JEFFREY COLE, Magistrate Judge.
Tina Kerlin, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Disability Insurance Benefits under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 423(d)(2).
Ms. Kerlin applied for DIB and Supplemental Security Income in June or 2009 (Administrative Record ("R."), at 138-44). She claimed she had been disabled January 1, 2009, due to numbness in her feet, pinched nerve in her back, and arthritis in her hands. (R. 159). A few months later, she added: anxiety, panic attacks, fear of people, and diabetes. (R. 167). Her application was denied initially and upon reconsideration. (R. 70-73, 76-80, 83-90). Ms. Kerlin then filed a timely request for a hearing before an administrative law judge. (R. 93-95).
An ALJ convened a hearing on February 17, 2011. (R. 38-69). Ms. Kerlin, represented by counsel, appeared and testified, and Cheryl Hoiseth testified as vocational expert. On March 9, 2011, the ALJ denied Ms. Kerlin's application for benefits because he determined she retained the capacity to lift and/or carry up to 20 pounds occasionally and up to 10 pounds frequently; stand and/or walk about 6 hours in an 8-hour workday with normal breaks; sit about 6 hours of an eight-hour workday with normal breaks; occasionally stoop, kneel, crouch, or crawl. She could not work at heights, climb ladders, or frequently negotiate stairs, and must avoid concentrated exposure to fumes, odors, gases, dust, poorly ventilated areas; moving or dangerous machinery. She was unable to understand, remember, or carry out detailed and complex instructions; was not suited for work that required intense focus and concentration for extended periods of time; could not tolerate more than occasional public with the general public. She would also have some difficulty accepting instructions and responding appropriately to criticism from supervisors. (R. 30). The ALJ concluded that this limited capacity nevertheless allowed Ms. Kerlin to perform her past work as a housekeeper, meaning she was not disabled under the Act. (R. 32). This became the final decision of the Commissioner when the Appeals Council denied Ms. Mason's request for review of the decision on July 18, 2013. (R. 1-6). See 20 C.F.R. §§ 404.955; 404.981. Ms. Kerlin has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The applicable standard of review of the Commissioner's decision is a familiar one. The court must affirm the decision if it is supported by substantial evidence. 42 U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7
Ms. Kerlin was born on March 27, 1967, making her nearly 44 years old at the time of the ALJ's decision. (R. 155). She is 5'2" and weighs 185 pounds. (R. 158). She has an eighth-grade education. (R. 164). From 1990 to 2004, she worked as a cashier at a grocery store. For another five years after that until 2009, she was self-employed, working cleaning houses. (R. 160). The cashier job required her to lift up to 20 pounds and stand nearly the whole day. (R. 160). Her housekeeping work was more physically demanding. She was on her feet all day and had to lift as much as 50 pounds. (R. 179).
The ALJ found that Ms. Kerlin suffered from a number of severe impairments. She had type II diabetes mellitus. (R. 20). The medical record indicates that she struggled somewhat keeping this under control. (R. 346, 375, 552). She also had asthma, degenerative arthritis in her right knee — along with mild narrowing of the medial compartment, a back disorder with narrowing at L4-5 and degenerative changes in the lumbar and thoracic spine, obesity, an anxiety disorder, depressive disorder, panic disorder, and poly-substance abuse. (R. 20). Ms. Kerlin tried to keep this constellation of complaints in check with a veritable pharmacy of prescribed medications, including: Actos, Glipizide, Novalog (diabetes), Advair, Fluticasone, Singulair (asthma), Alprazolam (anxiety), Budeprion, Fluoxitine (depression), Crestor (high cholesterol), and Hydrocodone (pain). (R. 163-64, 169-70).
Ms. Kerlin's main problem with the ALJ's decision is the ALJ's failure to account for her drowsiness and need to take daily naps in his residual functional capacity ("RFC") determination. Ms. Kerlin contends that the ALJ had to provide an analysis of this problem and take it into consideration when he determined what her RFC was. He also ought to have included the need to lie down during the day in his hypothetical to the VE.
Ms. Kerlin testified that she sometimes took a nap during the day if she had difficulty sleeping at night. (R. 48). She said she spent most of her time in her bedroom lying in bed. (R. 51). She also said that her medication — Seroquel and Xanax — made her drowsy. (R. 49, 54). The Seroquel gave her restless legs at night, and she couldn't sleep. (R. 60).
Ms. Kerlin also mentioned the problem to her doctors. On February 12, 2009, she told Dr. Marilyn Aden that she had trouble sleeping at night. She got a "burst of energy around 10 p.m. and stayed up watching TV until 1 a.m., went to sleep but woke after an hour. She occasionally napped from 6-7 p.m. (R. 346, 427). She was still working at cleaning houses at this time and was trying to get work as a census taker. (R. 346, 427).
On August 12
On December 15, 2009, Ms. Kerlin told her doctor she was feeling good and had slept well. (R. 477). On January 12, 2010, she reported she was sleeping well with a higher dose of Seroquel. (R. 476). The next time Ms. Kerlin reported any difficulty sleeping was in March of 2010, when she said she had trouble for a week. (R. 575). On June 29, 2010, she said she was getting "restless legs" from her Seroquel, but was sleeping "pretty good." (R. 574).
The ALJ mentioned Ms. Kerlin's sleep problems, but only briefly. He noted "Dr. Ross's treatment notes reflect the claimant is sleeping better and has some overall improvement in her mood." (R. 22). But the ALJ went no further than that and did not discuss whether he believed she had to nap during the day or believed she was drowsy all day. That's a problem in the Seventh Circuit where the ALJ must provide a logical bridge between the evidence and his conclusion. If he doesn't, his decision cannot be affirmed even where it is supported by substantial evidence as required by 42 USC §405(g). Sarchet v. Chater, 78 F.3d 305, 307 (7
From a commonsense point of view, it's clear that the ALJ didn't believe Ms. Kerlin was so fatigued that she had to sleep during the day every day.
In Myles v. Astrue, 582 F.3d 672 (7
Essentially, the ALJ did the same thing here: he noted some complaints and rejected them — and not even explicitly as the ALJ in Myles did — based on a couple of physician's reports. Moreover, the reports the ALJ mentioned were a couple from Ms. Kerlin's visits to her doctor when she said she was sleeping well. He seemingly ignored the other where she wasn't. That's a significant issue as well. See Scott v. Astrue, 647 F.3d 734, 740 (7
Accordingly, this case must be remanded, and we thus need not consider the balance of Ms. Kerlin's arguments for overturning the ALJ's decision. But a few points are worth noting. Ms. Kerlin takes the ALJ to task for failing to discuss the symptoms of her panic attacks in his determination of her RFC. As noted above, the ALJ determined that Ms. Kerlin's panic disorder was, indeed, a severe impairment supported by the medical evidence. (R. 20). Contrary to Ms. Kerlin's argument, the Commissioner points out that the ALJ did at least advert to her allegations of panic attacks, albeit briefly:
(R. 29). But walking the family dog and suffering from panic attacks are not mutually exclusive, so the Commissioner's point is not well-taken. The Commissioner adds that the ALJ also noted that Ms. Kerlin "attends parties" and takes public transit, which the ALJ felt was unusual for someone alleging panic attacks. (R. 31). But the record does not suggest that Ms. Kerlin "attends parties." She attended a party for her sister's god-daughter's birthday. As such she was around familiar family members — she lives with her sister and her children — so it would not be a panic-inducing situation. (R. 24 (". . . she has a good relationship with her sister and a very good relationship with her niece and nephew . . . ."). And, it was an isolated incident. Similarly, there is no indication how often she used public transportation. The only mention of it was in connection with her getting to her consultative psychological exam. (R. 24, 366). She had to attend that exam and, without a car (R. 24, 366), she did not have many options.
The Seventh Circuit has repeatedly cautioned ALJs against putting too much stock in limited and sporadic activities. Scrogham v. Colvin, 765 F.3d 685, 700 (7
Ms. Kerlin also complains that the ALJ should have addressed her Global Assessment of Functioning score of 45, assigned by her treating psychiatrist, Dr. Ross. That's a fairly low mark, indicative of "[s]erious 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)." http://www.gafscore.com/. A GAF score that low "does not represent functioning within normal limits. Nor does it support a conclusion that [Ms. Kerlin] was capable of sustaining work." Campbell v. Astrue, 627 F.3d 299, 307 (7
It is true, as the Commissioner says, that the Seventh Circuit has stated that a low GAF score alone is not enough to overturn an ALJ's finding of no disability but, in the same breath, the court has also indicated that an ALJ cannot simply ignore a GAF score that runs counter to his conclusion. Bates v. Colvin, 736 F.3d 193, 1099 n.3 (7
Ms. Kerlin adds a number of criticisms regarding the ALJ's RFC finding, but we need not specifically address those here. We point out that while the ALJ finds that Ms. Kerlin's obesity is a severe impairment (R. 20), he does not discuss how it impacts her ability to work. This is another pet peeve of the Seventh Circuit, and the ALJ's failure to go into it would likely not withstand scrutiny if we were to ignore it here. See Browning v. Colvin, 766 F.3d 702, 706-07 (7
Additionally, although we understand that the VE testified that Ms. Kerlin's catalog of limitations allowed her to return to her past relevant work as a house cleaner, and that testimony was based on the Dictionary of Occupational Titles, intuitively, it would seem that a woman who can lift and carry no more than ten pounds, could only occasionally stoop, kneel, crouch, crawl, or climb stairs, and must avoid concentrated exposure to fumes, odors, gases, and dust would have difficulty getting hired to clean houses and hold down that job. Cf. Browning v. Colvin, 766 F.3d 702, 708-09 (7
The plaintiff's motion for remand [Dkt. #18] is GRANTED, and the Commissioner's motion for summary judgment [Dkt. #22] is DENIED.