Opinion
Case No. 11 C 1078
12-12-2011
STEVEN D. SEABRON, Plaintiff, v. MICHAEL ASTRUE, Commissioner of Social Security, Defendant.
Magistrate Judge Sidney I. Schenkier
MEMORANDUM OPINION AND ORDER
On July 6,2011, by consent of the parties and pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, this case was assigned to this Court for all proceedings, including entry of final judgment (doc. # 17).
In this social security appeal, plaintiff, Steven D. Seabron, moves to reverse and remand the final decision by the Commissioner of the Social Security Administration ("SSA") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") (doc. #21). After the Commissioner's initial denial of his disability applications on July 6, 2007, and upon reconsideration on February 21,2008 , Mr. Seabron sought and received a hearing before an administrative law judge ("ALJ") on July 13, 2009 (R. 16). One week later, the ALJ issued a written decision finding Mr. Seabron not disabled and denying his applications for DIB and SSI (Id.). The Appeals Council denied review, and Mr. Seabron timely filed suit in this Court (doc. # 1). The Commissioner filed a response to Mr. Seabron's motion asking us to affirm the ALJ's decision (doc. # 23). For the reasons set forth below, we grant plaintiff's motion for remand, and deny the Commissioner's request for affirmance.
I.
The administrative record establishes that Mr. Seabron, a high school graduate, was born May 30, 1982, and was 23 years old on the alleged disability onset date of September 15, 2005 (R. 26,49). On his disability report, Mr. Seabron listed his height as 5'9" and his weight as 120 pounds (R. 194). He has lived with his paternal grandmother since childhood (R. 63-65). Mr. Seabron's activities of daily living ("ADLs") include shopping and preparing meals, washing dishes daily, vacuuming his room weekly, making his bed daily, doing laundry monthly, and taking out the garbage (R. 223-24). He exercises, and he can walk about a mile and lift about 30 pounds (R. 59).
Mr. Seabron's work history is vague, but both before and after his onset date, he appears to have achieved work primarily through temporary agencies, working at jobs such as a cashier at Dunkin Donuts and as a pizza delivery driver (R. 183, 195-96). At the hearing, Mr. Seabron also described doing janitorial and gardening work at a donut shop at the end of 2007 and beginning of 2008 (R. 41-42). In addition, Mr. Seabron did occasional warehouse work at Macy's until March 2009, when he had trouble with heavy lifting after losing 40 to 50 pounds, and falling to the weight of 120 pounds (R. 42-43). While the record is unclear, based on Mr. Seabron's earnings and work history reports, these jobs appear to have been mostly part-time and of short duration, except for during 2003, when Mr. Seabron earned over $16,000 working for a mobile telephone sales company (see R. 159-185, 195-96). Mr. Seabron has a driver's license, but he does not like to drive, so his grandmother drove him to and picked him up from his jobs (R. 61). The ALJ found that the work that Mr. Seabron performed after September 2005 did not amount to substantial gainful employment.
Mr. Seabron was first diagnosed with bipolar disorder when he was 15 or 16 years old (R. 22). Since at least 2004, Mr. Seabron has been prescribed Depakote and Zyprexa (brand name: Olanzapine) for bipolar disorder, depression, and mood swings (R. 256). He has been hospitalized several times since then for both manic and depressive behavior, including auditory and visual hallucinations, and suicidal and homicidal thoughts. For example, the medical record recounts that Mr. Seabron has at times believed he was the deceased singer 2pac Shakur and his girlfriend was Aaliyah (R. 224), or that AT&T stole ideas from him (R. 285-86).
Mr. Seabron was admitted to Tinley Park Mental Health Center ("TPMHC") the year before the alleged onset date (R. 397). He stayed at the hospital from August 23, 2004, to September 7, 2004, receiving treatment for bipolar I disorder, mixed episode, severe with psychotic behavior (Id).
Mr. Seabron next received inpatient treatment at TPMHC from January 28, 2006, through February 6,2006. His family brought him to the emergency room because he was exhibiting bizarre behavior, including visual and auditory hallucinations: he heard a voice telling him to get help, and he had spent two weeks at his grandmother's home lying in bed contemplating suicide (R. 296,303). At the hospital, Mr. Seabron reported to Dr. Stuart Rich that he had not taken his medication for a year (R. 303). Dr. Rich's examination revealed "significant thought disorder," but he found that Mr. Seabron's symptoms resolved upon restarting Zyprexa and Depakote (Id.). Upon discharge, Mr. Seabron's mood was good, he was not thought disordered, and he was not hallucinating (Id). Dr. Rich diagnosed him with severe bipolar disorder with mixed (manic and depressive) psychotic features and cannabis abuse (Id.). Dr. Rich listed Mr. Seabron's Global Assessment Functioning ("GAF") at 55 (Id.), which is in a range (51 -60) that indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." See Jelinek v. Astrue, No. 10-3340, 2011 WL 5319852, at *1 n.l (7th Cir. Nov. 7, 2011).
Ten days later, on February 10, 2006, Mr. Seabron was assessed at Will County Mental Health Center. The clinical assessment indicated that Mr. Seabron had rambling speech, paranoid delusions, and visual and auditory hallucinations, but was otherwise normal (R. 407). His diagnosis was listed as bipolar disorder with depressed mood and psychosis, and cannabis abuse, with a GAF of 30 (R. 409), which is even more severe than "a GAF between 41 and 50 [which] indicates [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shop-lifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Jelinek, 2011 WL 5319852, at *1 n.l.
Mr. Seabron was next admitted to voluntary in-patient hospital treatment at TPMHC for bipolar disorder on November 29, 2006, after going to the emergency room to request medication and telling people there that he wanted to kill the kid who stole his CDs (R. 272). A TPMHC psychiatrist, Dr. Shanta Nair, reported that Mr. Seabron had been noncompliant with his medication (Id). Upon his discharge on December 6, 2006, Dr. Nair noted that Mr. Seabron's speech was coherent, with no psychotic features or thought disorder, but he was suffering from fatigue and malaise (R. 272,276). At the time of his discharge, Mr. Seabron was assessed with a GAF score of 80 (R. 272), which is higher than the range (60-75), "indicating at worst some mild symptoms or some difficulty in [social, occupational, or school] functioning, but generally functioning pretty well." Campbell v. Astrue, 627 F.3d 299, 301 (7th Cir. 2010).
In the second half of 2006 and first half of 2007, Mr. Seabron frequently called or visited the Will County Mental Health Center seeking samples or refills of his medications (see, e.g., 410,414-15,417,424). Mr. Seabron was not always given his medications because he was unable to verify his financial information (see, e.g., R. 425 (2/1/07) and R. 427 (9/14/06)). During this time, the notes from Mr. Seabron's psychiatrist assessed Mr. Seabron with GAF ratings that ranged from stable, to fair, to poor (although no numeric scores were reported) (see R. 418-430).
On June 17, 2007, Mr. Seabron presented at the St. Joseph Hospital emergency room with psychotic, racing, and suicidal thoughts (R. 352). He was voluntarily admitted to Chicago Reed Mental Health Center for bipolar I disorder, manic episode, severe with psychotic behavior (R. 397). Upon admission, Mr. Seabron had poor attention, concentration, judgment, comprehension, and cognition, and was given a GAF ranging between 40 to 60 (R. 354-56), which, as explained above, indicates a range of serious (41-50) to moderate (51-60) symptoms and difficulty in social, occupational, or school functioning. Jelinek, 2011 WL 5319852, at * 1 n. 1. Mr. Seabron was angry at his family members, hypomanic, confused, disorganized, and he was having homicidal thoughts and tangential conversations (R. 366). Mr. Seabron reported losing 40 to 50 pounds in the last two years since he ran out of his medications (R. 360).
Mr. Seabron was discharged from the hospital 10 weeks later, on August 2,2007. In addition to bipolar disorder, Mr. Seabron was diagnosed with cannabis abuse and borderline intellectual functioning (R. 349, 372). The discharge notes stated that upon restarting his medications, his thought process, attention span, and weight gain were improving (R. 348). Upon discharge, Mr. Seabron's psychotic symptoms were "in remission," and his mood was stable (with tangential thought process), and he was not suicidal, homicidal, or violent (R. 349). His GAF score was assessed at between 55 and 65 (Id.).
While notes from Mr. Seabron's psychiatrist indicate that his mood was generally stable in the second half of 2007 (R. 411,413,416), his symptoms fluctuated in 2008 and 2009. Notes from the Will County psychiatrist from the second half of2008 and the first half of2009, indicate that Mr. Seabron was generally doing well with fair insight and appropriate and logical thought, albeit with disorganized thought process and questionable social judgment (see R. 464-65,467-70). On April 3, 2008, however, the doctor noted that Mr. Seabron appeared with blunted and constricted mood, sparse speech, and vague attention and concentration (R. 471).
Mr. Seabron enjoys group therapy, and he was generally stable and attentive during his attendance at group therapy from late 2007 through early 2009 (see, e.g., R. 48-49,456-60). He has also found hobbies to take his mind off his sadness, such as keeping a journal and gardening, and spending time with positive people like his grandmother's neighbor (R. 48,51,65-66). Sometimes, however, he still has trouble interacting with people, maintaining relationships, and being accepted in society and his family (R. 217-19,257). On November 18,2008, Mr. Seabron felt depressed and sleepy at group therapy (R. 460), and on March 3, 2009, he was tired and fell asleep in group (R. 457). His grandmother testified that Mr. Seabron has gotten progressively more depressed over the years, and working many hours gets him increasingly agitated so that he cannot function (R. 66).
Consistent with the Will County treatment notes, at the hearing, Mr. Seabron testified that his medications - Depakote and Zyprexa - make him tired. Mr. Seabron testified that he fell asleep during a group therapy session (R. 55, 57), and that he takes about two naps a day because he sometimes has trouble sleeping at night, and some days he stays in bed until 5 or 6 p.m. after his afternoon nap because he gets so sad (R. 58-59). Mr. Seabron's grandmother helps him remember to take his medications, but sometimes he does not take them because he cannot afford them (R. 220, 242, 257). For example, in March 2009, he testified that he stopped taking his medication because he could no longer get it free through public aid (R. 42-43).
Mr. Seabron also testified that he has been trying to stop taking cannabis and alcohol since 2006 (R. 45-46). His grandmother has never seen him drunk, but she knows that he has smoked marijuana (R. 61-62).
II.
The Department of Disability Services ("DDS") issued multiple reports based on the documentary evidence of Mr. Seabron's mental condition as indicated above. In the first half of 2007, a DDS adjudicator wrote a psychiatric report based on the medical evidence from September 2004 to March 2007 (R. 323-26). The report noted that Mr. Seabron's history of auditory and visual hallucinations, depression, suicidal thoughts, rapid speech, loose associations, labile affect, and euphoric mood waxed and waned throughout the years because of poor medication compliance (R. 323-24). The report stated that Mr. Seabron's ADLs were good, he was able to take care of his personal needs (R. 323), and Mr. Seabron did well at work when he took his medications (R. 326).
On June 26, 2007, Kirk Boyenga, PhD, completed a Psychiatric Review (R. 327-40) and Mental Residual Functional Capacity ("RFC") Assessment (R. 316-19) for Mr. Seabron based on the available documents. Dr. Boyenga noted that Mr. Seabron's grandmother said that Mr. Seabron cannot focus, has trouble maintaining relationships, hears voices, and is paranoid and delusional (R. 339). Furthermore, Mr. Seabron cries often, has mood swings, sleeps poorly, and has attempted suicide three times (Id.). Nevertheless, Dr. Boyenga stated that the documents showed Mr. Seabron is fully oriented and free of thought disorder or serious memory problems (R. 318), despite having used vulgar language in his ADL report to describe girls who steal his money (R. 339).
Dr. Boyenga also opined that Mr. Seabron can function and work well when he takes his prescribed medications (R. 318). Dr. Boyenga concluded that while Mr. Seabron is moderately limited in his ability to maintain attention and concentration for extended periods (R. 316), he can perform simple, routine, repetitive tasks, and can follow instructions (R. 318). We note that Dr. Boyenga also concluded that Mr. Seabron had no limitations in his ability to carry out detailed instructions (R. 316), without the benefit of the subsequent assessment on August 2, 2007, that Mr. Seabron had borderline intellectual functioning (R. 349).
Dr. Boyenga also noted that Mr. Seabron is independent with ADLs, he drives a car, and he has resources to get illicit drugs (R. 318). Dr. Boyenga stated that "[r]eports of activities submitted by claimant are of marginal validity, in light of likely falsification and inconsistency with other information in the file (Id.)" Furthermore, the report stated that while Mr. Seabron's social skills are impaired and he is moderately limited in his ability to deal with the general public, he is able to relate well with family and friends and has no significant limitation in his ability to interact with coworkers and peers "without distracting them or exhibiting behavioral extremes" (R. 317-18). While acknowledging that available documents show Mr. Seabron "does decompensate from time to time," Dr. Boyenga found that "those episodes are also related to drug abuse" (R. 318, 337).
The Court notes that Dr. Boyenga never examined Mr. Seabron, despite opining that Mr. Seabron falsified his information.
On June 28, 2007, a DDS adjudicator determined that Mr. Seabron was not disabled based on Dr. Boycnga's assessment (R. 230). The adjudicator found that Mr. Seabron was unable to function above the level of unskilled work which does not require sustained, appropriate interaction with the general public, close supervision, or close cooperation with coworkers (Id.). The adjudicator noted several unskilled jobs that can accommodate these limitations, including drier attendant and skin lifter - bacon (Id).
On February 9,2009, Michael Cremerius, PhD, reviewed the medical documents and formed an opinion on Mr. Seabron's alleged mental impairments (R. 440-45). Dr. Cremerius opined that Mr. Seabron has severe mental impairments that do not meet or equal a listing, and that Mr. Seabron's symptoms are adequately managed when he takes his prescribed medications (R. 441). Dr. Cremerius stated that because the ADL reports show he can manage several independent behaviors, Mr. Seabron retains the capacity to perform at least simple unskilled activities, with limited contact with the public (Id). Dr. Cremerius found moderate restrictions in Mr. Seabron's social functioning, affecting his ability to interact appropriately with the public, supervisors, coworkers, and to respond appropriately to routine work situations and changes (R. 442, 447). Dr. Cremerius also concluded that Mr. Seabron has moderate difficulties in maintaining concentration, persistence, or pace, and fell in the "moderate" category with respect to repeated episodes of decompensation of extended duration (R. 442).
III.
At the administrative hearing, after the testimony from Mr. Seabron and his grandmother, the VE testified that Mr. Seabron had two past relevant work positions which amounted to substantial gainful activity ("SGA") - bakery clerk, which was light, unskilled work, and telecommunications sales clerk, which was light, semi-skilled work (R. 68). The ALJ posited a hypothetical individual who was "limited basically to simple unskilled light work and because of the tiredness, no work in unprotected heights or on dangerous moving machinery, [or] open planks or bodies of water" (R. 69). The VE opined that person could not return to Mr. Seabron's past relevant work because a bakery clerk uses dangerous equipment, and the telecommunications position involves more than simple, unskilled work (Id.). The VE testified, however, that other positions were available in significant numbers in the geographical region which the hypothetical individual could perform, even with the added restriction of no public contact and no more than superficial contact with supervisors and co-workers (R. 69, 72).
The VE testified that no jobs would be available for a hypothetical individual for whom bipolar disease, tiredness, depression, or side effects from medication would cause: (1) to lie down two times during the workday, an hour each time; (2) to miss work more than two times per month; or (3) to be off task an average of 15 minutes each hour (R. 70-71).
IV.
In his opinion, the ALJ found that Mr. Seabron was not under a disability from his alleged onset date of September 15, 2005, to the date of the decision (R. 27). At Step 1, the ALJ determined that Mr. Seabron had not engaged in substantial gainful activity since the alleged onset date of September 15, 2005 (R. 18). At Step 2, the ALJ determined that Mr. Seabron suffered from two severe impairments, bipolar disorder and polysubstance abuse, which significantly limit Mr. Seabron's ability to perform basic work activities (R. 18-19).
At Step 3, the ALJ found that Mr. Seabron did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments, specifically Listings 12.04 and 12.09 (R. 19). The ALJ found that the Paragraph B criteria were not met because Mr. Seabron has only mild restrictions in his ADLs, and only mild difficulties in social functioning, since he lives with his grandmother, has no reported relationship difficulties with his sister, plays cards with his neighbor, and has shown marked improvement in his ability to socialize with his peers (Id.). The ALJ found Mr. Seabron has moderate difficulties in maintaining concentration, persistence or pace because he has moderate difficulty following complex instructions, but he has improved in his ability to manage his impairment (Id.).
In addition, the ALJ found no episodes of decompensation of extended duration (R. 20). Although Mr. Seabron has been hospitalized multiple times due to psychiatric impairments, the ALJ found that these hospitalizations occurred because Mr. Seabron failed to follow a prescribed course of treatment (Id.). Once Mr. Seabron resumed his medications, the ALJ found that "the symptoms of his mental impairments soon dissipated" (Id.). The ALJ also determined that no paragraph C criteria were present because there is no evidence that an increase in mental demands or change in the environment would be predicted to cause Mr. Seabron to decompensate (R. 20).
The ALJ found "particularly persuasive" and gave "considerable weight" to the opinions of Dr. Boyenga and Dr. Cremerius in making the following RFC determination for Mr. Seabron:
to perform a full range of work at all exertional levels, but the claimant should avoid work at or around unprotected heights, dangerous moving machinery, open flames, and bodies of water. The claimant, moreover, is capable of performing simple, unskilled work.(R. 20-21).
We assume the reference to "open flames" is a typographical error, and that - as the transcript of the VE testimony indicates - this should read "open planks" (R. 69).
In particular, the ALJ agreed with Dr. Boyenga's finding that Mr. Seabron was able to "function well when taking prescribed medications," including performing his ADLs independently; performing simple, routine, and repetitive tasks; following simple instructions; making simple work-related decisions; responding appropriately to criticism; and working with co-workers (R. 21-22). Dr. Cremerius's opinion agreed in large part with Dr. Boyenga's conclusions, adding the suggestion of limited contact with the public (R. 22). The ALJ, however, did not afford "great weight" to Dr. Boyenga's or Dr. Cremerius's opinions because the ALJ found that their opinions found a lower degree of social skills and social functioning than the ALJ found were indicated in the medical records after June 2007, which demonstrated that Mr. Seabron's difficulties in these areas were "alleviated" (R. 22).
The ALJ noted that the record showed that Mr. Seabron has been hospitalized on numerous occasions between 2004 and 2007 for symptoms of psychosis, such as hallucinations, paranoia, and suicidal and homicidal ideation (R. 22-23). However, at the time of each hospitalization - in January 2006, November to December 2006 , and June to August 2007 - Mr. Seabron was not compliant with his medications (R. 23). Each time Mr. Seabron was put back on his medication regiment, his condition improved: his symptoms were controlled, he had "good" ADLs, he complied with his medications, he avoided substance abuse, and he developed positive relationships with the community (R. 23-24).
The ALJ found that this demonstrated "continued progress in treatment" (R. 24). Thus, the ALJ concluded that the record indicates that Mr. Seabron's psychotic symptoms are caused by his noncompliance with his medications; when he is compliant with his medications, his symptoms are adequately managed and stabilized, and he can perform mental work activities consistent with his RFC (R. 23-24). The ALJ held that regular medication and outpatient counseling controls Mr. Seabron's symptoms "to such an extent" that "they contradict his allegation of disability" due to bipolar disorder (R. 24).
For the same reason, the ALJ found that Mr. Seabron was not disabled due to substance abuse (R. 24). The ALJ stated that the records indicate a "direct correlation" between Mr. Seabron's abuse of alcohol and marijuana and his failure to take his medications (Id.). When Mr. Seabron did not take his medications, his substance abuse increased, but when he was compliant, he was able to abstain from substance abuse (Id.).
The ALJ also noted that the group therapist at Will County Mental Health Center observed that Mr. Seabron participated actively in group therapy and was supportive of his peers (R. 23). In addition, Mr. Seabron testified that he manages his impairments by taking his medication, keeping a journal, tending to a garden, and discussing his problems and learning social skills in group therapy (R. 24). The ALJ thus found "documented progress in [Mr. Seabron's] social functioning" that does not reflect a degree of social limitation indicated by Drs. Boyenga and Cremerius (Id).
The ALJ further found that Mr. Seabron's statements concerning the nature and severity of his psychiatric symptoms were weakened by evidence of his ADLs and work activity after his alleged onset date (R. 24). The ALJ stated that Mr. Seabron's continued efforts to get work through a temporary agency and to enter a vocational rehabilitation program showed that he retained the capacity to work even when he was not compliant with his medication (R. 24-25). In addition, Mr. Seabron was able to attend to his basic personal needs, drive a car, perform basic household chores without assistance, garden, and socialize with neighbors, even when off his medication (R. 25).
At Step 4, the ALJ found that Mr. Seabron was unable to perform any past relevant work as a bakery clerk or telecommunications clerk (R. 25). At Step 5, the ALJ found that jobs exist in significant numbers in the national economy that Mr. Seabron can perform (R. 26). The ALJ relied on the VE's testimony that a hypothetical person with Mr. Seabron's limitations would be able to perform simple, unskilled, occupations with certain additional restrictions, such as collator operator, drill press operator, housekeeper, and automatic punch press operator (Id.). Therefore, the ALJ concluded that Mr. Seabron is not disabled under the Act; i.e., he has not been under a disability from September 15, 2005, through the date of the decision (R. 27).
V.
We begin our analysis of the ALJ's decision with a review of the relevant legal standards. To establish disability under the Social Security Act, a claimant must show the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The social security regulations contain a five-step analysis for determining whether a claimant is considered disabled under the law. These steps are evaluated sequentially and require the ALJ to determine: (1) whether the claimant is currently performing any substantial gainful activity; (2) whether his alleged impairment or combination of impairments is severe; (3) whether any of his impairments meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) whether he is unable to perform his past relevant work based on his RFC; and (5) whether his RFC renders him unable to perform any other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)(4). The claimant has the burden of proof in Steps 1 through 4, and the burden shifts to the Commissioner in Step 5. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
Judicial review of ALJ decisions is deferential: we uphold an ALJ's decision if it is supported by substantial evidence; that is, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Terry v. Astrue, 580 F.3d at 471,475 (7th Cir. 2009) (internal citations and quotations omitted). To meet this standard, the ALJ's opinion must build an accurate and logical bridge between the facts of the case and the outcome. Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010); Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008). The ALJ must consider all relevant evidence, and may not discuss only the evidence which favors his or her ultimate conclusion. See Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009).
VI.
Mr. Seabron argues that the ALJ committed six instances of reversible error (doc. # 22: Pl.'s Br. In Supp. Of Mot, For Summ. J. at 1). We find it unnecessary to address each criticism plaintiff levels at the ALJ's opinion, as the ones we address below persuade the Court that remand is required.
A.
The ALJ held that regular medication and outpatient counseling controls Mr. Seabron's psychotic symptoms (including visual and auditory hallucinations and suicidal and homicidal thoughts) "to such an extent" that "they contradict his allegation of disability" due to bipolar disorder and substance abuse (R. 24). Thus, a linchpin to this determination is the proposition that Mr. Seabron will remain consistently compliant with his medication regime. However, the ALJ has failed to articulate the basis in the record for that proposition.
The Seventh Circuit has observed that "one of the most serious problems in the treatment of mental illness [is] the difficulty of keeping patients on their medications." Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010). In Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006), the ALJ had found the claimant's previous inability to hold a job was unimportant because "she could work when she took her medicine." The Seventh Circuit disagreed with this conclusion, explaining that "mental illness in general and bipolar disorder in particular... may prevent the sufferer from taking [his or] her prescribed medicines or otherwise submitting to treatment." Id. "[T]he fact that substance abuse [may have] aggravated [Mr. Seabron's] mental illness does not prove that the mental illness itself is not disabling." Id. at 629.
To the extent that the ALJ's opinion implies that Mr. Seabron's substance abuse caused his non-compliance with medication, the ALJ failed to offer a basis in the record for why this is so. This failing is significant, as the Seventh Circuit has observed, "bipolar disorder can precipitate substance abuse, for example, as a means by which the sufferer tries to alleviate [his or] her symptoms." Kangail, 454 F,3d at 629.
Here, there is abundant evidence that Mr. Seabron has difficulty staying on his medications. Mr. Seabron was hospitalized at least four times because of severe symptoms of psychosis related to bipolar disorder. There are several examples of Mr. Seabron seeking medication at his clinic, but being turned down because he did not have proper proof of financial need. Whether his failure to take his medication stemmed directly from his mental illness or from his perceived or actual inability to afford the medication does not change the fact that Mr. Seabron has a history of failing to take prescribed medication. See, e.g., Spiva, 628 F.3d at 351 (finding error because the ALJ "also ignored [the claimant's] testimony that he can't afford all the medications prescribed for him because he has no health insurance."). The ALJ failed to explain why Mr. Seabron is likely in the future to have the will (and the will power) to consistently take the medication needed to treat his bipolar disorder.
This shortcoming in the ALJ's explanation is important. Even if properly treated, "[b]ipolar disorder is by nature episodic and admits to regular fluctuations." Jelinek, 2011 WL 5319852, at *8. The VE testified here that no jobs would be available for an individual for whom bipolar disease, tiredness, depression, or side effects from medication would cause to miss as few as two days of work per month (R. 70-71). Despite evidence of several periods of hospitalization due to Mr. Seabron's bipolar disorder, the ALJ did not explain why, even if he maintained his medication regimen (much less stopped taking it), Mr. Seabron would not miss any work time due to his mental illness. See Punzio v. Astrue, 630 F.3d 704,710-11 (7th Cir. 2011) (ALJ erred in failing to consider VE testimony that no employer would hire claimant to perform unskilled work if she experienced as few as three "bad days" of mental illness a month that caused her to miss work).
B.
Compounding this problem is the failure of the ALJ to address Mr. Seabron's August 2, 2007 diagnosis of borderline intellectual functioning (R. 349). This diagnosis is highly relevant because, as the Seventh Circuit has recognized, "[t]he fact that a psychiatric patient does not follow through on counseling or take antipsychotic drugs regularly is a common consequence of being psychotic and is especially to be expected of a person with a very low IQ." Mendez v. Barnhart, 439 F.3d 360,362 (7th Cir. 2006). The ALJ was required to address this evidence of an additional reason why Mr. Seabron might have difficulty maintaining his medication regimen, in order to explain his conclusion that Mr. Seabron could maintain consistent use of medication to control his psychotic symptoms.
C.
The ALJ also erred in failing to address the evidence that Mr. Seabron suffers extreme fatigue as a result of various medications. In evaluating a claimant's symptoms, the social security regulations require ALJs to consider the side effects of medication taken by the claimant. See 20 C.F.R. § 404.1529(c)(3)(iv). Both Mr. Seabron and his grandmother, with whom he lives, testified that his medications make him tired, and Mr. Seabron further testified that he has trouble sleeping at night and often naps extensively during the day. In fact, as noted above, Mr. Seabron once fell asleep during a group therapy session and appeared tired during another session.
"[W]e cannot uphold an administrative decision that fails to mention highly pertinent evidence," especially that which contradicts the Commissioner's decision that the claimant can perform substantial gainful employment. Parker, 597 F.3d at 921. Here, the level of fatigue described by Mr. Seabron and his grandmother (and the evidence of Mr. Seabron dozing off at a counseling session) is directly relevant to whether there are a substantial number of jobs that Mr. Seabron can perform. The VE testified that if a person would have to lie down a few times a day for an hour each, or more than twice a month had bad days when he was so tired or depressed that he would miss work, that would eliminate any job the person could perform (R. 70-71). The ALJ erred by failing to address this important question.
In so holding, we note that the ALJ determined that Mr. Seabron has the RFC "to perform a full range of work at all exertional levels, but the claimant should avoid work at or around unprotected heights, dangerous moving machinery, open [planks], and bodies of water" (R. 20-21). While we could speculate that the restriction against working at unprotected heights, dangerous moving machinery, open planks, and bodies of water are a sub silentio attempt by the ALJ to account for the record evidence of Mr. Seabron's fatigue, in reviewing an ALJ's RFC determination, "a court must confine itself to the reasons supplied by the ALJ." Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009). "The ALJ must articulate in a rational manner the reasons for his assessment of a claimant's residual functional capacity." Id. Here, however, the ALJ's opinion does not mention any evidence that tiredness was a side effect of Mr. Seabron's medication, or that the RFC was intended to address any such limitation.
D.
The ALJ found that Mr. Seabron's repeated efforts to find temporary work - albeit with limited success - constituted evidence of his ability to hold a full-time job. Like the Seventh Circuit in Jelinek, "[w]e are hard-pressed to understand how [the claimant's] brief, part-time employment supports a conclusion that [he] was able to work a full-time job, week in and week out, given [his] limitations. Jelinek, 2011 WL 5319852, at *6; see also Kangail, 454 F.3d at 629 (gainful employment does not include unsuccessful work attempts, and "[w]here it is established that the claimant can hold a job for only a short period of time, the claimant is not capable of substantial gainful activity"). Both Mr. Seabron's and his grandmother's testimony, as well as the documents in the record, indicate that Mr. Seabron's jobs were usually part-time and of very short duration. As in Jelinek, the activities the ALJ mentioned - such as pursuing work through temporary agencies and trying (so far, unsuccessfully) to enter a job training program - "reflected only [Mr. Seabron's] willingness and ability to stay engaged in commendable but limited endeavors part-time or at [his] own pace." Jelinek, 2011 WL 5319852, at *6.
E.
We are mindful that the ALJ found significant Mr. Seabron's ability to independently perform many ADLs. In Bauer, as in the instant case, the ALJ noted that the claimant dresses appropriately, shops for food, prepares meals and performs other household chores, and is an active participant in group therapy. Bauer, 532 F.3d at 608. However, the Seventh Circuit explained that "[t]his is just to say that the plaintiff is not a raving maniac who needs to be locked up. She is heavily medicated, and this enables her to cope with the challenges of daily living, and would doubtless enable her to work on some days." Id.; see also Spiva, 628 F.3d at 352 (ability to perform daily activities not inconsistent with mental disability). The ability to perform some ADLs on his own schedule, and at his own pace, is certainly not dispositive evidence that Mr. Seabron can perform the duties of a full-time job.
We also recognize the ALJ's reliance on treatment notes showing positive comments as evidence that Mr. Seabron made "continued progress" in the management of Mr. Seabron's mental illness. As the Seventh Circuit has often explained, "a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about [his or] her overall condition." Punzio, 630 F.3d at 710. Indeed, our review of the record suggests significant variation in Mr. Seabron's progress. If the ALJ seeks to rely so heavily on a finding of consistent and continued progress, he will have to canvass the treatment notes more thoroughly to create the logical bridge between the notes and that finding.
CONCLUSION
For the foregoing reasons, this Court directs the Clerk of the Court to enter judgment granting Mr. Seabron's motion for summary judgment (doc. #21). We thus reverse and remand for proceedings consistent with this Memorandum Opinion and Order. The case is terminated.
In light of our ruling, we do not address here plaintiff's arguments that the ALJ erred in failing to fashion an RFC that sufficiently addressed Mr. Seabron's social functioning and difficulties in concentration, persistence, or pace. We leave it to the ALJ, on remand, to consider these matters anew.
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ENTER: ____________
SIDNEY I. SCHENKIER
United States Magistrate Judge