Mason v. Astrue

Filing 31

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 11/3/2014. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID MASON,
Plaintiff,
v.
CAROLYN W. COLVIN Acting
Commissioner, Social Security
Administration,1
Defendant.

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No. 13 CV 156
Magistrate Judge Young B. Kim

November 3, 2014

MEMORANDUM OPINION and ORDER
David Mason claims that he is unable to work because he suffers from a
number of health problems, including depression, relentless fatigue, and a spinal
disorder known as Scheuermann’s disease.

In July 2010, not long after Mason

turned 19, he applied for supplemental security income (“SSI”).

See 42 U.S.C.

§§ 416(i), 1382(c). The Appeals Council declined to review an administrative law
judge’s (“ALJ”) decision denying that application, so Mason brought this suit
seeking judicial review. 42 U.S.C. § 405(g). Before the court are the parties’ cross
motions for summary judgment.

For the following reasons Mason’s motion is

granted, the government’s is denied, and the case is remanded for further
proceedings consistent with this opinion:

Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin—who
became the Acting Commissioner of Social Security on February 14, 2013—is
automatically substituted as the named defendant.
1

Procedural History
Mason applied for SSI benefits in July 2010, claiming a disability onset date
of December 27, 2002. (Administrative Record (“A.R.”) 117.) His application was
denied initially and upon reconsideration, (id. at 64-70, 73-76), so Mason requested
and was granted a hearing before an ALJ. Following the hearing the ALJ issued a
decision finding that Mason is not disabled. (Id. at 19-31.) The Appeals Council
declined review, (id. at 8-10), making the ALJ’s decision the final decision of the
Commissioner, see Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Mason
filed his federal complaint on January 9, 2013, (R. 1); see 42 U.S.C. § 405(g), and the
parties consented to this court’s jurisdiction, (R. 7); see 28 U.S.C. § 636(c).
Facts
Mason’s health problems emerged in his early teenage years when he began
experiencing back pain, dizziness, and chronic sleepiness.

His back pain was

attributed to Scheuermann’s disease, a condition also known as “adolescent round
back” that causes a curvature of the thoracic spine.

See Stedman’s Medical

Dictionary 563 (28th ed. 2006). Through the years, Mason’s other major symptoms,
which are light-headedness and fatigue, have been attributed by various doctors to
a range of conditions, including anxiety, depression, dysthymic disorder, circadian
rhythm sleep disorder, chronic pain syndrome, organic sleep apnea, idiopathic
hypersomnolence, chronic fatigue syndrome, and delayed sleep phase syndrome. At
his hearing before the ALJ, Mason presented voluminous medical records as well as

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his own testimony in support of his claim that those conditions and symptoms
render him disabled.
A.

Medical Evidence
The medical records Mason submitted at the hearing include over eight years

of treatment records from a wide array of specialists, all seeking answers to Mason’s
persistent symptoms. The summary that follows is organized by symptom, rather
than by chronology, to help chart the course that his various doctors took in their
attempts to help provide Mason relief from his complaints of pain, fatigue,
dizziness, and depression.
1.

Scheuermann’s Disease

After he was diagnosed with Scheuermann’s disease in 2002, Mason began
physical therapy and was fitted with a back brace to treat his spinal curvature and
strengthen his back. (A.R. 321-23, 330, 357.) He reported to his physical therapist
in 2004 that his back felt weak when he did not wear his brace. (Id. at 321.) Mason
underwent an MRI of his back in 2004 and the radiologist described his condition as
“mild thoracolumbar scoliosis,” noting that his curvature had increased slightly in
the previous 11 months.

(Id. at 319.)

Apparently Mason’s spinal condition

stabilized in the years that followed, because he did not receive active, on-going
treatment or physical therapy for his Scheuermann’s disease after 2008.
2.

Light-Headedness and Fatigue

In March 2007 Mason underwent a sleep study aimed at finding the answer
to his persistent fatigue. (Id. at 470-71.) That study revealed that Mason had

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increased upper airway resistance and restless legs syndrome.

(Id.)

He was

referred to Dr. Sheldon, a sleep specialist at Children’s Memorial Hospital. Mason
reported to Dr. Sheldon that he never felt refreshed despite sleeping excessively.
(Id. at 413.) He reported sleeping for five to six hours after school each day, waking
up between 9:00 p.m. and 10:00 p.m. to have dinner, and then sleeping again until
6:30 a.m. (Id. at 414.) Dr. Sheldon diagnosed Mason with idiopathic hypersomnia,
counseled him on good “sleep hygiene,” and recommended that he shorten his naps.
(Id. at 416.) Two months later Dr. Sheldon examined Mason and diagnosed him
with circadian rhythm sleep disorder, delayed sleep phase type, and organic sleep
apnea, unspecified. (Id. at 421.) Dr. Sheldon prescribed Citalopram and Melatonin
and instructed Mason to stop watching television before bed. (Id. at 421-22.)
In December 2007 Mason had a follow-up visit with Dr. Sheldon, who noted
that his review of Mason’s physical systems was unremarkable.

(Id. at 439.)

Because Mason reported that he was still sleeping excessively, Dr. Sheldon
reiterated his diagnosis of idiopathic hypersomnolence and recommended him for a
trial of a drug called Modafinil. (Id. at 440.) A year later Dr. Sheldon described
Mason as “delightful and engaging” but still suffering from idiopathic hypersomnia.
(Id. at 451.) He recommended Mason continue taking Provigil, a reduced dose of
Melatonin, and Nasalcort. (Id. at 443, 451.)
Mason followed up with Dr. Sheldon three times between April 2009 and
November 2010.

After the April 2009 examination Dr. Sheldon decided that

Mason’s idiopathic hypersomnolence was not responsive to Provigil, so he started

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Mason on Neurontin.

(Id. at 456.)

Eleven months later Mason returned to

Dr. Sheldon reporting continued fatigue and a delayed sleep cycle in which he was
falling asleep between 10:00 p.m. and 2:00 a.m. and sleeping until 11:30 a.m. or
12:00 p.m. the following day. (Id. at 384.) He reported sleeping again for two to
three hours after school. (Id.) In November 2010 Mason told Dr. Sheldon that he
was no longer taking Concerta because his insurance would not cover it, but was
taking Ritalin, Armodafinil, and Melatonin. (Id. at 657.) He was sleeping from
midnight until late the next morning and napping for two hours in the evenings.
(Id.) Dr. Sheldon noted that Mason looked well, was in no apparent distress, and
was making all A’s in school. (Id. at 657-58.) Dr. Sheldon’s final diagnosis was
idiopathic hypersomnia and possible circadian rhythm abnormality. (Id. at 658.)
In February 2011 Mason saw a neurologist named Dr. Phyllis Zee for help
with his chronic sleepiness and dizziness. (Id. at 709, 711.) Dr. Zee diagnosed him
with chronic fatigue syndrome. (Id. at 709.) She referred him for a cardiac tilt table
test to confirm the diagnosis. (Id. at 711.) Mason completed the test in September
2011. The results were negative for vasodepressor syncope but positive after he was
administered nitroglycerin. (Id. at 751.)
3.

Depression and Anxiety

The record includes extensive notes from Mason’s therapy sessions with
various professionals at the Kenneth Young Center where he sought treatment for
depression and anxiety between 2007 and 2011. At his initial intake in March
2007, Mason reported depression, negativity, poor self-esteem, obsessive worries,

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and anger at what he perceived as his school’s lack of accommodation for his
problems.

(Id. at 540.)

He described himself as feeling frustrated by others’

expectations that he push himself harder.

(Id.)

Three months later Mason

underwent a psychological evaluation with Dr. Siddartha Kumar, to whom he
reported sadness, anhedonia, poor energy, poor motivation and concentration, and
hypersomnia.

(Id. at 516.)

Dr. Kumar assigned him a Global Assessment of

Functioning (“GAF”) score of 55, reflecting moderate symptoms, and diagnosed him
with dysthymic disorder, (id.), which is a chronic mood disturbance manifested as
depression with symptoms like low energy or fatigue, poor concentration, and
hopelessness, see Stedman’s Medical Dictionary 569, 602 (28th ed. 2006).
In September 2007 Mason underwent two psychological examinations. In the
first, conducted by a clinical psychologist, Patricia Cole, Ph.D., Mason reported low
levels of pain but what Dr. Cole characterized as “high levels of solicitous reactions
on the part of significant others.” (A.R. 354.) He also reported anxiety, depression,
disrupted sleep, decreased energy, and a decreased ability to concentrate and
remember.

(Id.)

Dr. Cole thought Mason was caught in a “vicious cycle” of

depression and anxiety caused by inactivity and “catastrophic thinking.”

(Id.)

Dr. Ai Mukai conducted the second evaluation. (Id. at 357.) Mason told him that he
was only attending school from 11:15 a.m. to 3:00 p.m. as an accommodation for his
fatigue and that he was napping for four to five hours each day.

(Id. at 359.)

Following a physical examination, Dr. Mukai diagnosed Mason with chronic low
back pain, pelvic obliquity, depression, and sleep disorder. (Id. at 360.)

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In the three years following these examinations Mason engaged in therapy
sessions with Judy Fadula, LCPC, who at times described Mason as “stubbornly
holding on to a belief that he cannot possibly function any better than he is doing,”
(id. at 544), and unwilling to follow his doctors’ directions, (id. at 552). In one
mental health assessment Fadula described Mason as able to care for his own
personal needs but as having a severe functional impairment in the form of his
inability to manage his moods, exercise, or complete tasks. (Id. at 527, 530.) She
noted that his depression impacts his physical condition because he lacks the
motivation to participate in physical therapy. (Id. at 534.) Fadula diagnosed Mason
as having dysthymic disorder. (Id. at 537.)
In August 2010 Mason went through a mental health assessment with
Dr. Dankers.

She noted that at the time Mason was only seeking medications

rather than counselling to treat his symptoms of depression, anxiety, detachment,
racing thoughts, and social withdrawal. (Id. at 621-47.) She described his most
severe limitations as being only moderate and as pertaining to his ability to manage
his health issues, mood, and time. (Id. at 640-41.) Dr. Dankers diagnosed Mason as
having recurrent mild depressive disorder and generalized anxiety disorder. (Id.)
She assigned him a GAF score of 58. (Id.)
Two months later Mason began seeing Dr. Lawrence Nash, who noted that
Mason has a complex history of unusual medical problems. (Id. at 651.) Dr. Nash
described Mason’s report that he had to give up sports because of his spinal issues
as “somewhat self-defeating” because he claimed “that no other activities hold

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interest for him.” (Id.) Dr. Nash thought Mason had too much free time to fill with
sleep and video games and that Mason was somewhat “sarcastic” and “defeating”
about doctors’ recommendations. (Id.) He added Ritalin to Mason’s prescription
regimen.

(Id.)

Three months later in January 2011, Mason reported that the

Ritalin was helpful and that he was returning to bed for less time during the day.
(Id. at 706.) Dr. Nash noted that Mason’s energy was chronically off despite his
Provigil and Melatonin prescriptions. (Id.)
The most recent psychology records are from September 2011, when Mason
saw Dr. Nash and Dr. Dankers.

Dr. Nash noted that Mason had been off his

medications since the spring, because when he turned 19 his insurance expired. (Id.
at 745.) He noted that Mason was vague about his mood and anxiety, but was
irritable, hopeless about his school prospects, and experiencing back pain. (Id.)
Dr. Nash noted that Mason had never been a good medical historian and that his
pursuit of unusual medical problems in the presence of a question of secondary gain
was “worrisome.” (Id.) Dr. Dankers performed a comprehensive mental health
assessment and noted that Mason was presenting symptoms of major depressive
disorder and needed medication “to prevent deterioration.” (Id. at 736-37.)
4.

Functional Assessments

The record also includes residual functional capacity (“RFC”) assessments
from several doctors, both treating and consulting.

After seeing Mason

approximately three times, Dr. Iveta Boyancheck, a psychiatrist, filled out an RFC
form in April 2010 describing him as having mild to moderate limitations in daily

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activities, moderate limits in social functioning, and marked limitations in
concentration, persistence, or pace.

(Id. at 515.)

Consulting psychologist Kirk

Boyenga, Ph.D., opined that Mason has mild restrictions in daily living and only
moderate limitations both with respect to social functioning and concentration,
persistence, or pace. (Id. at 609.) Dr. Nash completed a form in January 2011,
three months into his treating relationship with Mason, indicating that Mason is
unable to function in a competitive work setting for eight-hour days. (Id. at 704.)
He also opined that because of his affective disorder Mason has restrictions in daily
living, concentrating, and completing tasks. (Id. at 703-04.)
B.

Mason’s Hearing Testimony
During his November 2011 hearing Mason described the ways in which his

symptoms impact his life. He explained that after being up for a few hours he needs
to sit down or lie down because he is exhausted. (A.R. 52.) Mason said that even
though his Scheuermann’s disease is no longer progressing it has left him with
residual back pain and that he is always tired and light-headed. (Id. at 53.) He has
nausea and dizziness that make it difficult for him to function, although he has
never lost consciousness. (Id. at 53-54.) Mason said that as the day progresses and
his medical symptoms increase, his anxiety grows as well, creating a “back and
forth” between those symptoms.

(Id. at 54.)

His sleep is never restful and no

matter how many hours he sleeps he feels terrible. (Id.) Although he was not in
counselling for his psychological issues, he was taking Celexa under the supervision
of a psychiatrist. (Id. at 55.)

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At the time of the hearing Mason was enrolled in a community college taking
a full-time course load of credits. (Id. at 46.) The school was accommodating him
with extra time on exams, permission to step out of class as needed, extended due
dates for assignments, and attendance flexibility.

(Id. at 47.)

accommodations, he was maintaining a GPA above 3.0.

(Id.)

With those

Mason described

being able to drive to and from school, a trip that takes about 25 minutes each way.
(Id. at 49.) When he is not feeling well, Mason stays home, because he feels it is
unsafe for him to drive. (Id.) He misses classes at least a couple of times per week
and steps out of class because he is not feeling well about four to five times per
month. (Id. at 50-51.) He also has problems being on time because he struggles to
get out of bed in the morning. (Id. at 51.) Even when he attends class, he struggles
to concentrate or focus because he is so exhausted. (Id. at 52.)
Mason testified that he has never had a job because after school he was
always too exhausted and would need to sleep.

(Id. at 49-50.)

He did not

participate in any extracurricular activities for the same reasons, even though he
loves sports. (Id. at 50.) He takes care of his own hygiene, but relies on his mother
to prepare most of his meals. (Id. at 56.)
C.

The Vocational Expert’s Testimony
Vocational Expert (“VE”) Craig Johnston also testified at the hearing,

describing the kinds of jobs a person with certain hypothetical limitations could
perform. (A.R. 58-62.) The ALJ asked him whether any jobs would be available to a
person of Mason’s age, education, and work experience who can work at the medium

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exertional level but who is limited to simple, routine, and repetitive tasks in a work
environment free of fast-paced production requirements. (Id. at 60.) Additionally,
the ALJ asked the VE to assume that the hypothetical person could only engage in
simple work-related decision-making with few changes in the work setting and only
occasional contact with supervisors, coworkers, and the public.

(Id.)

The VE

testified that the hypothetical individual could work as a dishwasher, janitor, or
order filler, and that all of those jobs exist in the thousands in the Chicago
metropolitan area. (Id. at 59-60.) Under questioning from Mason’s attorney, the
VE testified that the jobs he described would be unavailable to a person who needed
more than a 15-minute break every four hours with a 30-minute lunch break and an
unscheduled five-minute break every two hours.

(Id. at 61-62.)

When asked

whether any of those jobs would be available to someone whose impairments caused
him to miss three days of work per month, the VE testified that those absences
would render the person unemployable. (Id. at 61.)
D.

The ALJ’s Decision
A month after the hearing, in December 2011, the ALJ issued a decision

finding that Mason is not disabled within the meaning of the Social Security Act.
(A.R. 30-31.) In applying the standard five-step sequence for analyzing disability
claims, see 20 C.F.R. § 416.920, the ALJ found at step one that Mason has not
engaged in substantial gainful activity since his July 2010 application date and at
step two that he has severe impairments in the form of major depressive disorder,
idiopathic hypersomnia, and Scheuermann’s disease. (A.R. 21.) At step three the

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ALJ found that none of those impairments is of Listings-level severity. (Id. at 22.)
In discussing Mason’s idiopathic hypersomnia the ALJ stated that “none of the
claimant’s treating or examining physicians have diagnosed him with chronic
fatigue symptom [sic].”

(Id.)

In considering the severity of Mason’s mental

impairments, the ALJ found that he has no more than mild restrictions in daily
living and no more than moderate difficulties in social functioning and
concentration, persistence, or pace. (Id.)
Before turning to step four the ALJ determined that Mason retains an RFC
for medium work with the limitations she included in her hypothetical to the VE.
(Id. at 23.) Specifically, she found that Mason is limited to no more than simple,
routine, repetitive tasks in a work environment free from fast-paced production
requirements, with simple decision-making, few changes in the work setting, and no
more than occasional contact with supervisors, co-workers, or the public. (Id.) In
explaining that decision, the ALJ noted that the objective findings do not strongly
support Mason’s allegations regarding his symptoms and she found his description
of the severity of his symptoms not credible. (Id. at 25, 28.) Turning to step four
the ALJ noted that Mason has no past-relevant work, but at step five she concluded
that given his RFC Mason is able to work as a dishwasher, janitor, or order filler.
(Id. at 29-30.)

Accordingly, the ALJ concluded that Mason is not disabled and

denied his application for SSI. (Id. at 30-31.)

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Analysis
In moving for summary judgment Mason challenges several aspects of the
ALJ’s decision, including her evaluation of his diagnosis of chronic fatigue
syndrome, her weighing of his treating psychologist’s opinion, her credibility
analysis, and her reliance on what he describes as the VE’s flawed testimony. This
court’s role in reviewing the ALJ’s decision is an “extremely limited” one, involving
an inquiry that asks only whether that decision is supported by substantial
evidence. See Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The decision meets
that standard if the ALJ relied on adequate record evidence and explained “why
contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.
2008). The court’s role is not to “displace the ALJ’s judgment by reconsidering facts
or evidence, or by making independent credibility determinations.” Elder, 529 F.3d
413. Instead, the court will affirm a supported conclusion “even if reasonable minds
could differ” regarding whether Mason is disabled. See Simila v. Astrue, 573 F.3d
503, 513 (7th Cir. 2009) (internal quotation omitted).
A.

Chronic Fatigue Syndrome
Mason’s strongest argument is that the ALJ committed reversible error by

mistakenly asserting that none of his physicians had diagnosed him with chronic
fatigue syndrome (“CFS”) and by failing to evaluate his symptoms under SSR 99-2p,
1999 WL 271569, at *1 (April 30, 1999), which describes the criteria an ALJ must

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use to evaluate the symptoms associated with CFS.2 Specifically, the ALJ found
that “none of the claimant’s treating or examining physicians have diagnosed him
with” CFS. (A.R. 22.) But that assertion is mistaken. One of Mason’s neurologists,
Dr. Zee, listed CFS as Mason’s diagnosis following a February 2011 consultation.
(Id. at 709.) The government acknowledges that mistake, but argues that it may be
cast aside as harmless error because the ALJ fully analyzed Mason’s idiopathic
hypersomnolence—a condition which, according to the government, overlaps
significantly with CFS.
The Seventh Circuit has repeatedly criticized the government for its overreliance on the harmless error doctrine in the disability context, see Hanson v.
Colvin, 760 F.3d 759, 762 (7th Cir. 2014) (collecting cases), and here the
government’s six-sentence harmless-error argument leaves much to be desired.
Essentially, the government cites a sleep education blog that calls CFS and
idiopathic hypersomnia “hard to distinguish,” and concludes based on that
description that the ALJ’s discussion of the latter discharges her duty to consider
the former. (R. 28, Govt.’s Br. at 4.) In other words, the government suggests that
because an attorney read online that the two diseases are similar, the court should
overlook the ALJ’s error. Never mind that the ALJ never considered, let alone
relied on, the blog post cited by the government. The harmless error doctrine only
applies in instances where the court can conclude with certainty that the ALJ would
The SSA’s current policy for evaluating claims involving CFS is found at SSR 141P, 2014 WL 1371245, at *1 (April 3, 2014). Because the new policy did not take
effect until after the ALJ’s decision, the court will evaluate Mason’s argument with
respect to SSR 99-2p, the policy governing at the time.
2

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reach the same conclusion absent the error. See Spiva v. Astrue, 628 F.3d 346, 353
(7th Cir. 2010). Here, the government’s argument rests on the premise that the
ALJ might have reached the same conclusion had she considered the CFS diagnosis
because there is overlap in the symptoms of CFS and idiopathic hypersomnolence.
But the mere possibility—or even a likelihood—that the ALJ would reach the same
conclusion is insufficient to show harmless error. See id. (“But the fact that the
administrative law judge, had she considered the entire record, might have reached
the same result does not prove that her failure to consider the evidence was
harmless.”).
The government’s careless presentation of the harmless error doctrine aside,
now that the issue has been raised, it is this court’s obligation to determine whether
it is obvious that the ALJ would reach the same decision on remand. Despite her
mistake regarding Mason’s CFS diagnosis, at step three the ALJ analyzed whether
his symptoms include some of the signs set out in SSR 99-2p.

(A.R. 22.)

Specifically, the ALJ wrote that “[a]ccording to SSR 99-2p, the claimant also does
not have well documented signs associated with CFS such as a swollen lymph
nodes, nonexudative pharyngitis, persistent and reproducible muscle tenderness, or
positive tender points.” (Id.) Those are examples of the kinds of medical signs that
the SSA recognized in SSR 99-2p as being associated with CFS. But there are also
laboratory findings and mental findings that may establish its existence, and the
ALJ addressed none of those.

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With respect to laboratory findings, SSR 99-2p specifically states that CFS
may be demonstrated through tilt table testing showing “[n]eurally mediated
hypotension.” SSR 99-2p, 1999 WL 271569, at *3. Mason underwent tilt table a
few weeks before his hearing. (A.R. 750-52.) The conclusions the administering
doctor drew from that test are somewhat opaque, and neither party has taken the
time to explain them to the court. The administering doctor noted that, “[t]his was
a negative tilt table test for VDS in the baseline state. It was positive after NTG
administration.” (Id. at 751.) Whether that conclusion supports Mason’s assertion
that the tilt table test results were “positive” for CFS is not obvious. But it is the
ALJ’s role, not the court’s, to consider that question in the first instance. See Elder,
529 F.3d 413.
Additionally, SSR 99-2p describes mental findings that may establish the
existence of CFS.

SSR 99-2p, 1999 WL 271569, at *3.

Those findings include

documentation of on-going neurocognitive problems, including struggles with
concentration. Id. The ruling also notes that “[i]ndividuals with CFS may also
exhibit medical signs, such as anxiety or depression, indicative of the existence of a
mental disorder.” Id. at *4. Here, Mason’s long history of depression and anxiety
are well-documented and supported by the clinical evaluations of numerous treating
doctors.

There is also some evidence that Mason struggles with concentration.

(See, e.g., A.R. 515, 609, 704.)

Accordingly, there are at least some relevant

laboratory and mental signs that the ALJ failed to consider under SSR 99-2p.

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Given the ALJ’s misread of the evidence regarding Mason’s CFS diagnosis
and her failure to evaluate the relevant laboratory and mental signs present in the
record in accordance with SSR 99-2p, her reference to some of the medical signs
described in that ruling is not enough to save her analysis of this aspect of Mason’s
claim. There is certainly reason to question Dr. Zee’s CFS diagnosis, especially in
light of the ruling’s description of the CDC’s definition of CFS symptoms. See SSR
99-2p, 1999 WL 271569, at *1-*2. But the court is unable to say with certainty that
if the ALJ took into account Dr. Zee’s diagnosis, the tilt table test results, and the
mental findings in accordance with the governing ruling, that she would draw the
same conclusions regarding Mason’s claim.

Accordingly, the case must be

remanded for the ALJ to evaluate Mason’s diagnosis in accordance with SSR 99-2p.
See Spiva, 628 F.3d at 353.
B.

Mason’s Additional Arguments
Although a remand is necessary to allow the ALJ to consider in the first

instance Mason’s CFS diagnosis in the context of SSR 99-2p, the court is not swayed
by the remainder of his arguments. Mason first argues that the ALJ erred by
attributing only minimal weight to Dr. Nash’s opinion that he has marked
restrictions in all three of the paragraph B criteria. (R. 16, Pl.’s Br. at 10.) A
treating physician’s opinions regarding a claimant’s limitations are entitled to
controlling weight only where they are well supported by clinical findings and are
not contradicted by other substantial evidence. See Larson v. Astrue, 615 F.3d 744,
749 (7th Cir. 2010).

Even if the treating doctor’s opinions are not entitled to

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controlling weight, they may be due substantial weight depending on how the ALJ
weighs a number of factors, including the longevity and frequency of the treating
relationship, and the supportability and consistency of the doctor’s opinions. See 20
C.F.R. § 416.927(d). The ALJ must explain the weight given to the treating doctor’s
medical opinion with enough specificity “to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996).
Mason argues that the ALJ erred in giving minimal weight to Dr. Nash’s
opinion based on her conclusion that his opinion is “inconsistent with his own
findings and treatment of the claimant.” (A.R. 29.) Specifically, the ALJ noted that
Dr. Nash only met with Mason three to four times in one year and never recorded in
his progress notes the kinds of restrictions reflected in the RFC form. (Id.) Mason
argues that Dr. Nash’s opinion that he is completely disabled is supported by
Dr. Nash’s notes describing him as fatigued, anxious, irritated, and sarcastic.
(R. 16, Pl.’s Br. at 11.) But the ALJ was within her discretion to conclude that those
notes are out of line with Dr. Nash’s conclusion that Mason has marked limitations
in social functioning, activities of daily living, and concentration, persistence, or
pace. And the ALJ was certainly entitled to doubt Dr. Nash’s answers on Mason’s
RFC form where in his most recent treatment notes he described Mason’s
“worrisome” “pursuit of unusual medical problems,” his concern regarding the
presence of secondary gain in Mason’s case, and his perception that Mason has
“never been a good historian” regarding his symptoms. (A.R. 745.) Similarly, in

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trying to refute the ALJ’s point that Dr. Nash’s relationship with Mason was brief,
Mason makes much of the fact that Dr. Nash had access to Mason’s long-term
psychiatric records. But because he points to no evidence that Dr. Nash actually
considered or analyzed those records, (R. 16, Pl.’s Br. at 11-12), the ALJ did not err
in characterizing the length of the treating relationship as relatively limited.
Mason also challenges the ALJ’s assertion that Dr. Nash never suggested
that Mason “receive more intense treatment such as more medications or
hospitalization.” (A.R. 29.) Mason notes that Dr. Nash restarted him on Celexa and
added Ritalin to his prescription regiment, and argues that these prescriptions
undermine the ALJ’s assertion that Dr. Nash did not recommend more intense
treatment. But the record shows that Mason started taking Celexa three years
before he started seeing Dr. Nash, and Dr. Nash described the Ritalin prescription
as a substitute for his previous Concerta prescriptions. (Id. at 359, 651.) Thus
there is no obvious error in the ALJ’s characterization of Dr. Nash’s treatment as
being no “more intense” than that provided by his previous doctors. Accordingly, he
has not shown that the ALJ erred in discounting Dr. Nash’s opinion.
Next Mason objects to the ALJ’s conclusion that his testimony was not
credible with respect to the severity and limiting effects of his impairments. (R. 16,
Pl.’s Br. at 13.)

But the ALJ’s credibility determination is entitled to special

deference and will only be overturned if it is “patently wrong.” See Schomas, 732
F.3d at 708. Here, the ALJ gave a host of well-supported reasons for discounting
Mason’s testimony, including the likelihood that someone with the severity of

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symptoms he described could maintain his GPA with a full-time college course load
even with the accommodations his school provided. (A.R. 28.) Mason faults the
ALJ for failing to factor in his frequent absences from school, but the ALJ’s point is
that Mason has always succeeded at school, and that his success casts doubt on his
description of his school-related problems (including attendance).

Mason has a

better point in criticizing the ALJ’s reliance on Mason’s daily activities, which
mostly consist of playing video games and caring for his dog. An ALJ should be
careful about equating these kinds of low-level activities to the ability to
consistently perform full-time work. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th
Cir. 2012).

But the ALJ gave several other well-supported reasons for the

credibility determination.

The ALJ noted that his GAF score of 55 shows only

moderate restrictions, which contrasts with his claim that he is completely unable
to work. (A.R. 28.) The ALJ also noted that there are significant unexplained gaps
in Mason’s treatment, that he ignored doctors’ advice about playing video games
before bed, and that his medications and therapy reflect routine treatment. (Id.)
Mason has not made any argument as to why those reasons are insufficient, let
alone patently wrong. Accordingly, the ALJ’s credibility determination may stand.
Mason also argues that the ALJ erroneously relied on the VE’s testimony
that a hypothetical person with his assigned RFC can perform the jobs of
dishwasher, order filler, and janitor. According to Mason, the Dictionary of Titles’
(“DOT”) descriptions of those jobs are inconsistent with his RFC because they
require a reasoning level of two, which involves the ability to understand detailed

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but uninvolved written or oral instructions. Mason argues that this requirement is
beyond his RFC’s limitation to simple, routine, and repetitive tasks. As a practical
matter, it pushes the boundaries of credulity to argue that someone who maintains
higher than a 3.0 G.P.A. in college courses including calculus and chemistry—and
who described attending hours-long chemistry labs—lacks the capacity to
understand the directions involved in working as a dishwasher. See Terry v. Astrue,
580 F.3d 471, 478 (7th Cir. 2009) (noting that claimant’s high school education and
nurse training suggests can perform reasoning level 3). But even suspending that
reality, the ALJ asked the VE if his testimony was consistent with the DOT, and
the VE answered that it was. (A.R. 59.) At the hearing, Mason’s attorney did not
raise what he now cites as a conflict between the DOT and the VE’s testimony.
Accordingly, the ALJ’s failure to address the question only amounts to reversible
error if the inconsistency Mason raises is an apparent conflict. See SSR 00-4p, 2000
WL 1898704, at *2 (Dec. 4, 2000); Overman v. Astrue, 546 F.3d 456, 463 (7th Cir.
2008). Apparent conflicts are those which are “obvious enough that the ALJ should
have picked up on them without any assistance.” Overman, 546 F.3d at 463. Given
that several courts in this district have concluded that level two reasoning is not
inconsistent with a limitation to simple, routine tasks, see, e.g., McCain v. Colvin,
No. 12 CV 9652, 2013 WL 6283638, at *7 (N.D. Ill. Dec. 4, 2013); Thompkins v.
Astrue, No. 09 CV 1339, 2010 WL 5071193, at *11 (N.D. Ill. Dec. 6, 2010); Masek v.
Astrue, No. 08 CV 1277, 2010 WL 1050293, at *22 (N.D. Ill. Mar. 22, 2010), Mason
has not shown that there is any inconsistency here, let alone an apparent one. See

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Terry, 580 F.3d at 478. Accordingly, his argument that the ALJ erred in relying on
the VE’s testimony fails as well.
Finally, Mason argues that the ALJ erred in failing to incorporate into the
record a 2011 college accommodation plan that he submitted and discussed at his
hearing. (R. 16, Pl.’s Br. at 9.) The accommodation plan, which he attached to his
brief as exhibit 1, can be found in the administrative record at page 218, marked as
exhibit 17E. Accordingly, Mason’s assertion that the ALJ mishandled the exhibit
file appears to be unfounded.
Conclusion
For the foregoing reasons, Mason’s motion is granted, the Commissioner’s is
denied, and the case is remanded for the ALJ to consider Mason’s CFS diagnosis in
accordance with SSR 99-2p.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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