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Kennedy v. Saul

United States District Court, W.D. Wisconsin

November 21, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff Ellen Kennedy is 51 years old and a former musician, performer, and traveling minister. She seeks judicial review of an adverse decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g).[1] More specifically, Kennedy is challenging a final decision issued on April 27, 2017, by Administrative Law Judge (“ALJ”) Michael Schaefer, who determined that although Kennedy has a number of limitations related to her physical and mental impairments, those limitations did not prevent her from performing a limited range of sedentary jobs existing in significant numbers in the national economy. Accordingly, the ALJ concluded that Kennedy was neither entitled to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423(d), nor to Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381a, 1382c.

         On review, Kennedy argues that the ALJ failed to give proper consideration to a number of medical opinions, which show she has more severe limitations than the ALJ found in assessing her residual functional capacity (“RFC”). The court held a telephonic hearing on August 20, 2019, at which the parties appeared by counsel. Having now considered Kennedy's challenges to the ALJ's decision in light of the record and the parties' arguments at the hearing, the court finds that the ALJ did not err in his evaluation of Dr. Hoffmann's opinion or in his determination of Kennedy's physical limitations. With respect to Kennedy's mental limitations, however, the ALJ's decision fails to grapple with significant evidence that arguably supports finding more severe limitations. Thus, he failed to build the accurate and logical “bridge” between the evidence and the ALJ's ultimate conclusion that Kennedy is not disabled as required by Seventh Circuit case law. Accordingly, this case must be remanded for a new RFC assessment as to Kennedy's mental health.

         BACKGROUND [2]

         A. General Overview

         Kennedy contends she is unable to work because of chronic, widespread muscle and joint pain and fatigue attributable to Lyme's Disease, for which she was diagnosed presumptively and treated after being bitten by a tick in the summer of 2010. Her condition has alternatively been diagnosed as fibromyalgia or chronic fatigue syndrome. Kennedy also has a long-standing history of depression and anxiety, and more recently was diagnosed with borderline personality disorder. Her mental state worsened after the 2008 death of her father, who was the charismatic founder of a communal religious group of which she had been a member since her twenties. After her father died, Kennedy was ostracized from the church community and forced to adapt to life in the “real world, ” a process she has found exceedingly difficult despite of years of psychotherapy.

         B. Medical Evidence

         1. Steven Benish, Ph.D, Consulting Psychologist

         On April 22, 2014, Kennedy saw Stephen Benish, Ph.D., a psychologist, for a consultative exam at the request of the Disability Determination Bureau. (AR 928-31.) Kennedy reported being unable to work because she was depressed, cried without provocation, was sensitive to smells, and avoided public places. She further described her mood over the previous two weeks as “abandoned and worthless, ” and she endorsed vegetative symptoms of diffuse pain, easy fatigue, and poor appetite.

         During his mental status evaluation of Kennedy, Benish noted her “dysthymic affect, ” while also finding that she: had normal, spontaneous speech; was cooperative and non-aggressive; did not demonstrate any factitious or malingering behaviors; was able to accurately state the date, year, location, and season; was able to follow conversation; demonstrated adequate judgment; and denied plans to harm herself or others. Kennedy also had adequate recall and concentration, spelling “world” backward and forward and completing a 3-step command. Describing her thought content and perceptions, Benish noted that Kennedy admitted having auditory hallucinations of a voice telling her to kill herself and envisioning herself slashing her arm open. Kennedy reported that this had occurred “during a particularly strong phase of depression during Christmas of 2013.” (AR 929.) Benish further noted that Kennedy “has some unusual beliefs relevant to religion and markedly different from what most persons would consider logical.” (Id.) With regard to her stream of mental activity, Benish again noted that although Kennedy had a coherent thought process, “her logic is unusual regarding physics, ‘reality', and religion.” (Id.) Finally, Benish noted that Kennedy reported recently becoming disoriented twice while driving, as well as “symptoms of dissociation.” (Id.)

         From this mental status evaluation, interviews with Kennedy and her husband, and review of psychotherapy records, Benish concluded that Kennedy had the following mental impairments: (1) major depressive disorder, recurrent, severe with psychotic features; (2) depersonalization/derealization disorder; and (3) delusional disorder, grandiose type (psychic powers) of unknown duration. With respect to the depersonalization/derealization disorder, Benish found that Kennedy “experiences persistent and recurrent episodes of depersonalization and derealization, ” during which she “experiences unreality, detachment, and a sense of being outside of herself with respect to her thoughts, feelings, body, and actions.” (AR 930.) While Benish wrote that Kennedy “experiences delusions lasting more than one month, ” he also observed that apart from the impact of the delusions, her “functioning is not markedly impaired, nor bizarre or odd.” (Id.)

         Ultimately, Benish offered the following opinions regarding Kennedy's work capacity:

• she retained “most” abilities to understand, remember, and carry out simple instructions;
• she had had “some discord” in relationships with supervisors and coworkers;
• she has “significant” problems in concentration, attention and work pace; and
• she has “below average” abilities to respond to stressors.

         Psychologist Benish did not explain the basis for any of these conclusions.

         2. State Agency Psychological Consultants Gilyot-Montgomery and Kleinman

         On April 29, 2014, state agency psychologist Erika Gilyot-Montgomery, Psy. D, reviewed Kennedy's functional reports and her medical record, including Benish's consultative evaluation and two-and-a-half years' of psychotherapy records from The Psychology Clinic, where Kennedy had received ongoing treatment. Evaluating the evidence under the “B” criteria of the listings for affective disorders, schizophrenia and other psychotic disorders, and personality disorders, Gilyot-Montgomery concluded that Kennedy had: mild difficulties in daily activities; moderate difficulties in social functioning; moderate difficulties in maintaining concentration, persistence and pace; and no repeated episodes of decompensation.

         Gilyot-Montgomery then assessed Kennedy's mental residual functional capacity, finding that Kennedy had “moderate” limitations in the following work-related abilities:

• understanding, remembering, and carrying out detailed instructions;
• maintaining attention and concentration for extended periods;
• working in coordination with or in proximity to others without being distracted by them;
• completing a normal workday and workweek without interruptions from psychologically based symptoms; and
• performing at a consistent pace without an unreasonable number and length of rest periods.

         Asked to explain these limitations in “narrative form, ” Gilyot-Montgomery explained that Kennedy was “capable of sustaining simple, 1-3 step tasks given routine breaks, untimed tasks & superficial contact [with] others in a work setting.” AR 134. She further opined that Kennedy “would do best [with] infrequent changes in routine & minimal work-related responsibilities.” (AR 135.)

         Another state agency consultant, Stephen Kleinman, M.D., affirmed this conclusion on February 5, 2015, noting that Kennedy had not alleged and her records had not shown any worsening of her mental condition since Gilyot-Montgomery's April 2014 RFC assessment. (AR 151, 157.)

         3. State Medical Consultants Yacob Gawo and Pat Chan

         On January 18, 2014, and January 29, 2015, respectively, Drs. Yacob Gawo and Pat Chan reviewed Kennedy's medical records and assessed her physical residual functional capacity. Both doctors concluded that Kennedy was able to perform sedentary work, but that she could perform only: occasional climbing of ramps or stairs; no climbing of ladders, ropes or scaffolds; occasional crouching; occasional crawling; and frequent balancing, stooping and kneeling. (AR 113, 154.)

         4. St. Mary's Hospital Inpatient Admission

         On April 8, 2015, Kennedy was admitted to the inpatient psychiatric unit at St. Mary's Hospital after presenting to the emergency department with suicidal ideation. (AR 1090-1101.) After conducting a mental status evaluation and taking a history from Kennedy, psychiatrist Frederick Langheim, M.D., found that she met the criteria for a primary diagnosis of Borderline Personality Disorder with auditory hallucinations, self harm behaviors and affective instability. He also diagnosed depressive disorder and ...

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