Anderson v. Commissioner of Social Security
OPINION: Plaintiff Kent Anderson's Motion Summary Judgment (d/e 14 ) is ALLOWED, Defendant Commissioner of Social Security's Motion for Summary Affirmance (d/e 21 ) is DENIED, and the decision of the Commissioner is REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) sentence four. (SEE WRITTEN OPINION.) Entered by Magistrate Judge Tom Schanzle-Haskins on 3/23/2017. (GL, ilcd)
Friday, 24 March, 2017 12:19:53 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
KENT VERNE ANDERSON,
COMMISSIONER OF SOCIAL
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Kent Verne Anderson appeals from the denial of his
application for Social Security Disability Insurance Benefits (Disability
Benefits) under Title II of the Social Security Act. 42 U.S.C. §§ 416(i) and
423. This appeal is brought pursuant to 42 U.S.C. § 405(g). Anderson
has filed a Motion for Summary Judgment (d/e 14), and Defendant
Commissioner of Social Security has filed a Motion for Summary
Affirmance (d/e 21). The parties consented, pursuant to 28 U.S.C.
§ 636(c), to proceed before this Court. Consent to the Exercise of
Jurisdiction by a United States Magistrate and Reference Order entered
August 15, 2016 (d/e 17). For the reasons set forth below, the Decision of
Page 1 of 41
the Commissioner is REVERSED and REMANDED pursuant to 42 U.S.C.
§ 405(g) sentence four.
STATEMENT OF FACTS
Anderson was born on May 11, 1965. He graduated from law school
and worked as an attorney until September 3, 2011. Anderson suffers from
lymphedema, migraine headaches, depression, anxiety, degenerative joint
disease of the left hip, sleep apnea, restless leg syndrome, obesity, history
of Harrington rod placement for scoliosis, and history of alcohol abuse.
R. 22, 47, 48.
On January 4, 2010, Anderson saw Dr. Antoine Dawalibi, D.O., for
swelling in his legs. At that time, Anderson was 68 inches tall and weighed
215 pounds. Dr. Dawalibi assessed leg edema and venous insufficiency.
From approximately January 19-26, 2010, Anderson was seen at the
Mayo Clinic for several conditions. R. 700-11. Anderson saw neurologist
Dr. Fred Curtrer for migraine headaches and Dr. Roger Shepherd in the
Vascular Center for edema in his legs. Dr. Shepherd diagnosed
obstructive lymphedema in the right leg and swelling in the left leg due to
“dependency, weight, and salt.” Dr. Shepherd prescribed compression
See R. 688 for notation of Dr. Dawalibi’s credentials as a doctor of osteopathy.
Page 2 of 41
stockings and lubricating lotion for the skin on Anderson’s legs. Dr.
Shepherd also recommended “losing weight, exercising, and cutting back
on salt” to “help with the leg swelling.” R. 700.
Dr. Curtrer assessed episodic migraine headaches without aura. Dr.
Curtrer prescribed Ketoprofen to be taken within 15 minutes of the onset of
a headache. For severe headaches, Dr. Curtrer recommended Rizatriptan.
Dr. Curtrer also recommended taking Divalproex and Depakote regularly to
reduce the severity of the headaches. R. 711.
On February 25, 2010, a lymphoscintigram showed previous
lymphatic damage in the lower right leg, with no lymphatic obstruction
above the right knee and no obstruction on the left. R. 688.
On May 8, 2010, Anderson was the subject of a sleep study at the
Illinois Neurological Institute (INI) Sleep Center. Anderson was given the
study due to excessive daytime sleepiness and fatigue, and difficulty falling
and staying asleep at night. At that time Anderson measured 65 inches in
height and weighed 232 pounds. The study showed severe obstructive
sleep apnea with associated hypoxemia and sleep disruption. Anderson
was prescribed a CPAP machine to be used at night while sleeping.
Page 3 of 41
On or about September 10, 2010, Anderson saw Dr. Curtrer again at
the Mayo Clinic for migraine headaches. Dr. Curtrer recommended adding
Topamax as a prophylactic medication. R. 1327.
On March 8, 2011, Anderson was seen at the University of Illinois
Department of Psychiatry and Behavioral Medicine for worsening
depression. Anderson was previously diagnosed with dysthymia. He was
undergoing regular cognitive behavioral therapy (CBT) with Dr. McIntyre, a
psychologist. Anderson reported that his depression was worsening and
he had symptoms of anxiety, psychosis, and suicidal ideations. R. 1693.
Anderson was assessed with dysthymic disorder, major depressive
disorder, and alcohol dependence in sustained full remission. He was
counseled to remove a firearm from his home due to his suicidal ideations.
He was counseled to modify his current medications to either increase the
dosage of Cymbalta or add a second medication, Remeron. The record of
the examination was signed by a medical student and psychiatrist Dr. Peter
Alahi, M.D. R. 1695-96.
On or about May 20, 2011, Anderson returned to the Mayo Clinic. Dr.
Shepherd again prescribed compression stockings for the edema and
CPAP stands for Continuous Positive Airway Pressure. See Dorland’s Illustrated Medical Dictionary
(32d ed. 2012) (Dorland’s), at 427.
Page 4 of 41
recommended diet, weight loss, and exercise. R. 751. Anderson also
reported that the Topamax for his migraine headaches caused some
tolerable sleepiness, but intolerable depression. R. 751-52. Nurse
Practitioner M.C. McDermott, R.N., C.N.P., recommended Botulinum A
Toxin (Botox) injections and Gabapentin to reduce the frequency and
severity of his headaches. R. 755.
On October 5, 2011, Anderson again went to the Mayo Clinic. Dr.
David McFadden, M.D., was Anderson’s primary physician at the Mayo
Clinic at this time. R. 1248-49. Anderson reported significant side effects
with the prophylactic medications he was taking for migraine headaches.
He began Botox injections for his headaches. R. 1252.
On October 10, 2011, Anderson went to the INI Sleep Center for a
follow up visit regarding his sleep apnea. Anderson saw Nurse Practitioner
Diedra Lewandowski, M.S., A.P.N., A.C.N.P.-B.C. Anderson reported that
he was fitted with an oral appliance to wear at night. He reported that he
was taking off the CPAP mask at night during his sleep and that he stopped
using the CPAP. Anderson reported significant daytime sleepiness.
Lewandowski’s impression was that Anderson’s sleep apnea was well
controlled with the CPAP, but he was not using it. Sometimes he fell
Page 5 of 41
asleep without it, sometimes he took it off inadvertently during the night,
and sometimes he did not sleep long enough at night. R. 470-71, 474.
On November 18, 2011, Anderson saw neurologist Dr. Richard Lee,
M.D. for migraine headaches, restless leg syndrome, and sleep disorder.
Anderson reported that the Botox injections seemed to help a little with his
headaches. Anderson stopped taking the gabapentin. Anderson reported
that the CPAP machine was helpful for his sleep disorder. Dr. Lee
recommended continuing the Botox injections for the migraine headaches.
On November 30, 2011, a disability representative of the Mayo Clinic
completed a form for Anderson to submit with a private disability insurance
claim. The form stated, in part:
On November 29, 2011, David D. McFadden, MD stated the
patient [Anderson] is unable to work from September 3, 2011
through March 3, 2012. Recommend re-evaluate after six
months. Recommend total disability for six months.
Diagnosis: Severe obstructive sleep apnea, depression,
insomnia, restless leg syndrome. Follow-up with local primary
care provider in Peoria, Illinois.
The above information is provided for your use in processing a
Page 6 of 41
On or about January 19-26, 2012, Anderson went to the Mayo Clinic.
Anderson reported to Dr. McFadden that he was still not getting restful
sleep even though he was using his CPAP machine. Dr. McFadden stated
that there was a problem with mask incompatibility. Dr. McFadden referred
Anderson to the Mayo Clinic Sleep Clinic to address the problem. R. 1210.
Anderson saw Dr. Mithri Junna, M.D., at the Sleep Clinic. Dr. Junna could
not identify a reason why Anderson took his CPAP mask off during sleep.
Dr. Junna increased the heat in the humidifier in the CPAP machine to
reduce nasal congestion while using the machine. Dr. Junna told Anderson
to wear the CPAP mask during the daytime for progressively longer periods
over time, starting with 30 minutes without the machine and building up to
120 minutes with the machine running. Dr. Junna stated that when
Anderson used the machine there was no significant leakage and he did
not have residual apneas. Dr. Junna also offered to find Anderson a less
annoying mask. Dr. Junna finally emphasized the importance of having “a
set bedtime and waketime, only using the bedroom for sleeping and for
sex, and avoiding sleeping in any other place but his bed.” R. 1204.
During this visit, the Mayo Clinic neurology department conducted an
EEG. The EEG was normal, but showed snoring and symptoms of sleep
apnea. R. 1210.
Page 7 of 41
Anderson also saw psychologist Dr. Keith Rasmussen, Ph.D. at Mayo
Clinic during this visit. Dr. Rasmussen diagnosed Anderson as depressed.
He noted that Anderson recently started taking Ritalin in addition to his
other medications. Dr. Rasmussen concluded that Anderson was
overmedicated and told Anderson not to take the Ritalin. Dr. Rasmussen
stated that Anderson could not work:
He still remains pretty depressed and nonfunctional. He is not
able to work at his job. He showed me a letter that was given to
him by his job where very specific requirements were laid out
as to how he handles his day and showing up to work on time
and so forth. He attempted to go back to work but was unable
to do that. Currently he is on Family Medical Act Leave, and he
is applying for disability. He remains pretty dysphoric most of
the time. His thoughts are pretty scattered in the room talking
with him, although his demeanor is pleasant and polite. I do not
think he is psychotic. I do not think he is manic either. I think he
is overmedicated at this point.
R. 1224. Dr. Rasmussen recommended electroconvulsive therapy (ECT).
Dr. Rasmussen stated that Anderson could taper off his antidepressant
medication if the ECT was effective. Dr. Rasmussen noted that
antidepressant medication can aggravate restless leg syndrome. R. 122728.
On February 10, 2012, Dr. McFadden wrote a letter which stated:
To Whom It May Concern:
The above referenced patient was evaluated at Mayo Clinic in
September of 2011 and more recently in January of 2012. Due
Page 8 of 41
to multiple medical problems, I highly recommend patient be
considered totally medically disabled through June 1, 2012, at
which time he will be re-evaluated.
Please let me know if any further details are needed.
On February 22, 2012, Anderson went to the INI Sleep Clinic for a
follow-up. Dr. Sarah Zallek assessed that Anderson was having problems
with excessive sleepiness and related problems because he was not
practicing good sleep hygiene and poor CPAP compliance. Anderson had
not followed Dr. Junna’s instructions about establishing regular sleeping
patterns. Anderson had not followed Dr. Junna’s recommendation to
desensitize himself to the mask during the daytime. Anderson reported that
he regularly dozed off without using the CPAP machine. When he used his
CPAP, he stopped using the machine if he got up during the night to go to
the bathroom. R. 1433. Dr. Zalleck noted:
Bedtime is 0030-0430. Sometimes he is on the couch late at
night and too sleepy to go to bed, so he will try to "nap" for an
hour by setting an alarm, but will sleep through that and sleep
through the night there. He used to wake up consistently
(spontaneously) around 0600, but lately he has been sleeping
as late as 0800 or 0900. He dozes off at times throughout the
day. Often he is unaware that he is doing this. If he could
choose an 8-hour window during which to sleep he would sleep
0000-0800 or 0l00-0900.
Page 9 of 41
R. 1434. Dr. Zallek noted that Anderson’s psychiatrist in Springfield, Dr.
Alahi, did not agree with Dr. Rassmussen about either stopping the Ritalin
or using ECT. Anderson was following Dr. Alahi’s recommendation and
was still taking two doses of Ritalin daily. Dr. Zallek noted that the Ritalin
might be interfering with Anderson’s ability to sleep at night. R. 1433-34.
Dr. Zallek recommended talking to Dr. Alahi about discontinuing the second
dose of Ritalin. Dr. Zallek felt the restless leg medication might also be
affecting Anderson’s sleep patterns. Dr. Zallek noted that improving sleep
hygiene and CPAP compliance would probably improve his restless leg
syndrome. R. 1436.
On March 2, 2012, Anderson was admitted to the emergency room at
Saint Francis Medical Center in Peoria, Illinois, with suicidal ideation. R.
1377. Anderson had a normal mood and affect. He was not anxious. His
affect was neither angry nor blunt. He had suicidal ideations, but not
suicidal plans. He had no homicidal ideations or plans. R. 1383.
Anderson was enrolled in a partial hospitalization program and released to
go home on March 3, 2012. Anderson was diagnosed with major
depressive order, recurrent, moderate, dysthymic disorder, and anxiety
disorder. R. 1384, 1410.
Page 10 of 41
From March 13, 2012, to March 27, 2012, Anderson was admitted to
the Methodist Medical Center of Illinois’ partial hospitalization program
(PHP) with a diagnosis of major depression disorder without psychosis.
Anderson was taking Cymbalta and Ritalin. The medication was positive
and effective. The discharge note stated that the PHP treatment
decreased Anderson’s anxiety and depression. The admission to PHP was
precipitated by Anderson’s breakup with his girlfriend. At the end of the
PHP treatment, Anderson’s prognosis was good. Upon discharge,
Anderson would follow up with Dr. Alahi for medication management, and
would continue counselling with Dr. McIntyre. R. 1480, 1485.
On June 11, 2012, state agency psychologist Dr. Thomas Low,
Ph.D., prepared a Psychiatric Review Technique and Mental Residual
Functional Capacity Assessment. R. 1501-17. Dr. Low opined that
Anderson had depression, and the depression caused moderate
restrictions in activities of daily living; moderate difficulties in maintaining
concentration, persistence, or pace; and mild difficulties in maintaining
social functioning. Dr. Low opined that Anderson had no episodes of
decompensation of an extended duration. R. 1511. Dr. Low opined that
Anderson’s “statements regarding depression were credible and consistent
with the objective medical findings.” R. 1513.
Page 11 of 41
Dr. Low further opined that Anderson was moderately limited in his
ability to: understand and remember detailed instructions; carry out detailed
instructions; and maintain attention and concentration for extended periods.
Dr. Low opined that Anderson did not have any other functional limitations
due to his mental condition. R. 1515-16. Dr. Low concluded, “The claimant
has some impairment of his attention and can get overwhelmed at work.
He can however follow simple directions and he can do simple tasks. . . .
Within the above limits claimant retains the capacity for work.” R. 1517.
On June 12, 2012, state agency physician Dr. Barry Free, M.D.,
prepared a Physical Residual Functional Capacity Assessment. R. 151926. Dr. Free opined that Anderson could lift twenty pounds occasionally
and ten pounds frequently; stand and/or walk for six hours in an eight-hour
workday; and sit for six hours in an eight-hour workday. R. 1520. Dr. Free
opined that Anderson should only occasionally: climb ropes, stairs,
scaffolds, and ladders; stoop; kneel; crouch; and crawl. R. 1521. Dr. Free
opined that Anderson should avoid concentrated exposure to noise due to
migraine headaches. R. 1523. Dr. Free stated that Anderson’s statements
about his migraines were credible and consistent with the objective medical
findings. R. 1524. Dr. Free concluded, “The claimant had the ability to do
light work with some postural and environmental limitations.” R. 1526.
Page 12 of 41
On June 16, 2012, Anderson prepared a Social Security
Administration Function Report/Adult form. Anderson reported that he lived
alone in his own house. He did not have a set daily routine. He reported
that it may take him all day to take his medicines, eat, take care of his
personal hygiene and get dressed. R. 255-56. Anderson reported that he
took care of a pet dog. He took the dog to the groomer and the vet as
needed. R. 256. He did laundry and dishes. He paid for mowing, lawn
care, and house cleaning services. R. 257. Anderson went to church two
to three times a month, went to AA meetings, and talked to his parents over
the phone. Anderson drove his own car short distances. R. 259.
Anderson opined that he could walk 50 to 150 feet without stopping; he
could pay attention anywhere from a few seconds to five minutes; and had
trouble following instructions. R. 260.
Anderson reported on the Function Report/Adult form that the U.S.
Office of Personnel Management found that he was disabled due to
migraine headaches, restless leg syndrome, depression, and sleep apnea.
R. 262, 284.
On July 10, 2012, Anderson saw Dr. Lisa Snyder, M.D., for Botox
injections for migraine headaches. Anderson reported that the injections
were helpful for pain relief without any side effects. Dr. Snyder found that
Page 13 of 41
Anderson could tolerate a higher dose of Botox. Anderson reported
increased pain since the weather had been hotter. Dr. Snyder
administered the Botox injections. R. 1546.
On August 15, 2012, Anderson saw neurologist Dr. Richard Lee,
M.D., for a follow-up visit for migraine headaches, restless leg syndrome,
depression and sleep apnea. Anderson reported that “on August 5, 2012,
he was swimming in a pool and hit his head on the wall of the pool and had
a slight head injury.” Anderson went to the Emergency Room. He did not
have a concussion, but x-rays sowed arthritis in his neck. Anderson
reported head and neck pain after the accident. Dr. Lee ordered an MRI of
the cervical spine. R. 1577. The MRI showed limited flexion at C1,
degenerative disc disease and spondylosis. R. 1584.
On September 12, 2012, Anderson saw Dr. Michael J. Gootee, M.D.,
to discuss MRI results. Anderson reported increased migraine headaches
since the pool accident. Dr. Gootee reported that Anderson “seems to be
doing well with his CPAP, but admits to not always using this faithfully and
sometimes when he wakes up in the middle of the night this will be on the
floor.” R. 1684.
On September 18, 2012, Dr. Alahi wrote a letter to Anderson’s
attorney. The body of the letter stated, in part:
Page 14 of 41
This is in response to your letter dated September 12, 2012
with respect to Mr. Kent Anderson. I have worked with Mr.
Anderson for greater than a year, and I feel that he has had
significant anxiety and depressive, and cognitive symptoms that
have led him to be incapacitated from his ability to work as an
attorney. Unfortunately, he has not responded despite multiples
from therapeutic interventions as well as ongoing
psychotherapy. At this time, I am afraid to state that I do not
have any confidence in his ability to maintain the concentration,
persistence, and pace required of his former workplace and,
unfortunately, of most workplaces in general. He has had
diminished sleep, diminished concentration, low self esteem,
suicidal ideation, anxiety, insomnia, anhedonia, and social
withdrawal. He has had significant memory change, and his
personality structure has become somewhat inflexible and
maladaptive under the circumstances.
On October 17, 2012, psychologist Dr. Joseph Mehr, Ph.D., affirmed
Dr. Low’s opinions regarding Anderson’s mental condition and his
functional limitations due to that condition. R. 1726-27. On October 22,
2012, Dr. C.A. Gotway, M.D., affirmed Dr. Free’s opinions in his Physical
Residual Capacity Assessment. R. 1726-27.
In June 2013, Anderson went back to the Mayo Clinic. On June 13,
2013, Anderson saw Nurse Practitioner N.A. Honeychuck, R.N. C.N.P., in
the Neurology Department regarding his migraine headaches. Anderson
reported that the Botox worked well until: he hit his head in a swimming
pool; he was over a month late for a Botox injection; and increased stress
Page 15 of 41
due to the death of his father. Honeychuck opined that the Botox injections
would be effective over time:
I suspect his headache control will slowly go back to his
formerly tolerable baseline if he is able to continue to have his
Botox injections on schedule, stringently decrease his use of
analgesic and triptan medications, and manage to use his
CPAP with better consistency, in particular.
R. 1777.3 In addition to the Botox injections, Honeychuck suggested
Petadolex and metoprolol as prophylactic treatments for his migraines. R.
Anderson was urged by healthcare professionals at the Mayo Clinic
to be compliant with his CPAP. His CPAP was adjusted. He was advised
to improve his sleep hygiene. R. 1782.
Anderson underwent neuropsychometric testing at the Mayo Clinic.
The testing showed “possible frontal lobe dysfunction that includes
problems with cognitive flexibility, difficulties with response inhibition and
deficits and problems with processing speed, but basic attention was
intact.” The Mayo Clinic Neurology Department, however, did not comment
on cognitive issues and Anderson was stable. R. 1782-83.
On August 20, 2013, Anderson was seen by the sleep department at
St. Francis Medical Center in Peoria, Illinois. He was assessed with
Triptans are a group of serotonin receptor agonists used to treat migraines. Dorland’s, at 1969.
Anderson’s migraine medication Maxalt (rizatriptan benzoate) is in this group. Dorland’s, at 1114.
Page 16 of 41
behaviorally induced insufficient sleep syndrome. Anderson “continues to
prolong his bedtime until he dozed inadvertently and sleeps on and off
during the day. Actigraphy has confirmed this. His sleep habits adversely
affect his CPAP compliance.” The assessment indicated that better CPAP
compliance and sleep hygiene would improve his daytime sleepiness and
his restless leg syndrome. The Assessment indicated that Anderson might
not need the Ritalin if his sleep hygiene and CPAP compliance improved.
The assessment recommended that Anderson go to bed at a consistent
time and use his CPAP consistently. R. 1895.
On September 13, 2013, Anderson underwent testing at the INI
Memory Disorders Clinic in Peoria, Illinois. The memory tests showed
normal results. R. 1955, 1963-64.
On November 6, 2013, neurologist Dr. Lee filed a form entitled
“Claimant/Patient Meets or Medically Equals Social Security Listing. Dr.
Lee opined that Anderson’s condition met or was medically equal to Social
Security Listing 12.04. The “Listings” are a list of conditions set forth in the
Social Security regulations which can render a person disabled without
respect to the person’s age, education, or work experience. 20 C.F.R. Part
404 Subpart P, Appendix 1 (Listing); see 20 C.F.R. §§ 404.1520(d),
Page 17 of 41
416.920(d).4 Listing 12.04 sets forth the circumstances under which a
person with affective mental disorders such as depression could be
disabled without respect to the person’s age, education, or work
On November 8, 2013, Dr. Alahi wrote a letter to Anderson’s attorney.
Dr. Alahi stated in the body of the letter:
This is a response to your letter of November 5, 2013 regarding
Mr. Kent Anderson. It is my opinion in working with Mr.
Anderson that he has significant depression, anxiety and
attention deficits that will make it extremely difficult for him to
keep his mind on simple tasks and to perform them routinely or
for any extended period of time given a regular workload.
Secondly, I believe that Mr. Anderson, should he attempt to
work, would be unable to tolerate the pressures of work which
will require increased mental health services that will cut into
his ability to work for minimally, several days a month. Lastly,
placing Mr. Anderson in a simple repetitive task performance
environment will likely lead to deterioration in function given his
personality structure, he will be unable to attain levels of
productivity and performance that he had previously attained
given his educational level, and would make it less than viable
for him to continue work.
Unfortunately, I believe that Mr. Anderson's symptomatology
and symptom severity lead to him being deemed disabled from
regular work. This is despite the fact that he has multiple
pharmacotherapy and psychotherapy interventions.
The person must still not be engaged in substantial gainful activity to be disabled even if he or she had a
condition that met or medically equaled a Listing. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
Page 18 of 41
THE ADMINISTRATIVE HEARING
On December 3, 2013, the Administrative Law Judge (ALJ)
conducted an evidentiary hearing. Anderson appeared with his attorney.
Anderson’s mother Margaret Anderson and vocational expert Ronald Malik
also appeared. Anderson testified that he lived with his dog in his single
family residence. He received employee disability income from the federal
government. He testified that he drove 50 to 100 miles per week. He
generally drove short distances because he became tired driving. R. 48-49.
Anderson testified that he could not work because he did not have
sufficient short-term memory and could not concentrate to perform his old
job as an attorney. He also said he could not work because he was
excessively tired and fell asleep in the middle of the day. He also said he
could not work because of his depression. R. 50-51.He said his problems
“kind of feed, undoubtedly, feed off each other.” R. 51.
Anderson said that he still had problems with headaches:
Q Okay. Are you still having problems with headaches?
It's – yes. I mean, it kind of goes into stages how often.
A It would be quite a while for a while and then not so often and
then more often and so forth.
Page 19 of 41
R. 51. Anderson said headaches varied from two or three a month up to
five a week. R. 59-60. Anderson testified that he took ketoprofen at the
onset of a migraine and Maxalt if the ketoprofen did not work within 45
minutes. He usually tried to lie down. He sometimes put ice on his
forehead. R. 54, 86. He received Botox injections as a “preventative.” R.
54. He said the headaches lasted “a couple of hours” with the medication.
The pain could be at a 2 or 3 out of 10 if the medication worked, or up to an
8 or 9 out of 10. R. 60.
Anderson testified that his depression was “not as bad as it had
been.” He said he felt a little bit down with a lack of motivation. He said “I
might be able to function pretty well for an hour or two by then I kind of run
out of steam or something and I also don’t know which hour or two of the
day it’s going to be.” Once he ran out of steam, Anderson testified that he
started nodding off or losing focus, or he might just give up trying and take
a nap. He said he took a nap, voluntarily or involuntarily, almost every day.
R. 87. He said he nodded off several times a day. R. 88.
Anderson said anxiety was a big problem. R. 68. He said he
became anxious attending events like the hearing, and trying to make a
decision. R. 86. He said the depression and fatigue went together.
Anderson testified that he saw family and friends sometimes. He was less
Page 20 of 41
isolated than he was a year before the hearing, but more isolated than
earlier in his life. R. 68.
Anderson testified that he tried to use a CPAP at night to sleep:
Yes, I do or at least I attempt to. I put it on when I go to bed and
usually have it on when I get up, wake up but the machine says
I'm not using it the whole time in between so I'm not, I’m still
trying – I haven’t figured out what’s happening exactly.
R. 71-72. Anderson testified that he took a long time to get ready in the
Usually, it ends up being at least a couple of hours as I kind of
eat breakfast, maybe watch a little TV or read something or
whatever and maybe nod off several times. Go to the bathroom
which I may nod off there too. And then it's about that time after
I'll end up going back to bed for a while, an hour or two, usually
and (sic) hour or so, sometimes longer.
R. 77. Anderson said his daytime sleepiness began in 2010 or 2011. He
said his sleepiness was a big problem at work. He fell asleep while
researching or writing. He was asleep for anywhere from a few seconds to
an hour, but usually several minutes. He sometimes fell asleep standing
up. R. 78. He testified that his performance at work worsened because of
his sleepiness and headaches. At the end he thought he was going to get
fired and disbarred. He testified that he seriously considered suicide.
Anderson said he seriously considered suicide on four different occasions.
Page 21 of 41
Anderson testified that he cooked his own meals. He usually ate
prepared frozen foods that could be heated in a microwave oven.
Occasionally he prepared eggs or a hamburger helper meal. R. 84.
Anderson did his own grocery shopping, but he took a long time
because he could not remember what he needed to get. R. 73. He said he
would lose focus in the store. He said he spent a long time reading labels
and had trouble deciding which products to buy. He ended up spending a
long time at the grocery store without realizing it. R. 75-76.
Anderson attended AA and Al-Anon meetings. He enjoyed reading
and watching movies on television. He used a computer. He stayed on the
computer for a couple of hours at a time. He did not have problems
watching television or movies unless he fell asleep. R. 70-71. Anderson
testified that went to church, but not as often as he used to. He met friends
at AA and Al-Anon meetings. R. 73.
Anderson traveled to California at Christmas time to visit his parents
for a week or two. He visited more often recently because his father
became ill and then died. R. 70.
Anderson testified that he could not work an unskilled job such as a
janitor, because he would not be able to stay awake for a whole shift. He
also could not keep his mind on what he was doing. R. 85.
Page 22 of 41
Anderson’s mother Margaret Anderson then testified. She testified
that Anderson stayed with her in California about two months when her
husband, his father, died. R. 90.
Margaret Anderson testified that Anderson was not a social person.
He lived alone. He swam in the pool at his house. R. 92.
She said that Anderson lost track of time. He often ate dinner at
10:30 pm or 11:00 pm. He sometimes allowed the food to spoil because
he forgot that he thawed it. R. 93.
She said that Anderson couldn’t concentrate and couldn’t function
when he was working. “[H]e just couldn’t function at all for sometimes a half
or more and then he’d forget where he was and have to start over again.”
She testified that Anderson had trouble talking to her over the phone:
Pauses at times when I'd say something and he'd just go blank
and I'd say, so I'd go, Kent, are you there, because I wasn't
sure whether we got disconnected or just exactly what
happened but, usually, it was he just, he was there and he just
either wasn't processing what I said or wasn't awake enough to
talk to me or whatever. I really don't know since I wasn't sitting
there at the time looking at him.
He said, I’m just tired, mom.
Page 23 of 41
The vocational expert Malik then testified. The ALJ asked Malik the
following hypothetical question:
Q Okay. For my first hypothetical then, I'd like you to
consider a hypothetical claimant of the same age, education
and past work experience as this claimant limited to a range of
light work; occasionally climbing ramps and stairs; occasionally
stooping, crouching, crawling, kneeling, balancing; occasionally
climbing ramps – or occasionally climbing – oops, I'm sorry . I
already said that – no ladders, ropes and scaffolds; limited to
detailed but not complex tasks; no work that's regarded as fast
pace . Is there any past work he could perform?
R. 99. Malik opined that such a person could not do Anderson’s prior work.
Malik testified that such a person could perform a variety of jobs, including
wiring assembler, with 2,000 such jobs in Illinois and 22,900 nationally;
packager, with 1,000 such jobs in Illinois and 21,800 nationally; polisher,
with 1,300 such jobs in Illinois and 28,200 nationally; parts trimmer, with
800 such jobs in Illinois and 16,500 nationally; sorter, with 1,100 such jobs
in Illinois and 25,100 nationally; and document prep clerk, with 1,100 such
jobs in Illinois and 29,800 nationally. R. 100-01.
Malik opined that the person could not perform any of these jobs if he
was off-task more than fifteen percent of the time or if he had to miss two
days of work a month. R. 101. Anderson’s attorney questioned Malik and
then the ALJ ended the hearing.
Page 24 of 41
THE DECISION OF THE ALJ
On January 24, 2014, the ALJ issued her decision. The ALJ followed
the five-step analysis set forth in Social Security Administration Regulations
(Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires that the
claimant not be currently engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant to have a
severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If true, Step 3
requires a determination of whether the claimant is so severely impaired
that he is disabled regardless of his age, education and work experience.
20 C.F.R. §§ 404.1520(d), 416.920(d). To meet this requirement at Step 3,
the claimant's condition must meet or be equal a Listing specified in 20
C.F.R. Part 404 Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d),
416.920(d). If the claimant is not so severely impaired, the ALJ proceeds
to Step 4 of the Analysis.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If
the claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),
Page 25 of 41
404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of
presenting evidence and proving the issues on the first four steps. The
Commissioner has the burden on the last step; the Commissioner must
show that, considering the listed factors, the claimant can perform some
type of gainful employment that exists in the national economy. 20 C.F.R.
§§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th
Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.
The ALJ found that Anderson met his burden at Steps 1 and 2.
Anderson had not engaged in substantial gainful activity since September
3, 2011. The ALJ found that Anderson suffered from the severe
impairments of lymphedema, migraine headaches, depression, anxiety,
degenerative joint disease of the left hip, sleep apnea, restless leg
syndrome, obesity, history of Harrington rod placement for scoliosis, and
history of alcohol abuse. R. 22.
The ALJ found at Step 3 that Anderson’s impairments or combination
of impairments did not meet or medically equal a Listing. The ALJ
discussed several Listings including Listings for depression, migraine
headaches, and sleep apnea. The ALJ found that Anderson “has not fully
taken advantage of the use of his CPAP device, and he exhibits poor sleep
Page 26 of 41
hygiene.” The ALJ further found, “In August 2013, . . . the claimant
continued to volitionally prolong the time he goes to bed, and he dozed
inadvertently. The claimant continued to sleep on and off during the day
and had insufficient sleep syndrome due to deliberate poor sleep hygiene.”
The ALJ relied on the June 2013 records from the Mayo Clinic, the records
from the INI Sleep Lab, and August 2013 records from the Saint Francis
Medical Center Sleep Center. The ALJ found that Anderson’s sleep apnea
did not meet or equal the requirements of Listing 3.10 for sleep apnea. R.
The ALJ found the following regarding Anderson’s migraine
The claimant has migraine headaches, which are treated with
medication and botox injections. The claimant does not display
disabling symptoms of a neurological disorder as described in
section 11.18 (cerebral trauma) of the listed impairments, and
he does not display disabling symptoms of another neurology
system disorder as set forth in sections 11.00-11.19 of the
listing of impairments.
R. 25 (internal citations to the record omitted).
The ALJ found that Anderson did not meet Listings 12.04 and 12.06
for affective disorders such as depression and anxiety disorders. The
Social Security Administration recently revised Listings 12.04 and 12.06.
The revisions became effective January 17, 2017. Revised Medical
Page 27 of 41
Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138, 2016 WL
5341732 (September 26, 2016). Changes to regulations apply retroactively
if the regulations only clarify the current law rather than make substantive
changes. Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) overruled on
other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999). “In
determining whether the rule is a clarification or change in the law, the
intent and interpretation of the promulgating agency as to the effect of the
rule is certainly given great weight. They are not, however, dispositive.” Id.
The Commissioner stated that these revisions apply retroactively “to claims
that are pending on or after the effective date." 81 Fed. Reg. at 66138.5
The Court has reviewed the amended regulations and agrees that the
amendments are only clarifications and not changes in the law. The Court,
therefore, will apply the revised Listings 12.04 and 12.06 retroactively.
To meet either revised Listing 12.04 or 12.06, Anderson needed to
show (A) that his disorder included five of the listed symptoms such as
sleep disturbance, difficulty concentrating, or suicidal thoughts; and the
disorder resulted in either: (B) extreme limitations in one or marked
limitations in two of the following areas of mental functioning: (i)
In contrast, the Commissioner recently changed the regulations regarding the interpretations of medical
evidence. The Commissioner stated several of the amendments to those regulations applied
prospectively to claims filed on or after the amendment’s effective date of March 27, 2017. Revisions to
Rule Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, at 5844-45 (January 18,
Page 28 of 41
understand, remember and apply information; (ii) interact with others; (iii)
concentrate, persist, or maintain pace; and (ii) adapt or manage oneself; or
(C) the disorder is serious and persistent, meaning the disorder has lasted
at least two years and has evidence of (1) medical treatment, mental health
therapy, psychosocial supports or a highly structured setting that
diminishes symptoms; and (2) minimal capacity to adapt to changes in
environment and demands of daily life. Listing 12.04.
The ALJ and the parties referred to the versions of the Listings that
were in effect before January 2017. The ALJ found that Anderson’s
condition met subsection A, but did not meet the requirements of either
subsections B or C. The ALJ found no evidence of an inability to adapt or
manage himself, moderate limitations in Anderson’s ability to concentrate,
persist, or maintain pace and only mild limitations in the other two areas.
The ALJ found no evidence that Anderson’s condition was sufficiently
severe and persistent to meet the requirements of subsection C. R. 24.
The ALJ also considered Anderson’s obesity at Step 3. The ALJ
found that Anderson’s impairments when combined with the impairments
caused by his obesity did not meet a Listing. R. 25.
The ALJ found at Step 4 that Anderson had the following RFC:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
Page 29 of 41
perform light work as defined in 20 CFR 404.1567(b) except he
is unable to climb ladders, ropes, or scaffolding; he is limited to
occasional stooping, crouching, crawling, kneeling, balancing,
and climbing ramps or stairs; he is capable of performing
detailed but not complex work tasks; and he is unable to
perform fast paced work.
R. 26. Light work is defined, in relevant part, as follows:
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is
in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.
20 C.F.R. § 404.1567(b). The ALJ based this finding on Anderson’s ability
to live independently and perform a wide range of activities, the lack of
objective medical tests that showed disabling functional limitations, and the
lack of disabling side effects to his medications. The ALJ also relied on the
opinions of Drs. Low, Free, Mehr, and Gotway. R. 27-28. The ALJ stated
that he gave some weight to these doctors’ opinions, but varied his findings
from their opinions after “considering the recently submitted medical
evidence as well as the testimony at the hearing.” R. 27.
In reaching the RFC finding, the ALJ found that Anderson’s testimony
about the severity of his symptoms was not credible. The ALJ based this
credibility finding on the lack of objective medical evidence, Anderson’s
ability to live independently and engage in many activities, and objective
Page 30 of 41
medical evidence. The ALJ concluded, “These other factors, the
description of daily activities, and the objective medical evidence
concerning the claimant's impairments all contradict the
Claimant’s allegations of complete and total disability; the claimant’s
testimony that he is unable to work therefore cannot be fully accepted.” R.
26-27 (citation omitted).
The ALJ also gave no significant weight to the opinions of Drs. Lee,
Alahi, and McFadden. The ALJ discounted Dr. Lee’s opinion that
Anderson’s depression and anxiety equaled Listing 12.04 because Dr. Lee
was a neurologist rather than a psychiatrist and because Dr. Lee offered no
explanation for his opinion and did not specify the functional limitations
caused by Anderson’s depression. R. 27.
The ALJ stated that Dr. Alahi’s conclusion that Anderson was
disabled was not a medical opinion, but an opinion on a matter left to the
Commission. The ALJ stated Dr. Alahi’s opinion that Anderson could not
work as an attorney was not relevant to the question of whether Anderson
could work. The ALJ found that Dr. Alahi’s other opinions that Anderson
could not perform simple tasks on a sustained basis and could not maintain
the concentration, persistence and pace required by most work places
were “contradicted by the claimant’s description of his daily activities.” The
Page 31 of 41
ALJ explained, “Despite his mental problems, the claimant is able to live
independently and perform the tasks necessary to do so. He performs
multiple simple tasks and detailed tasks during the day.” The ALJ gave no
significant probative value to Dr. Alahi’s opinions in light of this
contradictory evidence. R. 27.
The ALJ gave no weight to Dr. McFadden’s opinions because the
opinions appeared to be directed to whether Anderson could perform his
prior work as an attorney. The ALJ also noted that Dr. McFadden only
opined that Anderson was disabled for a limited period of time from
November 2011 to June 2012. The Social Security Administration
regulations defined disability as a condition that prevents a person from
working for twelve consecutive months or was expected to result in death.
R. 28. The ALJ also found that Dr. McFadden did not explain the basis for
The ALJ concluded at Step 4 that Anderson could not perform his
prior work as an attorney. R. 28.
The ALJ found at Step 5 that Anderson could perform a significant
number of jobs in the national economy. The ALJ relied on the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, and the
opinions of vocational expert Malik that a person with Anderson’s age,
Page 32 of 41
education, work experience, and RFC could perform the jobs of wiring
assembler, packager, polisher, parts trimmer, and sorter. R. 29.
The ALJ concluded that Anderson was not disabled. R. 30.
Anderson appealed the decision. On June 24, 2015, the ALJ denied
Anderson’s request for review. The decision of the ALJ became the final
decision of the Commissioner. R. 1. Anderson then brought this action for
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate”
to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence, and may not substitute its judgment. Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). The ALJ must articulate at least minimally her
analysis of all relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). The ALJ must “build an accurate and logical bridge from the
evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000). “If an ALJ’s decision contains inadequate evidentiary support or a
cursory analysis of the issues, this court will reverse.” Luster v. Astrue, 358
Page 33 of 41
Fed. Appx. 738, 740 (7th Cir. 2010) (citing Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003).
In this case, the ALJ provided only a cursory explanation of his
treatment of much of Dr. Alahi’s opinions. This cursory explanation did not
build an accurate and logical bridge from the evidence to his conclusion.
Dr. Alahi was Anderson’s treating psychiatrist since March 2011. As such,
his opinions are entitled to controlling weight if the opinions are supported
by objective medical evidence and consistent with other substantial
evidence in the record. 20 C.F.R. § 404.1527(d)(2); Bauer v. Astrue, 532
F.3d 606, 608 (7th Cir. 2008). However, the consideration of the medical
opinion does not end here.
If the “medical opinion” from the “treating source” survives
this two-part test, the Administration must adopt the opinion.
POMS DI 24515.004.B.1 If, on the other hand, the “medical
opinion” fails the two-part test, then the opinion is weighed
by considering the “checklist factors.” 20 C.F.R.
§404.1527(c)(2)(i)-(ii), (c)(3)-(6) (the checklist factors);
Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010);
Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). A
“medical opinion” from a “treating source” that does not
meet the two-part test cannot simply be rejected. Walls v.
Colvin, 2015 U.S. Dist. LEXIS 154143, *8 (N.D. Ill. Nov. 13,
2015). Indeed, the opinion should still be given deference.
Bochat v. Colvin, 2015 U.S. Dist. LEXIS 96227, *18 (E.D.
Wis. July 23, 2015); Macek v. Colvin, 2013 U.S. Dist. LEXIS
139126, *48-49 (N.D. Ind. Sept. 27, 2013); Pursell v. Colvin,
2013 U.S. Dist. LEXIS 93775, *32 n.3 (N.D. Ill. July 3, 2013)
(reinforcing that a non-controlling opinion is only discounted,
Page 34 of 41
Iain P. Johnson, Every Picture Tells a Story: A Visual Guide to Evaluating
Opinion Evidence in Social Security Appeals, The Circuit Rider, Seventh
Circuit Bar Association, Vol. 20, April 2016, at 32-33.
Dr. Alahi’s opinion differed substantially from other medical opinions
discounted by the ALJ. For instance, the rejected opinion of Dr. David
McFadden consisted of a six line “to whom it may concern letter” which
stated that Dr. McFadden considered Anderson “totally medically disabled”
without specification of the specific functional limitations of Anderson. R.
1187. In contrast, Dr. Alahi opined that Anderson’s mental condition: (1)
precluded him from returning to his past work as an attorney; (2) left him
“without the ability to maintain concentration, persistence and pace
required by his former work and most work places;” (3) made it “extremely
difficult for him to keep his mind on simple tasks and to perform them
routinely or for any extended period of time given a regular workload;” (4)
rendered him unable “to tolerate the pressures of work;” (5) would “lead to
deterioration of function given his personality structure:” if he was placed “in
a simple repetitive task performance environment;” and (6) caused him to
be “disabled from regular work.” R. 1686, 2055.
Page 35 of 41
The evidence supported ALJ’s decision to discount the weight given
to Dr. Alahi’s opinion on the ultimate issue of whether Anderson was
disabled and his opinion that Anderson could not work as an attorney. The
question of whether a person is disabled is reserved to the Commissioner.
See 20 C.F.R. § 404.1527(d). The opinion about whether Anderson could
work as an attorney does not address the issue of whether he was disabled
from all work.
Dr. Alahi’s other opinions, however, were medical opinions about
Anderson’s ability to function in the structure and pressures of a work
environment. These are proper medical opinions on functional limitations.
These opinions are exactly the types of opinions given by Drs. Low and
Mehr on the Psychiatric Review Technique and Mental Residual Functional
Capacity Assessments. The ALJ gave no significant weight to these
opinions because they were “contradicted by the claimant’s description of
his daily activities.” The ALJ explained, “Despite his mental problems, the
claimant is able to live independently and perform the tasks necessary to
do so. He performs multiple simple tasks and detailed tasks during the
day.” R. 27.
This ALJ failed to explain how Anderson’s ability to live alone and
take care of himself and his dog contradicted Dr. Alahi’s opinions that
Page 36 of 41
Anderson could not withstand the pressures of the workplace. Daily
activities in the home typically do not indicate whether that a person can
withstand the pressures of a work environment:
The critical differences between activities of daily living and
activities in a full-time job are that a person has more flexibility
in scheduling the former than the latter, can get help from other
persons (in this case, Bjornson's husband and other family
members), and is not held to a minimum standard of
performance, as she would be by an employer. The failure to
recognize these differences is a recurrent, and deplorable,
feature of opinions by administrative law judges in social
security disability cases. See Punzio v. Astrue, supra, 630 F.3d
at 712; Spiva v. Astrue, supra, 628 F.3d at 351–52; Gentle v.
Barnhart, 430 F.3d 865, 867–68 (7th Cir.2005); Draper v.
Barnhart, 425 F.3d 1127, 1131 (8th Cir.2005); Kelley v.
Callahan, 133 F.3d 583, 588–89 (8th Cir.1998); Smolen v.
Chater, 80 F.3d 1273, 1284 n. 7 (9th Cir.1996).
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). Anderson’s daily
activities showed that he could perform simple or even some more complex
tasks at home; however, the ALJ did not explain how this evidence showed
that he could perform such tasks under the pressure and demands of a
structured work environment. In discussing Anderson’s credibility, the ALJ
did not explain how Anderson’s daily activities contradicted Dr. Alahi’s
opinion that Anderson could not tolerate the pressures of work and could
not function in a structured performance environment. To the contrary, the
ALJ discounted Anderson’s disability by relying upon his description of his
daily activities. The ALJ indicated claimant’s allegation of complete and
Page 37 of 41
total disability could not be accepted due to his description of his daily
activities. R. 26-27. The Seventh Circuit recently held that an ALJ was not
entitled to use the claimant’s successful performance of life activities as a
basis to determine that the claims of a disabling condition were not
credible. Ghiselli v. Colvin, 837 F.3d 771, 777-78 (7th Cir. 2016). In
Ghiselli the Seventh Circuit held, following Bjornson, that such a credibility
determination ignores the critical difference between activities of daily living
and activities of a full time job.
The ALJ’s cursory analysis of the weight to be given to this treating
physician’s opinions was error and requires reversal.
The Commissioner cites the case of Alvarado v. Colvin for the
proposition that daily activities could be used to evaluate a physician’s
opinions in order to evaluate “to assess whether ‘testimony about the
effects of his impairments was credible or exaggerated.’” Alvarado, 836
F.3d 744, 750 (7th Cir. 2016) (quoting Loveless v. Colvin, 810 F.3d 502,
810 (7th Cir. 2016)). The claimant’s daily activities in Alvarado were
markedly different from Anderson’s activities. The claimant in Alvarado
worked voluntarily in his mother’s flower shop and performed “critical” tasks
for the flower shop by picking up and delivering flowers. Id., at 750. The
claimant also attended college. He had secured with reasonable
Page 38 of 41
accommodations an associate’s degree and was “a few credits short of a
bachelor’s degree.” Id. The ALJ in this case has not identified similar
evidence that showed Anderson could perform in structured or pressured
environments. The ALJ in this case, therefore, failed to explain how
Anderson’s daily activities contradicted Dr. Alahi’s opinions.
On remand, the ALJ should also explain more fully the efficacy of the
treatments of Anderson’s migraine headaches. The ALJ stated that
Anderson treated his headaches with Botox injections and pain
medications, but she did not the determine the effectiveness of the
treatments on any functional limitations from the headaches.
The ALJ should also state on remand whether she considered
Anderson’s obesity at Steps 4 and 5 of the Analysis. She stated that she
considered his obesity at Steps 2 and 3, but did not clearly state whether
obesity was considered at the other Steps in the Analysis. See SSR 02-1p,
2002 WL 34686281, at *3 (September 12, 2002) (obesity should be
considered at Steps 2-5 of the Analysis).
The Court sees no error in the ALJ’s treatment of the other opinion
evidence. Dr. Lee provided no explanation for his opinion that Anderson’s
mental condition met or equaled Listing 12.04. Ample evidence supports
the ALJ’s finding that Anderson had moderate limitations in the ability to
Page 39 of 41
concentrate, persist, and maintain pace, and either moderate or less than
moderate limitations in any other area covered by 12.04(B). Anderson
stated that he could focus and concentrate if something interested him.
Anderson also did not suffer from the severe degree of mental illness
contemplated by 12.04(C). He was able to live by himself without a highly
supportive environment or psychosocial supports.
The ALJ also accurately noted that Dr. McFadden’s opinions were
limited to November 2011 through June 2012. This was less than 12
months. The ALJ could reasonably conclude that the opinions did not
address whether Anderson’s conditions on which Dr. McFadden based his
opinions would continue for more than twelve months. There was no error.
The ALJ’s treatment of Anderson’s sleep apnea was supported by
substantial evidence. The healthcare professionals at INI, Mayo Clinic, and
St. Francis Medical Center stated that Anderson’s sleep apnea was not
well controlled because he did not follow their instructions. He did not
maintain good sleep hygiene or practices, such as setting a regular
bedtime and using his CPAP every night. The ALJ could reasonably
conclude from these professionals’ notes that Anderson’s sleep apnea
would not cause significant impairments if he followed their instructions.
Page 40 of 41
The ALJ’s RFC assessment was dependent on her evaluation of Dr.
Alahi’s opinion. The Court, therefore, will not address that assessment at
this time. On remand, the ALJ will reconsider Dr. Alahi’s opinion, along
with existing record and any other evidence presented on remand to
determine the correct RFC.
THEREFORE, Plaintiff Kent Anderson’s Motion Summary Judgment
(d/e 14) is ALLOWED, Defendant Commissioner of Social Security’s
Motion for Summary Affirmance (d/e 21) is DENIED, and the decision of
the Commissioner is REVERSED and REMANDED pursuant to 42 U.S.C.
§ 405(g) sentence four.
ENTER: March 23, 2017
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
Page 41 of 41
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