Sullivan v. Astrue
Filing
33
MEMORANDUM Opinion and Order Signed by the Honorable Morton Denlow on 11/3/2011.Mailed notice(ldg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHARMEL SULLIVAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 10 C 8132
Magistrate Judge Morton Denlow
MEMORANDUM OPINION AND ORDER
Plaintiff Sharmel A. Sullivan (“Claimant”) brings this action under 42 U.S.C. §405(g),
seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner
of Social Security (“Defendant” or “Commissioner”), denying Claimant’s application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Claimant
raises the following issues: 1) whether the ALJ improperly failed to include limits found in
concentration, persistence or pace in her RFC Assessment (and in posing hypothetical
questions to the Vocational Expert); 2) whether the ALJ improperly ignored evidence of the
State Agency Doctor’s opinions; 3) whether the ALJ’s credibility finding was patently
wrong; and 4) whether the ALJ properly considered evidence of Claimant's treating
therapist’s opinion.1 For the following reasons, the Court grants Claimant's motion for
summary judgment and denies the Commissioner’s motion to affirm the Commissioner’s
decision.
I. BACKGROUND FACTS
A.
Procedural History
Claimant initially filed for DIB on March 15, 2007 and SSI on August 16, 2007,
alleging a disability onset date of July 6, 2006. R. 131-36, 150-52. The Social Security
Administration (“SSA”) denied her application on August 24, 2007. R. 70-74. Claimant
then filed a request for reconsideration, which was denied on January 14, 2008. R. 75-83.
Thereafter, Claimant requested a hearing before an ALJ. R. 94-98.
On November 23, 2009, Administrative Law Judge Sherry Thompson (“ALJ”)
presided over a hearing at which Claimant appeared with her attorney, Ms. Revel. R. 33-66.
Claimant and Richard T. Fisher, a vocational expert, testified at the hearing. On December
22, 2009, the ALJ issued a decision finding Claimant was not disabled under the Social
Security Act. R. 6-22. Specifically, the ALJ found Claimant had the “residual functional
capacity to perform sedentary work” and was “capable of making a successful adjustment
to other work that exists in significant numbers in the national economy.” R. 14, 22.
1
Claimant originally raised an additional issue: whether the ALJ erred in failing to identify and
resolve conflicts between the VE’s testimony and the Dictionary of Occupational Titles
(“DOT”). However, Claimant has conceded this issue in her reply brief.
2
Claimant then filed for review of the ALJ’s decision to the Appeals Council. R. 2730. On October 20, 2010, the Appeals Council denied review, making the ALJ’s decision
the final decision of the Commissioner. R. 1-5. Claimant subsequently filed this action for
review pursuant to 42 U.S.C. §405(g).
B.
Hearing Testimony - November 23, 2009
1.
Sharmel A. Sullivan - Claimant
At the time of the hearing, Claimant was twenty-eight years old. R. 36. Claimant
completed education through the twelfth grade and one semester of college. R. 38. She was
enrolled in special education classes beginning in second grade. Id.
Claimant’s most recent employment as a packer at a warehouse ended on July 6, 2006,
her alleged onset date. R. 39. Claimant has worked various temporary jobs since July 6,
2006, through a temporary agency, but she is not currently employed. R. 39-42. Past
positions include newspaper and pizza deliverer, laundry room worker at a nursing home, and
picker and packer at a warehouse. R. 178, 191.
Claimant testified that she has been taking indomethacin for gout in her left foot. R.
40. Even with medication, Claimant asserted her foot is swollen constantly, she has a hard
time standing or walking, and sometimes the pain is so severe it wakes her up. R. 41. She
can stand for no longer than “at least a couple hours, if that” and her pain is constant. R. 44,
47. Claimant keeps her leg elevated and can sit for “about two or three hours at the most,”
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after which she needs to stand for a few seconds before she can move. R. 49-50. She
struggles with concentration when she feels pain in her left foot, which occurs about three
days a week. R. 58. Claimant sees Dr. Bender at Will Grundy Medical “maybe every other
month” for her gout. R. 43.
Claimant sees Dr. Chung every month for treatment of bipolar disorder. R. 43-44. She
testified to having “my up days and I have my low days.” R. 44. On bad days, Claimant is
depressed, does not want to eat or go anywhere, is very emotional, and will not answer the
phone. R. 45. On her good days, Claimant is able to go to functions with her church
community and friends. R. 44-45.
Claimant attends church regularly and also volunteers. R. 51. She reported no
difficulties interacting with others, including strangers. R. 51. Claimant also speaks at
recovery meetings to “help people out with my telling them about using drugs.” R. 54.
Claimant testified she stopped using drugs and drinking alcohol four years and nine months
ago. R. 54-55.
Claimant is able to do household chores, including laundry, cleaning, dusting, making
the bed, and washing dishes. R. 54. She knows how to operate a computer and a cell phone.
R. 56.
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According to Claimant, she struggles with memory. R. 56. She has “to write
everything down.” R. 56. She sets an alarm to wake up in the morning in order to take her
daily medication. R. 56. She receives telephone calls to remind her to attend church services
and activities. R. 57.
Claimant takes 800 milligrams of Seroquel a day, 100 milligrams of Zoloft a day, and
15 milligrams of Buspar a day. R. 45. She reported no side-effects other than initial weight
gain. R. 46. Claimant noted that she may not sleep for two or three days, but taking
Seroquel helps her sleep. R. 50.
2.
Richard Fisher - Vocational Expert (“VE”)
Richard Fisher testified as a vocational expert. R. 60. The VE noted that Claimant’s
position as an outside deliverer was light, unskilled work with a Specific Vocational
Preparation (“SVP”) of 2. Id. Claimant was also employed as a hand packager, which is
considered medium, unskilled work with a SVP of 2. Id. Claimant was also employed as
a machine washer, which is categorized as medium, semi-skilled work with a SVP of 4. Id.
While questioning the VE, the ALJ asked whether a twenty-eight year old individual
with the same education, work experience, and residual functional capacity as Claimant,
limited to light work with frequent climbing of ramps and stairs, occasional climbing of
ladders, ropes and scaffolds, and frequent balancing, stooping, kneeling, crouching and
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crawling,2 could perform Claimant's past relevant work. R. 62. The VE stated that this
hypothetical person would be able to perform Claimant's previous work as an outside
deliverer. R. 62. The VE testified that this individual could also perform positions such as
an office machine operator (except computers), photocopying machine operator,
photographic machine operator, routing clerk, maid and housekeeping cleaner. R. 62-63.
Using the same hypothetical individual, the ALJ altered the question by asking
whether the individual, limited to sedentary work, who had to alternate from sitting to
standing after two hours and then stand for a period of five to ten minutes, and who had to
elevate her left foot to stool level height approximately ten to twelve inches, could perform
Claimant's past relevant work. R. 63-64. The VE stated that this hypothetical person could
perform as a food or beverage order clerk, telephone quote clerk, cutter and paster for press
clippings, and a microfilm document preparer. R. 64.
The ALJ then changed the hypothetical to an individual who could perform either
light or sedentary work, but who has no ability to remember or organize procedures, and who
has seriously limited ability to carry out short and simple instructions, such that she cannot
maintain attention for a two hour setting. R. 64. The VE responded that such an individual
The hypothetical posed by the ALJ also described the individual as one who should avoid
concentrated exposures to fumes, odors, dust, gases and poor ventilation; who retains sufficient
mental capacity to understand and remember simple tasks; who can carry out tasks at a
consistent pace; who can have normal contact with the general public, co-workers and
supervisors; and whose ability to handle stress and pressure in the workplace wold be reduced
but is adequate to handle the stresses of a routine, repetitive work setting. R. 62.
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would not be able to perform any of Claimant's past relevant work. R. 64. When asked by
the ALJ if this individual could perform any work that exists in the national economy, the
VE responded in the negative. R. 64.
The VE testified that customary tolerances for absences from unskilled jobs are one
time per month. R. 64. He stated that reminder phone calls for employees to come in to
work, while not unheard of, are not expected such that “as a new employee you wouldn’t last
if you required a reminder call with any frequency.” R. 65.
C.
Medical Evidence
1.
Provena St. Joseph Medical Center
Clamant went to Provena St. Joseph Medical Center on May 3, 2006 for a
radiographic study of her left foot. R. 279. Dr. Sasan Payvar reported no significant
radiographic abnormality about the left foot. Id. Clamant returned again to Provena St.
Joseph Medical Center on June 14, 2006. R. 212. Dr. John S. Groch performed diagnostic
imaging on Claimant’s chest, which indicated chest pain and asthma. Id.
2.
Silver Cross Hospital
On July 23, 2007, Claimant went to Silver Cross Hospital for a diagnostic imaging
report on her chest. R. 276. Dr. Vinod Patel noted no significant abnormalities. Id.
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3.
Will County Mental Health - Guna M. Zito, QMHP
Claimant visited Will County Mental Health on August 1, 2006 for a psychiatric
assessment. R. 319. Guna M. Zito, QMHP (“Ms. Zito”) diagnosed Claimant with major
depression, described as recurrent and severe, as well as Bipolar II Disorder, asthma and
gout. Id. She recommended a psychiatric evaluation, client centered consultant, and
individual therapy.
Id. Ms. Zito assessed Claimant’s memory as normal, and rated her
concentration at focused. R. 321. She further assessed Claimant’s behavior as guarded. Id.
Ms. Zito noted an independent level of function for categories such as using community
resources, level of appropriate social and interpersonal behavior, and ability to form and
maintain friendships. R. 322.
Between August 18, 2006 and January 16, 2009, Claimant regularly visited Will
County Mental Health for therapy and counseling. R. 504-25. On July 12, 2008, Claimant
was again assessed for mental impairments. R. 497-500. Claimant was diagnosed with
bipolar disorder, borderline personality traits, gout, obesity, and asthma. R. 497. Her GAF
score was 60. Id. The therapist (whose name is illegible) identified numerous symptoms
associated with this diagnosis, including poor memory, sleep and mood disturbances,
personality change, delusions or hallucinations, recurrent panic attacks, psychomotor
agitation, difficulty thinking or concentrating, social withdrawal, and hostility. Id. He
anticipated that Claimant's impairments would cause her to be absent from work more than
three times a month. R. 498. The therapist indicated serious limitations in Claimant’s mental
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abilities and aptitude to do unskilled work, including ability to remember work-like
procedures; understand, remember and carry out very short and simple instructions; maintain
regular attendance and be punctual within customary tolerances; sustain an ordinary routine
without special supervision; work in coordination with or proximity to others without being
unduly distracted; complete a normal workday and work week without interruptions from
psychologically based symptoms; and get along with co-workers or peers without unduly
distracting them or exhibiting behavioral extremes. R. 499. He also indicated that Claimant
had moderate restrictions of activities of daily living; moderate difficulties in maintaining
social functioning; frequent deficiencies of concentration, persistence or pace; and repeated
episodes of deterioration in work-like settings. R. 500.
4.
Will Grundy Medical Clinic - Dr. Bender, podiatrist
From March 2006 to 2009, Claimant sought treatment at Will Grundy Medical Clinic,
where she was treated by Podiatrist Frank Bender (“Dr. Bender”). R. 542-54. Claimant
would often complain of left foot pain due to gout. Id. In April 2006, Dr. Bender noted that
on a scale of one to ten (ten being the most severe pain), Claimant reported her pain level in
her left foot as a ten. R. 266. In September 2006, Dr. Bender noted “[p]ain now appears in
right foot also on the arch and big toe. Minimal swelling, no pitting edema.” R. 263. In July
2007, Dr. Bender noted Claimant’s foot and leg appeared edematous. R. 255. Dr. Bender
continuously prescribed medication for Claimant, noting that she found relief from
indomethacin and that it helped control her foot pain. R. 553, 545-48.
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Dr. Bender also treated Claimant for her asthma. R. 542-54. Claimant would often
complain that her chest hurt and that she had shortness of breath. Id. On numerous
occasions, Dr. Bender found Claimant’s lungs clear. R. 258-59, 264, 267. Claimant also
stated she used an inhaler twice a day, every day. R. 265. Dr. Bender noted the use of
inhalers helped Claimant with her difficulty breathing. R. 259. In December 2007, Dr.
Bender found Claimant’s asthma “fairly stable.” R. 547.
5.
Dr. Chukwuemeka Erike
In July 2007, Dr. ChukwuEmeka F. Ezike (“Dr. Ezike”) conducted a consultative
physical examination of the Claimant. Dr. Ezike reported mild swelling and diffuse
tenderness of Claimant’s left foot. R. 441. Dr. Erike noted Claimant was unable to squat
completely, her gait was slightly antalgic, and she had difficulty performing a toe heel walk
due to the pain in her left foot. Id. Dr. Ezike diagnosed Claimant with obesity, history of
asthma, chronic left foot pain, bipolar disorder. R. 441-42.
5.
Dr. Marion Panepinto - State Examining Physician
Dr. Marion Panepinto (“Dr. Panepinto”) reviewed the record on behalf of the state
agency. He determined Claimant could lift thirty pounds occasionally and ten pounds
frequently. R. 431. During a normal eight hour workday, Dr. Panepinto reported Claimant
could stand and walk for about six hours, sit for about six hours, and push and pull in an
unlimited manner. Id. He also determined Claimant could climb ramps and stairs frequently;
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could climb ladders, ropes and scaffolds occasionally; and could balance, stop, kneel, crouch
and crawl frequently.
R. 432.
Dr. Panepinto found no manipulative limitations,
communicative limitations, or visual limitations. R. 433-34. Dr. Panepinto reported
Claimant should avoid concentrated exposure to fumes, odors, dusts, gases, and poor
ventilation. R. 434.
6.
Dr. Ellen Rozenfeld - State Examining Psychiatrist
Dr. Ellen Rozenfeld (“Dr. Rozenfeld”) assessed Claimant from July 6, 2006 to August
23, 2007. R. 444. Dr. Rozenfeld reported Claimant suffered from bipolar disorder, posttraumatic stress disorder, and a history of polysubstance abuse. R. 447, 449, 452. In rating
Claimant’s functional limitations, Dr. Rozenfeld noted she had mild restriction of activities
of daily living; moderate difficulties in maintaining social functioning; mild difficulties in
maintaining concentration, persistence or pace; and no episodes of decompensation. R. 454.
Dr. Rozenfeld also found Claimant credible. R. 456. She reported Claimant has a severe
mental impairment that does not meet or equal the listings; retains sufficient mental capacity
to perform operations of a simple and routine nature; engages in a general and full range of
activities; and has had a positive response to medication despite persistent paranoid concerns.
Id.
Dr. Rozenfeld opined that Claimant would do best in an environment with reduced
contact with the general public, co-workers and supervisors. R. 460. Her ability to handle
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stress and pressure in the work place would be reduced but adequate to handle the stresses
of a routine, repetitive work setting. Id.
D.
The ALJ’s Decision - December 22, 2009
Following a hearing and a review of the medical evidence, the ALJ rendered a
decision denying Claimant’s application for DIB and SSI. R. 6-22. The ALJ reviewed
Claimant’s application under the required five-step sequential analysis. R. 11-22. At step
one, the ALJ found Claimant had not engaged in substantial gainful employment since July
6, 2006, the alleged onset date. R. 11. At step two, the ALJ determined Claimant had the
severe impairments of history of asthma, chronic left foot pain due to gout, obesity, and
bipolar disorder. Id. At step three, the ALJ found Claimant did not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in
20 CFR Part 404, Subpt. P, App. 1. Id. The ALJ then considered Claimant’s residual
functioning capacity (“RFC”)3 and found Claimant capable of performing sedentary work,
except she must alternate between sitting and standing every two hours, and must then stand
for five to ten minutes. R. 14. She must also keep her left foot elevated ten to twelve inches.
Id.
A residual functional capacity assessment is the most that a person can do despite their physical
and mental limitations. The Social Security Administration assesses a person’s residual
functional capacity based on all the relevant evidence in his or her case record. 20
§C.F.R.404.1545(a).
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In assessing Claimant’s RFC, the ALJ considered all of Claimant’s symptoms and the
extent to which those symptoms could “reasonably be accepted as consistent with the
objective medical evidence and other evidence.” Id. The ALJ found Claimant's impairments
could reasonably be expected to cause the alleged symptoms, but that Claimant’s statements
“concerning the intensity, persistence and limiting effects of these symptoms are not
credible.” R. 16. In reviewing Claimant’s medical records, the ALJ noted that while she did
complain of symptoms related to her gout and asthma, diagnostic testing and clinical
observations revealed that her impairments were not especially limiting. Id.
Specifically, the ALJ found that Claimant has been prescribed fairly routine pain and
asthma medication, with apparently effective results, especially given that Claimant’s
treating physicians have not recommended a more drastic form of treatment. R. 18. The ALJ
also emphasized that Claimant has performed temporary work since her onset date and has
further expressed a desire to return to full time employment. Id. The ALJ also gave
significant weight to the opinion of the State agency psychiatric consultant, who testified that
Claimant would adequately be able to handle the stresses of a routine, repetitive work setting.
R. 19. The ALJ concluded that Claimant’s treating therapist’s assessment was not supported
by the medical evidence on record, and thus gave it little weight. R. 19-20.
At step four, the ALJ found Claimant was unable to perform any past relevant work.
R. 20. At step five, the ALJ found “there are jobs that exist in significant numbers in the
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national economy that [C]laimant can perform.” R. 21. Thus, the ALJ concluded Claimant
was not disabled under the Social Security Act.
II. LEGAL STANDARDS
A.
Standard of Review
The "findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A decision by an ALJ
becomes the Commission's final decision if the Appeals Council denies a request for review.
Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000). Under such
circumstances, the district court reviews the decision of the ALJ. Id. The 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).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
28 L. Ed. 2d 842 (1971). A "mere scintilla" of evidence is not enough. Id.; Scott v.
Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). Even when the record contains adequate
evidence to support the decision, the findings will not be upheld if the ALJ does not "build
an accurate and logical bridge from the evidence to the conclusion." Berger v. Astrue, 516
F.3d 539, 544 (7th Cir. 2008). If the Commissioner's decision lacks evidentiary support or
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an adequate discussion of the issues, it must be remanded. Campbell v. Astrue, 627 F.3d 299,
306 (7th Cir. 2010).
Though the standard of review is deferential, a reviewing court must "conduct a
critical review of the evidence" before affirming the Commissioner's decision. McKinzey v.
Astrue, 641 F.3d 884, 889 (7th Cir. 2011). It may not, however, "displace the ALJ's
judgment by reconsidering facts or evidence, or by making independent credibility
determinations." Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010). Thus, judicial review
is limited to determining whether the ALJ applied the correct legal standards and whether
substantial evidence supports the findings. Id.
B.
Disability Standard
Disability insurance benefits are available to a claimant who can establish he is under
a "disability" as defined by the Social Security Act. Liskowitz v. Astrue, 559 F.3d 736, 73940 (7th Cir. 2009). "Disability" means an "inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can
be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). An individual is under a disability if he is unable to perform his previous work
and cannot, considering his age, education, and work experience, partake in any gainful
employment that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Gainful
employment is defined as "the kind of work usually done for pay or profit, whether or not a
profit is realized." 20 C.F.R. § 404.1572(b).
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A five-step sequential analysis is utilized in evaluating whether a claimant is disabled.
20 C.F.R. § 404.1520(a)(4)(i-v). The ALJ must inquire, in the following order: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4)
whether the claimant can perform past relevant work; and (5) whether the claimant is capable
of performing other work. Id. Once the claimant has proven he cannot continue his past
relevant work due to physical limitations, the ALJ must determine whether other jobs exist
in the economy that the claimant can perform. Craft v. Astrue, 539 F.3d 668, 674 (7th Cir.
2008).
III. DISCUSSION
Claimant raises the following issues in support of her motion: 1) whether the ALJ
improperly failed to include limits in concentration, persistence or pace in her RFC
Assessment (and in posing hypothetical questions to the Vocational Expert); 2) whether the
ALJ improperly ignored evidence of the State Agency physician’s opinion; 3) whether the
ALJ’s credibility finding was patently wrong; and 4) whether the ALJ properly considered
evidence of Claimant's treating therapist’s opinion.
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A.
The ALJ Did Not Improperly Fail to Include Limits in Concentration,
Persistence or Pace in her RFC Assessment.
In her RFC finding, the ALJ found that Claimant “retains sufficient mental capacity
to understand and remember simple tasks, and she can carry out such tasks at a consistent
pace. . . . Despite having reduced ability to handle stress and pressure in the workplace, she
can still adequately handle the stresses of a routine, repetitive work setting.” R. 14. In
posing hypotheticals to the VE, the ALJ repeated that exact wording. R. 62-64. However,
Claimant urges remand based on an initial finding by the ALJ in which she stated that “[w]ith
regard to concentration, persistence or pace, the claimant has moderate difficulties.” R. 13.
Claimant argues it was an error for the ALJ not to include these limitations of concentration,
persistence or pace in posing hypotheticals to the VE.
Claimant urges remand in light of a recent Seventh Circuit opinion, which held that
the ALJ, in orienting the VE to the totality of the claimant’s limitations, should include
deficiencies of concentration, persistence and pace. O’Conner-Spinner v. Astrue, 627 F.3d
614, 619 (7th Cir. 2010). The most effective way to ensure that the VE is apprised fully of
the claimant’s limitations is to include all of them directly in the hypothetical. Id. However,
the Seventh Circuit has identified two circumstances in which the exact language of
“concentration, persistence, or pace” is not required in the hypothetical. Id. at 610. First, the
court can sometimes assume a VE’s familiarity with a claimant’s limitations, despite any
gaps in the hypothetical, “when the record shows that the VE independently reviewed the
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medical record or heard testimony directly addressing those limitations.” Id. Second, the
court will let stand an ALJ’s hypothetical omitting the terms “concentration, persistence and
pace” when it is “manifest that the ALJ’s alternative phrasing specifically excluded those
tasks that someone with the claimant’s limitations would be unable to perform.” Id. This
case falls into the second exception described in O’Conner-Spinner.
In a recent opinion by this Court, it analyzed the hypotheticals posed to the VE and
found, under O’Conner-Spinner, that the ALJ did not fully account for the Claimant’s mental
impairments in concentration, persistence and pace. White v. Astrue, No. 10 C 5541, 2011
U.S. Dist. LEXIS 122848, at *20-27 (N.D. Ill. Oct. 24, 2011) (finding the ALJ did not
adequately explain how she accounted for Claimant’s limitations in concentration,
persistence and pace by limiting Claimant only to simple, repetitive tasks in the hypotheticals
posed to the VE). However, in the case at bar, the ALJ has fully accommodated the
Claimant’s limitations in posing hypotheticals to the VE, despite not using the exact language
of “concentration, persistence or pace.” The ALJ’s hypothetical questions posed to the VE
specifically indicated Claimant’s mental and physical capacity to perform simple tasks at a
consistent pace, as well as her ability to handle a routine, repetitive work environment. R.
62-64.
Furthermore, while the ALJ did not use the exact language of “concentration,
persistence or pace” in her hypotheticals, the ALJ built the requisite logical bridge to justify
the omission. In assessing Claimant’s RFC, the ALJ gave “significant weight” to the
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findings of the State Agency consultant, who found Claimant retains sufficient mental
capacity to remember and carry out routine and simple tasks with adequate persistence and
pace. R. 19. The ALJ also clearly explained her rationale for not giving substantial weight
to Claimant’s treating therapist, who did indicate that Claimant has frequent deficiencies in
concentration, persistence, or pace. R. 19-20. Furthermore, the ALJ extensively examined
Claimant’s mental health history, finding the “evidence suggests that with proper
supervision, the claimant would be able to perform simple and routine tasks on a sustained
basis.” R. 20.
Because the ALJ, through her alternative phrasing, did sufficiently include limitations
in concentration, persistence or pace in posing hypotheticals to the VE, this case does fall
within the second exception indicated in O’Conner-Spinner.
B.
The ALJ Erred in Ignoring the State Agency Consultant’s Opinion.
An ALJ makes a RFC determination by weighing all the relevant evidence on record.
20 C.F.R. § 404.1545(A)(1); SSR 96-8p.
State agency medical and psychological
consultants are highly qualified physicians and psychologists who are experts in the
evaluation of the medical issues in disability claims under the Act. SSR 96-6p. The ALJ is
required by 20 C.F.R. § § 404.1527(f) and 416.927(f) to consider the state agency
physician’s findings of fact about the nature and severity of the claimant’s impairments as
opinions of non-examining physicians; while the ALJ is not bound by the opinion, she may
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not ignore it either and “must explain the weight given to the opinions in [her] decisions.”
Id.
Here, in assessing Claimant’s RFC, the ALJ gave “significant weight” to the findings
of the State Agency consultant, finding her “assessment is very consistent with the objective
mental evidence of record.” R. 19. However, the ALJ determined that Claimant could have
normal interactions with the general public, co-workers and supervisors, despite the State
Agency consultant’s opinion that Claimant would do best in an environment with reduced
contact with the general public, co-workers and supervisors. R. 20, 460. The ALJ did not
cite to the record to indicate how she formed the conclusion that Claimant could have normal
interactions. In fact, there is no medical testimony on the record indicating Claimant can
have normal interactions with the general public, co-workers and supervisors. The ALJ did
not explain this discrepancy, and thus failed to build a bridge between the record and the
conclusion.
Defendant seemingly concedes this inconsistency, but claims any error was harmless.
Defendant notes that two of the jobs which the ALJ found Claimant could perform—cutterand-paster and document preparer—involve reduced interpersonal contact, and thus remand
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to include this limitation would serve no purpose.4 However, the Court cannot conclude as
a matter of law that any error was harmless. In a situation where the ALJ’s hypothetical to
the VE is based upon an insufficient RFC, it must be remanded to the SSA for further
proceedings. Young v. Barnhart, 362 F.3d 995, 1004-05 (7th Cir. 2004).
C.
The ALJ’s Credibility Finding Was Not “Patently Wrong,” but In Light of the
Remand, the ALJ Should Revisit the Issue.
When faced with a claimant alleging subjective pain symptoms, an ALJ evaluates the
credibility of a claimant's testimony about her pain. SSR 96-7p. The ALJ must consider the
testimony in light of the entire record and be “sufficiently specific” as to the reasons for his
credibility determination. Id. Since the ALJ is in the best position to observe witnesses,
however, his credibility finding will not be overturned as long as it has some support in the
record. Dixon v. Massanari, 270 F.3d 1171, 1178-79 (7th Cir. 2001). An ALJ’s credibility
determination will be reversed only if the claimant can show it was “patently wrong.” Herr
v. Sullivan, 912 F.2d 178, 182 (7th Cir. 1990). A lack of medical testimony in the record
supporting a claimant’s subjective complaints of pain may be probative of a claimant’s
credibility. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
4
Defendant urges the Court to rely on the DOT which explains that both of the remaining jobs
are “not significant” in the “people” digit, including “taking instructions-helping.” However,
without VE testimony supporting a finding that someone with Claimant’s social limitations
could sustain employment in these positions, the Court does not feel equipped to independently
make such a determination.
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1.
Foot Pain and Asthma Impairments
First, the ALJ evaluated Claimant’s credibility as to the purported persistence,
intensity and limiting effects of her foot pain and asthma. R. 14-18. The ALJ found that
Claimant’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms, however, the claimant’s statements concerning the intensity, persistence
and limiting effects of those symptoms are not credible.” R. 16. The ALJ noted that while
Claimant’s medical records reflect her consistent complaints of symptoms related to her gout
and asthma, diagnostic testing and clinical observations revealed that Claimant's impairments
were not especially limiting. R. 16. Specifically, the ALJ referred to Claimant’s x-ray and
CT results which did not indicate serious impairments, and reports from Claimant’s treating
physician documenting significant improvement in Claimant’s symptoms following use of
an inhaler and pain medication. R. 16-18. The ALJ further considered the fact that Claimant
has performed temporary work since her onset day, as well as the fact that the record does
not contain any opinions from Claimant’s treating physicians that her physical impairments
would prevent her from working. R. 18. The ALJ found this evidence “diminishes the
credibility of the claimant’s allegations that her impairment would prevent her from working
altogether.” R. 16.
Claimant argues that the ALJ improperly found that Claimant’s stated desire to work,
and her actual ability to work, undermined her allegations of physical limitations. However,
the ALJ’s credibility determination has support in the record beyond the fact that Claimant
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was able to perform temporary work. Specifically, the ALJ found that Claimant’s complaints
were not credible in light of the opinions of numerous physicians who examined her and
found little objective evidence to support her claims of severe limitations due to gout and
asthma.
2.
Mental Health Impairments
The ALJ also examined Claimant’s credibility as to the limiting effects of her mental
health impairments. R. 18-20. The ALJ found that Claimant's mental health treatment
records “do not contain objective or clinical findings that would support a finding of []
extreme mental limitations.” R. 20. Specifically, the ALJ noted that Claimant’s mental
health records reveal that her diagnoses and symptoms have remained stable for some time,
and Claimant continues to have positive results from consistent medication.
Id.
Furthermore, the ALJ noted that Claimant's own testimony at the hearing refutes a finding
of severe limitations due to her mental health. Id.
Claimant argues that the ALJ relied heavily on Claimant’s testimony of her good days,
yet disregarded testimony of her bad days. Given that Claimant has been repeatedly
diagnosed with bipolar disorder, for which she is under continuous drug treatment, she is
likely to have good days and bad days. See Philips v. Astrue, 413 Fed.Appx. 878, 886 (7th
Cir. 2010) (collecting cases). However, the record does not indicate whether the ALJ took
into consideration Claimant’s testimony of her low functioning on bad days. If half of the
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time Claimant is not well enough to work, then she cannot hold down a full-time job. See
Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008).
The ALJ’s credibility determination has some support in the record, such that the
Court cannot say that the judgment is “patently wrong.” However, in light of the remand in
this case, the ALJ should revisit the credibility issue to determine whether her findings
remain the same.
D.
The ALJ Properly Considered Claimant’s Treating Therapist’s Opinion.
The ALJ gave “very little weight” to Claimant’s treating therapist’s finding of
disabling mental impairments, holding that Claimant’s mental health treatment records “do
not contain objective or clinical findings that would support a finding of such extreme mental
limitations.” R. 19-20. Claimant contends that the ALJ erred in not explaining why
Claimant’s treating therapist’s opinion was given insignificant weight.
As Claimant correctly recognized, her treating therapist is considered “other medical
sources.” See 20 C.F.R § 404.1513(d)(1); SSR 06-03p. Although the opinions of other
medical sources are important and should be considered when evaluating “key issues such
as impairment severity and functional effects,” their findings cannot “establish the existence
of a medically determinable impairment.” SSR 06–03p. In deciding how much weight to give
to opinions from these “other medical sources,” an ALJ should apply the same criteria listed
in § 404.1527(d)(2): the length, nature, and extent of the treatment relationship, frequency
24
of examination, the physician's specialty, the types of tests performed, and the consistency
and supportability of the therapists's opinion.
Claimant contends the ALJ failed to explain how she considered the afore-mentioned
factors in finding that Claimant’s treating therapist’s assessment should be given little
weight. However, the ALJ adequately linked her conclusion to evidence in Claimant’s
medical records. Specifically, the ALJ noted that Claimant’s mental health records reveal
that her diagnoses and symptoms have remained stable for some time, that Claimant
continues to have positive results from consistent medication, and that the treating therapist
never indicated that Claimant’s mental symptoms would interfere with her ability to work.
R. 20. While the ALJ may not have systematically detailed her findings as to each one of the
given factors, such an extensive analysis is not required. According to SSR 06-03p, “the
adjudication generally should explain the weight given to opinions for these ‘other sources,’
or otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.” The ALJ has met that standard.
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IV. CONCLUSION
For the reasons set forth in this opinion, the Court grants Claimant’s motion for
summary judgment, denies the Commissioner’s motion to affirm the Commissioner’s
decision, and remands the case to the Commissioner for further proceedings consistent
with this opinion.
SO ORDERED THIS 3rd DAY OF NOVEMBER, 2011.
_____________________________________
MORTON DENLOW
UNITED STATES MAGISTRATE JUDGE
Copies sent to:
Barry A. Schultz
Law Offices of Barry A. Schultz, P.C.
1601 Sherman Ave.
Suite 510
Evanston, Illinois 60201
Charles R. Goldstein
Social Security Administration
200 West Adams Street
Suite 3000
Chicago, Illinois 60606
Counsel for Plaintiff
Jonathan C. Haile
U.S. Attorney’s Office
219 South Dearborn Street
Suite 500
Chicago, Illinois 60604
Counsel for Defendant
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