Delgado v. Astrue

Filing 24

MEMORANDUM Opinion and Order. Signed by the Honorable Jeffrey T. Gilbert on 3/7/2012. (ep, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NORMA S. DELGADO,

)
)
Plaintiff-Claimant,
)
)
v.
)
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
)
)
Defendant-Respondent.
)

No. 11 C 2849
Jeffrey T. Gilbert
Magistrate Judge

MEMORANDUM OPINION AND ORDER
Claimant Norma S. Delgado (“Claimant”) brings this action seeking review of the
decision by Respondent Michael J. Astrue, Commissioner of Social Security
(“Commissioner”), in which the Commissioner denied Claimant’s application for
Supplemental Security Income (“SSI”) under Section 1614(a)(3)(A) of the Social
Security Act. 42 U.S.C. § 1382c(a)(3)A). This matter is before the Court on Claimant’s
motion for summary reversal or remand [Dkt.#19]. Claimant argues that the
Commissioner’s decision is not supported by substantial evidence and is contrary to the
legal standard for determining disability set forth in the federal regulations. Claimant
raises the following issues in support of her motion: (1) whether the ALJ failed to address
evidence regarding Claimant’s mental impairments from her treating psychiatrist Dr.
Cruz and (2) whether the ALJ erred in finding Claimant less than credible. For the
reasons explained in this Memorandum Opinion and Order, Claimant’s motion is granted

in part and denied in part, and the case is remanded to the Social Security Administration
for further proceedings pursuant to this opinion.

I. BACKGROUND
A. Procedural History
Claimant initially filed for SSI on March 31, 2008, alleging a disability onset date
of April 13, 2006 due to depression and injury to her feet and ankles. R.10, 90, 108. The
Social Security Administration (“SSA”) initially denied her application on May 20, 2008,
and again upon reconsideration on August 8, 2008. R.38-39. On November 18, 2009,
Claimant appeared before Administrative Law Judge (“ALJ”) John L. Mondi. R.7-16.
Only Claimant, who was unrepresented, and her sister-in-law testified at the hearing.
R.10. No medical or vocational experts were heard. On January 14, 2010, the ALJ
rendered a decision finding that Claimant was not disabled under the Social Security Act.
R.16. The ALJ determined that Claimant had not engaged in substantial gainful activity
(“SGA”) since March 31, 2008; that she had severe physical impairments, but could
ambulate effectively; that she did not have a severe mental impairment; that she had the
residual functional capacity (“RFC”)1 to perform the full range of sedentary work; and
that she was unable to perform any past relevant work, but could perform a significant
number of jobs in the economy. R.13-16. On March 2, 2011, the Appeals Council denied
Claimant’s request for review, making the ALJ’s decision the final decision of the

1

The RFC is the most that a claimant can do despite the effects of her impairments. 20 C.F.R.
404.1545(a).
2

Commissioner. R.1. On September 19, 2011, Claimant filed this action for review
pursuant to 42 U.S.C. § 405(g).
B. Hearing Testimony – November 18, 2009
1. Claimant Norma S. Delgado
At the time of the hearing, Claimant was 34 years old and single with three
children, ages 4, 10, and 12. R.29. Claimant completed school through the 8th grade and
was working on her GED at the time of the hearing. Id. She had past work experience as
a babysitter and a host at IHOP. R.30. She also had been a cashier, waitress, and press
operator. R.31. Claimant testified that her job at IHOP ended after a month because it
was hard to be on her feet for long periods of time. Id.
On April 13, 2006, when Claimant alleged her disability began, she went to the
hospital because of pain that spread from her foot to her knee. R.31. Claimant testified
that she can walk half a block before she starts to experience pain. R.32. Due to her
difficulty climbing stairs, she moved to a first floor residence. R.32-33. Claimant wears
braces on both feet when she drives or is in severe pain. R.33. She also had to wear a
boot for three weeks. Id. Claimant testified that she has fallen twice because of her
ankles. Id.2
In addition to pain in her feet, Claimant suffers from anxiety and depression. R.32,
33. She takes Lexapro for depression, Metadate for anxiety, and Lunestra to help her

2

When Claimant was six or seven years old, she had casts placed on both of her feet that reached
her hips. R.31. When she was 10 years old, her feet were operated on for “overbone and flat
feet.” Id.
3

sleep. R.33. Side effects from the medications include drowsiness. Id. For pain, she
takes ibuprofen and Tylenol, and the doctor gives her shots in her ankles. Id.
Claimant testified that she needs help with groceries and maintaining the house.
R.34. Rather than walk, she drives three minutes to the closest stores. Id. Claimant’s
sister-in-law assists Claimant with her grocery shopping. Id. 34-35. Claimant stated that
her condition has been the same for a year-and-a-half; she is in pain every day from the
time she awakes. R.35. According to her doctor, there is a 50 percent chance that she
would get better from surgery, which Claimant has not chosen to undergo. Id.
2. Claimant’s sister-in-law Irma Munoz
Mrs. Munoz testified that she assists Claimant two or three times a week by
helping her around the house and with the children. R.36. She stated that she believes
Claimant’s pain and depression are getting worse. Id.
C. Medical Evidence
1. MacNeal Hospital and Mercado Foot & Ankle Clinics South
On November 19, 2007, Dr. Patricia Gavin saw Claimant at the MacNeal Hospital
for her bilateral foot pain and noted that Claimant had flattening of both feet. R.160. Dr.
Gavin found that no hallux valgus deformity was demonstrated and bones and joint
spaces otherwise appeared “unremarkable”. Id.
Dr. Shaffer of Mercado Foot & Ankle Clinics South saw Claimant on November
27, 2007. R.162. Dr. Shaffer diagnosed Claimant with shin splints, right ankle pain
tendinitis and plantar fasciitis. Id. He ordered physical therapy three times a week for
three weeks. Id.
4

Claimant returned to MacNeal Hospital on December 12, 2007 for a physical
therapy evaluation. R.163. Fan Chin Tsai noted that Claimant had extreme pronated feet
and decreased stability. Id. While she had been experiencing pain, she had no weakness
in her ankle muscles. Id. Claimant was prescribed physical therapy three times a week
for six weeks. Id. On December 27, 2007, Claimant’s records show that she had
received relief from ultrasound, and it was recommended that this modality be continued.
R.171. Claimant’s physical therapy records from January 7 and 15, 2008 read that
Claimant had not been doing her exercises because she had to care for her children and
study for the GED. R.175. She also needed re-instruction to do certain stretches
correctly. Id. On January 15, 2007, the records note that Claimant had missed several
appointments due to childcare. R.170.
On January 29, 2008, Claimant returned to Mercado Foot and Ankle Clinics
South. R.182. Voltaren was prescribed, and a MRI was scheduled. Id. On February 12,
2008, a MRI was taken of Claimant’s right ankle, which revealed findings compatible
with sinus tarsitis syndrome. R.177. The report indicates that the remainder of the
examination was unremarkable. Id. On February 14, 2008, a MRI of her left ankle was
taken and showed findings suggestive of tibialis posterior tendon dysfunction, although
there was no tibialis posterior tendon tear. R.178. Claimant also had low-grade tibiotalar
capsulosynovitis, but no osteochondral erosion, stress fracture or substantive arthropathy.
Id. On February 28, 2008, Claimant reported having decreased pain in her right foot,
although she had not been going to physical therapy. R.181. She did stretching at home
and only took Voltaren when it “hurts bad”. Id.
5

2. Dr. Cruz—Access Community Health Network
On January 10, 2008, Claimant had an initial intake at Access Community Health
Network for her depression. R.232-34. She had a Global Assessment of Functioning
(“GAF”) score of 65, which indicates only mild symptoms or limitations.3 R.233. On
March 13, 2008, Claimant was seen by Dr. Cruz. R.188, 230. Claimant reported a longstanding history of depression, and rated her current level of depression as a nine out of
ten, ten being the worst. Id. Claimant listed a history of physical and sexual abuse, gang
involvement, prostitution, and use of crack cocaine and marijuana. Id. Claimant had been
seen by a psychiatrist when she was pregnant with her daughter and was prescribed
Zoloft, although she never took the medication. Id. She reported no past psychiatric
hospitalizations and no suicide attempts. Id.
Dr. Cruz diagnosed Claimant with major depression, both recurrent and severe; an
anxiety disorder; and a history of cocaine dependence. R.189. Dr. Cruz prescribed
Lexapro, Lunestra, and individual therapy. Id. When Claimant returned on April 17,
2008, Dr. Cruz reported major depression—moderately severe—and anxiety. R.190,
229. Dr. Cruz increased the Lexapro dose and decreased Lunestra. Id. On June 19,
2008, Dr. Cruz reported few improvements in Claimant’s symptoms and added a
diagnosis of PTSD and a prescription for Wellbutrin. R.218.

3

The GAF Scale reports a clinician’s judgment of an individual’s overall level of functioning
and is used in planning, measuring the impact, and predicting the outcome of treatment.
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32-34 (4th ed. 2000)(“DSM-IVTR”). GAF scores from 41-50 indicate serious symptoms or impairments, including suicidal
ideation, no friends, and inability to hold a job. DSM-IV-TR at 34. GAF scores from 51-60
indicate moderate symptoms, and scores from 61-70 indicate mild symptoms. Id.
6

On July 24, 2008, Claimant had a follow-up appointment. R.214. Dr. Cruz again
noted that Claimant had not experienced any improvements in symptoms. Id. Claimant
reported being unable to focus well, easily distracted, and extremely forgetful. Id. She
was struggling in school. Dr. Cruz discontinued Claimant’s Wellbutrin and added a
diagnosis of ADHD and a prescription for Ritalin. Id. Dr. Cruz noted that Claimant’s
disability had been denied and that she planned to appeal the decision. Id. Partially dated
progress notes from Dr. Cruz, beginning on December 12, 2008 and ending shortly after
July 9, 2009, note varying levels of depression and include the additional diagnosis of a
cognitive disorder, not otherwise specified. R.240-43.
3. Access Community Health Network
Claimant was seen again for pain in her feet at Access Community Health on June
2, 9, 19, 23, and July 7 and 11, 2008 and reported little improvement. R.225, 222, 219,
216, 215. On June 2 and 7, 2008, Claimant also reported back pain. R.224, 216. In her
back pain screening on June 2, she reported the following: that the pain comes and goes
and is moderate; that washing and dressing increase the pain and she finds it necessary to
change her way of doing them; she can only lift very light weights at the most; she cannot
walk at all without increasing pain; she can sit only in her favorite chair as long as she
likes; she avoids standing because it increases the pain immediately; pain prevents her
from sleeping at all; pain has restricted her social life and she does not go out very often;
she gets extra pain while traveling which compels her to seek alternative forms of travel;
and her pain is rapidly worsening. Id.

7

4. Dr. Albert — Mount Sinai Hospital Medical Center
On June 2, 2008, due to pain in the top of her feet, Claimant had a consultation
with Dr. Anne Albert of Mount Sinai Hospital. R.220. Claimant reported to Dr. Albert
that surgery had not been recommended, and she denied numbness, tingling, radiating
pain, or weakness. Id. She evaluated her pain as a 6 out of 10 on a pain scale with 10
being the worst. Id. Dr. Albert noted that Claimant had fractured her right ankle about 13
years prior, but had no pain until two years ago and no recent trauma. Id. She noted that
Claimant’s bilateral ankle range of motion was full and without pain, and there was no
warmth, redness or swelling. Id. Dr. Albert evaluated her condition as worsening. Id.
Dr. Albert recommended treatments of heat and ice as well as acupuncture. R.221.
5. Dr. Panepinto — Physical Residual Functional Capacity
Assessment
On May 5, 2008, state agency medical consultant Dr. Marion Panepinto provided
his medical opinion as to Claimant’s physical residual functional capacity (“RFC”).
R.191-98. Dr. Panepinto’s report indicates that Claimant has sinus tarsitis on the right
foot and tibial tendon dysfunction on the left foot, but that she could still do many
activities of daily living. R.191, 198. He found that Claimant could occasionally lift
and/or carry 50 pounds and frequently lift and/or carry 25 pounds. Id. He also noted that
Claimant could stand and/or walk as well as sit (with normal breaks) for about six hours
in an eight-hour day. Id. Lastly, Claimant’s ability to push and/or pull (including
operation of hand and/or foot controls) was found to be unlimited. Id. Claimant’s only
other limitation was that she could occasionally climb a ramp/stairs and

8

ladder/rope/scaffolds. R.193. Dr. Panepinto noted no further limitations. R.191-98. He
reported that Claimant indicated that she had not been doing physical therapy recently,
but did some stretching at home. R.198.
6. Dr. Kuester — Psychiatric Review Technique
State agency consultant Dr. Elizabeth Kuester prepared a Psychiatric Review
Technique Form on May 16, 2008. R.199-212. Dr. Kuester opined that Claimant’s
mental impairments, which consisted of depression and anxiety, were not severe. R.199,
202, 204. Claimant’s functional limitations were mild with regard to: restriction of
activities of daily living; difficulties in maintaining social functioning; and difficulties in
maintaining concentration, persistence, or pace. R.209. In her field office observations,
Dr. Kuester noted no mental limitations, stating that Claimant lived in and maintained an
apartment, took care of three children, handled finances, used a computer, and took GED
classes. R.211. While she was depressed at times, she usually got in a better mood
“pretty soon and usually does what she needs to do.” Id. Dr. Kuester assessed Claimant’s
credibility as fair, noting that she “just started OP Psych TX, and applied for disability
soon after . . . CL is quite functional per ADLS”. Id.
7. Dr. Arjmand and Dr. Havens — Illinois Request for Medical
Advice
On August 6 and 7, 2008, consultants Dr. Ronald Havens and Dr. Towfig
Arjmand affirmed the findings from May 2008 that Claimant’s anxiety, depression, and
ankle and feet pain did not significantly limit her functioning. R.235-37. Claimant was

9

reported to be credible in terms of her symptoms, but not in terms of the severity of her
impairments/limitations. R.237.
D. The ALJ’s Decision — January 14, 2010
After a hearing and review of the medical evidence, the ALJ determined that
Claimant has the RFC for the full range of sedentary work4 and thus is not disabled, as
defined under the Social Security Act. R.16. The ALJ therefore denied her application
for SSI. Id. The ALJ evaluated Claimant’s application under the required five-step
sequential analysis. R.13-15. At step one, the ALJ found that Claimant had not engaged
in substantial gainful activity since March 31, 2008, the date of application.5 R.13.
At step two, the ALJ found that Claimant has the severe impairments of sinus
tarsitis of the right ankle and tibial tendon dysfunction of the left ankle. Id. In
determining that Claimant’s mental impairment “does not cause more than a minimal
limitation in her ability to perform basic mental work and is therefore nonsevere”, he
stated that he considered four functional areas set out in the disability regulations for
evaluating mental disorders and in section 12.00C of the Listing of Impairments (20
CFR, Part 404, Subpart P, Appendix 1). R.13 In making this determination, the ALJ
relied on Dr. Kuester’s Psychiatric Review Technique Form for the Bureau of Disability
Determination Services (“DDS”) on May 16, 2008. Id. The ALJ adopted Dr. Kuester’s
assessment because it was “consistent with the evidence at the time and that subsequently
4

Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally carrying
articles such as docket files, ledgers, and small tools, with “a certain amount of walking and
standing” occasionally required. 20 C.F.R. 404.1567(a).
5
Although Claimant states that she had a disability onset date of April 13, 2006, for purposes of
SSI, her disability date is determined to be the date of application.
10

added”. Id. Dr. Kuester concluded that Claimant only has mild limitations in her ability
to perform activities of daily living, noting that she is quite functional, living in an
apartment, taking care of three children, taking GED classes, cooking, doing chores,
handling finances, and using a computer. Id. The ALJ did not address the medical
evidence from Dr. Cruz, who diagnosed Delgado with major depressive disorder, an
anxiety disorder, ADHD, a cognitive disorder, and PTSD. R.240, 218.
At step three, the ALJ determined that Claimant’s feet and ankle impairments do
not meet or medically equal the criteria of 1.02 or 1.03 of the Listing of Impairments
since she is able to ambulate effectively. R.14. He then found that Claimant has an RFC
to perform the full range of sedentary work. Id. In making the RFC determination, the
ALJ considered Claimant’s symptoms to the extent that they could reasonably be
accepted as consistent with the objective medical and other evidence as required by 20
C.F.R. 416.929 and 20 C.F.R. 416. 927, as well as Social Security Rulings (“SSRs”) 962p, 96-4p, 96-5p, 96-6p, 96-7p, and 06-3p. Id.
The ALJ followed the prescribed two-step process in considering the Claimant’s
symptoms. First, the ALJ found that while the Claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, her statements
concerning the intensity, persistence and limiting effects of the symptoms are not credible
to the extent they are inconsistent with the RFC assessment. Id. Second, the ALJ
determined that Claimant’s medical records are consistent with the performance of
sedentary work. While the MRIs showed sinus tarsi syndrome in the right ankle and
tibialis posterior tendon dysfunction in the left ankle, the examination showed no
11

swelling, warmth or redness along with full range of motion in both ankles with no pain.
Id. The ALJ opined that Claimant’s testimony of pain, when compared against objective
evidence and evaluated using the factors in SSR 96-7p, was not credible in establishing
an impairment to all work. R.14-15.
The ALJ also mentioned under step three of the analysis that, based on the
reviewing DDS physicians’ opinions, Claimant’s impairments did not include a severe
mental impairment. R.15. The ALJ stated that the expert evidence was adopted since it
was consistent with the objective evidence of record. Id.
At step four, the ALJ concluded that Claimant is unable to perform any past
relevant work. Id. Finally, at step five, he found that there are jobs that exist in
significant numbers in the economy that Claimant can perform given her age, education,
work experience, and RFC. Id. He thus concluded that Claimant is not disabled under
the Social Security Act. R.16.
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 Commissioner’s final decision if the Appeals Council denies a request for
review. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Under such circumstances, the
district court reviews the decision of the ALJ. Id. Judicial review is limited to
determining whether the decision is supported by substantial evidence in the record and

12

whether the ALJ applied the correct legal standards in reaching his decision. Nelms v.
Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
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 (1971).
A “mere scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d 589, 593 (7th
Cir. 2002). Even when there is adequate evidence in the record to support the decision,
however, the findings will not be upheld if the ALJ does not “build an accurate and
logical bridge between the evidence and the result.” Berger v. Astrue, 516 F.3d 539, 544
(7th Cir. 2008). If the Commissioner’s decision lacks evidentiary support or adequate
discussion of the issues, it cannot stand. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
2009).
Although the standard of review is deferential, a reviewing court must “conduct a
critical review of the evidence” before affirming the Commissioner’s decision. Eichstadt
v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may not, however, “displace the ALJ’s
judgment by reconsidering facts or evidence, or by making independent credibility
determinations.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Thus, judicial
review is limited to determining whether the ALJ applied the correct standards and
whether there is substantial evidence to support the findings. Nelms, 553 F.3d at 1097.
The reviewing court may enter a 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).

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B. Disability Standard
Disability insurance benefits are available to a claimant who can establish that she
is under a “disability” as defined in the Social Security Act. Liskowitz v. Astrue, 559 F.3d
736, 739-40 (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 she is unable to
do her previous work and cannot, considering her 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).
A five-step sequential analysis is utilized in evaluating whether a claimant is
disabled. 20 C.F.R. 404.1520(a)(4)(i-v). Under this process, 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 medically 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 a claimant has proven she cannot continue her past relevant work due to physical
limitations, the ALJ carries the burden to show that other jobs exist in the national
economy that the claimant can perform. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir.
2007).

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III. DISCUSSION
Claimant raises the following issues in support of her motion: (1) whether the ALJ
failed to address evidence regarding Claimant’s mental impairments from her treating
psychiatrist Dr. Cruz and (2) whether the ALJ erred in finding Claimant less than
credible.
A. The ALJ Failed to Address Evidence of Claimant’s Mental Impairments
Regardless of whether there is enough evidence in the record to support the ALJ's
decision, the ALJ must articulate the grounds for his decision because we confine our
review to the reasons supplied by the ALJ. Steele v. Barnhart, 290 F.3d 936, 941 (7th
Cir. 2002)(See also SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Johnson v.
Apfel, 189 F.3d 561, 564 (7th Cir. 1999); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.
1996)). That is why the ALJ must “build an accurate and logical bridge from the evidence
to her conclusion.” Steele, 290 F.3d at 941 (citing Dixon v. Massanari, 270 F.3d 1171,
1176 (7th Cir. 2001)). While the ALJ need not discuss every piece of evidence in making
a disability determination (Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009)), the
Seventh Circuit has “consistently recognize[d] that meaningful appellate review requires
the ALJ to articulate reasons for accepting or rejecting entire lines of evidence.” GibsonJones v. Chater, 1997 U.S. App. LEXIS 7640, at *10 (7th Cir. Ill. Apr. 14, 1997)
(emphasis added) (citing Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994)).
Error thus exists when there is reason to believe that an ALJ ignored important
evidence—as when an ALJ fails to discuss material, conflicting evidence. Walters v.
Astrue, 2011 U.S. App. LEXIS 21328, at *12 (7th Cir. Ind. Oct. 21, 2011) (citing
15

McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011); Brindisi v. Barnhart, 315 F.3d
783, 786 (7th Cir. 2003)). Otherwise, we cannot confidently assess the agency's rationale
and afford the claimant meaningful review. See Scott v. Barnhart, 297 F.3d 589, 596 (7th
Cir. 2002).
Here, evidence of Claimant’s mental impairments is inconsistent enough that the
ALJ should have discussed the conflict so that we would be in a position to assess the
Commissioner’s rationale and afford Claimant meaningful review. See Walters, 2011
U.S. App. LEXIS 21328, at *13-14. Specifically, the ALJ erred under steps two and
three of the SSA’s five-step disability evaluation process by failing to indicate whether he
considered evidence from Claimant’s treating psychiatrist Dr. Cruz.
1.

The ALJ failed to indicate whether he considered psychiatrist Dr.
Cruz’s medical records in determining the extent of Claimant’s
“severe impairments” under step two of the SSA’s five-step disability
evaluation process.

The ALJ must determine what weight to give the opinions of the claimant’s
treating physician (20 C.F.R. § 404.1527) and must provide specific reasons for giving
that weight (SSR 96-2p). Thus, as long as the ALJ “minimally articulates his reasons,”
he may discount a treating physician’s opinion regarding the nature and severity of a
medical condition if it is inconsistent with that of a consulting physician or other
substantial medical evidence. Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004);
see also Schmidt, 496 F.3d at 842.
In determining Claimant’s “severe impairments” under step two, the ALJ relied on
Dr. Kuester’s Psychiatric Review Technique Form (“PRTF”) in concluding that

16

Claimant’s anxiety and depression imposed no more than mild limitations on her
activities of daily living. R.13-14. The ALJ failed to even minimally articulate his
reasons for not addressing the conflicting opinions of Claimant’s treating physician Dr.
Cruz, who diagnosed Claimant with major depressive disorder, an anxiety disorder,
ADHD, a cognitive disorder, and PTSD. R.240, 218. According to Dr. Cruz, Claimant
suffered from difficulties sleeping, psychomotor slowing, an impaired thought process,
impaired memory and poor judgment. R.189, 190, 240. Although Dr. Cruz prescribed
Ritalin, Ambien, Lunesta, Lexapro, and Wellbutrin (R.189, 190, 218, 240), Claimant’s
symptoms showed little improvement. R.214.
The ALJ failed to meet the requirement of SSR 96-2p that he provide specific
reasons for the weight given to a treating source’s medical opinion. He did not address
Dr. Cruz’s notes, in which it is clear that Claimant’s mental condition was at least serious
enough to warrant numerous medications and ongoing treatment. Although the ALJ
retrieved Dr. Cruz’s progress notes after the hearing, there is no indication that the ALJ
reviewed that evidence, let alone evaluated its usefulness.
The reasoning provided by the ALJ for adopting Dr. Kuester’s assessment was
that it was “consistent with the evidence at the time and subsequently added.” R.13.
However, Dr. Kuester’s assessment is not consistent with Dr. Cruz’s diagnosis. Dr.
Kuester did not have the opportunity consider three significant diagnoses by Dr. Cruz.
Dr. Kuester’s assessment was done on May 16, 2008. R.199. Dr. Cruz did not diagnose
Claimant with PTSD, ADHD, and a cognitive disorder, however, until June 19 and July

17

24, 2008 and July 9, 2009,6 respectively. R.218, R.214, R.240-43. Furthermore, this
evidence was not even submitted to the ALJ until after the consultants, Dr. Havens and
Dr. Arjmand, conducted their reviews on August 6 and 7, 2008 (R.237) and not until after
the hearing on January 14, 2010 (see R.27). The ALJ failed to articulate how Dr. Cruz’s
diagnosis of those additional mental conditions was consistent with the opinions of Dr.
Kuester, Dr. Havens, and Dr. Arjmand or why he gave more weight to those opinions
when those doctors never had the opportunity to consider potential limitations secondary
to PTSD, ADHD, and a cognitive disorder or corresponding medical listings. R.237.
ALJs depend on the accuracy of state agency physicians’ assessments to evaluate
claimants’ conditions. See Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). Here, the
state agency assessments are incomplete because the state agency consultants did not
have Dr. Cruz’s evaluation of Claimant’s PTSD, ADHD, and a cognitive disorder until
after they did their reviews and after the hearing took place.
Furthermore, we find that the ALJ failed to consider the combination of
Claimant’s physical and mental impairments in determining the level of severity under
step two of the SSA’s disability evaluation. When a claimant has several medical
problems, the ALJ must consider those problems in isolation and in combination to
evaluate a claimant’s condition as a whole. Sienkiewicz v. Barnhart, 409 F.3d 798, 802
(7th Cir. 2005). While it may be the case that a claimant’s mental impairments are not
severe, an ALJ is required to consider the combined effect of all of the claimant’s
6

It is somewhat unclear as to when Claimant’s cognitive disorder was diagnosed. The only
medical record concerning Claimant’s cognitive disorder with a clearly marked date is July 9,
2009. R.240-43.
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impairments. 20 C.F.R. § 404.1523. Here, that is precisely the flaw in the ALJ’s
reasoning. While he found that Claimant’s impairments did not include a severe mental
impairment, there is no indication that the ALJ considered the cumulative effect of
Claimant’s alleged mental and physical impairments in determining their level of
severity.
Lastly, we note that Claimant was unrepresented at her hearing. The ALJ’s duty
to develop a full and fair record is heightened when the claimant proceeds without
counsel. Hawwat v. Heckler, 608 F.Supp. 106, 109 (N.D. Ill 1984). This heightened
duty requires the ALJ to “scrupulously and conscientiously. . .probe into, inquire of, and
explore for all relevant facts.” Nelms, 553 F.3d at 1098 (quoting Smith v. Sec’y of Health,
Educ., & Welfare, 587 F.2d 857, 860 (7th Cir. 1978)). Although the ALJ is required to
“supplement the record by. . .asking detailed questions, ordering additional examinations,
and contacting treating physicians and medical sources to request additional records,”
courts typically defer to the ALJ’s judgment unless there has been a “significant
omission.” Nelms, 445 F.3d at 1098. A significant omission is one that is prejudicial to
the claimant. Id. To demonstrate prejudice, a claimant must “set forth specific relevant
facts—such as medical evidence—that the ALJ did not consider.” Id. “[M]ere
conjecture…is insufficient.” Id.
Here, in light of the fact that Claimant was unrepresented, the ALJ had a
heightened duty to develop a full and fair record. The ALJ’s failure to address any of the
records from Dr. Cruz and question Claimant or her sister-in-law about the severity of
Claimant’s mental health amounts to a significant omission. The ALJ, thus, failed to
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develop the record in this important respect, and this case must be remanded for further
proceedings consistent with this Memorandum Opinion.
2.

The ALJ failed to indicate whether he considered evidence of
Claimant’s mental impairments in determining Claimant’s RFC
under step three of the SSA’s five-step disability evaluation process.

An ALJ makes an RFC determination by weighing all of the relevant evidence in
the record. 20 C.F.R. § 404.1545(a)(1); SSR 96-8p. The ALJ must “consider the
combined effects of all of the claimant’s impairments, even those that would not be
considered severe in isolation.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). In
cases in which “impairments may not on their own be disabling, that would only justify
discounting their severity, not ignoring them altogether.” Id.
The ALJ erred in determining Claimant’s RFC in step three of the SSA’s five-step
disability evaluation process by failing to consider the combined effects of all of
Claimant’s impairments. The ALJ merely states, “reviewing DDS physicians concluded
on May 16 and 17, 2008 that the claimant’s impairments did not include a severe mental
impairment.” R.15. The ALJ explained that the expert evidence was adopted “since it is
consistent with the objective evidence of record.” Id. Stating that Claimant’s alleged
mental impairments are not severe does not sufficiently explain how they potentially
affect her RFC. In determining Claimant’s RFC, the ALJ failed to indicate whether he
considered evidence of Claimant’s alleged mental impairments (which need not be
severe) in combination with Claimant’s physical limitations to determining her level of

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functionality.7 While the ALJ may be correct in determining that Claimant’s medical
records concerning sinus tarsi syndrome in the right ankle and tibialis posterior tendon
dysfunction in the left ankle are “consistent with the performance of work which does not
require prolonged periods of standing and/or walking—such as sedentary work” (R.14),
by failing to consider evidence of Claimant’s alleged mental limitations, it does not
appear that the ALJ considered the potential cumulative effect of Claimants physical and
mental limitations.
There is no evidence to suggest that the possible aggravating effects of Claimant’s
mental impairments on her ability to work were considered by any doctor, other than
perhaps Dr. Cruz, whom the ALJ does not reference in his opinion. It is thus impossible
to conduct a meaningful review of the ALJ’s decision. On remand, the ALJ should
evaluate whether Claimant’s alleged mental impairments, in combination with her severe
physical impairments, affect her ability to work.
Again, as noted above, Claimant was unrepresented. To fulfill his heightened duty
to fully and fairly develop the record, the ALJ is required to “supplement the record
by…asking detailed questions, ordering additional examinations, and contacting treating
physicians and medical sources to request additional records.” Nelms, 445 F.3d at 1098
(emphasis added).
7

The Commissioner contends that the ALJ properly determined that Dr. Cruz’s treatment notes
were not useful because he never stated that Claimant needed workplace accommodations. Def
brief, at 9. Dr. Cruz never saw Claimant for a functional employment evaluation, however.
Thus, the absence of notes on functional limitations or necessary workplace accommodations is
not necessarily evidence of Dr. Cruz’s opinion that Claimant did not require functional
limitations. It is possible that Dr. Cruz never even considered functional limitations or
accommodations.
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Here, Claimant attended a brief hearing before the ALJ. Claimant informed the
ALJ at the beginning of the hearing that notes from her psychiatrist Dr. Cruz were
missing from the medical records. R.25. The ALJ thus was aware of the fact that
Claimant had been seeing a psychiatrist and requested the records, but failed to question
Claimant about her alleged mental limitations and their potential effects on her
functionality. When Claimant stated that she not only was struggling with depression but
anxiety as well, the ALJ asked what medications she was taking and their side effects, but
did not inquire as to how either of those alleged mental impairments had an impact on
Claimant’s functionality. R.32, 33. Nor did the ALJ ask Claimant’s sister-in-law—who
testified at the hearing that Claimant’s pain in her feet as well as her depression were
getting worse (R.36)—about the nature or limiting effects of Claimant’s alleged mental
health problems. The ALJ’s decision not to question Claimant or her sister-in-law about
the possible effects of Claimant’s mental health on her daily functioning amounts to a
significant omission. The ALJ thus failed to develop the record in this important respect.
When a decision on matters of fact is unreliable because of serious mistakes or
omissions, the reviewing court must reverse unless satisfied that no reasonable trier of
fact could have come to a different conclusion, in which event a remand would be
pointless. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996) (citing O'Connor v.
Sullivan, 938 F.2d 70, 73-74 (7th Cir. 1991)). We are not satisfied of that here. Based on
the record before this Court, we cannot say that, if the cumulative effect of Claimant’s
ailments were considered in determining her RFC, no reasonable trier of fact could have
come to a different conclusion. Walters, 2011 U.S. App. LEXIS 21328, at *15 (citing
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O'Connor-Spinner v. Astrue, 627 F.3d 614, 619-620 (7th Cir. 2010) (limiting claimant to
repetitive tasks with simple instructions did not account for claimant's depression-related
problems); Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (limiting claimant to
unskilled work did not account for claimant's mood swings)).
While it may be true that the ALJ considered the potential cumulative effects of
Claimant’s physical and psychological limitations, the ALJ did not articulate that
reasoning, leaving the Court to speculate as to how he reached his conclusion. Without a
logical bridge to support the ALJ’s finding that Claimant was not disabled, it is
impossible to conduct a meaningful review.
At this point we are not weighing the evidence, or even making sure that the ALJ's
ultimate decision is supported by substantial evidence. Rather, we are making sure that
the ALJ considered the evidence. Walters, 2011 U.S. App. LEXIS 21328, at *17 (citing
McKinzey, 641 F.3d at 891-92; Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010)). The
evidence in this case is conflicting, and an ALJ who considers Dr. Cruz’s report may or
may not decide to award benefits.
In order to affirm the ALJ’s decision in this case, the Court would have to engage
in post-hoc rationalizations to explain the ALJ’s treatment of evidence when that
treatment is not apparent from the ALJ’s decision itself. Such post-hoc rationalizations
are not permitted. Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (citing
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004); SEC v. Chenery Corp., 318 U.S.
80 (1943)). Thus, a remand for further explanation is warranted based on the ALJ’s

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failure to articulate his reasons for rejecting an entire line of evidence regarding
Claimant’s alleged mental impairments.
On remand, the ALJ should address evidence concerning Claimant’s mental
limitations in determining the extent of Claimant’s “severe impairments” and her residual
functional capacity under steps two and three of the SSA’s disability evaluation process.
B. The ALJ failed to properly analyze Claimant’s credibility
The ALJ is in the best position to evaluate the credibility of a witness. Collins v.
Barnhart, 533 F.Supp.2d 809, 819 (N.D. Ill. 2008) (citing Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000)). The ALJ’s evaluation, however, must contain “specific reasons”
for a credibility finding (SSR 96-7p), and it must be supported by substantial evidence.
Myles, 582 F.3d at 676 (citing Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009)). While
the ALJ need not list out the seven required factors under SSR 96-7p (Brindisi v.
Barnhart, 315 F.3d 783, 787 (7th Cir. 2003)), he may not simply “recite the factors that
are described in the regulations.” SSR 96-7p. The ALJ’s credibility determination must
be “sufficiently specific” to make clear to a claimant and subsequent reviewers the
weight given to claimant’s statements and the reasons for the weight given. SSR 96-7p.
See Steele, 290 F.3d at 942 (“The ALJ’s credibility assessment does not suggest how
Steele could still perform light and sedentary work despite his reported problems with
depression, walking and lifting, and seizures -- which when considered cumulatively left
the vocational expert unable to identify any jobs for Steele to perform.”). Specific
documentation of the reasoning behind the ALJ’s conclusions is necessary to give a

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claimant a full and fair review of his or her claim and to ensure a well-reasoned decision.
Id.
Here, the ALJ's evaluation of Claimant’s credibility does no more than cite SSR
96-7p. The ALJ broadly stated that he evaluated Claimant’s testimony “against the
objective evidence and…using factors in SSR 96-7p.” R.14. He opined that her
testimony was only credible in “establishing limitations to sedentary work but not an
impairment that would preclude all work, given the objective findings along with the use
of medication, pursuit of treatment, and activities that include going to school to a get a
GED and being able to go to the store alone.” R.14-15. This discussion is inadequate for
two reasons.
First, in assessing Claimant’s credibility, the ALJ only referenced two daily
activities, one of which he incorrectly characterized. SSR 96-7p provides that an ALJ
must consider certain factors when evaluating credibility, including daily activities.
“Merely mentioning some of the factors, without a meaningful discussion is inadequate.”
Castrejon v. Apfel, 131 F.Supp.2d 1053, 1057 (E.D. Wis. 2001). Here, the ALJ merely
mentioned two daily activities: going to school to get a GED and being able to go to the
store alone. R.15. Furthermore, he erred in misstating Claimant’s testimony about her
ability to go to the store independently. In fact, Claimant testified that she is not able to
go to the store unless her sister-in-law accompanies her. R.34-35. Merely mentioning
two activities—especially while misstating the evidence relating to one of them—does
not sufficiently support the ALJ’s finding that Claimant’s allegations of pain are not
credible.
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Second, the ALJ failed to explain how Claimant’s activities are inconsistent with
her allegations of pain, as required by SSR 96-7p. It is plausible for Claimant to
experience the symptoms she described, while still being able to attend classes and, with
the assistance of relatives, shop and minimally care for her children. See Gibson-Jones,
1997 U.S. App. LEXIS 7640, at *11 (holding that the ALJ had to more specifically
articulate his reasons for believing that the applicant’s testimony was contradictory and
inconsistent).
Furthermore, SSR 96-7p mandates that whenever a claimant’s statements about
the intensity, persistence, or functionally limiting effects of pain or other symptoms are
not substantiated by the objective medical evidence, the ALJ must evaluate the credibility
of a claimant’s testimony based on the record as a whole. SSR 96-7p (emphasis added).
In this case, the ALJ found Claimant’s statements concerning the intensity, persistence
and limiting effects of her symptoms not credible because they were “inconsistent with
the above residual functional capacity assessment.” R.14. This boilerplate recital
(Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010) does not make it clear that the
ALJ took into consideration the record as a whole, especially Dr. Cruz’s records.
Accordingly, the ALJ did not sufficiently explain why he rejected Claimant’s
testimony regarding her subjective complaints of pain. The ALJ did not specifically
point to inconsistencies between Claimant’s alleged pain and evidence in the record that
would lead him to reach that conclusion. Because the ALJ has not provided us with
specific reasons for rejecting Claimant’s testimony, we are left without a basis to uphold
the ALJ's credibility determination. See Gibson-Jones, 1997 U.S. App. LEXIS 7640, at
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*10 (citing Herron, 19 F.3d at 336). Since meaningful appellate review at this juncture is
impossible, it is necessary to remand the case to the ALJ so that he may better
articulate the grounds for his decision.

IV. CONCLUSION
For the reasons set forth in this Memorandum Opinion and Order, Claimant’s
motion for summary reversal or remand [Dkt.#19] is granted in part and denied in part,
and this case is remanded for further proceedings consistent with this Opinion.
It is so ordered.

______________________________
Jeffrey T. Gilbert
United States Magistrate Judge
Dated: March 7, 2012

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