MEMORANDUM OPINION AND ORDER
Allegedly, Albert Einstein said that the definition of insanity is doing the same thing over and over again and expecting a different result. Regardless of whether Einstein truly made this observation, this appeal is evidence that, at times, Social Security proceedings border on madness. This is one of those cases. This case involves a complete failure by a federal agency to follow a court order, which specifically found that the agency had failed to follow its own regulations. Apparently, the agency believed that doing the same thing would produce a different result in a subsequent appeal. The agency was wrong.
When the Court enters judgments and remands cases back to the Social Security Administration (Administration), it fully and reasonably expects the Administration will comply with the Court’s orders. There exist at least three reasons for this expectation. First, Court orders, after all,' are not merely musings and suggestions. McCann v. Cullman, No. 11 CV 50125,
Unfortunately, in this case, the ALJ, the Commissioner and the Administration failed to comply with Judge Kim’s specific and thorough order, remanding the case for violating fundamental Social Security jurisprudence, including, but not limited
This issue is not merely academic. The costs incurred because of the Administration’s repeated violations of court orders are substantial. Besides the societal costs incurred when the Administration flouts federal court orders, the Administration’s
This Court will, once again, remand the case for essentially the same reasons it was previously remanded by Judge Kim. But this Court expects a different result, not the same inadequate and erroneous “analysis” twice provided by the ÁLJ.
BACKGROUND
On July 30, 2008, plaintiff filed applications for disability insurance benefits and supplemental security income. He believed he had bipolar disorder that caused “unstable mood swings” in which he would get “really depressed” and other times would be “almost in a state [of] euphoria about the world.” R. 210.
On September 5,2008, plaintiff was evaluated by psychologist David NieKamp, who interviewed plaintiff for 45 minutes. Plaintiff reported “frequent insomnia due to extreme anxiety” and “extreme apathy where he does not want to leave his bed.” R. 296. Dr. NieKamp diagnosed him with moderate-to-severe anxiety and depression and rated his global assessment,of functioning (“GAP”) as 45. R. 298.
On November 8, 2008, plaintiff was treated by Dr. David Pocock, a board-certified family physician. R. 323; Dkt. #15 at 2, n.4. Plaintiff reported that he was first diagnosed with bipolar disorder eight years earlier; that he had not taken any medication for it in the last two years; and that he had four to six manic cycles a year alternated with depressive cycles. Dr. Po-cock noted that plaintiff was “jittery and nervous” and diagnosed him with bipolar disorder,
On December 17, 2008, Dr. Pocock urged plaintiff to get on the waiting list at
On March 30, 2009, plaintiff was assessed by Dr. Samar Mahmood, a psychiatrist who would treat him over the next four years. The first meeting lasted 53 minutes. In a 5-page report, Dr. Mahmood noted (among other things) that although it would be “beneficial for Brad to learn effective coping skills to help him deal with his symptoms of Bipolar,” plaintiff “was not interested in engaging in therapy.” R. 337. Dr. Mahmood formally diagnosed plaintiff with bipolar disorder and assessed his GAF as 45.
About two months later, on May 29, 2009, plaintiff again saw Dr. Mahmood on May 29, 2009. This was a 50-minute meeting. Dr. Mahmood again prepared a detailed report, noting that plaintiff was taking Prozac as prescribed by his regular doctor, that he had tried Depakote for bipolar disorder but that it “made him feel worse and suicidal,” that he had tried Ability and Effexor but they did not help, that he had severe panic attacks, and that he has rapid cycling mood swings. Plaintiffs mother confirmed these reports. Dr. Mah-mood again diagnosed plaintiff with bipolar disorder and social anxiety disorder and rated his GAF at 45. Over the next four years, plaintiff would see Dr. Mahmood about every three months.
On July 6, 2009, Dr. Mahmood completed the Psychiatric/Psychological Impairment Questionnaire. She diagnosed plaintiff with bipolar type I and assessed his GAF as 50 with a low of 40 in the last year. She checked boxes indicating that he would be absent from work more than three times a month, was incapable of “low stress” jobs, and was not a malinger. R. 358-59.
Ten months later, on May 10, 2010, Dr. Mahmood again completed this questionnaire, assessing plaintiffs GAF as 45 to 50 and his low in the past year as 40 to 45. R. 401. She again found that plaintiff was incapable of even low stress jobs and was not a malingerer.
On June 10, 2010, the first hearing was held. Plaintiff testified that he could not work because he “cyclefe] too often,” which he explained meant “that in my high mode, I try to do everything as fast as possible, and then when I’m on low mode, I don’t do anything at all.” R. 38. He was then taking Prozac and had tried Abiliiy for a short time, but developed “bad complications.” R. 37. He had lost four or five jobs because of his cycling.
A clinical psychologist named Mark Ob-erlander testified as an impartial expert. He opined that plaintiff had bipolar disorder, an anxiety disorder, and a personality disorder, but stated that his treatment had been “seriously inadequate.” R. 50-51.
On June 24, 2010, the ALJ issued his decision. The ALJ found that plaintiff had severe impairments of bipolar disorder, anxiety disorder, and personality disorder, but found that he did not meet a Section 12 listing. The ALJ found that plaintiff had the residual functional capacity (“RFC”) to perform a full range of work with certain
Again, -for sake of clarity, it is important to note that as of June 2010, both the ALJ (John K. Kraybill) and Dr. Oberlander found that plaintiff was, in fact, suffering from severe bipolar disorder.
In 2011, plaintiff appealed the decision to the United States District Court for the Northern District of Illinois (Case No. 11-4350).
After the remand, on May 17, 2013, Dr. Mahmood completed another questionnaire. She rated plaintiffs GAF as 50 and stated that he had “[s]evere chronic persistent anxiety with hyper imposed panic attacks along with depression.” R. 719. She again checked the box stating that plaintiff was incapable of low-stress jobs. R. 723. She diagnosed plaintiff with major depression, panic disorder, and generalized anxiety disorder but did not include' bipolar disorder.
On July 15, 2013, a second administrative hearing was held. For the same basic reasons stated in the first hearing, Dr. Oberlander again discredited the opinions of Dr. Mahmood. On August 14, 2013, the ALJ issued his opinion finding plaintiff not disabled. -He again relied primarily on Dr. Oberlander’s opinion over that of Dr. Mah-mood. The opinion is discussed below.
DISCUSSION
A reviewing court may enter judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the Commissioner’s factual findings are conclusive. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision’s conclusion is supportable. Richardson v. Perales,
On appeal, plaintiffs main argument, and the one this Court will focus on, is that the ALJ violated the treating-physician rule, The Government argues that the ALJ properly found that Dr. Mahmood’s opinions were “extreme” and asserts that the treating-physician rule is “very deferential” and “lax” and that an ALJ “need not explicitly discuss each [checklist] factor.” Dkt. #21 at 3, 4.
Contrary to these characterizations, the treating-physician rule is a key rule in disability cases. The rule directs the ALJ to “consider all” of, the following factors in weighing any medical opinion: (1) the length of treatment; (2) the nature and extent of the treatment relationship; (3) the supportability of the medical opinion; (4) the consistency of the opinion with the record as a whole; (5) the physician’s degree of specialization; and (6) other factors supporting or contradicting the opinion.’20 C.F.R. § 404.1527(c). The checklist factors are designed to help the ALJ “decide how much weight to give to the treating physician’s evidence.” Bauer v. Astrue,
Here, the ALJ did not follow this two-step process. The closest the ALJ came to acknowledging the rule is the following: “Although [Dr. Mahmood] is the treating physician, [her] opinions are not supported by objective medical evidence. Accordingly these opinions were not given controlling weight.” R. 456. The statement that there was no “objective medical evidence” perhaps indirectly could be referring to the two components in the step one inquiry, but there is no analysis of them. It is not clear, for example, what clinical or lab techniques the ALJ believed were needed to confirm a treating physician’s opinion regarding a diagnosis of bipolar disorder.
As for whether Dr. Mahmood’s opinions were “not inconsistent with the other substantial evidence,” which is the second component of step one, the ALJ also did not explicitly answer this question. Although the ALJ offered several roving criticisms about Dr. Mahmood’s opinions, which are discussed below, the ALJ did not fínd make a finding that there was “substantial” other evidence contradicting Dr. Mahmood’s opinions. As Judge Kim noted in his opinion, Dr. NieKamp’s report supported Dr. Mahmood’s opinion. Again, this was á critical fact that the ALJ ignored even after Judge Kim instructed the ALJ to address it. Likewise, Dr. Pocock’s observations and diagnoses were consistent with Dr. Mahmood’s, although they were based on a limited treatment history. Dr. Sarlo’s report, discussed below, also lends support to Dr. Mahmood’s conclusions. So, other than the opinion of Dr. Oberlander’s (who had previously found plaintiff , to be bipolar, R. 50), there does not appear to be any contrary medical opinion.
As for the second step of the treating-physician rule, the ALJ did not explicitly apply the checklist. In this Court’s view, that failure alone is a ground for a remand. See, e.g., Duran v. Colvin,
As for the'first two factors—length of treatment and nature and extent of treatment relationship—the ALJ never set forth the basic facts about the treating relationship. Plaintiff had consistently been treated by Dr. Mahmood for more than four years and was seen at least , 16 times during which time she adjusted plaintiffs medication at least 10 times. See Dkt. #15 at 11. Although these visits were shorter than what might be provided in a traditional therapy relationship, the fact remains that the sheer number of visits provided a longitudinal picture over a mul-ti-year period. Moreover, as Judge Kim noted, Dr. Mahmood saw plaintiff at the start of the relationship for two extended sessions. In his second decision, the ALJ again downplayed these two visits, despite Judge Kim’s proper criticism of this error. To put it in comparison terms, Dr. Mah-mood examined and treated plaintiff many times over a period of years. In contrast, Dr. Oberlander only observed plaintiff at two short hearings and then only asked a few questions. Dr. Oberlander did not examine or treat plaintiff, nor could he as a medical expert. HALLEXI-2-5-32C.
Although the ALJ glossed over--this larger picture, the ALJ offered three criticisms. The ALJ noted the following: (i) there were “very few actual treatment records,” (ii) they were “very brief,” and (iii) Dr. Mahmood “only saw [plaintiff] irregularly for 15 to 20 minutes at a time.” R. 454. The-ALJ apparently believed these assertions undermined the reliability- of Dr. Mahmood’s opinions. But the ALJ’s
As for the fifth checklist factor—degree of specialization—the ALJ did not give any weight to the fact that Dr. Mahmood is a psychiatrist. This is yet another instance where the ALJ failed to address a specific criticism made by Judge Kim. A comparison to Dr. Oberlander is again warranted. As discussed below, although Dr. Oberlan-der was a psychologist, he admitted he did not have expertise in bipolar medication.
The remaining factors—supportability (3), consistency (4) and other factors (6)— are more general and therefore were potentially addressed by the ALJ’s miscellaneous, untethered and scattershot criticisms. However, as explained below, many of these criticisms rest on cherry-picked evidence or questionable medical assumptions. .Moon,
Normal Findings. The ALJ claimed that Dr. Mahmood’s opinions were contradicted by his own “Mental Status” findings from the 16 visits, which supposedly showed essentially normal functioning. Although it is true that plaintiff had normal functioning for some visits, on other visits, problems were repeatedly noted. See, e.g., R. 737, 755, 758, 761, 764, 767. For example, on May 16, 2Ó13, Dr. Mahmood noted that plaintiff had a “constricted” affect and an “anxious” mood. R. 771-772. As with the first opinion, the ALJ ignored this contrary favorable evidence, again despite Judge Kim’s explicit criticism of this mistake. Wallace, No. 11 CV 4350,
Lack of Manic Symptoms. Related to the above point, the ALJ observed that plaintiff did not “present with” any manic symptoms in visits with Dr. Mahmood. The implication is that plaintiff was not truly bipolar. This implication is absolutely bizarre. As noted above, the ALJ had already twice found that plaintiff suffered from bipolar disorder and that the disorder was severe, and even Dr. Oberlander, at the first hearing, found that plaintiff was bipolar. R. 18, 50, 450. Beside that critical failing, the ALJ’s point is not adequately explained for several reasons. First, it is not clear what the ALJ believed qualified as manic symptoms. As noted above, on some visits plaintiff was found to be suffering from anxiety and other symptoms. See, e.g. R. 410 (8/24/09: plaintiff had a “elevated” affect and “anxious” mood).
Medication. Several medication-related criticisms were made. For example, Dr. Oberlander at the hearing claimed that plaintiff was not taking the appropriate medication showing he “truly” had bipolar disorder. Again, at the risk of repetition, this is a very strange point because Dr. Oberlander had previously found plaintiff to be bipolar and the ALJ agreed. R. 18, 50, 450. To add another layer to this madness, the ALJ gave Dr. Oberlander’s opinion great weight despite the fact that Dr. Oberlander’s opinion (that plaintiff was misdiagnosed and was not bipolar) completely contradicts the ALJ’s own finding that plaintiff was bipolar and the impairment was severe. Nevertheless, beside that fundamental logical flaw, here is the exchange on this point where plaintiffs counsel questioned Dr. Oberlander who in turn asked plaintiff questions:
Q So despite the fact that he’s been treating with the same psychiatrist since 2009, you believe he’s misdiagnosed?
A Absolutely.' If he were truly bipolar, the medication he takes—even though that’s outside of my area of expertise—would be different.
EXAMINATION OF THE CLAIMANT BY THE MEDICAL EXPERT
Q Have you been on lithium?
AI was on Depakote before.
Q Have you been on lithium?
A No.
ME: Which is the medication of choice for bipolar disorder. .
R. 487. This testimony was relied upon by the ALJ to discredit Dr. Mahmood. R. 455.
Again, setting aside the fact that the ALJ found plaintiff to be bipolar, the ALJ’s conclusion is dubious. First, Dr. Ob-erlander conceded that determining the appropriate medication was “outside [his] area of expertise.” Second, neither Dr. Ob-erlander nor the ALJ credited plaintiffs statement that he had tried Depakote, but that it had caused bad side effects. Depa-kote is “indicated for manic or mixed episodes associated with bipolar disorder.” Physician’s Desk Reference, p.' 437 (68th ed. 2014). The ALJ and Dr. Oberlander also ignored that plaintiff previously took Ability, but had side effects. Ability is used for acute treatment of manic or mixed episodes associated with bipolar disorder. Physician’s Desk Reference, p. 2161. Third, Dr. Oberlander and the ALJ did not ask plaintiff about taking Prozac and Lam-ictal. Lamictal is used for maintenance treatment of bipolar disorder. Physician’s Desk Reference, p. 1137. And Prozac can be used to treat bipolar disorder. Kahn & Fawcett, The Encyclopedia of Mental Health, 169 (1993). Consequently, several of plaintiffs medications were, in fact, used
The ALJ also never considered whether financial reasons hindered plaintiffs ability to .obtain or consistently take medications. The ALJ repeatedly noted that, .in November 2008, when plaintiff first sought treatment, that he had not taken any bipolar medications for the previous two years. R. 455, see also 453, 455 (“The claimant reported at the consultative examination [in] 2008 that he had not had any treatment for the prior two years.”). However, the ALJ downplayed plaintiffs explanation that he lacked insurance. See Pierce v. Colvin,
Never Recommended Therapy. The ALJ and Dr. Oberlander also faulted Dr. Mahmood for not recommending therapy. See R. 455 (ALJ: “The records do not show that Dr. Mahmood recommended any therapy nor any psychiatric hospitalizations.”); R. 488 (Dr. Oberlander: “I’m also not impressed by the fact that here is a psychiatric provider [who]... has not recommended counseling, has not insisted upon counseling”). However, Dr. Mahmood did recommend therapy in her two initial assessments and explained that she was comfortable allowing plaintiff to proceed with only medication monitoring because plaintiff had “tried therapy in the past and found it to be non-effective,” and he had “a good support network.” R. 337. The ALJ ignored this evidence. In addition, as noted above, the ALJ failed to consider whether plaintiffs financial situation may have been another barrier.
Lurking within many of these criticisms is -the question of whether plaintiff was properly diagnosed as having bipolar disorder. Dr. Oberlander staked out strong ground, asserting that plaintiff “absolutely” did not have bipolar disorder, again despite having previously agreeing that plaintiff was, in fact, bipolar. R. 50. Dr. Mahmood, on the other hand, repeatedly diagnosed plaintiff with bipolar disorder and treated him with what appears to be bipolar medication. Other doctors were split, with Dr. Pocock and Dr. Sarlo (discussed below) diagnosing him with bipolar disorder but Dr. NieKamp diagnosing him with moderate-to-severe anxiety and depression instead. This is an issue that will need to be explored on remand, but a few points are worth pointing out now. First, it is true, as the Government states, that in the third psychiatric questionnaire, Dr. Mahmood diagnosed plaintiff with major depressive disorder and panic disorder but did not mention bipolar disorder. The Government construes this to mean that Dr. Mahmood “no longer assessed Plaintiff
In sum, the ALJ failed to apply the two steps required by the treating-physician rule. It is not simply that the ALJ refused to give Dr. Mahmood’s opinions controlling weight, but that the ALJ apparently gave them no weight at all—-just as he did in the first hearing.
Having found that this case must be remanded based on the treating-physician rule, the Court will only briefly comment on the remaining issues. First, plaintiff has asserted two additional arguments for remand, although he focused much less attention on them: One argument is that the ALJ erred in the credibility analysis by, among other things, unfairly faulting plaintiff for not taking bipolar medication in the two-year period during 2006-07 and for not pursuing therapy. The other argument is that the hypothetical question to the vocational expert failed to include restrictions for plaintiffs moderate difficulties in concentration, persistence, or pace. Both of these arguments incorporate, and even repeat, many of the same arguments' discussed at length above. These issues may be affected by how the evidence is developed on remand. For these reasons, the Court finds that further analysis would not be productive now.
Second, after the second hearing, plaintiff submitted to the ALJ a report from Dr. Gregory Sarlo, who plaintiff states evaluated him on August 1st and August 3rd of 2013 and who issued a report. Ex. 19F. Various tests, such as the Minnesota Multiphasic Personality Inventory, were administered. In the report, Dr. Sarlo diagnosed plaintiff .with bipolar disorder and posttraumatic stress disorder and assessed his GAF as 40. R. 783. Among other things, the report states: “It would be very difficult for Brad and potentially harmful for Brad to attempt to maintain gainful employment and successfully manage the stresses of daily work[.]” R. 784. Dr. Sarlo
The ALJ did not consider the Sarlo report because it was received just two hours after he released the decision. In her opening brief, plaintiff argued that the Sarlo report added further evidence bolstering Dr. Mahmood’s opinions. In response, the Government pointed out that this evidence was not before the ALJ and thus could not be considered. In his reply, plaintiff only briefly addressed this point, stating, that the Sarlo report was “entered into the record,” but plaintiff did not offer any legal arguments as to why it should have been considered originally by the ALJ or now by this Court. Dkt. #22 at 2. However, the record contains a letter from the ALJ to plaintiffs counsel dated November 14, 2013 (ie. several months after his decision) stating that.the ALJ “may be willing to reopen” his decision in light of the Sarlo report if plaintiff submitted certain additional information relating to that report. R. 667. But the Court cannot find any statement in the record whether the ALJ acted on this information. This issue need not be resolved here because the Sarlo report can be considered on remand with all the other evidence.
CONCLUSION
Five years ago, Judge Kim remanded this case for further proceedings consistent with his order. Wallace, No. 11 C 4350,
For these reasons, plaintiffs motion for summary judgment is granted, the government’s motion is denied, and this case is remanded for further consideration.
Notes
. This Court has attempted to document the Administration’s repeated violation of its treating-physician rule. The following list is a just a sampling of the most recent remands by the undersigned and the various judges of the U.S. District Court for the Northern District of Illinois. Edmonson v. Colvin, No. 14 CV 50135,
. If the Commissioner disagrees with this Court’s order, the remedy is for her to take an appeal of the judgment, not to send the case back to an ALT to ignore the order. Indeed, the Court encourages the Commissioner to appeal this Court’s judgment, which will provide the United States Court of Appeals for the Seventh Circuit an opportunity to resolve various aspects of the treating-physician rule.
. For what it is worth, this Court is not alone in raging against the Social Security machine. See, e.g., Freismuth, 920 F.Supp.2d at 944 ("Once again, the Court is charged with the unenviable task of deciding yet another in an exceptionally long line of Social Security .cases run amok. This line, of cases—the result of what might be charitably , described as a wholly dysfunctional administrative process within the Social Security Administration— has continued to grow; bringing with it a skyrocketing number of remands.”)
.Plaintiff apparently was treated for bipolar disorder years earlier. As Judge Kim noted, a doctor diagnosed plaintiff with bipolar disorder in 2000, although there are no treatment records from this period in the file now. R. 507.
. According to plaintiff, Ability is indicated for the treatment of schizophrenia, bipolar disorder, and is used as an adjunctive therapy for major depressive disorder. Dkt, #15 at 3, n,6 (citing to www.rxlist.com).
. Although Local Rule 40.3(c) would indicate that this case may have been assigned back to Magistrate Judge Rim, the Court retained this case after conferring with Magistrate Judge Kim; additionally, no party asked that the case be reassigned to Magistrate Judge Kim and plaintiff resides in the Western Division.
. Magistrate Judge Kim also found that the ALJ erred in the credibility analysis.
.This evidence included the following; (i) Dr. Mahmood’s two initial 50-minute assessments; (ii) a progress note stating that, although plaintiff had showed improvement, he was still "anxious and not in remission”; (iii) the fact that Dr. Mahmood had increased medication dosages, suggesting that plaintiff's "symptoms were not adequately controlled”; and (iv) Dr. NieKamp’s opinion that plaintiff’s "anxiety and depression inhibits employment.” R. 526, 522-23.
. • Of course, the discussion is very odd at the outset. Remember that the ALJ had twice already found that plaintiff was bipolar and that it was severe. R. 18, 450. And Dr. Ober-lander, at the first hearing, likewise found that plaintiff was bipolar. R. 50.
. This issue came up during the first hearing when plaintiff's counsel asked Dr. Oberlander whether an individual like plaintiff, who was on Medicaid, might have problems getting counseling. Dr. Oberlander agreed: "They certainly experience a level of difficulty in accessing services from the medical community that is of some significance here.” R. 55.
. To be fair, the ALJ did not specifically use the phrase "no weight" in the second opinion but that seems to be the logical conclusion of his reasoning. And the failure to identify the weight given to Dr. Mahmood’s opinion is itself error. SSR 96-2p.
. One caveat about the Sarlo report. Although not acknowledged by plaintiff, the report states that the interviews of plaintiff on August 1st and August 3rd were not conducted by Dr. Sarlo himself but by a psychology extern. R. 774,