationale that potentially plays this role. This is the implied accusation of malingering.[4] Although the ALJ never used this term, the ALJ made many statements pointing in this direction. The ALJ referred several times to plaintiff's inconsistent “presentation, ” a word that seems to be a veiled reference to malingering. The ALJ also noted that plaintiff once advised a case manager at Rosecrance “how to complete the mental health evaluation for [plaintiff's] attorney with answers that would help him gain approval for benefits.” R. 37. The ALJ made other general statements alluding to malingering as a hidden rationale. See R. 40 (“there is evidence of a lack of cooperation and/or less than full effort in the record”).

         To sum up, the Court is presented with two contrasting explanations. One would lead to a finding of disability, the other would not. It is often stated that when there is conflicting evidence about which reasonable minds could differ, then this Court must defer to the ALJ's interpretation so as long as it reasonable. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014). However, there are some additional constraints on this general rule.

         One is that ALJs should not make “their own independent medical findings, ” or in more vivid words, should not “succumb to the temptation to play doctor.” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). Here, the Court finds that the ALJ played doctor in multiple ways, and that a remand is required for this basic reason.

         The stage for doctor playing was set by the ALJ's decision (i) to not call a medical expert at the hearing, (ii) to give no practical weight to the opinions of the two state agency opinions, and (iii) to give no practical weight to Dr. Kuna's opinion.[5] Given that there were no supporting medical opinions, the ALJ's analysis necessarily was based on her layperson judgments.

         As the Seventh Circuit has noted, the temptation to play doctor is particularly acute where, as here, the claimant has psychological impairments. In a series of cases over the last couple decades, the Seventh Circuit has repeatedly faulted ALJs for having a general “lack of understanding” of complicated impairments such as bipolar disorder, schizophrenia, and PTSD. See Kangail v. Barnhart, 454 F.3d 627 (7th Cir. 2006); Bauer v. Astrue, 532 F.3d 606 (7th Cir. 2008); Larson v. Astrue, 615 F.3d 744 (7th Cir. 2010); Spiva v. Astrue, 628 F.3d 346 (7th Cir. 2010); Jelinek v. Astrue, 662 F.3d 805 (7th Cir. 2011). In these and other cases, the Seventh Circuit has pointed out common fallacies or misconceptions made by ALJs. Although many admonitions could probably be gleaned from these cases, the following are most relevant here.

         Symptoms are often episodic.

         The Seventh Circuit has emphasized that ALJs should always consider the possibility that the claimant's symptoms wax and wane. If the claimant's symptoms are episodic, then this may affect other parts of the analysis. One common issue is whether ALJs can rely on normal examination findings to cast doubt on the claimant's credulity. However, as explained in Kangail, if symptoms are episodic, then it is not contradictory for a doctor to find that a claimant had a severe mental illness even though she was “behaving pretty normally during her office visits.” 454 F.3d at 629. A similar point was made in Bauer:

A person who has a chronic disease, whether physical or psychiatric, and is under continuous treatment for it with heavy drugs, is likely to have better days and worse days; that is true of the plaintiff in this case. Suppose that half the time she is well enough that she could work, and half the time she is not. Then she could not hold down a full-time job.

532 F.3d at 609.

         Bipolar disorder is not easy to treat in many cases.

         This point is partly related to the first one. In Kangail, the Seventh explained that, although bipolar disorder in theory is “treatable by drugs, ” several factors make treatment more difficult in practice. One barrier is that the claimant “may require a complex drug regimen to deal with both the manic and the depressive phases of the disease.” 454 F.3d at 630. Another is that the illness itself “may prevent the sufferer from taking her prescribed medicines or otherwise submitting to treatment.” Id. For these and other reasons, the Seventh Circuit has cautioned ALJs to be careful in analyzing whether medication will work over an extended period. See ...


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