Avery v. Astrue
Filing
28
MEMORANDUM Opinion and Order Signed by the Honorable Daniel G. Martin on 12/19/2012.Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOUIS J. AVERY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 11 C 7471
Magistrate Judge Daniel G. Martin
MEMORANDUM OPINION AND ORDER
Plaintiff Louis J. Avery (Avery) seeks review of the final decision of the Commissioner of
Social Security denying his claim for supplemental security income (SSI). The parties have
consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)
and filed cross-motions for summary judgment. Because the ALJ’s decision is not supported by
substantial evidence, the denial of benefits is reversed and this case is remanded for further
proceedings consistent with this opinion.
I.
Background
Avery was born on October 24, 1985 and suffers from mental impairments. (R. 214). At
age six, Avery was removed from his home because of abuse and became a ward of the state in
foster care. (R. 332). During the administrative hearing, Avery’s counsel represented that
throughout Avery’s childhood, his mother used crack cocaine. (R. 60). Avery also has a history
of substance abuse. (R. 371). At age 12, Avery was diagnosed with depressive disorder, not
otherwise specified, impulse control disorder and severe psychological and environmental problems
after he threatened to kill his foster parents and the other children in the home and to set the
building on fire. (R. 332-34). The medical expert hired by the Social Security Administration to
testify at the hearing described Avery’s childhood as “very traumatic,” with several incidents in
which he was abused, neglected, and struck out in a hostile fashion. (R. 60).
Avery was expelled from high school in the ninth grade and has no work history. (R. 35,
250). Avery does not have a driver’s license and does not use public transportation because he
gets lost. (R. 40, 371). At the time of the May 27, 2012 hearing, Avery lived in an apartment with
his sister and her three children. (R. 33-34). Avery applied for SSI on April 10, 2007, alleging he
became totally disabled on March 29, 2007 because of a learning disability and mental illness. (R.
214-19, 246). Avery’s application was denied at the initial and reconsideration levels due to his
failure to attend two scheduled consultative psychological evaluations. (R. 84-88, 89-92).
Under the required five-step analysis used to evaluate disability, the ALJ found that Avery
had not engaged in substantial gainful activity since the alleged onset date of March 29, 2007
(step one); his borderline intellectual functioning, with polysubstance abuse, a learning disorder,
not otherwise specified by history, and antisocial personality disorder were severe impairments
(step two); but that they did not qualify as a listed impairment (step three). (R. 21, 23). The ALJ
determined that Avery retained the residual functional capacity (RFC) to perform light work except
no climbing ladders, ropes, or scaffolds, no work at unprotected heights, no commercial driving,
no contact with the general public, minimal contact with supervisors, and no complex or detailed
tasks. (R. 23). Avery has no past relevant work (step four). (R. 26). The ALJ concluded there
were jobs that exist in significant numbers in the economy that Avery could perform considering
his age, education, and residual functional capacity, including office or house cleaner jobs (step
five). (R. 26-27).
The Appeals Council denied Avery’s request for review on August 25, 2010. (R. 1-5).
Avery now seeks judicial review of the final decision of the Commissioner, which is the ALJ’s ruling.
O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010).
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II.
Discussion
Under the Social Security Act, a person is disabled if he has an “inability to engage in any
substantial gainful activity by reason of a medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a). In order to determine
whether a claimant is disabled within the meaning of the Act, the ALJ conducts a five-step
sequential inquiry: (1) whether the claimant is currently unemployed; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets or equals any of the listings
found in the regulations, see 20 C.F.R. § 404, Subpt. P, App. 1 (2004); (4) whether the claimant
is unable to perform his former occupation; and (5) whether the claimant is unable to perform any
other available work in light of his age, education, and work experience. 20 C.F.R. § 404.1520(a)
(2004); Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). “An affirmative answer leads either to
the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer
at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not
disabled.” Clifford, 227 F.3d at 868 (quoting Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir.
1985)).
Judicial review of the ALJ’s decision is limited to determining whether the ALJ’s findings are
supported by substantial evidence, based upon a legal error, or too poorly articulated to permit
meaningful review.
Hopgood ex rel. v. L.G. v. Astrue, 578 F.3d 696, 698 (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). In its substantial
evidence review, the court critically reviews the entire administrative record but does not reweigh
the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its own
judgment for that of the Commissioner.
Clifford, 227 F.3d at 869.
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An ALJ’s credibility
determination is generally entitled to deference and will not be overturned unless it is patently
wrong. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010).
The ALJ denied Avery’s claim at step five, finding that Avery retains the residual functional
capacity to perform a range of light work. Avery raises three main challenges to the ALJ’s decision:
(1) the ALJ erred at step three in declining to find that his condition met the criteria of Listings 12.05
and 12.08; (2) the ALJ erred in assessing Avery’s residual functional capacity; and (3) the ALJ
failed to properly evaluate Avery’s credibility. The Court finds that the ALJ’s decision is not
supported by substantial evidence because it is based on an incomplete RFC determination and
an unsound adverse credibility finding.
A.
Step Three Determination
Avery first challenges the ALJ’s adverse step three determination as to Listings 12.05
(mental retardation) and 12.08 (personality disorders). Under a theory of presumptive disability,
a claimant is eligible for benefits at step three if he has a condition that meets or equals an
impairment found in the “Listing of Impairments” (listings). Maggard v. Apfel 167 F.3d 376, 379 (7th
Cir. 1999). The listings specify the criteria for impairments that are considered presumptively
disabling. Id. at 380. A claimant may also demonstrate presumptive disability by showing that his
impairments are accompanied by symptoms that are equal in severity to those described in a
specific listing. Id. To meet or equal a listed impairment, the claimant must satisfy all the criteria
of the listing. Id. The claimant bears the burden at step three of proving that his condition meets
or equals a listed impairment. Id. In making a step three determination, the ALJ “must discuss the
listing by name and offer more than a perfunctory analysis of the listing.” Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir. 2004).
At step three, the ALJ found that Avery does not have an impairment or combination of
impairments that meets or medically equals a listed impairment. (R.21). Listing 12.05(C) requires
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a “valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of function.” The ALJ
considered Avery under Listing 12.05(C) and concluded that he did not meet the criteria. One of
the reasons the ALJ offered for finding that Avery did not meet Listing 12.05(C) was the lack of a
valid verbal, performance, or full scale IQ score of 60 through 70. (R. 22-23).
Substantial evidence supports the ALJ’s finding that Avery’s IQ scores were “less than fully
valid.” (R. 22). Dr. Robert V. Prescott, a psychologist, determined that Avery had a verbal
comprehension score of 66, a perceptual reasoning score of 71, a working memory score of 58,
a processing speed of 53, and a full-scale score of 54. (R. 373). Dr. Prescott observed that Avery
“did not appear to be making his best effort” during testing, noted that Avery’s recent substance
abuse “may have adversely affected him as well,” and pined that it was “likely that the obtained test
scores probably underestimate his level of functioning.” (R. 373, 375). The ALJ recognized that
Avery scored below 70 on the WAIS IV and WRAT IV tests administered by Dr. Prescott, but
reasoned that the scores were of “questionable validity” because Dr. Prescott observed that Avery
was not making his best effort during the testing and Avery admitted drinking the day before and
the day of the consultative evaluation. (R. 22, 371). The ALJ also noted that Avery used marijuana
the day before the exam. Id. The medical expert (ME) confirmed that the entire psychological
consultative evaluation “was of really questionable validity.” (R. 53). The ME testified that both the
effects of drug and alcohol use the day before and day of the examination and the lack of
acceptable effort “contaminated the results of the cognitive evaluations.” Id.1 The ME found that
1
In a related argument, Avery contends that the ALJ should have further developed the
record by ordering an additional psychological consultative evaluation, especially since Dr.
Prescott’s report and the ME’s testimony cast doubt on the validity of Avery’s IQ scores. Avery
argues that another consultative psychological evaluation would assess the degree of impairment
caused by his mental impairments. The ALJ has a duty to develop a full and fair record. Smith v.
Apfel, 231 F.3d 433, 437 (7th Cir. 2000). An ALJ may order a consultative examination when “the
evidence as a whole is insufficient to support a determination or decision of [the] claim.” 20 C.F.R.
§ 416.919a(b). The need for an additional examination normally involves a question of judgment,
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Avery’s condition does not meet or medically equal a listed impairment. (R. 56).
The ALJ found that Avery did not meet the requirements of Listing 12.08. (R. 21). This
particular listing requires, among other things, that the claimant have marked limitations in at least
two of the following:
activities of daily living; maintaining social functioning; maintaining
concentration, persistence, or pace; or repeated episodes of decompensation, each of extended
duration. The ALJ considered whether these “paragraph B” criteria of Listing 12.08 were satisfied.
(R. 21-22). The ALJ found that Avery has moderate restrictions in activities of daily living because
he can take care of his own personal grooming and perform simple tasks. (R. 21). He noted that
Avery has a learning disorder and is slow in performing math calculations. Id. The ALJ concluded
that Avery has moderate difficulties in social functioning because he had been diagnosed with an
anti-social personality disorder and dislikes people. Id. The ALJ noted that Avery has three kids
and is able to maintain a relationship with them. Id. With regard to concentration, persistence, or
pace, the ALJ found that Avery has moderate difficulties because he has a learning disorder and
the consultative examiner noted limitations in concentration during the March 2010 examination.
(R. 22). The ALJ also found that Avery has experienced no episodes of decompensation. Id.
As to Listing 12.08, Avery offers a two-sentence argument in his opening memorandum:
“The record establishes that Plaintiff meets or equals . . . Section 12.08. In the alternative, the
combination of impairments is medically equivalent to the Listings.” (Doc. 19 at 7). Avery does not
and courts generally defer to the ALJ’s determination of whether the record has been adequately
developed. Wilcox v. Astrue, 2012 WL 3590894, at *3 (7th Cir. 2012); Kendrick v. Shalala, 998 F.2d
455, 456-57 (7th Cir. 1993) (holding that courts “must respect the authority of administrative officials
to decide how much is enough” because “one may always obtain another medical examination,
seek the views of one more consultant, wait six months to see whether the claimant’s condition
changes, and so on.”). Because this case is being remanded on other grounds, it is unnecessary
to resolve this issue. On remand, the ALJ shall determine whether another consultative mental
examination, including IQ and memory testing, would fairly and fully develop the record as to
Avery’s cognitive functioning. If the ALJ determines that such an examination is unnecessary, the
ALJ must adequately explain his decision.
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specify how his impairments met or medically equal the criteria of Listing 12.08. In his reply brief,
Avery states that “[t]he ME clearly found that the Plaintiff met the requirements of Section 12.08(A)
and had a marked limitation in his ability to maintain social functioning.” (Doc. 25 at 6).
Substantial evidence supports the ALJ’s conclusion that Avery’s condition does not meet
Listing 12.08(B). The ME found that Avery is moderately impaired in terms of activities of daily
living and concentration, persistence, and pace. (R. 59). As to maintaining social functioning, the
ME opined that overall Avery is moderately impaired but in a threatening situation, he is markedly
impaired. Id. The ME noted no documented episodes of decompensation. Id. The ME opined
that Avery’s condition does not meet or medically equal a listed impairment. (R. 56). Avery
focuses his challenge on the ALJ’s finding that his limitations in the domain of “social functioning”
were less than marked, but he must meet two criteria under section B to satisfy listing 12.08.
Because there were no evaluations in the record that found more severe impairments with regard
to the other “B criteria” of Listing 12.08 than the ME and the ALJ provided, any error by the ALJ
regarding the social functioning domain would be harmless error that does not change the
outcome. Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (stating “the doctrine of harmless
error . . . is fully applicable to judicial review of administrative decisions.”).
B.
RFC Determination
Avery challenges the ALJ’s residual functional capacity (RFC) determination on the ground
that it did not sufficiently account for his impaired social functioning. “The RFC is the maximum that
a claimant can still do despite his mental and physical limitations.” Craft v. Astrue, 539 F.3d 668,
675-76 (7th Cir. 2008). Social functioning refers to a claimant’s “capacity to interact independently,
appropriately, effectively, and on a sustained basis with other individuals.” 20 C.F.R. Pt. 404, Supbt
P, App. 1 § 12.00(C)(2). This includes the ability to “get along with family members, friends,
neighbors, grocery clerks, landlords, and bus drivers.” Id. Social functioning in work situations may
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involve “interactions with the public, responding appropriately to persons in authority (e.g.,
supervisors), or cooperative behaviors involving coworkers.” Id.
The ALJ found that Avery has moderate difficulties in social functioning. (R. 21). The ALJ
stated that Avery has been diagnosed with anti-social personality disorder and he does not like
people. Id. The ALJ also noted that Avery has three children and found that he has been able to
maintain a relationship with them. Id. The ALJ accounted for Avery’s difficulties in social
functioning by finding that he cannot work with the general public and is limited to minimal contact
with supervisors. (R. 24).
The ALJ’s finding of moderate difficulties in social functioning and the RFC determination
limiting Avery to minimal contact with supervisors but finding no further limitations based on Avery’s
difficulties in social functioning are not supported by substantial evidence. At the May 27, 2010
administrative hearing in this case, the ME, after examining the record and hearing the testimony,
declared that Avery suffered primarily from behavior problems and an “inability to relate effectively
on a social level.” (R. 57). The ME explained that the difficulty Avery would have in functioning in
a work like setting would be in his association with other people:
I do not think that he could handle regular contact with the general public. He would
have, he would be able to handle routine supervision unless it was overly critical.
In other words, if he felt that he was being criticized or not dealt with in a manner
of respect that he would explode verbally and the same with co-workers. But in a
situation which he has very little contact with fellow employees or with supervisors
and not a whole lot of confrontation or criticism from the supervisors or peers he
would be able to handle that.
Id. As evidence of Avery’s anti-social personality disorder, the ME noted his criminal history which
includes several arrests for drug abuse, stealing and firearm possessions. (R. 58). The ME found
that Avery is able to act in a socially responsible manner when it is in his best interest. Id. The ME
then translated his opinion of Avery’s social functioning condition into an RFC assessment of
overall moderately impaired in maintaining social functioning and markedly impaired in the area of
social functioning when he feels threatened. (R. 59). The ALJ credited the opinion of the ME that
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Avery generally has moderate limitations in social functioning but did not mention the ME’s other
conclusion that Avery is markedly impaired in social functioning in situations where he feels
threatened. (R. 21).
The ALJ was required to include limitations in his RFC determination that were supported
by the medical evidence and that the ALJ found to be credible. Outlaw v. Astrue, 412 Fed.Appx.
894, at *4 (7th Cir. 2011). Without any stated exception, the ALJ gave “considerable weight to the
medical expert’s opinion,” finding it “fully informed” and “supported by the longitudinal record.” (R.
26). (R. 20). One of the ME’s findings regarding Avery’s mental limitations was not reflected in
the RFC. The ALJ did not include the ME’s marked impairment in social functioning when Avery
feels threatened in the RFC assessment. The ALJ’s RFC determination accounted only for the
overall moderate impairment in social functioning found by the ME. With regard to his social
limitations, the ALJ limited Avery to “no contact with the general public” and “minimal contact with
supervisors.” (R. 24). It is not clear why the ALJ accepted the overall moderate restriction in social
functioning and disregarded the marked restriction in social functioning in threatening situations.
The ME’s marked limitation in social functioning in threatening situations is more restrictive than
the ALJ’s determination that Avery was overall only moderately limited in social functioning and
possessed the ability to maintain minimal contact with supervisors. Furthermore, the ALJ did not
explain why he failed to incorporate the ME’s finding that Avery was markedly impaired in the area
of social functioning when he feels threatened into his RFC assessment. Because the ME’s finding
was more restrictive than the ALJ’s RFC assessment, the ALJ was required to explain why he
decided not to incorporate that favorable portion of the ME’s finding into his RFC finding.
O’Connor-Spinner, 627 F.3d at 621; Buckhanon ex rel. J.H. v. Astrue, 2010 WL 292741, at *3 (7th
Cir. Jan. 26, 2010) (stating “[a]lthough ALJs need not address every piece of evidence in detail,
they must address significant evidence and explain why strong evidence favorable to the claimant
is overcome by the other evidence.”); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (holding
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an ALJ may not selectively consider medical reports but must consider all relevant evidence).
The ALJ’s failure to incorporate Avery’s marked limitation in social functioning in threatening
situations into his RFC determination was not harmless. The ME found that Avery could handle
work situations in which he has “very little contact with fellow employees or with supervisors and
not a whole lot of confrontation or criticism from the supervisors or peers.” (R. 57). The Vocational
Expert (VE) testified that although office cleaning or housekeeping jobs have little contact with
supervisors, those jobs involve accepting supervisor criticism. (R. 66). The VE explained:
[Supervisors are] going to be checking in on the rooms and making sure that things
are done. They’re around. Not as much as in a factory setting but they are around,
they’re going to be checking up and you do have, you’ve got a lot of rooms done in
a certain time. They’re going to make sure, they’re going to go in there and check
and make sure those rooms are done. They may not be in there at the time that
you’re in the room but they’re going to come to you then and say why didn’t you get
this one done or that one has something has to be done with that. There’s going
to be negative criticism.
Id. Given the VE’s testimony that office cleaning jobs involve negative criticism from supervisors,
the Court cannot say that the ALJ’s error in omitting Avery’s marked impairment in the ability to
respond appropriately to criticism in threatening or critical situations in his RFC conclusion was
harmless. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2010) (holding error cannot be deemed
harmless unless the Court cannot find “with great confidence” that the result would be the same
on remand).
On remand, the ALJ must explain in detail whether he credits the ME’s finding of a marked
impairment in social functioning in threatening situations. If so, he shall account for this information
in an updated RFC and hypothetical.
If the ALJ decides not to credit this portion of the ME’s
opinion, he must give reasons for not doing so. SSR 96-8p (stating “[i]f the“RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was
not adopted.”).
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C.
Credibility Determination
Avery next contends that the ALJ’s credibility determination is erroneous. “The ALJ’s
credibility determinations are entitled to special deference but the ALJ is still required to ‘build an
accurate and logical bridge between the evidence and the result.’” Castile v. Astrue, 617 F.3d 923,
929 (7th Cir. 2010). ALJs are required to “carefully evaluate all evidence bearing on the severity
of pain and give specific reasons for discounting a claimant’s testimony about it.” Martinez v.
Astrue, 630 F.3d 693, 697 (7th Cir. 2011). Further, in evaluating a claimant’s credibility, the ALJ
must comply with SSR 96-7p and articulate the reasons for the credibility determination. Brindisi
v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). SSR 96-7p provides that the ALJ’s credibility
determination must be “sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that
weight.” SSR 96-7p, at *4. The ALJ’s credibility determination “must contain specific reasons for
the finding on credibility, supported by the evidence in the case record.” Id. It is not sufficient for
an ALJ to “make a conclusory statement that ‘the individual’s allegations have been considered’
or that ‘the allegations are (or are not) credible.’” Id.
The ALJ found Avery’s allegations regarding his limitations “less than fully credible.” (R.
25). The ALJ gave the following reasons for his credibility finding: 1) Avery’s allegations of
hallucinations are less than credible; 2) Avery has not “generally received the type of medical
treatments one would expect from a person with his disabilities;” 3) Avery has a history of failing
to show up for consultative examinations; 4) Avery failed to put forth his best effort during the 2010
consultative exam; and 5) Avery’s demeanor at the administrative hearing was less than entirely
candid. (R. 25-26). There are serious deficiencies in all but the fourth reason given by the ALJ for
discrediting Avery’s testimony and symptoms.
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The ALJ first pointed to Avery’s alleged inconsistent statements regarding his hallucinations
when discounting Avery’s credibility. (R. 25). The ALJ purported to rely on the ME’s testimony in
finding that Avery’s “allegations of hallucinations are less than credible.” Id. The ALJ stated that
the ME “indicated that the visual hallucinations also alleged by the claimant are contradicted by the
audiological hallucinations he alleged.” Id. The ALJ found “these inconsistencies to be very
unusual and odd and that they can be used to show or attempt to present something that is not
true, that is, nothing else in the file explains the discrepancies.” Id. In fact, the ME’s testimony
states just the opposite. That is, Avery did not allege auditory hallucinations and “the presence of
visual hallucinations without any auditory hallucinations” is unusual. (R. 55). The ME explained:
[W]hen he’s describing visual hallucinations he said that he saw, at night, white
lights and a little dog. Now these are very unusual findings and visual hallucinations
of that nature are almost always considered to be a product of some kind of organic
mental disorder. It’s not usually associated with any kind of depressive disorder or
psychotic disorder. And the presence of visual hallucinations without any auditory
hallucinations which he denied then and now is also unusual. The usual is to have
auditory hallucinations and visual hallucinations could be mood congruent but it’s
just a very odd finding and not typical of the diagnoses that he was given.
Id. In any event, the ME appears to have misunderstood the record as indicating that Avery does
not experience auditory hallucinations. At the administrative hearing where the ME was present,
Avery testified that he has auditory hallucinations. (R. 46-47). The ALJ questioned Avery about
hallucinations and the following exchange occurred:
Q.
Mr. Avery do you see or hear things that aren’t there?
A.
Yeah.
Q.
What, like what? See or hear, which one?
A.
See.
Q.
See? What do you see?
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A.
Like ghosts and stuff.
Q.
I can’t hear you sir.
A.
Like ghosts.
Q.
Ghosts? Do you recognize them?
A.
Yeah.
Q.
Who are they sir?
A.
I don’t know. I seen my grandma one time.
Q.
Your grandma? Do they ever talk to you?
A.
Sometime.
Q.
What do they say? Do they ever tell you to do things?
A.
Yeah.
Q.
Like what?
A.
Go to school.
Q.
Do what? Go to school?
A.
Go to school.
Q.
You want to go back to school and finish up?
A.
Mm-mmm.
Q.
How often?
A.
At night.
Q.
Every night? You told your doctor that?
A.
Yeah.
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(R. 46-48) (emphasis added). Also, on April 12, 2007, Avery reported to the Social Security
Administration that he was admitted to Hardgrove Hospital in 1998 because he “was hearing voices
and was threatening other people.” (R. 248). It was inaccurate for the ME to characterize Avery
as suffering from visual hallucinations without any auditory hallucinations.2 Because the ALJ based
this portion of his credibility determination on the ME’s inaccurate description of the record, the
ALJ’s finding that Avery’s allegations of hallucinations are inconsistent and less than credible is not
supported by substantial evidence.
There are other deficiencies in the ALJ’s assessment of Avery’s credibility. The ALJ faulted
Avery for not receiving the type of medical treatment “one would expect for a person with his
disabilities.” (R. 25). The ALJ noted that there are “no current records of treatment for [his]
antisocial disorder.” (R. 24). The ALJ found that Avery’s failure to show up for two scheduled
consultative psychological examinations undermined his credibility by showing that “his impairments
may not be so debilitating as to preclude employment.” (R. 25).
An “individual’s statements may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints . . . .” Social Security Ruling 96-7 p. But an ALJ “must not
draw any inferences about an individual’s symptoms and their functional effects from a failure to
seek or pursue regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record that may explain infrequent or
irregular medical visits or failure to seek medical treatment.”
Id; Craft, 539 F.3d at 679
(emphasizing that “the ALJ ‘must not draw any inferences’ about a claimant’s condition from this
failure unless the ALJ has explored the claimant’s explanations as to the lack of medical care.”);
2
It is also puzzling that the ALJ found the alleged “contradictions” between Avery’s visual
hallucinations and audiological hallucinations “fall more under the aegis of a personality disorder
than a schizoaffective disorder,” where Avery has in fact been diagnosed with a personality
disorder and did not claim to suffer from a schizoaffective disorder. (R. 25).
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Moreover, a claimant’s failure to attend a consultative examination can support a finding that the
claimant is not disabled, but that inference is only proper where the claimant does not have a “good
reason” for not attending. 20 C.F.R. § 416.918(a). An ALJ may need to “question the individual
at the administrative proceeding in order to determine whether there are good reasons the
individual does not seek medical treatment or does not pursue treatment in a consistent manner.”
SSR 96-7p. Explanations which may provide insight into the individual’s credibility include not
seeing a doctor because the individual is “unable to afford treatment and may not have access to
free or low-cost medical services.” Id.
The ALJ’s credibility determination was flawed because he failed to consider any reasons
for Avery’s lack of mental health treatment or failure to attend the consultative examinations. The
record here contains few medical treatment notes, but the ALJ did not question Avery about the
lack of medical care before drawing an adverse credibility inference. Nor did the ALJ give Avery
an opportunity to explain his reason for failing to attend the two scheduled consultative
examinations. The ALJ therefore erred by inferring that Avery’s failure to seek treatment or attend
consultative examinations shows that his symptoms were less serious than he described. It is also
not clear whether Avery’s mental limitations, including his learning disability, borderline intellectual
functioning and anti-social personality disorder, had any impact on his ability to attend the
consultative examinations and seek mental health treatment. See 20 C.F.R. § 416.918 (requiring
the ALJ to “consider [a claimant’s] physical, mental, educational, and linguistic limitations . . . when
determining if you have a good reason for failing to attend a consultative examination.”); Nguyen
v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (concluding that “it is a questionable practice to
chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.”);
see also Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989).
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In addition, the Court is troubled by the ALJ’s conclusory statement that Avery “has not
generally received the type of medical treatment one would expect from a person with his
disabilities.” (R. 25). The ALJ does not indicate what type of treatment one would expert to find
for a person who suffers from a disabling mental condition. The ALJ may be correct that a
disabling antisocial personality disorder would result in more frequent treatment than Avery
received. Without support or authority in the record, however, the ALJ is not qualified to opine that
disabling mental limitations would result in more frequent treatment. On remand, there must be
some evidence to support the ALJ’s opinion that the type of medical treatment Avery received is
inconsistent with a mental disability, and the ALJ must include that support in his decision.
The ALJ also cited Avery’s responses during the March 9, 2010 psychological evaluation
which were “evasive or vague at times” and concluded that Avery “may have been less than entirely
candid.” (R. 26). The ALJ properly noted that there was evidence that Avery was less than fully
cooperative or put forth less than maximal effort during the consultative examination. Id; (R. 373,
375). ALJs may use lack of effort on evaluations of limitations to undercut credibility. Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (holding claimant’s “efforts to impede accurate testing
of her limitations” by a failure to “give maximum or consistent effort” on two physical capacity
evaluations supported ALJ’s conclusion that claimant was not credible with regard to her limitations
and pain).
An ALJ is also allowed to consider physical appearance and demeanor at the administrative
hearing as one factor in assessing credibility, but the ALJ must explain how a claimant’s testimony
or demeanor during the hearing contradicts his claim. Powers v. Apfel, 207 F.3d 431, 436 (7th Cir.
2000), Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005) (holding applicable regulations and
cases require “an ALJ to articulate specific reasons for discounting a claimant’s testimony as being
less than credible.”); Social Security Ruling 96-7p (stating “[t]he reasons for the credibility finding
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must be grounded in the evidence and articulated in the determination or decision.”). Here, the ALJ
stated that “the claimant may have been less than entirely candid” at the March 2010 consultative
exam and found Avery’s “demeanor to be largely the same at the [administrative] hearing.” (R. 26).
The ALJ failed to describe Avery’s demeanor or explain what it was about Avery’s demeanor at the
administrative hearing that led him to conclude that Avery “may have been less than entirely
candid.” (R. 26). If Avery’s demeanor suggested that he “may have been less than entirely
candid,” the ALJ should have explained how it was at odds with his alleged symptoms and
limitations. An explanation in this case is important because it is not clear how Avery’s demeanor
would establish that he does not suffer from borderline intellectual functioning, a severe learning
disorder, and an anti-social personality disorder. Corder v. Halter, 2001 WL 477210, at *11 n.8
(N.D. Ill. May 4, 2001) (holding ALJ was required to explain how the claimant’s demeanor during
the hearing contradicted his claim where is was not obvious how claimant’s “demeanor” would
“show he does not suffer from extremely limited reading and math skills, a borderline range of
intelligence, lack of concentration and memory problems.”). On remand, the ALJ shall specifically
explain how Avery’s demeanor at the hearing undermined his alleged symptoms and limitations.
For these reasons, the ALJ’s credibility determination was patently wrong, and this case
must be remanded for a full and fair analysis of Avery’s credibility, consistent with relevant
regulations, Social Security Rulings, and case law.
D.
Limitations in Concentration, Persistence or Pace
In the interest of ensuring a comprehension review on remand, one final matter deserves
attention. In relation to Avery’s mental limitations, the ALJ determined that he is limited to work
involving “no contact with the general public; minimal contact with supervisors; and no complex or
detailed tasks.” (R. 23); see also (R. 24) (stating “[p]ut another way, he is limited to simple, routine
tasks”).
The ALJ found that Avery has moderate difficulties with regard to concentration,
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persistence or pace. (R. 22). Purportedly the restriction to simple, routine tasks accounted for
Avery’s learning disorder and moderate difficulties in concentration, persistence or pace. Seventh
Circuit precedent is clear, however, that an ALJ cannot account for moderate limitations in
concentration, persistence, and pace by restricting a claimant to simple, routine tasks. Walters v.
Astrue, 2011 WL 5024149, at *5 (7th Cir., October 21, 2011) (holding that an RFC assessment
which limited the plaintiff to “routine, repetitive tasks with simple instructions” did not sufficiently
account for claimant’s poor concentration); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2010)
(holding the ALJ cannot account for “limitations of concentration, persistence, and pace by
restricting the inquiry to simple, routine tasks that do not require constant interactions with
coworkers or the general public.”).
Moreover, the ALJ failed to include Avery’s moderate
deficiencies in concentration, persistence, or pace in the hypothetical given to the VE. “When an
ALJ poses a hypothetical question to a vocational expert, the question must include all limitations
supported by the medical evidence in the record. More specifically, the question must account for
documented limitations of ‘concentration, persistence, or pace.’” Id. at 684; O’Conner-Spinner, 627
at 620-21 (stating “for most cases, the ALJ should refer expressly to limitations in concentration,
persistence and pace in the hypothetical to focus the VE’s attention on these limitations and assure
reviewing courts that the VE’s testimony constitutes substantial evidence of the jobs a claimant can
do.”). On remand, the ALJ shall take care to follow applicable Seventh Circuit’s precedent on the
precise issue of including Avery’s moderate deficiencies in concentration, persistence or pace into
the RFC assessment and hypothetical.
III.
Conclusion
For these reasons, Plaintiff’s Motion for Summary Judgment [18] is granted, and the
Commissioner’s Motion for Summary Judgment [23] is denied. Pursuant to sentence four of 42
U.S.C. § 405(g), the ALJ’s decision is reversed, and this case is remanded to the Social Security
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Administration for further proceedings consistent with this opinion. The Clerk is directed to enter
judgment in favor of Plaintiff Louis J. Avery and against Defendant Commissioner of Social
Security.
E N T E R:
Daniel G. Martin
United States Magistrate Judge
Dated: December 19, 2012
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