Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 1 of 18 PageID #:471
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LEATISHA S. LUCAS,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Case No: 11 C 7456
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
The plaintiff, Leatisha Lucas, who did not attend her hearing for reasons unclear
the record, seeks review of
the final decision of
(“Commissioner”) of the Social Security Administration (“Agency”) denying his
applications for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income (“SSI”)
under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Ms. Lucas asks the court to
reverse and remand the Commissioner’s decision, while the Commissioner seeks an
order affirming the decision. While we are reversing, the question of Ms. Lucas’s
unexplained failure to attend the hearing looms large, and should she again not attend the
hearing without a showing of good cause, there should be no further review as she will
have failed to exhaust administrative remedies. Van Williams v. Social Security Admin.,
152 Fed.Appx. 153 (3rd Cir. 2005); Bush v. Bowen, 690 F.Supp. 417, 418 (W.D.Pa.
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 2 of 18 PageID #:472
Ms. Lucas applied for disability benefits on March 2, 2007, alleging that she had
been disabled since September 5, 2005, due to depression. (Administrative Record
(“R.”) 195-205). Her application was denied initially and upon reconsideration, and Ms.
Lucas requested an administrative hearing. (R. 54-62, 67-74, 80-82). The hearing was
postponed a couple of times because Ms. Lucas did not have transportation – Ms. Lucas
lived in Elgin and the hearing was in Oak Brook – and was obtaining representation. It
was postponed one more time to arrange a consultative examination at the request of Ms.
Lucas’s attorney. (R. 31-32, 34). When the hearing was finally held, on July 7, 2010, Ms.
Lucas did not attend, despite at least two notices. (R. 176, 188). The problem could not
have been transportation this time because her attorney went to her home to pick her up,
but she was nowhere to be found. (R. 39). Inexplicably, the hearing proceeded with
counsel but without Ms. Lucas and testimony from Dr. Kathleen O’Brien, a medical
expert, and Glee Ann Kehr, a vocational expert. (R. 36-53). On August 5, 2010, the ALJ
issued a decision finding that Ms. Lucas was not disabled because she did not have a
severe impairment. (R. 14-20). This became the final decision of the Commissioner
when the Appeals Council denied Ms. Lucas’ request for review of the decision on
September 7, 2011. (R. 1-4). See 20 C.F.R. §§ 404.955; 404.981. Ms. Lucas 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. §
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 3 of 18 PageID #:473
THE EVIDENCE OF RECORD
The Vocational Evidence
Ms. Lucas was born on May 27, 1977, making her thirty-three years old at the
time of the ALJ’s decision. (R. 195). She made it through the eleventh grade. (R. 240).
She has held several short-lived jobs – home care, fast food, temp agency work – but
from 1998 to December 2006, she was paid by the state to take care of her sister’s
children. (R. 236). She says her childcare days came to an end because she was told to
stop until she had a mental health evaluation. (R. 235).
The Medical Evidence
The medical record in this case is rather scant. Ms. Lucas went to her community
health clinic on November 2, 2006, and reported that she was depressed, agitated,
anxious, and sad. She was losing sleep and nervous about her financial situation. (R.
310). She used alcohol and drugs when she was depressed. (R. 311). Examination
revealed that her affect, speech, thought process, and attention were all within normal
limits. Her memory and judgment were good; her intelligence was average. (R. 311).
The diagnosis was depression and anxiety, and Ms. Lucas was assigned a Global
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 4 of 18 PageID #:474
Assessment of Functioning score of just 43.1 A pysch evaluation and counseling were
recommended. (R. 312).
Ms. Lucas returned to the clinic on January 30, 2007. She said she was “going
through a lot of stress.” She was isolative and suffering from insomnia. (R. 319). She
recounted that she had been hospitalized at age 14 after taking pills. She had a depressed
affect, but thought process and content were normal. Attention was “distractible”, recent
memory was poor, remote memory was fair. Judgment and insight were fair. She
exhibited suicidal and homicidal ideation. (R. 320). The diagnosis this time was major
depressive disorder and the GAF score was 58. (R. 320). Ms. Lucas was started on
Lexapro. (R. 320).
On March 20, 2007, Ms. Lucas reported that she was “stressing a lot.” Her affect
was depressed. Her thought process, content, and attention were all within normal limits.
(R. 318). Memory, judgment, and insight were fair. There was no suicidal or homicidal
ideation. (R. 318). She was continued on Lexapro. (R. 318).
The disability agency arranged for Ms. Lucas to have a consultative physical
examination on May 8, 2007, with Dr. Scott Kale. Ms. Lucas denied using drugs or
alcohol. (R. 333). She recounted that she had been stabbed in the chest at age 14, and
1 “A GAF between 41 and 50 indicates ‘Serious 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).’ In turn, a GAF between 51 and 60 reflects
“Moderate 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).’” Jelinek v. Astrue, 662 F.3d 805, 807 (7th Cir. 2011)(quoting American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Text Revision
(DSM–IV–TR) 34 (4th ed. 2000)).
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 5 of 18 PageID #:475
occasionally experience some residual pain there. (R. 333-34). She had no shortness of
breath or wheezing. Her only other physical complaint was occasional right knee pain
stemming from a work injury. But she denied any limping, leg collapse, swelling. (R.
334). Physical examination was normal, with the exception of slight limitation of motion
in the lower back. (R. 334).
Dr. Kelly Johnson performed a psychiatric examination that same day at the same
offices. Ms. Lucas explained that she became depressed in 2002 when her mother died.
She complained of frequent crying spells and difficulty sleeping, as well as irritability
and mood swings. She had decreased energy and appetite. (R. 337). Ms. Lucas allowed
that she did use alcohol when depressed, but denied using drugs. She avoided contact
with other people. She said that her right knee made it difficult for her to ambulate
freely. (R. 338). The doctor said that Ms. Lucas appeared tearful and had a restricted
affect. (R. 338). Ms. Lucas denied any suicidal ideation or hallucinations. She did
express some paranoia and fear of other people. She could remember only two of three
objects after several minutes. She was able to recount the last 24 hours of her life. She
knew who the current president was. She could not perform serial sevens, but she did
exhibit some capacity for abstract thinking. Dr. Johnson felt she met the criteria for
ongoing major depressive disorder. (R. 339).
Psychologist Kirk Boyenga reviewed the psychological evidence file on behalf of
the disability agency on May 29, 2007. He noted depression with anhedonia,
psychomotor agitation, decreased energy, and difficulty concentrating or thinking. (R.
344). He noted a history of post traumatic stress disorder and thought the evidence was
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 6 of 18 PageID #:476
conflicting with regard to substance abuse. (R. 346, 349). Ms. Lucas’s impairment
resulted in a moderate restriction of daily activities, moderate difficulties with social
functioning, and mild limitations in concentration. (R. 351). Dr. Richard Bilinsky
reviewed the physical impairment evidence and concluded that Ms. Lucas’s physical
impairments were not severe. (R. 355). Dr. Francis Vincent and psychologist Jerold
Heinrich hen reviewed the file and concurred with both earlier reviews. (R. 361).
The record also demonstrates that Ms. Lucas failed to attend her counseling
sessions a number of times, resulting in the community center dropping her case and
closing her file. (R. 363-64).
Ms. Lucas had one more consultative examination – on February 19, 2010 with
psychologist Michael Stone. Ms. Lucas told her she had been stabbed in the lung in the
past but had never had a psychiatric hospitalization. She denied problematic use of drugs
or alcohol. (R. 393). Ms. Lucas allowed that she had been incarcerated in the past for
assault and battery. (R. 394). She was taking Seroquel (antipsychotic medication),
Lexapro (antidepressant), Ranitidine (stomach acid), Citralopram (antidepressant), and
Naproxen (NSAID). (R. 393). During the examination, Ms. Lucas was tense and
irritable, but did not exhibit manic symptoms typical of bipolar disorder. (R. 394).
Affect was depressed and agitated. She related feelings of hopelessness, anhedonia, and
helplessness. Thought content was positive for depression, but there was no suicidal
ideation, hallucinations, or paranoid ideation. Ms. Lucas’s thought process was normal
but she could not maintain attention and concentration consistently throughout the
examination. Memory was somewhat impaired. She had trouble with abstract thinking.
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 7 of 18 PageID #:477
Simple calculations were difficult for her. Judgment was impaired. (R. 395-96). Ms.
Lucas’s symptoms were indicative of depression, agitation, anxiety, and impulse control
disorder. Her prognosis was guarded and she would be unable to manage any benefits
she might receive on her own. (R., 396-97). Ms. Lucas would be moderately impaired in
her ability to interact with the public, co-workers, and supervisor, and respond to changes
in a work setting. (R. 399).
The Administrative Hearing Testimony
As already noted, Ms. Lucas did not attend her hearing. The hearing commenced
with testimony from psychologist Kathleen O’Brien, the medical expert (“ME”). The
ME noted diagnoses of agitated depression and anxiety, and impulse control and panic
disorder by self-report. (R. 41). Ms. Lucas’s impairments did not meet or equal a listing.
In fact, based on the three visits to the clinic, the ME felt they were non-severe. (R. 41).
Relying on the notes from Ms. Lucas’s initial visit to the clinic in November 2006, the
ME concluded that Ms. Lucas had no problems with social interaction and that her
concentration was only mildly impaired. The ME indicated that the notes reported she
used alcohol and marijuana on weekends, and noted that Ms. Lucas sometimes reported
that she did not. (R. 41). The ME felt there were no limitations on Ms. Lucas’s mental
residual functional capacity. (R. 41-42).
The ME did not put much stock in the diagnoses of depression in the record
because they were based on self-report. If Ms. Lucas’s condition were severe, the
psychologists would have seen her more often. (R. 44). In reaching her impressions, the
ME relied on the three clinical visits rather than the consultative exams. (R. 44-45). The
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 8 of 18 PageID #:478
ME added that GAF scores “were really not to be used in these proceedings because they
are so highly unreliable . . . . when you have someone who comes in and says they have
severe financial problems and family problems, the GAF goes down automatically.” (R.
Next, Glee Ann Kehr testified as a vocational expert (“VE”). She characterized
Ms. Lucas’s past work as a baby-sitter as light and semi-skilled. The ALJ asked the VE
whether a person who could have no contact with the public at work and only occasional
contact with co-workers and supervisors could perform that work. (R. 47). The VE said
no, but such a person could do jobs like blade assembly, production assembly, machine
operator, and inspector. (R. 47-48). A person who was limited to unskilled, repetitive
tasks could perform the same jobs. (R. 48).
The ALJ’s Decision
The ALJ determined that Ms. Lucas did not have an impairment or combination
of impairments that has significantly limited her ability to perform basic work activities.
(R. 17). She noted there were no medical records contemporaneous with Ms. Lucas’s
alleged onset date of September 5, 2005; treatment records began in November 2006.
The ALJ summarized the medical evidence, noting that there was only a brief window of
treatment. She noted that Ms. Lucas missed several appointments and was dropped for
noncompliance. She added that there was little in the consultative exam of February
2010 that supported a diagnosis of depression other than Ms. Lucas’s complaints. (R. 17-
18). There was even less evidence of any physical problems. The ALJ relied on the
ME’s testimony to determine that Ms. Lucas’s mental impairment was not severe. The
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 9 of 18 PageID #:479
ALJ added that Ms. Lucas had a capacity for a broad range of daily activities including
child care. (R. 18). She noted that Ms. Lucas operated a childcare business in the past
and was able to interact with others. (R. 18). The ALJ concluded that Ms. Lucas’s
impairments, singly or in combination, did not significantly impair her ability to perform
basic work activities. (R 19). Accordingly, the ALJ found that Ms. Lucas did not have a
severe impairment and was not disabled under the Act. (R. 19-20).
The Standard of Review
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.’” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir.
2010)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court may not
reweigh the evidence, or substitute its judgment for that of the ALJ. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009); Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Where
conflicting evidence would allow reasonable minds to differ as to whether the claimant
is disabled, it is the ALJ’s responsibility to resolve those conflicts. Elder v. Astrue, 529
F.3d 408, (7th Cir. 2008); Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
Conclusions of law are not entitled to such deference, however, so where the
Commissioner commits an error of law, the court must reverse the decision regardless of
the volume of evidence supporting the factual findings. Schmidt v. Astrue, 496 F.3d 833,
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 10 of 18 PageID #:480
841 (7th Cir. 2007).
While the standard of review is deferential, the court cannot act as a mere “rubber
stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). An ALJ is required to “minimally articulate” the reasons for his decision.
Berger, 516 F.3d at 544; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
Although the ALJ need not address every piece of evidence, the ALJ cannot limit his
discussion to only that evidence that supports his ultimate conclusion. Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). The ALJ’s decision must allow the court to assess the
validity of his findings and afford the claimant a meaningful judicial review. Hopgood
ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). The Seventh Circuit calls this
building a “logical bridge” between the evidence and the ALJ’s conclusion. Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996).
Five-Step Sequential Analysis
The Social Security Regulations provide a five-step sequential inquiry to
determine whether a plaintiff is disabled:
1) is the plaintiff currently unemployed;
2) does the plaintiff have a severe impairment;
3) does the plaintiff have an impairment that meets or equals one of the
impairments listed as disabling in the Commissioner’s regulations;
4) is the plaintiff unable to perform his past relevant work; and
5) is the plaintiff unable to perform any other work in the national
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 11 of 18 PageID #:481
20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009); Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005). An affirmative answer
leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled.
20 C.F.R. §416.920; Briscoe, 425 F.3d at 352; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir.
1990). A negative answer at any point, other than step 3, stops the inquiry and leads to a
determination that the claimant is not disabled. 20 C.F.R. §404.1520; Stein, 892 F.2d at
44. The claimant bears the burden of proof through step four; if it is met, the burden
shifts to the Commissioner at step five. Briscoe, 425 F.3d at 352, Brewer v. Chater, 103
F.3d 1384, 1391 (7th Cir. 1997). The ALJ concluded her analysis here at step two,
determining that Ms. Lucas did not have a severe impairment.
This is a difficult case. The medical record is sparse and Ms. Lucas has not
exactly been religious in seeking treatment. Still, diagnoses have been consistent
throughout and psychiatrists have not been shy about prescribing her anti-depressant and
antipsychotic medication. And, because she never testified at her hearing, we don’t know
why Ms. Lucas missed her counseling appointments. Worse, this case raises the specters
of two of the Seventh Circuit’s abiding themes, the logical bridge, Roddy v. Astrue, 705
F.3d 631, 636 (7th Cir. 2013); Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012), and
the ALJs’ lack of understanding of mental illness. See Martinez v. Astrue, 630 F.3d 693,
694 (7th Cir. 2011).
Quite frankly, the ALJ’s ultimate conclusion may well be right and Ms. Lucas is
capable of working. The problem is that the ALJ found she does not have a severe
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 12 of 18 PageID #:482
impairment. The severe impairment hurdle is not a high one. An impairment or
combination of impairments is severe if it “significantly limits [a claimant's] physical or
mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Basic work
activities include, among other things: walking, standing, sitting, lifting, pushing,
reaching, carrying, handling; understanding, carrying out, and remembering simple
instructions; using judgment; responding appropriately to supervision, co-workers, and
usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. §
An impairment is not severe if the “medical evidence establishes only a slight
abnormality or a combination of slight abnormalities which would have no more than a
minimal effect on an individual's ability to work even if the individual's age, education,
or work experience were specifically considered . . . .” Social Security Ruling (“SSR”)
85-28, 1985 WL 56856, *3; Bowen v. Yuckert, 482 U.S. 137, 153 (1987); Castile v.
Astrue, 617 F.3d 923, 926 (7th Cir. 2010). So here, the ALJ found that Ms. Lucas’s
depression was a slight abnormality, with no more than a minimal effect on her capacity
There is much evidence that suggests otherwise. The November 2006 report
assigned Ms. Lucas a GAF score of just 43, denoting serious symptoms or serious
impairment in functioning. The January 2007 examination revealed Ms. Lucas to be
impaired in her attention, memory, and judgment. Her GAF score indicated moderate
symptoms or moderate impairment of functioning. She also exhibited suicidal and
homicidal ideation. Dr. Johnson, who examined Ms. Lucas for the disability agency
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 13 of 18 PageID #:483
found her to be tearful, with a restricted affect and some impairment in her functioning
and memory. Dr. Johnson felt she had a major depressive disorder that was chronic and
severe. Both agency psychologists who reviewed Ms. Lucas’s file found her to have a
severe impairment that resulted in moderate restrictions of daily activity and social
functioning. And, finally, Dr. Stone, who examined Ms. Lucas on behalf of the disability
agency, noted that his examination was positive for depression, and that Ms. Lucas
suffered impairments to her attention and concentration, abstract thinking, and judgment.
He felt she would be moderately impaired in a work setting. He also indicated her
prognosis was guarded and that she wouldn’t even be capable of handling her own funds
if she were granted benefits.
The upshot of all this is not a single source, whether treating or consultative or
reviewing, gave any indication that Ms. Lucas’s depression was merely a slight
abnormality with only a minimal effect on her functioning. The outlier among all the
psychiatrists and psychologists was psychologist Kathleen O’Brien, the ME who never
even met Ms. Lucas. For Dr. O’Brien, all these reports could be summarily discarded
because they were based on Ms. Lucas’s self reports. She felt that Ms. Lucas had no
severe impairment, and she didn’t even think there was any basis for a diagnosis of
depression. This was the opinion the ALJ based her decision on, and she essentially
adopted Dr. O’Brien’s rationale for discrediting the findings of the reports from
psychiatrists and psychologists. When an ALJ disregards such opinions, she must
provide good reasons for doing so. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.2011);
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir.2011); Larson v. Astrue, 615 F.3d 744, 749
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 14 of 18 PageID #:484
(7th Cir.2010). Dr. O’Brien’s reasoning was faulty and, consequently, so was the ALJ’s,
It’s unclear how the ME – or the ALJ – would have wanted all these mental
health professionals to have gone about their examinations of Ms. Lucas. While it is true
that Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.2008) holds that a medical opinion
may be rejected if it is based entirely on a claimant’s subjective complaints, this rule is
most often applicable in cases involving physical impairments. There are no MRIs or x-
rays to confirm diagnoses of depression. Mental health professionals rely on information
elicited from patients, along with observation. There is testing – for judgment, attention,
abstract thinking, etc. – and the mental health professionals in this case all employed
some form of that. If that is still inadequate, then nearly every file in every Social
Security disability case involving psychological examinations is inadequate.
Curiously, Dr. O’Brien stated that “there’s no indication that [Ms. Lucas sought
or required any treatment for [her depression].” (R. 44). That’s just wrong. Ms. Lucas
was prescribed and takes at least two, if not more, types of medication for her mental
impairment. The mental health professional also felt she needed counseling and, while
she was not compliant with their recommendation – we don’t know why – one cannot say
she did not need treatment. Moreover, if the types of examination performed here are, as
Dr. O’Brien suggests, inadequate to provide a basis for diagnosing depression, then there
has been a great deal of unethical or perhaps illegal dispensing of drugs in this case and
countless others, and for no apparent reason. Cf. Carradine v. Barnhart, 360 F.3d 751,
755 (7th Cir. 2004)(improbable that claimant would undergo treatment with narcotics if
she was not experiencing pain). To credit Ms. O’Brien’s opinion is to say that
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 15 of 18 PageID #:485
psychiatrists write prescriptions for no reason at all. That’s far too great a leap. The
ME’s opinion simply cannot be credited.
Dr. O’Brien also said she had no use for GAF scores and they could not be used
in Social Security disability cases. That too is wrong as the Seventh Circuit has held. See
Blevins v. Astrue, 451 Fed.Appx. 583, 585, 2011 WL 6118571, 2 (7th Cir.
2011)(approving ALJ’s consideration of GAF scores); Walters v. Astrue, 444 Fed.Appx.
913, 918, 2011 WL 5024149, 4 (7th Cir. 2011)(ALJ erred by not discussing all GAF
scores); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)(ALJ discussed conflict
between GAF score and other findings); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir.
2010)(ALJ erred by failing to discuss GAF score). Based on Seventh Circuit case law –
which trumps Dr. O’Brien’s thoughts here – an ALJ cannot simply ignore GAF scores,
especially if they undermine her conclusion. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir.
2012); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); Simila v. Astrue, 573 F.3d
503, 516 (7th Cir. 2009). The GAF scores here do, and the ALJ made no mention of them.
In short, the ALJ’s decision in this case rises and falls with the credence one
assigns to Dr. O’Brien’s opinion, and that opinion is too flawed to constitute substantial
evidence to support the ALJ’s decision. The case must be remanded. Lest the wrong
impression be given, this is not a walkover for Ms. Lucas. While the record supports a
conclusion that she has a severe impairment, that does not mean that she is disabled. Far
from it. As the VE’s testimony indicated, she could be impaired in certain areas of
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 16 of 18 PageID #:486
functioning and still be perfectly capable of performing work that exists in significant
numbers in the regional economy.
The ALJ did not make a credibility finding here, perhaps because Ms. Lucas
wasn’t at her hearing. The ALJ should demand that she attend the next hearing so that
she may be cross examined and her demeanor observed by the ALJ. Social Security
proceedings are not exempt from the fundamental principle that in determining
credibility demeanor can play a critical role. Oakes v. Astrue, 258 Fed.Appx. 38, 43 (7th
Cir. 2007). See also Ramey v. Astrue, 319 Fed.Appx. 426, 428 (7th Cir. 2009); Gaylor v.
Astrue, 292 Fed.Appx. 506, 515 (7th Cir. 2008). And, of course, cross examination is the
“‘greatest legal engine ever invented for the discovery of truth.’” Lilly v. Virginia,
527U.S. 116, 124 (1999); Gregory-Bey v. Hanks, 332 F.3d 1036, 1048-49 (7th Cir. 2003).
The ALJ said that Ms. Lucas had no restrictions in her daily activities. It is not
clear where this came from, as Ms. Lucas did not testified as to her activity. In her
written statement, Ms. Lucas said that her medication kept her sleepy all day, and she had
difficulty getting out of bed. She had trouble focusing. She was unable to cook, do
housework, or take care of her children – her sister had to help her. (R. 269). Such
activities – or lack thereof – are certainly consistent with at least a severe mental
impairment. See Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013)(“We have repeatedly
cautioned that a person's ability to perform daily activities, especially if that can be done
only with significant limitations, does not necessarily translate into an ability to work
full-time.”); Carradine, 360 F.3d at 756 (“[ALJ] failed to consider the difference
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 17 of 18 PageID #:487
between a person's being able to engage in sporadic physical activities and her being able
to work eight hours a day five consecutive days of the week.”).
Also, the ALJ pointed to Ms. Lucas being able to operate a childcare business as
evidence that her impairment was not severe. But, she wasn’t running a business; she
was babysitting her sister’s children as part of a state-funded workfare program. It is
doubtful whether that could be considered a competitive work environment, and it
certainly doesn’t equate to running a daycare facility. And, contrary to the ALJ’s
characterization, it did not require Ms. Lucas to “interact regularly with others” (R. 19)
aside from her immediate family.
That being said, on remand, Ms. Lucas does have some potential problems with
her credibility. Perhaps that is why she failed to attend the hearing. She did lie about her
onset date, and she does not seem to have a consistent answer as to whether she uses
drugs and/or alcohol or how often. While she sought medication and renewed her
prescriptions, she did not follow through with counseling. This service was free, so
impecunity cannot have been the excuse. Cf. Shauger v. Astrue, 675 F.3d 690, 696 (7th
Cir. 2012)(“Although a history of sporadic treatment or the failure to follow a treatment
plan can undermine a claimant's credibility, an ALJ must first explore the claimant's
reasons for the lack of medical care before drawing a negative inference.”); Lopez v.
Astrue, 807 F.Supp.2d 750 (N.D.Ill. 2011). But these are matters for remand.
Finally, the ALJ should insist on Ms. Lucas’s attendance. Failure to attend the
hearing without good cause ought to preclude further judicial review. Davenport v.
Astrue, 417 Fed.Appx. 544 (7th Cir. 2011). See also cases cited supra at 1.
Case: 1:11-cv-07456 Document #: 27 Filed: 07/30/13 Page 18 of 18 PageID #:488
The plaintiff’s motion for summary judgment or remand is GRANTED, and the
Commissioner’s motion for summary judgment is DENIED.
UNITED STATES MAGISTRATE JUDGE