MATTHEW F. KENNELLY, District Judge:
An Social Security Administration (SSA) administrative law judge (ALJ) denied Delois Nichols' claim for supplemental security income benefits (SSI), finding she was not disabled. Nichols has appealed the decision. Both Nichols and the Commissioner of Social Security have moved for summary judgment. For the reasons stated below, the Court grants Nichols' motion, denies the Commissioner's motion, and remands the case to the SSA for further consideration.
Nichols filed her application for SSI benefits in August 2009. She stated that she suffered from depression, asthma, back problems, arthritis in her knees and shoulder, and headaches, all of which she said had interfered with her ability to work since July 2002. She also stated that she stopped working as a home care provider in April 2006 after falling and breaking her shoulder.
The SSA first denied Nichols' application in December 2009 and did so again in September 2010. Nichols requested a hearing on her claim before an ALJ; the hearing took place in May 2011 in Chicago. Nichols testified at the hearing, answering questions from both the ALJ and her own attorney, followed by testimony from a vocational expert. Two months later, the ALJ issued his decision that Nichols had not been under a disability since the date of her application. In September 2012, the SSA's Appeals Council declined to review the ALJ's decision, making the ALJ's decision the final commission of the Commissioner. R. 1.
In his opinion, the ALJ applied the five-step sequential evaluation process outlined in the applicable Social Security regulations to determine whether an individual is
At step three, the ALJ found that Nichols' impairments did not "meet[ ] or medically equal[ ] one of the listed impairments" in 20 C.F.R. § 404, Subpart P, Appendix 1. R. 25. For physical impairments, the ALJ reported "that all of the listings under the Listing of Impairments were reviewed and considered in conjunction with the entire record," id., specifically referencing Sections 3.03 (asthma), 1.02 (major dysfunction of a joint), and 1.04 (disorders of the spine). He found that Nichols' ailments in these areas did "not approach the level of severity set forth in any section of the Listings of Impairments." Id.
As for Nichols' mental impairments, the ALJ concluded that they did "not meet or medically equal the criteria of listings 12.04, 12.06, and 12.09." Id. at 26. In this regard, the ALJ considered whether "paragraph B" criteria were satisfied. Each of the subsections of Part 12 of Appendix 1, including 12.04, 12.06, and 12.09,
The ALJ found that Nichols had a mild restriction in her daily living activities, moderate difficulties in social functioning and concentration, persistence, or pace, and found in the record no episodes of decompensation of extended duration.
The ALJ next found that the evidence in Nichols' case also failed to meet the "paragraph C" criteria. There is a paragraph C in subsections 12.04 and 12.06 listing factors an ALJ can consider instead of the paragraph B factors; he found that Nichols' record contained "no medically documented history ... of repeated episodes of decompensation, residual disease process resulting in marginal adjustment, or a current history of inability to function outside a highly supportive living arrangement." Id. at 26-27.
The ALJ went on to consider step 4, which requires him to assess Nichols' residual functional capacity (RFC) and past relevant work. He concluded that Nichols had the RFC "to perform a range of light work as defined in 20 C.F.R. 416.967(b)." Id. "Specifically," he wrote,
Id. at 27.
To reach this assessment at step four, the ALJ concluded that although Nichols' medically determinable impairments could reasonably cause her alleged symptoms, her "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." Id. at 28. To reach this finding, he made several factual determinations. First, he reviewed many of Nichols' own statements about her symptoms, activities, and abilities from various interviews and from the hearing before the ALJ. He then pointed out several inconsistencies in Nichols' past statements about her abstinence from drugs, and noted that her reports of hallucinations varied in different interviews. He proceeded to state that Nichols "is capable of a range of `light' exertional work," id. at 29, citing for his finding two reports from consultative examinations performed in November 2009 and June 2010 for the Bureau of Disability Determination Services. See id. at 279-87; 372-75. The ALJ also evaluated Nichols' mental wellness history, tracking her reported drug and alcohol use and general demeanor from April 2010, when she "beg[a]n seeking persistent therapy," through April 2011. Id. at 29-30. He again noted the June 2010 consultative examination, where Nichols had normal memory, appearance, judgment, and behavior, and "was appropriate, polite, pleasant, and cooperative." Id. at 30. In all, the ALJ concluded, Nichols had "experienced significant improvement" with treatment. Id.
In addition to these findings at step four, the ALJ also discussed the weight he assigned to various medical opinions in the record regarding Nichols' physical and mental limitations. First, he noted that he "assign[ed] significant weight" to the mental and physical assessments of the SSA's Disability Determination Services (DDS). R. 30. He did not explain why he gave these assessments "significant weight" but went on to note that he assigned only "some weight" to the DDS opinion that Nichols was capable of "medium" exertion. Id. Accordingly, he "further reduce[d] the claimant to a range of `light' work to provide her with every benefit and consideration." Id. He also considered the assessment of Naveed Mallick, who treated Nichols for asthma, substance abuse, and dental problems. He "assign[ed] some weight" to Mallick's opinion, "because it is not wholly inconsistent with the medical evidence of record." Id. at 30-31.
The ALJ also mentioned the conclusions of Dr. Nelda Scott, who treated Nichols at Stroger Hospital. He noted Scott reported that Nichols had PTSD, episodic cocaine abuse, and "rule out bipolar disorder," along with mild to moderate daily living limitations, moderate to marked social functioning limitations in social functioning, and moderate limitations in concentration, persistence, or pace. Id. at 31. He stated that Scott said Nichols "was easily irritated and just restarting treatment." Id. The ALJ did not indicate what weight he assigned to Scott's assessment, stating only that he had "considered" it. Id. "[H]owever," he wrote, "I note that Dr. Scott only briefly treated the claimant and her opinion is based on the claimant's state prior to beginning significant treatment." Id. Yet "[a]s set forth above, the claimant experienced significant improvement with treatment." Id.
After discussing these points, the ALJ proceeded to find that although Nichols was unable to perform any of her past relevant work as a home care aide with the RFC he had assigned to her, "there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id. at 31, 32. Here, he considered the RFC assessment, as well as Nichols' age, education and work experience, and also the Medical-Vocational Guidelines described in 20 C.F.R. § 404, Subpart P, Appendix 2. The ALJ also drew on the testimony of the vocational expert at the hearing, who testified that Nichols could work as a laundry sorter, cafeteria attendant, or housekeeping cleaner. Given that opinion, the ALJ concluded that Nichols "is capable of making a successful adjustment to other work that exists in significant numbers in the national economy" and thus was not disabled. Id. at 32.
A reviewing court should "uphold the Commissioner's final decision if the ALJ applied the correct legal standards and supported her decision with substantial evidence." Bates v. Colvin, 736 F.3d 1093, 1097 (7th Cir.2013). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pepper v. Colvin, 712 F.3d 351, 361-62 (7th Cir. 2013). A court must take care not to "reweigh the evidence or substitute [its] own judgment for that of the ALJ; if reasonable minds can differ over whether the applicant is disabled, we must uphold the decision under review." Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir.2012). But "as with any well-reasoned decision, the ALJ must rest its denial of benefits on adequate evidence contained in the record and must explain why contrary evidence does not persuade." Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.2008).
Nichols contends that the ALJ failed to provide a complete explanation of his decision, selectively used evidence to support his conclusion, and ignored or downplayed
Nichols argues that the ALJ failed to explain "why the treating doctor and Social Security's Consultative Specialist's opinions were not given appropriate weight, except for when he substituted his own opinion." Pl.'s Mem. at 11. Elsewhere in the brief, she specifies the treating doctors to whom she is referring: Dr. Raasheen Roberts at Woodlawn Mental Health Center, "her treating physician," id. at 4, and Dr. Nelda Scott of Stroger Hospital, who evaluated Nichols' mental health. Nichols contends that "[t]he opinion of treating doctors must be given special deference," and she says the ALJ "completely ignored" the treating doctors and a consultative opinion in favor of "two non-examining, non-treating doctors who only reviewed some unspecified part of the record." Id. at 14-15. (She does not name these two latter doctors or provide citations to their reports in the record.)
The Commissioner places emphasis on the fact that the ALJ did not mention GAF scores Scott had assigned to Nichols throughout her treatment, noting that Scott did not change the score with each diagnosis (it was consistently "45-50," see R. 363, 485, 492, 509, 513). She argues that Nichols hasn't explained the significance of GAF scores and that a GAF score "is not necessarily a functional assessment, and is thus not determinative." Def.'s Br. at 5. The Commissioner also notes that the ALJ cited a different GAF score of 60 from a different doctor in the record, and that Dr. Kirk Boyenga, whose opinion the ALJ gave "significant weight," R. 30, "mention[ed]" a GAF rating from Scott. Def.'s Br. at 5-6. Otherwise, the Commissioner contends that Nichols' argument about the ALJ's distribution of weight to various medical opinions "is entirely boilerplate" and "neither cites to the record nor discusses any particular exhibits." Id. at 9.
"An ALJ must consider all medical opinions in the record." Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.2013). Although it is the ALJ's job to determine whether an applicant is "sufficiently disabled to qualify for social security disability benefits," the Seventh Circuit has observed that "the answer to the question depends on the applicant's physical and mental ability to work full time, and that is something to which medical testimony is relevant and if presented can't be ignored." Garcia v. Colvin, No. 13-2120, 741 F.3d 758, 760, 2013 WL 6698045, at *2 (7th Cir. Dec. 20, 2013). In that regard, the ALJ must give "controlling weight" to the opinions of a "treating source," provided that "they were supported by medical findings and consistent with substantial evidence in the record." Simila v. Astrue, 573 F.3d 503, 514 (7th Cir.2009) (citing 20 C.F.R. § 404.1527(d)(2)). An ALJ's choice not to assign controlling weight to a treating physician's opinion requires him to "articulate sufficient reasons for not doing so." Allord v. Astrue, 631 F.3d 411, 417 (7th Cir.2011). An ALJ's failure to explain why he might have given controlling weight to one assessment over others is
The Commissioner treats the ALJ's failure to address Scott's GAF scores as Nichols' primary argument, although it is only part of Nichols' contention about the ALJ's consideration of treating doctors' medical opinions. Although the Commissioner is correct that the ALJ cited one instance in which Nichols received a GAF score of 60, that is the sole mention of GAF scores in the entire decision. This raises the question of why, if he considered GAF scores to be relevant (as he appears to have done), the ALJ did not consider or at least mention the other scores, let alone what weight he assigned to them. The Commissioner is also mistaken when she contends that Nichols has not explained why GAF scores are significant. In her opening brief, Nichols cited the DSMIV-TR manual to explain that a "score of 50 indicates `serious symptoms' (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a job)." Pl.'s Mem. at 3 n.1. These assessments by Nichols' treating doctor are significant, and they cannot simply be ignored.
The Commissioner is correct that Boyenga's report in the record does make mention of Scott's GAF scores for Nichols. But the Commissioner's statement that "the ALJ gave Dr. Boyenga's opinion `significant' weight" is misleading. See Def.'s Mem. at 6. Although the ALJ did assign "significant" weight to one of Boyenga's reports, see R. 30, it was not the Boyenga report that mentioned Scott's GAF score. Compare id. at 387-400 (Boyenga "Psychiatric Review Technique" report, which mentions Scott's GAF diagnosis of 50 but which the ALJ did not cite, Record exhibit no. 19F), with id. at 409-11 (Boyenga report that ALJ cited, Record exhibit no. 21F). Regardless, given the absence of any explanation in his decision, there is no way to know whether the ALJ considered or even saw the GAF scores of 45 to 50 that Scott determined based on her assessment of Nichols. Though the ALJ may have relied on one report by Boyenga, there is no indication that he himself considered prior GAF scores, and the Court must steer clear of considering rationales the ALJ did not employ in his opinion. Doing so would violate the Chenery doctrine, under which a reviewing court may not uphold an administrative order "unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained." SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The Court must judge an agency's action solely on the grounds the agency invoked, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947), a principal applicable in Social Security decisions. See, e.g., Roddy, 705 F.3d at 637 ("[T]he Commissioner cannot defend the ALJ's decision using this rationale directly, or by invoking an overly broad conception of harmless error, because the ALJ did not employ the rationale in his opinion.").
Beyond GAF scores, Nichols argues that the ALJ did not give appropriate deference to her treating physicians or explain adequately why he declined to do so. The Court agrees. To begin with, the ALJ did not explain why he assigned "significant weight" to the opinions of the Disability Determination Services assessments, the greatest weight he gave to any opinion in the record. As for the opinions of Scott, who treated Nichols regularly in 2010, the ALJ mischaracterized Scott's treatment relationship with Nichols or at least omitted a complete description of it.
As for the staff members who treated Nichols at Woodlawn, the ALJ did not mention their assessments by name or indicate what weight, if any, he gave those assessments in forming his own opinion. Although the ALJ at one point referred to Roberts' report of her treatment of Nichols at Woodlawn by record exhibit number, see R. 29-30 (referring to Exhibit 23F/29, 35, 41), he did not discuss it in his assessment of various opinions, see R. 30-31. The same goes for the other treating physician at Woodlawn, Favia, as well as Raven, the Qualified Mental Health Professional listed as Nichols' "primary clinician." R. 482. Whether these reports would have confirmed the ALJ's determination or contradicted it, the ALJ was required to address them in his discussion of the opinion evidence.
Nichols argues that the ALJ's analysis of her credibility constituted "opaque boilerplate" and should thus be rejected. Pl.'s Mem. at 11. Specifically, she says that a passage of language in the ALJ's opinion mirrored a passage the Seventh Circuit critiqued in Bjornson v. Astrue, 671 F.3d 640 (7th Cir.2012), among other cases. The Commissioner counters that "the ALJ did not use the Bjornson template, or anything like it," and also that case law permits use of such a template so long as the ALJ also adequately explains his conclusions. Def.'s Mem. at 6-7. "Problem is, it is Nichols who is guilty of using boilerplate, not the ALJ," the Commissioner says. Id. at 6.
In Bjornson, the Seventh Circuit criticized the following "piece of opaque boilerplate" in an ALJ Social Security benefits opinion:
Bjornson, 671 F.3d at 644. The court noted that it had previously criticized similar language in ALJ opinions on disability benefits, and it was troubled that the language "implie[d] that ability to work is determined first and is then used to determine the claimant's credibility," which
The ALJ's opinion in this case does contain a passage strikingly similar to the one the Seventh Circuit criticized in Bjornson:
R. 28. Save for the word "could" instead of "would" in the Bjornson passage, the passages are essentially identical. This passage, however, was not the end of the ALJ's credibility discussion. Specifically, the ALJ continued by highlighting inconsistencies in Nichols' reports of drug use (or nonuse) and evidence of her normal physical abilities in some areas, in contrast with her own statements. See R. 28-29.
Although it is clear that the ALJ's decision did not rely solely on the boilerplate language for its credibility determination, the analysis supporting that determination requires scrutiny. Nichols argues that the ALJ improperly derived his conclusion about her RFC by giving weight to some of her household duties over some of her reported limitations. For example, "the ALJ here failed to explain why the fact Plaintiff can make a sandwich `trumps' the fact that Plaintiff burns food and cannot cook without supervision." Pl.'s Mem. at 13 (citing R. 52, 211-20). Nichols also points out that the Seventh Circuit has cautioned strongly against "casually equating" household chores with labor skills, id., and she argues that the ALJ did exactly this when citing Nichols' enjoyment of television and ability to make a sandwich in finding she had only minor limitations in her daily activities. Nichols characterizes this as "cherry pick[ing]" her testimony, and she says the ALJ "only discussed those statements that favored his decision that she could work." Pl.'s Repl. at 2. The Commissioner does not respond directly to this argument. At one point, however, she contends that "activities are a regulatory element of credibility," citing 20 C.F.R. § 416.929(c)(3)(i), and she argues that "Nichols fails to show how the ALJ relied disproportionately on [her activities] in his decision." Def.'s Mem. at 8.
"[T]he standard of review employed for credibility determinations is extremely deferential," and a court may overturn an ALJ's credibility determination "only if it is patently wrong." Bates, 736 F.3d at 1098. Nonetheless, findings on a claimant's credibility must be supported by substantial evidence. McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir.2011). Although "an ALJ need not mention every piece of evidence in her opinion, she cannot ignore a line of evidence that suggests a disability." Bates, 736 F.3d at 1098. The ALJ "cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding." Denton v. Astrue, 596 F.3d 419, 425 (7th Cir.2010).
The Commissioner is correct that 20 C.F.R. § 416.929(c)(3)(i) indicates that the
Bjornson, 671 F.3d at 647. In another recent case, the Seventh Circuit called it "naiveté" for an ALJ to "equat[e] household chores to employment" and to "attach[ ] great weight to the applicant's ability to do laundry, take public transportation, and shop for groceries" in determining the applicant's credibility. Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir.2013). The court noted that a claimant must perform some basic activities, such as doing laundry and buying groceries, unless she can hire someone to do it for her. Id. at 279. In another case, the court observed that consideration of daily activities is permitted in Social Security regulations but criticized an ALJ for failing to consider "how [the claimant] carried out those activities," which "should be considered in the RFC assessment." Craft v. Astrue, 539 F.3d 668, 680 (7th Cir.2008).
In his decision, the ALJ noted that he was required to make credibility findings on Nichols' statements about her symptoms that "are not substantiated by objective medical evidence." R. 27. He proceeded to cite several of Nichols' self-reported household activities and symptoms, pointing to an SSA questionnaire she completed in June 2010, highlighting that "she gets up, takes medicine, eats something, takes a bath, and goes to bed," and "can make sandwiches, frozen dinners, and boil foods," as well as "do laundry wash dishes, and mop" and "travel independently and shop for food and personal things." Id. at 28. He noted that she likes music, television, bingo, and walking but also noted that she said her left side gives out when walking a lot. The ALJ then stated that a Social Security field office disability report on Nichols, which was taken in September 2009, said "NO LIMITATIONS OBSERVED." Id. (citing R. 154). The ALJ further cited some of Nichols' testimony from her May 2011 hearing before him, including the fact that she cannot use her left arm and uses a cane, interacts with people at Narcotics Anonymous Meetings, sees a psychiatrist for bipolar disorder, and becomes violent when people agitate her. Id. He also cited her statements from the hearing that she can carry five to ten pounds, walk half a block without her cane, sit for thirty to forty-five minutes, loves church and music, reads the Bible, and watches movies, and that she has a cell phone but no money to pay for transportation. He then stated that he did not find Nichols's statements credible, and proceeded to outline inconsistencies in her reports of drug use, hallucinations, and mobility in 2009 and 2010, along with her "improvement with treatment compliance." Id. at 28-29.
Some of the activities the ALJ cited appear to be among the same "household chores" that the Seventh Circuit has repeatedly warned ALJs not to consider in assessing RFC or at least to inquire further into how a claimant carries out the activities. In addition, the ALJ neglected or declined to cite passages from the same report and hearing providing context for or limitations on the activities he cited. For example, in the report, though Nichols
Moreover, at no point in his decision did the ALJ discuss how the daily activities he cited, such as making food or shopping for groceries, figured into his credibility decision. Although he noted inconsistencies in Nichols' statements about her drug use and hallucinations, he did not indicate which, if any, of Nichols' statements about her activities were credible and which were not credible. One can speculate that he found some of them to be credible, but that does not make his reasoning clear. How the ALJ considered Nichols' purported daily activities in making his credibility determination is left unsaid, and there is no indication that he considered evidence in the record to the contrary. What is clear from Seventh Circuit precedent is that the household activities he outlined, without more, have little place in an RFC determination, as they do not describe how Nichols or any other claimant would perform in workplace conditions.
For these reasons, the ALJ's determination regarding Nichols' credibility is inadequate under established standards. If, on remand, the ALJ that addresses Nichols' claim chooses to consider Nichols' reports about her activities in the home, the ALJ must take into account the entirety of what she said about those activities and must include an analysis of how the activities translate into actual working skills in his RFC and credibility assessments.
For the foregoing reasons, the Court grants plaintiff's motion for summary judgment [docket no. 14] and denies the Commissioner's motion. The Clerk is directed to enter judgment remanding the case to the Social Security Administration for further proceedings consistent with this decision.