Griffin v. Astrue
MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 11/19/2013: Plaintiff's Motion for Summary Judgment 24 is granted in part and denied in part. 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 Administration for further proceedings consistent with this opinion. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice. (is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
RAMONE T. GRIFFIN,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
No. 12 C 5143
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
Plaintiff Ramone T. Griffin brings this action under 42 U.S.C. § 405(g), seeking to
overturn the final decision of the Commissioner of Social Security (“Commissioner”)
denying his application for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq. The parties consented to the jurisdiction
of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
subsequently filed a motion for summary judgment seeking reversal of the
Administrative Law Judge’s decision. After careful review of the parties’ briefs and the
record, the Court now grants Plaintiff’s motion and remands the matter for further
Plaintiff applied for SSI on February 17, 2009, alleging that he became disabled
beginning on October 3, 2006 due to right femur pain from gunshot wounds and various
mental problems. (R. 137-41, 450). Because Plaintiff was incarcerated at the time of
On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social
Security, and is automatically substituted as Defendant in this case pursuant to Federal Rule of
Civil Procedure 25(d)(1).
his disability onset date, and thus not eligible for Social Security benefits, he amended
his onset date to April 15, 2009, which was the date of his release from prison. (R. 3233).
After receiving the results of consultative examinations from four health care
providers concerning Plaintiff’s physical and mental condition and residual functional
capacity, the Social Security Administration denied the application on June 16, 2009.
After Plaintiff requested reconsideration, four additional health care
providers were consulted between December 2009 and February 2010. (R. 338-43,
348-52, 353-66, 371-73).
In addition, x-rays of Plaintiff’s right hip were taken and
interpreted by a physician (R. 346), and records from the treating psychiatrist were
obtained (R. 76, 327-36). Following review of these additional materials, the claim for
disability was again denied on February 25, 2010. (R. 73-76).
Pursuant to Plaintiff’s timely request, Administrative Law Judge (“ALJ”) Kimberly
S. Cromer held a hearing on December 7, 2010, where she heard testimony from
Plaintiff, represented by counsel, and a vocational expert. (R. 28-65). On January 13,
2011, the ALJ found that Plaintiff is not disabled because he is capable of performing a
significant number of jobs available in the national economy.
Approximately one year later, on January 17, 2012, Plaintiff’s new (and current) counsel
submitted a detailed “Written Argument In Support of Request for Review.” (R. 222-26).
The Appeals Council denied this request on April 27, 2012. (R. 441-45).
Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final
decision of the Commissioner. Plaintiff advances all of the same arguments that he
made to the Appeals Council, namely, that the ALJ erred by: (1) failing to justify her
determination to give no weight to his treating psychiatrist; (2) failing to account in the
RFC determination for Plaintiff’s moderate limitations of concentration, persistence, or
pace or his sitting limitations; and (3) finding him only partially credible regarding his
symptoms and limitations.
Plaintiff was born on January 18, 1977 and was 32 years old when he filed his
application in February 2009. (R. 459). He completed twelfth grade and is able to
communicate in English. (R. 145, 459). He was incarcerated in the Vienna Correctional
Center (“VCC”) from December 2007 to April 15, 2009. (R. 32, 365, 440). Prior to his
incarceration, he worked full-time in unskilled jobs as a fast food cook and eviction
server (moving furniture and other items from homes and businesses into the street), in
addition to operating a moving company on a part-time basis. (R. 142, 162-64).
During the hearing before the ALJ, Plaintiff’s counsel said the “theory of the case”
is that Plaintiff is “not able to sustain sedentary unskilled work because of both physical
and mental impairments.”
Counsel noted that Plaintiff is unable to work
physically “because of problems with residual effects of gunshot wounds to both of his
legs[,]” including “chronic pain, decreased range of motion, antalgic gait, very difficulty
[sic] walking, [and] pain in his right hip when sitting . . . for prolonged periods of time.”
As for the mental impairments, counsel argued that Plaintiff “suffers from a
diagnosis of a major depressive disorder . . . post-traumatic stress disorder, and we feel
that he has a very vocationally significant symptom of anger management that he
wouldn’t be able to get along with supervisors, co-workers or the public or remain
focused and on task and he’d be off task for at least 20% of the work day.” (R. 34-35).
Plaintiff’s Medical History
Treatment at Vienna Correctional Center in 2007 and 2008
The earliest medical records for Plaintiff are from December 2007 when he was
incarcerated at VCC and underwent intake evaluations for physical and mental health.
During the physical examination, Plaintiff reported gunshot wounds to the hip and legs,
asthma, and depression. (R. 229-33). While he suffered gunshot wounds to the lower
extremities in 1995 and 2000 (R. 38, 233, 418), he said he first experienced right femur
pain after an October 2006 gunshot wound to his right hip or leg (the record is
inconsistent as to which). (R. 232-33, 338). At some point after the 2006 gunshot
wound, pins and rods were surgically implanted to stabilize his right femur in a process
called open reduction and internal fixation surgery (“ORIF”). (R. 141, 338). The record
contains no direct medical documentation of these gunshot wounds or subsequent
surgery, though the medical records do reflect that Plaintiff has numerous scars and
palpable foreign bodies under the skin. (R. 302, 340-41, 380). In addition, x-ray reports
reveal the presence of a rod in the right femur and metallic density foreign bodies. (R.
During the mental health evaluation at VCC, Plaintiff reported suffering from
depression for which he was first treated in his teens, and for which he received
treatment within the last year, including Zoloft. (R. 265). Plaintiff also reporting using
alcohol daily and using marijuana. (Id.). The interviewer observed that Plaintiff “made
no indication” of depression or anxiety, claimed to have no social support, and denied
trying to harm himself or having recent thoughts of self-harm. (Id.). The interviewer
made a provisional diagnosis of depressive disorder NOS and recommended substance
abuse counseling, referral to a psychiatrist, and Prozac.
thereafter, Plaintiff was prescribed three months of Prozac (R. 270), which he
repeatedly refused throughout January 2008.
(R. 241, 280, 282-89).
records do not show whether Plaintiff relented and agreed to take Prozac while he was
On May 4, 2008, Plaintiff complained to VCC treatment center staff of worsening
hip pain because the county jail reportedly took away his crutches before his hip was
healed. (R. 248). He said that his right hip gets sore when it is cold and he has a “real
bad” limp. (Id.). He stated that he could not do leg exercises because there is a sharp
razor pain from his hip to his knee. (Id.). The nurse observed scarring bilaterally in
Plaintiff’s hips from gunshot wounds, but noted no swelling or redness.
treatment plan consisted of Ibuprofen or Tylenol and application of hot packs. (Id.).
Plaintiff returned on May 30, 2008 complaining of continued pain in his right hip rating in
severity as “10½” on a scale of 1 to 10. (R. 250). Treatment center staff observed his
hip deformity and noted that “prolong[ed] standing/ambulating results in extreme pain.”
(Id.). His treatment plan remained unchanged, and it was noted that at his May 4th visit
he was placed on a wait list for follow-up care. (Id.).
On June 6, 2008, Plaintiff returned to the treatment center and was given a
prescription for 500 mg of Naproxen for the pain in his right hip and femur. (R. 251). Xrays of Plaintiff’s right hip and femur were subsequently taken (R. 252), although the
record contains no films or radiology reports. Dr. Adrian Cordoba of One Radiology in
Normal, Illinois reviewed the x-rays provided by VCC. (R. 273). In a memo dated June
16, 2008, Dr. Cordoba stated:
Multiple images were obtained. There is an intramedullary rod in place in
the right femur with deformity of the proximal right femur which may be
due to prior trauma. There are numerous metallic density foreign bodies
projecting over the upper right thigh which may be from [a] prior gunshot
wound. There is no significant arthritic change seen. There is an area of
radiolucency along the proximal femoral diaphysis. This could be due to
prior trauma. Underlying osteomyelitis cannot be excluded. There is
otherwise no acute bony abnormality seen.
On July 14, 2008, Plaintiff requested a Naproxen refill from the treatment center
because it “worked very well,” while the Motrin and Tylenol did not. (R. 254). Following
an evaluation on July 22, 2008, a doctor refilled Plaintiff’s prescription for 500 mg pills of
Naproxen and ordered a follow-up right femoral x-ray in two months. (R. 255, 293). On
September 25, 2008, Plaintiff refused the follow-up x-ray. (R. 263, 294). On October
14, 2008, a doctor refilled Plaintiff’s prescription for Naproxen but for a lower dosage of
375 mg. (R. 264). It does not appear that Plaintiff sought further medical treatment for
right hip or leg pain for at least a year after this until (as discussed later), he went to the
Stroger Hospital ER in December 2009 complaining of pain and seeking Naproxen.
Bobby E. Wright Health Center Assessments
On April 28, 2009, shortly after his release from prison, Plaintiff visited the Bobby
E. Wright Comprehensive Behavioral Health Center (“BEW Center”) where an intake
assessment was performed.
The assessment states that Plaintiff
complains that he “feels pain all the time,” has difficulty sleeping including flashbacks of
being shot, and “feels depressed most of the time.” (Id.).
On May 18, 2009, psychiatrist Dr. Mandelbaum of the BEW Center prepared an
Initial Psychiatric Evaluation and Treatment Plan. (R. 330-33). Although much of the
report is illegible, it indicates that Plaintiff reported depression and insomnia since
childhood and, more recently, anxiety attacks once or twice a week with palpitations and
sweating. (R. 330). During the examination, Plaintiff was “calm, cooperative, a bit
anxious and ‘intense’ without aggressiveness” and “saddened” with decreased eye
contact. (R. 331). Dr. Mandelbaum’s diagnosis consisted of prolonged PTSD, chronic
pain, and asthma. (Id.). He proposed a treatment plan of Prozac, supportive therapy,
anger management intervention, journal writing, and medical follow-up, with a prognosis
of guarded to good. (R. 332-33). Plaintiff returned on June 15, 2009 and received a
refill of his Prozac but at a higher dosage. (R. 329, 335-36).
State Agency Consultative Examinations (May 2009 – June 2009)
Dr. White (Psychological)
On May 12, 2009, Don White, PhD, conducted a Psychological Evaluation for the
Illinois Bureau of Disability Determination Services (“DDS”), including reviewing medical
records and examining Plaintiff. (R. 297-99). Dr. White observed that Plaintiff “looked
very suspicious, he would stand up and look around from time to time” and “asked if
there was a video camera in the room.” (R. 297). Dr. White noted, “He seemed to be
relatively convincing, I’m sure there may have been some malingering.” (Id.). Dr. White
gave the following summary and conclusions regarding Plaintiff’s mental status:
Claimant has a history of mental problems, and also a significant antisocial conduct disorder. He also complains of anxiety and depression.
Speech was understandable, comprehensible, and audible. Claimant
complains of having thoughts of death, no suicidal plan. Complains of
Psychosis, primarily, paranoid suspiciousness, auditory and visual
hallucinations. Claimant is oriented as to person, place and time. There
is no impairment in Recent or Remote Memory Functioning. Borderline
Functioning in terms of Immediate Memory Functioning. Claimant’s Fund
of Information appears to be adequate. Ability to do Calculations, Abstract
Thinking is impaired. Ability to Analyze and Synthesize Data appears to
be impaired. Judgment is impaired.
Dr. Henson (Psychiatric)
On May 29, 2009, Donald Henson, PhD, prepared a Psychiatric Review
Technique for the DDS. (R. 305-18). Dr. Henson evaluated Plaintiff under Categories
12.04 (Affective Disorders) and 12.08 (Personality Disorders), and found that Plaintiff’s
impairments under these categories are “not severe.” (R. 305). Dr. Henson diagnosed
Plaintiff with depressive disorder NOS under Category 12.04 and antisocial personality
disorder under Category 12.08.
(R. 308, 312).
In terms of Plaintiff’s functional
limitations, Dr. Henson found that these disorders result in mild restriction of activities of
daily living; mild difficulties in maintaining social functioning; mild difficulties in
maintaining concentration, persistence, or pace; and would not result in episodes of
decompensation of extended duration.
Dr. Henson found Plaintiff’s
statements about his symptoms partially credible given his history of treatment for
depression, but did not fully credit Plaintiff’s statements because he had no history of
anxiety, but now complains of it, and because he denied having hallucinations while
incarcerated, but now reports both auditory and visual hallucinations. (R. 317). Dr.
Henson also noted that the consultative examiner “feels that claimant may have been
Dr. Velis (Internal Medicine)
DDS also arranged for consultations concerning Plaintiff’s physical condition. On
May 12, 2009, Dr. Dean Thomas Velis conducted an Internal Medicine Consultative
Examination, including reviewing medical records and examining Plaintiff. (R. 301-04).
Dr. Velis noted that Plaintiff had open reduction and internal fixation with intramedullary
rods in both femurs2 and complains of chronic and persistent pain, worse with weather
changes, and morning stiffness. (R. 301). He also noted that Plaintiff stated that he
limps, uses a cane at times, cannot walk more than a block or sit/stand for more than a
few minutes, and rated his pain as 10 out of 10, with his only relief coming from
analgesics or lying down. (Id.). Upon examination, Dr. Velis observed that Plaintiff is
unable to rotate his right hip internally, had a maximum hip flexion of 90 degrees and
had full range of motion in all other joints. (R. 303). Plaintiff was able to bear his own
weight and displayed normal gait, had no difficulty getting on or off the exam table or
getting up from the chair, and did not need an assistive device to walk. (Id.).
Dr. Pardo (Physical RFC)
On June 2, 2009, Dr. Julio Pardo completed a Physical Residual Functional
Capacity Assessment for the DDS. (R. 319-26). Dr. Pardo stated a primary diagnosis
of status post-ORIF surgery of the right femur and a secondary diagnosis of status postgunshot wound to the right hip. (R. 319). He concluded that Plaintiff can occasionally
lift or carry 20 pounds, frequently lift or carry 10 pounds, stand and/or walk (with normal
breaks) at least 2 hours in an 8-hour work day, sit (with normal breaks) about 6 hours in
an 8-hour work day, and is limited in his lower extremities in his ability to push or pull.
(R. 320). Specifically, Dr. Pardo noted that Plaintiff “has decreased range of motion of
his hips and has no hip rotation,” and “could operate foot controls 1/3 of the day or less
bilaterally as long as this did not require a lot of range of motion of his hips.” (Id.). He
found that Plaintiff is occasionally limited in climbing ramps or stairs, balancing,
stooping, kneeling, crouching, and crawling, and is never able to climb ladders, ropes or
The record evidence indicates only that Plaintiff underwent ORIF surgery to his right
femur. (R. 273, 346).
scaffolds due to his hip problems. (R. 321). Finally, he found that Plaintiff has no
manipulative, visual, communicative, or environmental limitations, except that he should
avoid concentrated exposure to extreme temperatures and pulmonary irritants due to
his history of mild asthma and should avoid working around unprotected hazards due to
his lack of agility. (R. 322-23). Dr. Pardo found Plaintiff’s statements partially credible,
taking into consideration his history of gunshot wounds, rod placement in his femur, and
decreased range of motion in his hips, but noting that his physical examination did not
support Plaintiff’s assertion that he needs a cane to walk, given his normal gait, ability to
tandem walk, and ability to get on/off the exam table and arise from a chair without
difficulty. (R. 324, 326).
Approximately two weeks later, on June 16, 2009, the claim for benefits was
denied based on a finding that Plaintiff was capable of performing sedentary work. (R.
On July 27, 2009, Plaintiff requested reconsideration, leading the Social
Security Administration to request additional medical records (for treatment after June
2009) and new consultative examinations. (R. 76, 327-36, 338-43, 346, 348-52, 353-66,
State Agency Consultative Examinations (Dec. 2009 – Feb. 2010)
Dr. Weiss (Internal Medicine)
On December 10, 2009, Dr. Debbie L. Weiss conducted an Internal Medicine
Consultative Examination for the DDS. (R. 338-43). She observed the following:
The claimant walks with normal posture and his gait is antalgic. He
walked favoring the left lower extremity. He was able to walk for a
minimum of fifty feet. He had no difficulty heel-walking, toe-walking and
tandem gait was unsteady. He had no difficulty squatting to 60º of knee
flexion. He was sitting on the examination table leaning on his left elbow.
He could stand and was unable to do single leg balance.
(R. 342). Dr. Weiss also noted that Plaintiff “did have some decreased range of motion
in the right hip, although he was observed to be able to fully cross his right lower
extremity over the left lower extremity.” (Id.)
Also on December 10, 2009, two x-rays were taken of Plaintiff’s right hip in
support of his application for benefits. (R. 346). Dr. Mahesh Shah reviewed the x-rays
for the DDS and concluded that they “reveal evidence of open reduction, internal
fixation of fracture with hardware in good position” as well as “marked cortical
irregularity of the proximal shaft of the femur.” (Id.).
Dr. Raval (Psychiatric)
On December 17, 2009, Dr. Chirag Raval prepared a Psychiatric Evaluation for
the DDS, including reviewing medical records and interviewing Plaintiff. (R. 348-52).
Dr. Raval’s findings and conclusions were consistent with the previous mental health
evaluations for the DDS. Plaintiff complained of “anxiety attacks throughout the day”
and “dizziness and shortness of breath.” (R. 349). Dr. Raval found Plaintiff to be
“hypervigilant” and “irritable” but “cooperative.”
Plaintiff’s speech was
“clear and understandable” and he “demonstrated no evidence of hallucinations,
delusions, confusions, or disorganized thinking during the interview.” (R. 350). Plaintiff
was alert and oriented, but had difficulty with abstract thinking. (R. 350-51). Dr. Raval
noted that Plaintiff “does not appear able to manage his own funds in his best interest
due to his paranoia and poor cognitive functioning.” (R. 351). He diagnosed Plaintiff
with post-traumatic stress disorder, depression NOS, antisocial personality, and status
post gunshot wound and right leg deformity by history. (Id.).
Dr. DiFonso (Psychiatric and Mental RFC)
On January 26, 2010, M.W. DiFonso, PhD, prepared a second Psychiatric
Review Technique for the DDS. (R. 353-66). Dr. DiFonso evaluated Plaintiff under
Categories 12.04 (Affective Disorders), 12.06 (Anxiety-Related Disorders), and 12.08
(Personality Disorders), and found that no RFC assessment was necessary. (R. 353).
Dr. DiFonso diagnosed Plaintiff with depressive disorder NOS under Category 12.04,
post-traumatic stress disorder under Category 12.06, and antisocial personality disorder
under Category 12.08. (R. 356, 358, 360). In terms of Plaintiff’s functional limitations,
Dr. DiFonso found that these disorders result in mild restriction of activities of daily
living; moderate difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence, or pace; and would not result in episodes of
decompensation of extended duration. (R. 363). In making these findings, Dr. DiFonso
considered the prior mental evaluations by Dr. White and Dr. Henson in May 2009, as
well as subsequent medical evidence, namely Dr. Mandelbaum’s diagnosis of
prolonged PTSD in May 2009 and Dr. Raval’s psychiatric evaluation in December 2009.
Also on January 26, 2010, Dr. DiFonso prepared a Mental Residual Function
Capacity Assessment for the DDS. (R. 367-70). Based on the Psychiatric Review
Technique, Dr. DiFonso found Plaintiff moderately limited in his ability to: understand,
remember, and carry out detailed instructions; maintain attention and concentration for
extended periods; interact appropriately with the general public; and accept instructions
and respond appropriately to criticism from supervisors.
concluded the following:
Cognitive and attentional skills are intact and adequate for simple one-two
step work tasks. [Plaintiff] carries out self care, cooks, cleans, shops.
Performs reasonably well on cognitive tasks on MSE. Depressive
symptoms and personality disorder issues moderately limit [Plaintiff’s]
ability to carry out detailed tasks.
Interpersonal skills are moderately limited by social guardedness &
antisocial P.D. Recommend moderate limitation of social expectations.
Adaptive skills are within normal limits.
Dr. Gotanco (Medical Advice Upon Reconsideration)
Regarding Plaintiff’s physical condition, on February 9, 2010, Dr. Reynaldo
Gotanco completed a Request for Medical Advice for the DDS upon reconsideration.
(R. 371-73). Dr. Gotanco reviewed all the evidence in file and affirmed Dr. Pardo’s
Physical RFC Assessment from June 2009, as revised to incorporate Dr. Weiss’s
consultative examination in December 2009. (R. 372-73). Specifically, Dr. Gotanco
adopted Dr. Pardo’s RFC and credibility assessment in their entirety, and incorporated
Dr. Weiss’s findings concerning Plaintiff’s physical capabilities and limitations. (R. 373,
citing R. 319-26, 338-43).
Shortly after this, on February 25, 2010, Plaintiff’s request for benefits was again
denied on reconsideration. (R. 73-76).
Ongoing Treatment at Stroger Hospital ER (Dec. 2009 – Aug. 2010)
On December 2, 2009, Plaintiff went to the Stroger Hospital ER, complaining of
leg pain and seeking refills of Naproxen and Prozac, as well as Albuterol for his asthma.
(R. 416). He received refills of all three medications. (R. 419). Plaintiff returned to
Stroger Hospital four times in 2010 to refill prescriptions.
In February, June and
October 2010, he received refills of Naproxen and Tramadol for pain, as well as Prozac.
(R. 403, 410, 414-15). During the June visit, he also received Abilify for depression,
though he stopped taking it a month later when he suffered a possible allergic reaction.
(R. 397-98, 410).
Finally, during a visit in August 2010, Plaintiff was prescribed
Depakote and Fluoxetine (the generic name for Prozac) for his depression and he was
discharged with the diagnosis of “Depression – Stable.” (R. 405-07).
Ongoing Treatment at BEW Center (Feb. 2010 – Nov. 2010)
As discussed previously, Dr. Mandelbaum created a treatment plan for Plaintiff
during a visit in May 2009, and saw Plaintiff again in June 2009. According to BEW
medical records, Dr. Mandelbaum next saw Plaintiff in February 2010 as well as five
more times in 2010. (R. 424-433). Dr. Mandelbaum’s notes are difficult to decipher, but
indicate prolonged PTSD, anxiety attacks, and feelings of anger and sadness. (R. 428,
430, 431, 433). The notes for a visit on February 25, 2010 indicate (in part): Plaintiff’s
mother is still in a coma; Plaintiff has “very poor Rx compliance;” and “SSI still pending.”
(R. 433.). Prozac was prescribed during this visit as well as during visits on April 19,
2010, June 17, 2010, July 21, 2010, August 30, 2010, and November 11, 2010. (R.
During the visit on July 21, 2010, Dr. Mandelbaum for the first time noted a
diagnosis of bipolar disorder.
He also increased Plaintiff’s Prozac dosage and
prescribed Depakote. (R. 430, 432). That same day, Dr. Mandelbaum completed a
Mental Impairment Questionnaire.
His notation of the frequency and
length of his contact with Plaintiff is illegible, as is much of the diagnosis, although it
includes a diagnosis of rapidly cycling bipolar disorder. (R. 374). Dr. Mandelbaum
concluded that Plaintiff has moderate restrictions of daily living; moderate difficulties in
maintaining social functioning; frequent deficiencies of concentration, persistence, or
pace resulting in failure to complete tasks in a timely manner; and has had three or
more episodes of deterioration or decompensation in work or work-like settings that
cause him to withdraw or experience exacerbated symptoms. (R. 377).
Dr. Mandelbaum’s notes indicate that Plaintiff was stable on his next (and final)
two visits. (R. 424-26). Specifically, on August 30, 2010, he characterized Plaintiff as
“stable on present meds.” (R. 426). On November 11, 2010, he noted “no complaints,”
“lives independently,” “eats [and] sleeps fine,” “well dressed [and] looks good,” “no
evidence of psychosis,” “not suicidal or homicidal,” and “mood stable.” (R. 424-25).
Plaintiff’s hearing before the ALJ took place approximately one month later on
December 7, 2010. (R. 30).
Before turning to Plaintiff’s testimony during the hearing before the ALJ, the
Court summarizes his statements from Social Security Administration function reports
and work history reports.
Work History Report Dated June 9, 2009
Plaintiff reported that, as a laborer/contractor doing evictions for the Sheriff’s
Department, he had moved furniture, belongings, and personal effects from apartments,
businesses, and stores to the sidewalk. (R. 162). He performed this work 8 hours per
day and 4 days per week between 2004 and 2006. (Id.). He also worked as a cook at
McDonald’s on a full-time basis between 2003 and 2005. (R. 163). Finally, Plaintiff had
his own part-time moving business in 2005, taking calls for jobs and using helpers to
perform the labor. (Id.).
Function Report Dated April 27, 2009
Plaintiff stated that his leg injuries impact his ability to stand, lift, bend, walk, and
run. (R. 151). He also stated that he has difficulty walking due to pain, “can only walk a
half of a block,” and “can only lift maybe 10 lbs.” (R. 155). Under the topic of “Daily
Activities,” Plaintiff responded that he cooked food for the kids (R. 151), and checked
the box “yes” as to whether “you prepare your own meals?” (R. 152). He wrote that he
did this on a daily basis and described the food that he prepared as “boil noodles, hot
dogs, rice, chicken, fries, hamburgers, sandwiches, TV dinners.” (Id.).
Under “House and Yard Work,” Plaintiff indicated that he is able to do “cleaning”
and does not require help or encouragement doing these things, and it takes him 10 or
15 minutes. (Id.). He wrote: “I do house work because I feel safe and keep it clean for
my children.” (R. 153). Under “Shopping,” Plaintiff wrote that he shops in stores for
“groceries, clothes, furniture electronics or appliance[s].”
In response to a
question concerning how often he shops and how long this takes, he responded:
“depends. I can’t be doing all that walking because the pain.” (Id.). Plaintiff wrote that
he does not go outside unless he has to because it’s dangerous and “people want me
dead” but he also responded that the places he goes on a regular basis are “church,
sports events.” (R. 153, 154). In the final “Remarks” section for “any added information
you did not show in earlier parts of the form,” Plaintiff described the metal rods and pins
in his leg and hip, the fact that he had been shot 13 times in his life, and the mental
anguish and anxiety attacks that he experiences. He also noted lower back problems
from a gunshot wound near his spinal cord. (R. 157).
Function Report Dated September 18, 2009
After Plaintiff sought reconsideration of the June 2009 denial of benefits, he
completed a second Function Report in September 2009. In this report, Plaintiff stated
that from the time he wakes up until the time he goes to bed, his activities are brushing
his teeth, taking a bath, eating, seeing his counselor on scheduled days, watching TV
and sleeping. (R. 180). He noted that he does not prepare his own meals because he
does not know how to cook. (R. 182). He said he has difficulty dressing and bathing
because he cannot stand for long, limits his housework to washing dishes for two
minutes, does no shopping, leaves his home twice per week, and uses public
transportation. (R. 181-83). He also stated that he cannot sit for long periods of time;
can lift 10-15 pounds; cannot squat, bend, kneel or climb; and can walk half a block
before needing to rest for ten minutes. (R. 185). He noted that he uses a cane to walk,
but that it was not prescribed by a doctor. (R. 186). He said he has difficulty handling
stress and is afraid to go out in his neighborhood. (Id.).
Testimony before the ALJ on December 7, 2010
During the hearing before the ALJ, Plaintiff (age 33) testified that he last drove an
automobile in 2006 for the eviction company. (R. 36). When asked “Why did you stop
driving after 2006?” Plaintiff responded: “I got incarcerated.” (R. 37). In terms of his
activities of daily living, Plaintiff testified that he is able to bathe and dress himself, but
needs to use the tub because he cannot stand in the shower. (R. 48). He lives with his
grandmother but cannot help with cooking, laundry or grocery shopping. (R. 48-49).
His friends visit “[e]very once in a while” and his children’s mothers bring the children by
twice a week. (R. 49). He is behind on child support and has not attempted to find work
since his release from prison “[b]ecause I don’t get along with people, plus I can’t stand
up too long or sit down a long period of time” and because “I’m going through paranoid
situations and from the pain, it causes aggravation and gives me flashbacks.” (R. 5051).
Plaintiff also testified that he has been shot a total of 13 times. (R. 41). Most
recently, he was shot in the right hip on October 3, 2006 and shortly after that was
incarcerated until April 15, 2009. (R. 37, 38). Plaintiff testified that he was also shot in
the left leg in 2000 and has rods, pins, and bullets in both legs. (Id.). While in prison,
he “was getting treatment for [his] hip,” including x-rays and Ibuprofen, but did not
receive physical therapy and his pain worsened when officers confiscated his crutches
before he was fully healed. (R. 38-39).
After his release from prison in 2009, Plaintiff said he sought treatment at the
county hospital for his physical pain and was prescribed Naproxen and Tramadol for leg
pain. (R. 40). He testified that Tramadol, which he continues to take, “gave [him] a
sense of relief at times” but that he does not take it daily because he was warned about
becoming addicted. (Id.). He characterized his pain on a scale of one to ten as a “five
or six” while on Tramadol and a “ten” without Tramadol. (Id.). Plaintiff stated that in
addition to the pain in his upper legs and right hip, he also has back pain due to a
gunshot wound “on the side of [his] back.” (R. 41). He suffers from “tremendous pain at
times the way I sit or stand up.” He also stated: “My back bothers me. It got worse over
the years. You know, mainly in the wintertime or when it rains, I feel all the pain from all
over my body, where the locations I’ve been shot.” (Id.).
Because of his pain, Plaintiff testified that during a work day he could lift “maybe
five pounds or less” and carry it about 10 feet or less. (R. 42). Plaintiff also said that he
“can’t sit long” before needing to lie down for a period of time and change positions.
(Id.). Contrary to his statement in his September 2009 Function Report, he testified that
Cook County Hospital prescribed him a cane in 2009. (R. 43). He uses the cane
“[e]very once in a while” when he has to go somewhere, although he did not have the
cane at the hearing because it “broke by mistake” the night before. (Id.). Plaintiff stated
that he could walk “[p]robably a half a block or less” without his cane and could climb
“[m]aybe half a flight” of stairs before needing to rest. (R. 42-43). He said he has
trouble with balance, but denied falling. (R. 44). Prior to using the cane, Plaintiff said
he had “tremendous pain standing up too long from his injuries.” (Id.).
Plaintiff also testified about his mental health. He stated that after his release
from prison he began having anxiety attacks two or three times per week lasting 10-15
seconds each due to “stress and depression,” particularly after his mother passed away
about a month before he was released from prison. (R. 44-45). He testified that his
doctors treated him with Prozac, but that it gave him “nosebleeds and shakes at times”
so Dr. Mandelbaum prescribed Depakote, which allowed him to sleep at night. (R. 4546). He said he previously went to “Bobby Wright” (the BEW Center) for counseling two
or three times per week and had daily conversations with his counselor, but because he
“expressed [him]self” in those meetings, he “narrowed it down to [one] a month,” which
is the frequency of his current visits. (R. 46). Plaintiff acknowledged having trust and
anger issues, and testified that his anger has gotten worse since he began going to the
BEW Center, but he is not currently receiving treatment other than seeing Dr.
Mandelbaum and his counselor once a month.3 (R. 47). He believed that “they felt as
though maybe it’s unsafe” for him to participate in group therapy. (Id.). In terms of his
interaction with others, Plaintiff stated, “I don’t get along with nobody,” and said that in
his prior job he “sometimes” got along with supervisors and “sometimes, no.” (Id.). He
said that “it’s always be[en] somebody close to me that I know would be the ones that
tried to kill me or police,” and “family members betrayed me,” and so he prefers to be
“by myself and my kids and my grandmother.” (R. 47-48). He concluded, “I don’t feel
safe around the public or friends.” (R. 48).
Plaintiff also answered questions posed by his attorney. He testified that lying
down is the most comfortable position for him “because if I sit up straight a period of
time, my back starts hurting.” (R. 51). When asked how many hours out of a day he is
lying down, Plaintiff responded: “Maybe three, four hours. Then I get up to use the
bathroom, whatever like that, between hours.” (Id.). His energy level during the day is
“mild,” although he does not nap. (R. 53). It takes him an hour and a half to get ready
in the morning, compared to an hour or less before he was injured. (R. 52). He takes
public transportation or has someone drive him to the BEW Center but sometimes has
difficulties if he is waiting for the bus and there is no bench to sit on and so he is “forced
to stand up a period of time.” (Id.).
Plaintiff testified that Dr. Mandelbaum diagnosed him with bipolar disorder. He
described his mood swings this way: “One minute I’ll be okay and, you know, I’ll start
having flashbacks . . . from a result of the pain that I’ve been suffering a period of years
to now that led to . . . the suffering I’m going through got worse, and it caused
The record shows 9 visits to the BEW Center between May 2009 and November 2010.
aggravation and get me angry, and sometimes I snap out and everything or, … yell at
certain people. . . . I don’t want them there, and tell them to get away from me and don’t
come around me . . .” (Id.). This happens “maybe once or twice out of the day” and so
“sometimes l have to be reminded to take my medicine that day, because I get enraged
at times, and I don’t think about taking my medicine or eating and stuff like that.” (R.
Vocational Expert’s Testimony
Edward Pagella testified at the hearing as a vocational expert (“VE”). (R. 53).
The VE identified Plaintiff’s past relevant work as fast food cook, which is very low-end
semi-skilled work at the medium level of physical tolerance, and evictions
representative, which is low-end semi-skilled work at the light level. (R. 55).
The ALJ then described a hypothetical individual of Plaintiff’s age, education, and
work experience who is able to perform “a reduced range of light work” consisting of
occasionally lifting 20 pounds, frequently lifting up to 10 pounds, and standing and
walking for up to 2 hours and sitting for up to 6 hours in an 8-hour work day. (R. 56).
The ALJ further specified that the individual can operate foot controls only one-third of
the work day; can never climb ladders, ropes, or scaffolds but can occasionally climb
ramps or stairs; can occasionally balance, stoop, kneel, crouch, or crawl; and should
avoid concentrated exposure to extreme heat or cold, humidity, fumes, odors, and
gases and work-related hazards. (Id.). In addition, the ALJ limited this individual to
performing “simple one-, two-step work tasks.” (Id.). Finally, the ALJ specified that this
individual “can never have interaction with the public and only occasional interaction
with co-workers and supervisors,” and therefore should have “no tandem tasks with coworkers” and should be assigned “work that is isolated in nature.” (R. 56-57).
The VE testified that such an individual would be unable to perform any of
Plaintiff’s past relevant work because it would require standing for more than two hours
per day and interacting with co-workers and the public. (R. 57). The VE then explained
that there are three classifications at the unskilled level: clerical, service, or
Such a hypothetical individual likely could not
perform clerical or service occupations, he testified, because they require contact with
co-workers and the general public, and involve more than simple one-, two-steps tasks.
(Id.). The hypothetical individual could perform manufacturing occupations that allow for
simple one- or two-step tasks, such as hand packer, hand sorter, or hand assembler.
(Id.). The VE clarified, however, that while these occupations do not require interactions
with others, they may involve “working in conjunction with others,” such as on an
assembly line or sorting items that are delivered by another worker. (R. 58-59). He
stated that such a hypothetical individual could perform the requirements of
representative jobs available in the Chicago regional economy, such as bench packager
(4,300 jobs), bench assembler (3,200 jobs), and hand sorter (2,400 jobs). (R 59-60).
The ALJ then described a second hypothetical that assumes the same factors
and limitations, but adding the additional requirement that the individual “can sit or stand
at will” and “can occasionally have interaction with the public, supervisors, and coworkers.” (R. 60-61). The VE testified that such an individual could perform the same
three jobs he identified under the first hypothetical. (R. 61).
Next, the ALJ described a third hypothetical that assumes the same factors and
limitations as the first hypothetical, but restricts the individual to “no interaction with the
public and only occasional interaction with supervisors and co-workers.” (R. 61). The
VE again testified that such an individual could perform the same three jobs he
previously identified. (Id.).
The ALJ then posed a fourth hypothetical that assumes the same factors and
limitations as the first hypothetical, but restricts the individual to “no interaction with the
public and no tandem tasks, no interaction with co-workers, and that is of an isolated
nature to where they’re only having occasional interaction with a supervisor.” (R. 61).
This time, the VE testified that there would be no jobs that such an individual could
perform as there are no unskilled occupations with such limited interaction. (R. 61-62).
Finally, the ALJ posed a fifth hypothetical that assumes the same factors and
limitations as the first hypothetical, but adds the restriction that the individual can only
perform “essentially less than full-time work and it looks like the person, due to
impairments, would be off from work more than three times a month. (R. 62). The VE
stated that there would be no jobs available because “[t]ypically, an individual can only
miss one-and-three-quarters [days] of work per month” to avoid termination. (Id.).
Plaintiff’s attorney then asked the VE whether the use of a cane for walking
changes the VE’s response to the second hypothetical, which included a sit-stand
option. (R. 63). The VE replied that use of a cane would only affect the individual’s
ability to perform the specified jobs if he needed to hold onto the cane to stand in one
place because that would eliminate his ability to use both hands to perform his work
tasks. (R. 63-64).
In her decision, the ALJ found Plaintiff not disabled under the relevant provisions
of the Social Security Act. (R. 450-61). In applying the five-step sequential analysis
required by 20 C.F.R. § 404.1520(a), the ALJ first determined that Plaintiff has not
engaged in substantial gainful activity since the application date of February 17, 2009.
(R. 452). At Step 2, she determined that Plaintiff has the severe impairments of “status
post-ORIF right femur secondary to gunshot wound; depressive disorder, NOS, posttraumatic stress syndrome, and personality disorder. (Id.). However, at Step 3, the ALJ
determined that none of these impairments or combination of impairments met or
medically equaled any of the listed impairments identified in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (R. 452-55).
Proceeding to Step 4, the ALJ concluded that Plaintiff retains the residual
functional capacity (“RFC”) to perform “light work” as defined in 20 C.F.R. § 416.967(b),
subject to the following limitations:
The claimant can lift a maximum of 20 pounds occasionally and lift and
carry up to 10 pounds frequently, stand/walk for a total of no more than 2
hours in a normal 8-hour workday and sit for a total of 6 hours in a normal
8-hour workday with an option to alternate between sitting and standing at
will, and push and/or pull subject to the limitations on carrying/lifting to
include operation of hand and/or foot controls with foot control operation
restricted to no more than 1/3 of the day subject to postural limitations of
never climbing ladders, ropes, or scaffolds, occasionally climbing stairs or
ramps, and occasionally balancing, stooping, kneeling, crouching, or
crawling; environmental limitations of avoiding concentrated exposure to
extreme cold, extreme heat, humidity, respiratory irritants (fumes, odors,
dusts, gases, poor ventilation, etc.), and hazards (heights, moving
machinery, etc.); and mental limitations of performing unskilled and
simple, routine, and repetitive work, and that requires minimal contact with
supervisors, and co-workers, and no contact with the public.
(R. 455). The ALJ’s analysis under Step 4 is discussed later in this Opinion.
At Step 5, the ALJ found Plaintiff unable to perform his past relevant work, but
relying on the VE, concluded that there are other jobs that exist in sufficient numbers in
the Chicago Region that Plaintiff can perform, given his age, education, work
experience, and RFC.
These jobs were: bench packager, bench
assembler, and hand sorter. (R. 460). Accordingly, the ALJ found that Plaintiff was not
disabled since the date his application was filed. (R. 461).
In order to qualify for Supplemental Security Income, a claimant must establish
that he is “disabled” and eligible for SSI benefits as defined by the Social Security Act.
42 U.S.C. § 1382c(a)(3).
A person is disabled if “he is unable to engage in any
substantial gainful activity by reason of any 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 12 months.”
§ 1382(a)(3)(A). In order to determine whether a claimant is disabled, the ALJ conducts
a standard five-step inquiry: (1) whether the claimant is currently unemployed; (2)
whether the claimant has a severe impairment; (3) whether the impairment meets or
equals one of a list of specific impairments enumerated in the regulations; (4) whether
the claimant can perform his past relevant work; and (5) whether the claimant is able to
perform other work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also
Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). “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.”
Zurawski, 245 F.3d at 885 (quoting
Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985)); see also 20 C.F.R.
§ 404.1520, 416.920.
Standard of Review
Judicial review of the Commissioner’s final decision is authorized by Section
405(g) of the Social Security Act. 42 U.S.C. § 405(g). A “court will reverse an ALJ’s
denial of disability benefits only if the decision is not supported by substantial evidence
or is based on an error of law.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
Evidence is considered substantial “so long as it is ‘sufficient for a reasonable person to
accept as adequate to support the decision.’” Ketelboeter v. Astrue, 550 F.3d 620, 624
(7th Cir. 2008) (quoting Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The
reviewing court may not “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). 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 from the evidence to the conclusion.’” Berger v. Astrue,
516 F.3d 539, 544 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000)); see also 42 U.S.C. § 405(b)(1) (denial of benefits must contain a discussion of
the evidence and a statement of the Commissioner’s reasons).
Plaintiff claims that the decision must be reversed because the ALJ: (1) failed to
justify her determination to give no weight to his treating psychiatrist; (2) failed to
account for all of Plaintiff’s limitations in the RFC determination; and (3) erroneously
found him only partially credible. The Court addresses each argument in turn.
The Opinion of Treating Psychiatrist Dr. Mandelbaum
Plaintiff argues that the ALJ erred in giving no weight to the opinion of Plaintiff’s
treating psychiatrist, Dr. Mandelbaum, while giving some weight to the state agency
consulting psychologist, Dr. DiFonso.
A treating physician’s opinion is entitled to
controlling weight if two conditions are met: (1) the opinion is “well-supported” by
“medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
is “not inconsistent with the other substantial evidence” in the record.
§ 416.927(c)(2); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.
2010). If the opinion is contradicted by other evidence or is internally inconsistent, the
ALJ may discount it so long as she provides an adequate explanation for doing so.
Punzio, 630 F.3d at 710; Schaaf, 602 F.3d at 875; Schmidt v. Astrue, 496 F.3d 833, 842
(7th Cir. 2007).
Here, the ALJ did exactly that. She explained that the record is devoid of any
clinical or laboratory diagnostic records that support Dr. Mandelbaum’s Mental RFC
Assessment, dated July 21, 2010, which opined that Plaintiff’s mental impairments
“imposed frequent limitations on his ability to maintain concentration, persistence, or
pace, and that he had experienced three or more episodes of decompensation.” (R.
459, citing R. 377). The ALJ also explained how Dr. Mandelbaum’s opinions in the
MRFC are inconsistent with his own prior and subsequent treatment notes. Specifically,
the ALJ observed that Dr. Mandelbaum “did not submit any treatment records that
indicated support of his opinion, no support was found in the treatment records he had
earlier submitted, and all mental health treatment provided the claimant had been
conservative.” (R. 459). The ALJ’s conclusion is consistent with Dr. Mandelbaum’s
treatment notes from July 21 and his three prior meetings with Plaintiff, which describe
Plaintiff’s anger, sadness, and anxiety, but make no reference to frequent limitations as
to concentration, persistence, or pace, nor do they document any episodes of
decompensation. (R. 428, 430-31, 433).
The ALJ goes on to find that Dr. Mandelbaum’s “opinion is contradicted by later
treatment records in which the psychiatrist opined the claimant was stable with
medication.” (R. 459). Indeed, Dr. Mandebaum’s medication records show that on the
same day he prepared the MRFC, he increased Plaintiff’s Prozac dosage and
prescribed Depakote for the first time (R. 342), and his treatment notes show that when
he next saw Plaintiff on August 30, 2010, Plaintiff was “stable on [his] present meds”
and showed “no psychosis” (R. 426). At Plaintiff’s next follow-up visit on November 11,
2010, just a month prior to the hearing before the ALJ, Dr. Mandelbaum noted that
Plaintiff was “clinically stable,” “eats [and] sleeps fine,” “mood stable,” “no evidence of
psychosis,” and “not suicidal or homicidal.”
In sum, the ALJ identified
sufficient evidence showing that Dr. Mandelbaum’s MRFC opinion is contradicted not
only by Dr. DiFonso, but also by Dr. Mandelbaum’s own treatment notes. Accordingly,
the ALJ provided an adequate explanation for discounting Dr. Mandelbaum’s MRFC
Plaintiff also challenges the RFC determination. In order to determine at Steps 4
and 5 of the analysis whether the claimant can perform his past relevant work or adjust
to other work, the ALJ must first assess the claimant’s RFC, which is defined as the
most the claimant can do despite his limitations. 20 C.F.R. §§ 404.1520(e), 404.1545;
Social Security Ruling (“SSR”) 96–8p, 1996 WL 374184, *2. The RFC determination is
a legal, rather than a medical, one. 20 C.F.R. § 404.1527(d). In crafting the RFC, an
ALJ must consider all functional limitations and restrictions that stem from medically
determinable impairments, including those that are not severe. See SSR 96–8p, 1996
WL 374184, *5. An ALJ is not permitted to “play doctor” or make independent medical
conclusions that are unsupported by medical evidence or authority in the record.
Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Clifford, 227 F.3d at
870. An ALJ need not discuss every piece of evidence, but must logically connect the
evidence to the ALJ’s conclusions. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir.
2010); Berger, 516 F.3d at 544.
Moderate Limitations in Concentration, Persistence, or Pace
Plaintiff first argues that the ALJ did not account for his moderate limitations in
concentration, persistence, or pace because she failed to include any such limitations in
her hypotheticals to the VE. (R. 454; Doc. 24 at 7-9). Plaintiff directs the Court to a line
of cases in which the Seventh Circuit stated that limiting an individual to simple, routine
tasks is generally not sufficient to account for deficiencies in concentration, persistence
or pace. (Doc. 24 at 8-9, citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir.
2010), Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009), and Craft v. Astrue, 539
F.3d 668, 677-78 (7th Cir. 2008)). According to Plaintiff, the ALJ violated this rule by
merely restricting him to “performing unskilled and simple, routine, and repetitive work.”
Plaintiff is incorrect in his assertion that the ALJ failed to pose hypotheticals to
the VE that account for his moderate limitations in concentration, persistence or pace.
“[T]here is no literal requirement that the terms ‘concentration, persistence or pace’ be
used.” Adams v. Astrue, 880 F. Supp. 2d 895, 912 (N.D. Ill. 2012) (citing O’ConnorSpinner, 627 F.3d at 619-20). Where “a medical expert ‘translated an opinion of the
claimant’s medical limitations into an RFC assessment’ an ALJ may rely upon that
translation.” Adams, 880 F. Supp. 2d at 912 (quoting Milliken v. Astrue, 397 Fed. Appx.
218, 221-22 (7th Cir. 2010)); see also Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th
Cir. 2002) (no error where physician translated moderate mental limitations into a
specific RFC assessment that the plaintiff could still perform low-stress, repetitive work).
That is precisely what happened here. The ALJ posed an initial hypothetical to the VE,
which all subsequent hypotheticals incorporated, that limited the individual to performing
“simple one-, two-step work tasks.” (R. 56). In fashioning this limitation, the ALJ relied
on Dr. DiFonso’s Mental RFC Assessment of January 2010, which found Plaintiff
capable of performing “simple one-two step work tasks” despite his moderate cognitive
and attentional limitations. (R. 369). Thus, unlike the cases Plaintiff cites, the ALJ here
did not, on her own, translate Plaintiff’s moderate limitations in concentration,
persistence, or pace into RFC restrictions; she simply adopted the psychologist’s
translation. This distinguishes this case from those cases cited by Plaintiff, in which the
state agency psychologist did not translate the claimant’s limitations into an RFC
assessment. See Milliken, 397 Fed. Appx. at 221 (“None of these cases is on point.
None holds that a limitation to unskilled work can never adequately account for
moderate limitations in concentration, persistence and pace. And none involved a
medical expert who effectively translated an opinion regarding the claimant’s medical
limitations into an RFC assessment.”)
Plaintiff further argues that the ALJ “does not provide any explanation or
reasoning for the ALJ’s conclusion that, despite moderate limitations in concentration,
persistence, or pace [Plaintiff’s] only limitations were to performing unskilled and simple,
routine, and repetitive work.” (Doc. 24 at 9). Admittedly, there may be some confusion
given that the RFC in the ALJ’s decision restricts Plaintiff to “performing unskilled and
simple, routine, and repetitive work” (R. 455), while the hypotheticals the ALJ posed to
the VE restrict him to “perform[ing] simple one-, two-step work tasks” (R. 56). But the
outcome is the same because the language in the RFC is also modeled on Dr.
DiFonso’s translation. For example, in limiting him to one-, two-step tasks, Dr. DiFonso
found that Plaintiff “[p]erforms reasonably well on cognitive tasks” but that “[d]epressive
symptoms and personality disorder issues moderately limit [his] ability to carry out
detailed tasks.” (Id.). In her decision, the ALJ expressly linked her RFC findings to Dr.
DiFonso’s opinion concerning how Plaintiff’s difficulties executing detailed tasks are
manifested, concluding: “Limiting the claimant to unskilled and simple, routine, and
repetitive work compensates for the effects of depression and PTSD on his ability to
understand, remember, and carry out detailed instructions and his decreased ability to
maintain attention and focus.” (R. 458). In any event, as the Seventh Circuit explained
in O’Connor-Spinner, the purpose in requiring ALJs to “refer expressly to limitations on
concentration, persistence and pace” in the hypotheticals is “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.” O’Connor-Spinner, 627 F.3d at
620-21. Here, the ALJ did exactly that, by posing hypotheticals to the VE that directly
adopted the one-, two-step task restriction set forth in the consulting psychologist’s
Mental RFC Assessment.
Finally, in his reply brief Plaintiff makes much of the ALJ’s statement that she
gave “some weight” to the physical and mental RFC assessments submitted by the
state agency consulting physicians, but gave neither one controlling weight “as
evidence added at the hearing, including the claimant’s testimony to the extent it is
credited, indicated the claimant was more limited than the consultants had assessed.”
(R. 459; Doc. 35 at 1). Plaintiff relies on this statement to argue that the ALJ’s RFC
limitation as to concentration, persistence, or pace is somehow unsupported because
the ALJ “left an evidentiary gap” by not explaining which portion of her RFC accounts
for her finding that Plaintiff is more limited in his mental limitations than the state agency
psychologist found him to be. (Doc. 35 at 2). But Plaintiff’s challenge to the RFC’s
mental limitations is confined solely to whether they adequately account for his
moderate limitations in concentration, persistence, or pace. Here, looking at the ALJ’s
decision as a whole, there can be no question that the ALJ credited Dr. DiFonso’s
Mental RFC assessment as to Plaintiff’s moderate limitations in concentration,
persistence, or pace.
Moreover, there is simply no evidence that contradicts or
undermines this limitation, or suggests that Plaintiff’s limitations in this area are more
For these reasons, the RFC determination as to Plaintiff’s moderate limitations in
concentration, persistence, or pace is supported by substantial evidence.
Plaintiff next asserts that the ALJ erred in making an RFC finding that Plaintiff
can “stand/walk for a total of no more than 2 hours in a normal 8-hour workday and sit
for a total of 6 hours in a normal 8-hour workday with an option to alternate between
sitting and standing at will.” (R. 455). While Plaintiff acknowledges that “the ALJ does
point to some evidence which supports her position,” he argues that “she ignores
significant evidence which is favorable to [Plaintiff’s] claim and fails to discuss how she
accounted for that evidence in her assessment.” (Doc. 24 at 11-12). Specifically, the
ALJ noted that during the consultative examination by Dr. Weiss, Plaintiff “was able to
walk 50 feet, exhibiting an antalgic gait, without using an assistive device and could
squat down with knee flexion of 60 degrees.” (R. 458, citing R. 342). Plaintiff contends
that the ALJ failed to consider certain of Dr. Weiss’s other observations: reduced range
of motion in the hips; moderate difficulty heel-walking and toe-walking; unsteady tandem
gait; inability to do single leg balance; and the fact that Plaintiff was lying down when the
doctor entered the room and remained sitting while leaning on his left elbow. (Doc. 24
Of course, none of these findings from the consultative examination
unequivocally demonstrate that Plaintiff is or is not able to sit for 6 hours in a work day
with the option to sit or stand at will. Plaintiff thus relies heavily on his own testimony
that he is unable to sit for long without pain and argues that the ALJ erred in failing to
consider this. (Doc. 24 at 11). But the ALJ did acknowledge Plaintiff’s testimony that
pain prevents him from walking, standing or sitting for any length of time. (R. 458). She
simply declined to fully credit this testimony for reasons identified in her credibility
analysis. As discussed in section 3 below, this Court is remanding the case in light of
certain errors surrounding the ALJ’s credibility analysis. Given this, the ALJ should also
revisit the finding that Plaintiff is able to sit for 6 hours with a sit/stand option since this
was based, in part, on the credibility assessment.
The Credibility Finding
The Court turns last to Plaintiff’s challenge to the ALJ’s credibility finding
concerning his complaints of debilitating pain and mental impairments. In assessing a
claimant’s credibility when the allegedly disabling symptoms, such as pain, are not
objectively verifiable, an ALJ must first determine whether those symptoms are
supported by medical evidence. See SSR 96-7p, 1996 WL 374186, at *2; Arnold v.
Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). If not, SSR 96-7p requires the ALJ to
“consider the entire case record and give specific reasons for the weight given to the
individual’s statements.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (quoting
SSR 96-7p). The ALJ “should look to a number of factors to determine credibility, such
as the objective medical evidence, the claimant’s daily activities, allegations of pain,
aggravating factors, types of treatment received and medication taken, and ‘functional
limitations.’” Simila, 573 F.3d at 517 (quoting 20 C.F.R. § 404.1529(c)(2)-(4)). Hearing
officers are in the best position to evaluate a witness’s credibility and their assessment
will be reversed only if “patently wrong.” Schaaf, 602 F.3d at 875; Castile v. Astrue, 617
F.3d 923, 929 (7th Cir. 2010). Still, an ALJ must connect credibility determinations to
the record evidence by an “‘accurate and logical bridge.’” Castile, 617 F.3d at 929
(quoting Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)).
In this case the ALJ found that Plaintiff was “not persuasive” and that the
objective evidence did not support the extent of Plaintiff’s alleged inability to work for a
number of reasons:
Plaintiff received only conservative treatment for his physical and mental
Plaintiff said pain in his legs prevented him from walking, standing, or
sitting for any length of time but he was able to walk 50 feet without an
assistive device and squat down with knee flexion of 60 degrees during
the consultative exam;
Plaintiff testified that he needed to recline to minimize his pain but there
was no evidence supporting this allegation;
Plaintiff denied doing any household chores but there was no evidence
indicating that he was physically incapable of such tasks;
Plaintiff’s grandmother reported that once every two weeks, he cleaned up
and did the laundry, and Plaintiff told his treating psychiatrist that he had
episodes where he could not sit still and so cleaned the house or
Plaintiff testified that he had been shot 13 times but nothing supported the
extent of this statement; and
Beginning in August 2010, the treating psychiatrist consistently reported
that Plaintiff was stable on his current medication and in November 2010
said Plaintiff was well dressed and “looks good” and was having no
problems sleeping or eating.
On appeal, Plaintiff argues that the ALJ failed to build a “logical bridge” from the
evidence to her ultimate credibility conclusion because of errors in findings 1, 3 and 6
above. The Court agrees that the ALJ made certain errors in assessing credibility that
necessitate a remand.
One reason the ALJ concluded Plaintiff was not credible was that he received
“only conservative treatment” for his physical and mental impairments.” (R. 457). But
the only explanation given was that “[d]espite his allegations of pain in his right thigh
and hip, and pain elsewhere in his body related to the multiple gunshot wounds he
stated he had received, there is only one treatment record that presents [Plaintiff]
seeking treatment for hip and leg pain since he was released from prison.” (Id.). The
treatment record referenced by the ALJ is from the Stroger Hospital ER on December 2,
2009. (R. 457, citing R. 416-19). In fact, however, Plaintiff returned to Stroger Hospital
on four occasions in 2010 for refills of his pain medication. (R. 403, 405, 407, 410, 41419).
In addition, while in prison from December 2007 to April 2009, Plaintiff had
approximately 8 sick call visits during which he complained of hip or leg pain (R. 229-33,
248, 250, 254-55, 264), including several instances where he declined treatment, such
as refusing to take Prozac or allow a follow-up x-ray of his hip (R. 241, 263, 270, 28089, 294).
More recently, in the approximately 20 months between his April 2009 release
and the December 2010 hearing before the ALJ, Plaintiff received mental health
counseling at the BEW Center on approximately 9 occasions. (R. 424-33). Thus, the
treatment records do show that Plaintiff received Naproxen for pain and Prozac for
mental impairments since his release from prison, and that on several later occasions
he was also prescribed Tramadol for pain and Depakote for mental impairments. (R.
403, 405, 410, 419, 432). They also show that he met with a psychiatrist and counselor
somewhat regularly since shortly after his release. (R. 424-40). Since the ALJ did not
explain the basis for the conclusion that Plaintiff’s treatment was “conservative” other
than to give the one example that was factually incorrect, remand is necessary.4
Plaintiff argues that the ALJ not only ignored evidence of more frequent
treatment, but also did not question Plaintiff about his reasons for not seeking additional
treatment. (Doc. 24 at 13-14). The Seventh Circuit has stated that “while infrequent
treatment or failure to follow a treatment plan can support an adverse credibility finding,
we have emphasized 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.’” Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009) (quoting
Craft, 539 F.3d at 679); see also SSR 96-7p, 1996 WL 374186, at *7 (same).
On remand, the ALJ must explain the evidence and reasoning behind the
conservative treatment finding and clarify whether she relied on the infrequency of
treatment, the nature of the treatment provided, the modest nature of Plaintiff’s
complaints of pain (i.e., failure to complain that he continued to suffer pain despite the
drugs), and/or other evidence. The ALJ should also explore the reasons why Plaintiff
did not seek more or different treatment if his pain or mental impairments were as
debilitating as he claims.
While the ALJ did not discuss it, there appears to be a large gap of more than one year
(from October 2008 to December 2009) in treatment for complaints of hip and leg pain
stemming from the 2006 gunshot wounds and surgery. In addition, the record is devoid of
evidence of any treatment for the “tremendous” back pain and other pain that Plaintiff
complained about resulting from older gunshot wounds. (R. 41). These older gunshot wounds
did not prevent Plaintiff from working full-time in a job that required him to move furniture and
other belongings from homes and businesses into the street during evictions, or stand all day as
a fast-food cook. (R. 142, 162).
13 Gunshot Wounds
Plaintiff next challenges the credibility determination because the ALJ based it (in
part) on her belief that Plaintiff had not been shot 13 times as he claimed. Specifically,
the ALJ acknowledged “there is evidence that [Plaintiff] had been shot multiple times”
but then said “nothing … supports the extent of his statement.” (R. 458). As Plaintiff
points out, however, the medical records document two palpable bullets and
approximately twelve scars on Plaintiff’s body: a 3 cm scar under the left breast, 2 cm
and 1 cm scars in the right lower abdomen, an 18 cm scar in the midline abdomen, a 10
cm scar on the right upper thigh, three 1 cm scars with palpable bullet on the right calf,
an 11 cm scar on the left upper lateral thigh, a 1 cm scar with palpable bullet on the left
anterior thigh, and two 2 cm scars on the right back. (R. 340-41).
Given such evidence of multiple gunshot wounds, the ALJ should have inquired
further of Plaintiff before discrediting his testimony as to the number of gunshot wounds.
For example, she could have asked for details as to each of these alleged gunshot
wounds: where did each bullet strike Plaintiff; what if any medical treatment did he
receive and who provided it; and are there any physical manifestations of each gunshot
wound. Given the ALJ’s failure to inquire of Plaintiff to allow him to substantiate his
claim, and the existing evidence of many scars and even palpable bullets under the
skin, the ALJ lacked a sufficient basis for concluding that Plaintiff was not truthful on this
point. (R. 458). Of course, even if Plaintiff was shot 13 times (or some number close to
this), the more important question is whether he suffers from continuing pain from older
gunshot wounds. Certainly these older wounds did not preclude him from working fulltime in physically demanding jobs prior to his incarceration in 2006.
Need to Recline Due to Pain
Plaintiff also argues that the ALJ erred in failing to credit Plaintiff’s testimony that
he “needed to recline to minimize his pain” (R. 458), but this argument is not
persuasive. While the ALJ cannot reject Plaintiff’s allegations of pain based solely on
the medical evidence (or lack thereof), that is not what the ALJ did here. Rather, after
finding that the medical evidence contained no support for Plaintiff’s claim that his pain
requires him to lie down constantly, the ALJ went on to identify other evidence that also
undermined Plaintiff’s claim, namely that he told his psychiatrist that he had episodes
where he cleaned the house and exercised when he could not sit still, and his
grandmother stated that he cleaned and did laundry every two weeks. (Id.).5 Thus, the
ALJ considered the complete record and gave specific reasons for not giving full weight
to Plaintiff’s statement that he must lie down constantly to ease his pain. See Simila v.
Astrue, 573 F.3d at 517.
In sum, there is a lack of sufficient evidentiary support for two of the reasons the
ALJ gave in support of the credibility determination relating to the conservative
treatment of Plaintiff’s physical and mental impairments and the 13 gunshot wounds.
The Court is not in a position to determine how much weight the ALJ gave to these
reasons in comparison to the others and so the case must be remanded.
While the ALJ did not mention it, Plaintiff also indicated in his initial Function Report that
he cleaned, cooked, and shopped for short periods. (R. 151-53). It was only after Plaintiff
sought reconsideration of the June 2009 denial of benefits that he claimed in a second Function
Report that he does not cook or shop and limits his housework to washing dishes for two
minutes. (R. 181-83). As the Commissioner also notes in her brief, Plaintiff never complained
to his treating physicians of any pain from sitting, but rather made these complaints solely to the
ALJ, consulting physicians, or other agency employees concerning his application for benefits.
(Doc. 31 at 6). For example, Plaintiff never complained of sitting pain to the medical personnel
who treated him at VCC (R. 248, 250) or Stroger Hospital (R. 407, 416).
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [Doc. 24]
is granted in part and denied in part. 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
Administration for further proceedings consistent with this opinion.
Dated: November 19, 2013
United States Magistrate Judge
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