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Marshall v. Colvin

United States District Court, N.D. Indiana

September 19, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


PHILIP P. SIMON, Chief District Judge.

Plaintiff Lorie A. Marshall appeals the Social Security Administration's decision to deny her application for disability insurance benefits. An administrative law judge found Marshall was not disabled within the meaning of the Social Security Act. As explained below, I find the ALJ erred by disregarding the opinion of Marshall's treating psychiatrist and will therefore remand this matter to the ALJ to fully and properly develop the administrative record.


Readers looking for a more extensive discussion of Marshall's medical record are directed to the detailed summaries in the ALJ's decision (R. 21-39) and in Marshall's opening brief [DE 24 at 8-17]. Rather than simply reiterating those summaries, I will give a brief overview of the history of Marshall's health issues.

Marshall has a long history of depression and physical problems, but she still managed to hold down a job as a sleep technologist at a hospital for several years. That changed on January 6, 2012 when the forty-six-year-old Marshall suffered a "mental breakdown" after leaving work. She has not worked since. A few weeks after the breakdown, Marshall checked herself into the psychiatric unit at the St. Vincent Stress Center in Frankfort, Indiana. She stayed there for about a week and was diagnosed with major depressive disorder, recurrent, severe without psychosis. She was also diagnosed as having a borderline personality disorder. After her stay at the hospital, Marshall began seeing psychiatrist Dr. Steven Berger, M.D. Berger diagnosed Marshall as having depression, generalized anxiety disorder and post-traumatic stress disorder. He thought Marshall was in rough shape, assigning her a global assessment of functioning (GAF) score of 40. GAF scores reflect a clinician's judgment about the individual's overall level of functioning. The higher the GAF score, the better the individual's psychological, social, and occupational functioning. A score of 40 reflects serious symptoms. Berger prescribed medication and recommended weekly therapy. Marshall continued to see Berger every couple of months over the course of 2012, but showed only limited improvement.

In addition to her mental health problems, Marshall has a host of physical problems, including osteoarthritis, fibromyalgia, diabetes, peripheral neuropathy, GERD, irritable bowel syndrome, and interstitial cystitis. She is 5' 11" and weighed 377 pounds at the time of the hearing which equates to a BMI of 52 putting her well within the morbidly obese category.

Marshall applied for disability insurance benefits in February 2012, alleging a disability onset date of January 6, 2012. After a hearing before an ALJ in which Marshall testified, the ALJ issued a decision denying benefits. (R. 21-39.) The ALJ employed the standard five-step analysis. At step one, the ALJ confirmed that Marshall had not engaged in substantial gainful activity since her application date. At step two, the ALJ found Marshall suffered severe impairments of degenerative disc disease of the lumbar spine, interstitial cystitis, diabetes mellitus, fibromyalgia, hypertension, obesity, depression, anxiety, and borderline personality disorder. At step three the ALJ found that Marshall's conditions did not satisfy any listed impairment. At step four, in analyzing Marshall's residual functional capacity, the ALJ found that Marshall could perform light work with: sitting about 6 hours in an 8 hour work day; standing or walking about 6 hours in an 8 hour work day; no climbing ladders, ropes or scaffolds; no kneeling or crawling; no exposure to extreme cold, heat, wetness or humidity. The ALJ additionally determined that Marshall could sustain attention and concentration for two hour periods at a time, and for 8 hours in the workday on short, simple, repetitive instructions. At step five, the ALJ found Marshall could not perform past relevant work but there were a sufficiently significant number of jobs in the national economy she could perform.

The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. Marshall timely sought review of that decision by filing this case.


My review of an ALJ's decision to deny social security benefits is limited to determining whether the decision is supported by substantial evidence. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). "Evidence is substantial if a reasonable person would accept it as adequate to support the conclusion." Id.

Marshall objects to the ALJ's decision on four grounds: 1) The ALJ failed to give controlling weight to the opinion of her treating psychiatrist, Dr. Steven Berger; 2) the ALJ erred by deciding Marshall had the residual functional capacity to walk and stand for up to six hours a day when three physicians found otherwise; 3) the ALJ failed to properly articulate an analysis of the claimant's pain as required by SSR-96-7; and 4) the ALJ erred in his assessment of Marshall's credibility due to a misrepresentation of fact.

From my perspective, there is simply no getting around the first of these issues - the discounting of Dr. Berger's opinion. Berger opined that Marshall was unable to focus for more than a couple of sentences at a time and was incapable of completing basic tasks. (R. 950.) Berger judged that Marshall's psychiatric condition left her "completely unable to perform the duties of any employment" and he predicted prolonged illness and incapacity. Id. He assigned her a GAF score of 40, which reflects either some impairment in grasping reality or a serious impairment in areas like ability to work, judgment, thinking or mood. See Am. Psychiatric Assoc., Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000).

The ALJ didn't buy it, giving Berger's opinion "little weight." (R. 33.) A psychiatrist like Dr. Berger is deemed a "physician" for the purposes of the "treating physician rule, "in the sense that Berger is a medical expert with relevant expertise who treated the applicant. See Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). Since Berger was Marshall's treating physician, the key question is whether the ALJ can point to contradicting evidence.

A treating physician's opinion is entitled to controlling weight if it is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence" in the record. 20 C.F.R. ยง 404.1527(d)(2); see White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005). However, once well-supported contradicting evidence is introduced, the treating physician's opinion is no longer entitled to controlling weight and becomes just one more piece of evidence for the ALJ to weigh. Bauer, 532 F.3d at 608. This rule takes into account the treating physician's advantage in having personally examined the claimant and developed a rapport, while controlling for the biases that a ...

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