Pontarelli v. Astrue

Filing 28

MEMORANDUM Opinion and Order Signed by the Honorable Daniel G. Martin on 7/7/2014. Mailed notice(lxs, )

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

DONALD PONTARELLI
Plaintiff,

v.
CAROLYN W. COLVIN
Commissioner of Social Security,
Defendant.

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)
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) Case No. 13 C 1015
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) Magistrate Judge Daniel G. Martin
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)
)

MEMORANDUM OPINION AND ORDER
Plaintiff Donald Pontarelli ("Plaintiff" or "Pontarelli") seeks judicial review of a final
decision of Defendant Carolyn W. Colvin, the Commissioner of Social Security
("Commissioner"). The Commissioner denied Plaintiff's application for benefits under the
Social Security Act, and Pontarelli filed a Motion for Summary Judgment that seeks to
reverse the Commissioner's decision. The Commissioner filed a cross-motion. For the
reasons stated below, both motions are granted in part and denied in part.
I. Legal Standard
A. The Social Security Administration Standard
In order to qualify for disability benefits, a claimant must demonstrate that he is
disabled. An individual does so by showing that he cannot "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." 42 U.S.C. § 4243(d)(1)(A). Gainful
activity is defined as "the kind of work usually done for pay or profit, whether or not a profit

is realized." 20 C.F.R. § 404.1572(b).
The Social Security Administration ("SSA") applies a five-step analysis to disability
claims. See 20 C.F.R. § 404.1520. The SSA first considers whether the claimant has
engaged in substantial gainful activity during the claimed period of disability. 20 C.F.R. §
404.1520(a)(4)(i). It then determines at Step 2 whether the claimant's physical or mental
impairment is severe and meets the twelve-month durational requirement noted above.
20 C.F.R. § 404.1520(a)(4)(ii).

At Step 3, the SSA compares the impairment (or

combination of impairments) found at Step 2 to a list of impairments identified in the
regulations ("the Listings"). The specific criteria that must be met to satisfy a Listing are
described in Appendix 1 of the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the
claimant's impairments meet or "medically equal" a Listing, the individual is considered to
be disabled, and the analysis concludes; if a Listing is not met, the analysis proceeds to
Step 4. 20 C.F.R. § 404.1520(a)(4)(iii).
Before addressing the fourth step, the SSA must assess a claimant's residual
functional capacity ("RFC"), which defines his exertional and non-exertional capacity to
work. The SSA then determines at the fourth step whether the claimant is able to engage
in any of his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can do so,
he is not disabled. Id. If the claimant cannot undertake past work, the SSA proceeds to
Step 5 to determine whether a substantial number of jobs exist that the claimant can
perform in light of his RFC, age, education, and work experience. An individual is not
disabled if he can do work that is available under this standard.
404.1520(a)(4)(v).

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20 C.F.R. §

B. Standard of Review
A claimant who is found to be "not disabled" may challenge the Commissioner's final
decision in federal court. Judicial review of an ALJ's decision is governed by 42 U.S.C. §
405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g).
Substantial evidence is "such evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A court
reviews the entire record, but it does not displace the ALJ's judgment by reweighing the
facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate
and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008). This requirement is designed to allow a reviewing court to "assess the
validity of the agency's ultimate findings and afford a claimant meaningful judicial review."
Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). Thus, even if reasonable minds could
differ as to whether the claimant is disabled, courts will affirm a decision if the ALJ's opinion
is adequately explained and supported by substantial evidence. Elder, 529 F.3d at 413
(citation omitted).
II. Background Facts
A.

Medical History

Pontarelli suffers from rapid-cycling bipolar disorder and, as of 2011, is recovering
from polysubstance abuse. He was hospitalized at the Reed Mental Health Clinic for
nearly three weeks in September 2009. (R. 297). A treatment note from February 2010

3

states that he had experienced multiple earlier admissions to hospital and clinical settings
for depression and suicide attempts. Pontarelli was hospitalized in February 2010 when
he tried to kill himself by exposure to carbon dioxide. (R. 255, 265). The ALJ found that
Plaintiff was again hospitalized at Alexian Brothers Hospital in July 2010.1 (R. 16, 255-56).
The majority of Pontarelli’s subsequent treatment took place at the Kenneth Young
Center, where he was treated by psychiatrists Dr. Iveta Boyanchek and, after July 2010,
by Dr. Jerry Gibbons. Both doctors treated Pontarelli with a variety of anti-anxiety, antipsychotic, and anti-seizure medications used to treat bipolar disorder and anxiety. These
included at various times Neurontin, Klonopin, Zyprexa, Lamictal, lithium carbonate, and
Ativan. Plaintiff ordinarily took combinations of most of these medications each day. Dr.
Gibbons and Dr. Boyanchek noted on several occasions that Pontarelli’s symptoms
stabilized on medication. (R. 319, 322, 328, 352, 361, 392, 403, 405, 457, 459). Some
ups and downs did take place, such as the July 2010 suicide attempt when Plaintiff
overdosed on lithium. (R. 332). However, Pontarelli told his treating physicians on
numerous occasions that he was eager to find work. He stated to Dr. Boyanchek that he
believed he could work 16 hours a week, and the psychiatrist released him to work part
time. (R. 297-98).
B.

Hearing Testimony

Pontarelli testified at a hearing held before ALJ Dadabo on July 3, 2012. He stated
that he was eager to work after he became sober in 2011. He spent up to two hours each

1

The record suggests this may have occurred in June 2010 and that he was cared
for by a Dr. Dekhtyar. (R. 255, 332). Nevertheless, the Court uses the ALJ’s account for
the purpose of this decision in the absence of any discussion of the issue by the parties.
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day on his computer searching for jobs. Plaintiff was concerned about his ability to
maintain work. He had been fired after only three days from a job delivering pizzas
because he could not concentrate. He was also terminated from a temporary job for the
same reasons. Pontarelli stated that his medications make him sleepy, and he fell asleep
on a few prior jobs. (R. 30-32, 39, 42). Plaintiff claimed that his limitations stem from
bipolar disorder and the medications that he takes to treat his symptoms.
C.

Medical Opinions

Dr. Ellen Rozenfeld issued Psychiatric Review Technique (“PRT”) evaluation of
Plaintiff on April 8, 2011. She found that Pontarelli suffered from bipolar disorder and a
substance addiction disorder. Dr. Rozenfeld determined that Plaintiff had mild restrictions
in his activities of daily living and had moderate limitations in social functioning and
concentration. One or two episodes of decompensation were noted. Her mental RFC
found no significant limitations in most areas, but some moderate restrictions were noted
in Pontarelli’s ability to understand and carry out detailed instructions, ability to interact with
the public, and to respond appropriately to changes in the workplace. (R. 408-25).
Plaintiff’s treating psychiatrist issued his own mental RFC on July 11, 2012. Dr.
Gibbons also found that Plaintiff suffered from bipolar disorder and opiod dependence. His
findings were more restrictive than Dr. Rozenfeld’s. Dr. Gibbons concluded that Pontarelli
suffered from marked limitations in several areas such as the ability to understand and
remember detailed instructions, the capacity to work in close proximity with others, and the
ability to complete a normal workday without psychological interruptions. Moderate
restrictions were found in his capacity to sustain an ordinary routine without special
supervision, to respond to changes, and to understand and carry out simple instructions.
5

Dr. Gibbons assigned Pontarelli a GAF score of 58. (R. 496-500).
Katrina Drummond, M.A., LPHA filled out a lengthy Comprehensive Mental Health
Assessment on April 24, 2012 for the Kenneth Young Center. The ALJ noted some of her
findings in the 28-page report. These included checking boxes stating that Plaintiff was
clean, cooperative, had average eye contact, and was euthymic within normal limits. Other
parts of the report state that he had a history of feeling depressed, hopeless, worthless,
and that he was suicidal at times. His current suicide risk was low. Drummond also
assessed Plaintiff’s activities of daily living, finding few significant limitations in any area.
(R. 462-89).
D. The ALJ’s Decision
ALJ Dadabo issued a written decision on September 26, 2012 that found Pontarelli
to be not disabled. He found at Step 1 that Plaintiff had not engaged in substantial gainful
activity since his alleged onset date of October 30, 2010. At Step 2, Pontarelli was found
to have the severe impairments of bipolar disorder and polysubstance abuse in remission.
These impairments did not meet or medically equal a listing at Step 3, either singly or in
combination. Before moving to Step 4, the ALJ assessed Plaintiff’s credibility. He found
that Pontarelli was not credible to the extent that his allegations conflicted with the RFC.
The RFC included a full range of work at all exertional levels. However, non-exertional
restrictions were added that limited Plaintiff to routine work in the same environment and
no contact with the public. The ALJ then determined at Step 4 that Plaintiff was not able
to perform his past relevant work. Based on testimony by the VE, the ALJ concluded that
Pontarelli could perform jobs that exist in significant numbers. Accordingly, he found that
Plaintiff was not disabled.
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III. Discussion
Pontarelli challenges the ALJ’s decision on three grounds. He claims that the ALJ
erred by: (1) incorrectly assessing his credibility, (2) rejecting the treating psychiatrist’s
opinion, and (3) failing to assess his RFC correctly. The Court addresses each of these
issues in turn.
A.

Credibility

If an ALJ finds that a medical impairment exists that could be expected to produce
a claimant's alleged condition, he must then assess how the individual's symptoms affect
his ability to work. SSR 96-7p. The fact that a claimant's subjective complaints are not
fully substantiated by the record is not a sufficient reason to find that he is not credible.
The ALJ must consider the entire record and "build an accurate and logical bridge from the
evidence to his conclusion." Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Factors
that should be considered include the objective medical evidence, the claimant's daily
activities, allegations of pain, any aggravating factors, the types of treatment received, any
medications taken, and functional limitations. Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006); see also 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. A court reviews an ALJ's
credibility decision with deference and overturns it only when the assessment is patently
wrong. Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010).
Pontarelli objects to the fact that ALJ Dadabo did not carefully state the reasons for
his credibility decision. He relied instead on boilerplate language that Plaintiff’s allegations
were not credible “to the extent they are inconsistent with the above residual functional
capacity assessment.” (R. 16). It is well-established that this language is insufficient to
explain an ALJ’s reasoning. Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th Cir. 2012).
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Contrary to Plaintiff’s assumption, however, “the simple fact that an ALJ used boilerplate
language does not automatically undermine or discredit the ALJ’s ultimate conclusion if he
otherwise points to information that justifies his credibility decision.” Pepper v. Colvin, 712
F.3d 351, 367-68 (7th Cir. 2013).
In this case, the ALJ went beyond the meaningless form language that Pontarelli
cites. He found, for example, that Plaintiff had only mild limitations in his activities of daily
living.

A claimant’s ability to carry out his activities of daily living is a factor that

adjudicators are required to consider when assessing a claimant’s credibility. SSR 96-7p.
It is true that the ALJ’s discussion of this issue was minimal. However, Plaintiff has not
posed any objection to the ALJ’s conclusion concerning his ability to carry out normal
activities each day.
An ALJ should also consider the effects of a claimant’s medication, together with
the frequency and intensity of his symptoms. Id. The ALJ laid great emphasis on
improvements that Pontarelli experienced on his medication. Plaintiff argues that this was
insufficient because progress itself is not a basis for finding that a claimant can work full
time. The Court agrees that the fact that a claimant’s condition has improved, standing
alone, is not necessarily evidence that he can work on a sustained basis. The more
relevant question is what functional level the improvement yielded. The ALJ considered
this issue by noting that Plaintiff’s medications stabilized his bipolar episodes and gave rise
to adequate control of moods, coping, and motivation. The ALJ also correctly linked these
improvements to the absence of recent hospitalizations. (R. 14-15).
The record fully supports the conclusion that Plaintiff’s bipolar episodes were
significantly stabilized after he began treatment at the Kenneth Young Center. Numerous
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treatment notes state that his mood and functioning had stabilized. (R. 319, 322, 348, 353,
361, 392, 403, 405, 457, 459). Less than two weeks after his alleged onset date, Pontarelli
told Dr. Gibbons that “[t]his is the stablest I have been in a long time.” (R. 403). He stated
in January 2011 that he was “doing very well still.” (R. 405). In February 2012, Pontarelli
noted that he was “doin’ pretty good” on his medication regimen. (R. 459).
Plaintiff claims that this does not support the ALJ’s decision because he did not
consider Plaintiff’s allegations that the drugs that made him mentally stable also rendered
him tired and sleepy. Pontarelli suggests that the ALJ’s oversight of this issue is per se
reversible error. That is incorrect. An ALJ is not required to specifically address each one
of the credibility factors laid out in SSR 96-7p. See Clay v. Apfel, 64 F. Supp.2d 774, 781
(N.D. Ill. 1999). Pontarelli’s argument is particularly misplaced because Plaintiff himself
repeatedly denied to his medical providers that he experienced any medication-related side
effects. (R. 433, 441& 443 [noting only urination], 459, 494). Plaintiff counters this point
by citing a list of side effects that his medications could have produced in theory. That falls
short of demonstrating that he actually experienced any of them.
Pontarelli also argues that the ALJ did not consider that he had been unable to hold
past jobs due to slowness and sleepiness. A claimant’s attempts to work are relevant to
assessing the severity of his symptoms. 20 C.F.R. § 404.1529(a). An ALJ errs when he
fails to consider a claimant’s past inability to hold jobs. See Pierce v. Colvin, 739 F.3d
1046, 1050-51 (7th Cir. 2014). The ALJ emphasized the fact that Pontarelli was actively
looking for employment. He did not discuss Pontarelli’s past jobs directly, however, other
than to note that he once delivered pizzas.
This was not reversible error. The ALJ took notice of Plaintiff’s concerns that he had
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been unable to perform past work because he was too slow and sleepy. He also found
that Pontarelli was “understandably anxious” about his ability to perform future work in light
of his past experiences. (R. 16). The ALJ did not so much discredit Plaintiff’s concerns
as he disagreed that they were severe enough to prevent Pontarelli from working full time.
The ALJ’s reasoning concerning Plaintiff’s improved mental state, combined with Plaintiff’s
denial of medication side effects, adequately supports the ALJ’s reasoning on this issue.
The Court cannot conclude that the ALJ’s discussion is so devoid of evidence or logic that
the entire credibility assessment must be reversed because it is “patently wrong.” Jones,
623 F.3d at 1162. The Commissioner’s motion is granted on the credibility issue.
B. The Treating Physician Issue
As noted earlier, Plaintiff’s treating psychiatrist issued a mental RFC that found
several marked and moderate limitations in Pontarelli’s functioning. The ALJ gave the
report little weight because he thought that it was not supported by the evidence as a
whole, was marred by internal and “material” inconsistencies, and conflicted with an
assessment issued by therapist Katrina Drummond.
An ALJ is required to evaluate every medical opinion in the record. 20 C.F.R. §
404.1527(d). See Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) ("Weighing
conflicting evidence from medical experts . . . is exactly what the ALJ is required to do.").
The regulations lay out six factors an ALJ should consider as part of this analysis, including
the nature and length of the treatment relationship, the medical expert's specialization, and
the degree to which a source's opinion is supported by other evidence. 20 C.F.R. §
404.1527(d)(1)-(6). The ALJ must clearly state the weight he has given to the medical
sources and the reasons that support the decision. See Ridinger v. Astrue, 589 F.
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Supp.2d 995, 1006 (N.D. Ill. 2008).
The ALJ’s assessment of Dr. Gibbons does not meet this standard. The ALJ relied
heavily on the mental assessment that therapist Katrina Drummond issued. The report did
not measure Plaintiff’s RFC, but it did assign him a GAF score of 58. The ALJ’s sole
reason for preferring Drummond’s opinion over Dr. Gibbons’ was that Drummond’s GAF
figure “actually is more consistent with the documented longitudinal functioning” for
Pontarelli. (R. 17). This fails to explain why Dr. Gibbons’ report deserved little weight. The
ALJ overlooked that Dr. Gibbons assigned Pontarelli the same GAF score of 58 that
Drummond did.

(R. 496).

The ALJ also assumed that a 58 score demonstrated

functioning that contradicted Dr. Gibbons’ belief that Plaintiff would experience a number
of marked limitations in the workplace. That is not necessarily true. A score of 58
“suggests someone who may be barely above the level of being able to work or live
independently.” Goble v. Astrue, 385 Fed.Appx. 588, 594 (7th Cir. 2010). Even if the ALJ
had noted Dr. Gibbons’ score of 58, that would not necessarily have been a sufficient
reason for rejecting the psychiatrist’s marked limitations without more discussion than the
ALJ provided. An even higher GAF of 60 can be insufficient for discounting a bipolar
claimant’s “marked” limitations under certain conditions. See Sambrooks v. Colvin, —
Fed.Appx. —, 2014 WL 2700119, at *5 (7th Cir. June 16, 2014).
The ALJ’s reliance on Drummond raises special concerns in this case because the
ALJ used her report to discount both Dr. Gibbons and the SSA’s own state-agency
psychologist Dr. Rozenfeld. (R. 17). These were the only medical experts who gave RFC
opinions about Plaintiff’s mental functioning. The ALJ concluded that Drummond showed
that Pontarelli was less restricted than either of these experts believed. Both Dr. Gibbons
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and Dr. Rozenfeld were “acceptable medical sources” under the regulations. The ALJ
seems to have assumed that Drummond was also an acceptable source because he
claimed that she was a “psychologist/therapist.” (R. 17). It is not clear how the evidence
supports that assumption. No resume or C.V. in the record shows that Drummond was a
licensed psychologist. A “therapist” is specifically excluded from being an acceptable
source under SSR 06-03p.
Drummond signed her name as “Katrina Drummond, M.A., LPHA.” (R. 489). The
ALJ may have believed that Drummond’s qualification as an LPHA meant that she was a
psychologist. That is not necessarily true. An LPHA is a health care practitioner licensed
in Illinois who can diagnose and recommend treatment concerning mental illness. This
includes physicians, advanced nurse practitioners, clinical psychologists, licensed social
workers, professional counselors, or marriage and family therapists. N.B. v. Hamos, — F.
Supp.2d —, 2014 WL 562637, at *7 n. 7 (N.D. Ill. Feb. 13, 2014). Some of these
professionals qualify as acceptable medical sources. Others, like licensed social workers,
do not. See SSR 06-3p. An ALJ can always decide to give greater weight to a nonacceptable source than to a treating physician. Id. Nevertheless, the distinction between
sources is still meaningful because “treating physician opinions and those of other
examining physicians generally are given more weight.” Dogan v. Astrue, 751 F. Supp.2d
1029, 1039 (N.D. Ind. 2010).
Whether Drummond qualified as an acceptable source or not, the ALJ was obligated
to apply the same criteria to her that are used to weigh the opinion of a treating physician.
SSR 06-3p. He overlooked this requirement entirely. The ALJ did not assign a weight to
Drummond, or discuss any of the factors involved in such an analysis. He was required,
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for example, to consider “[h]ow long the source has known and how frequently the source
has seen the individual.” Id. The record shows that Drummond was far less familiar with
Plaintiff than Dr. Gibbons was. Treatment notes demonstrate that she only saw Pontarelli
twice before issuing her assessment. The second time was on the same day as her April
24, 2012 report. (R. 448, 492). By contrast, Dr. Gibbons treated Pontarelli on numerous
occasions over a period of years.

Without following the guidelines set out by the

regulations and Rulings, the ALJ had no basis for using Drummond’s report to set aside
both Dr. Gibbons’ and Dr. Rozenfeld’s more pessimistic views of Plaintiff’s mental
functioning.
The ALJ’s other reasons for discounting Dr. Gibbons do not fare better. He thought
that the psychiatrist’s opinion was inconsistent with the record. The ALJ remarked that Dr.
Gibbons’ treatment notes stated that Plaintiff had an appropriate affect and clear thought
processes. This fails to explain what inconsistency the ALJ thought he was relying on to
discredit the treating psychiatrist. The restrictions that Dr. Gibbons’ identified in his report
were not all based on Plaintiff’s affect and thoughts; they also included aspects of
Pontarelli’s social functioning, concentration, and memory.

It was not inherently

inconsistent for Dr. Gibbons to find that Plaintiff had good affect and clear thinking, but still
suffered from restrictions in social functioning and concentration. Indeed, the treatment
notes that the ALJ used as evidence of an inconsistency do not suggest that Dr. Gibbons
intended to address these factors during his meetings with Plaintiff. The notes are more
reasonably seen as assessments of Plaintiff’s then-current moods and thoughts when the
psychiatrist saw him for medication management. By contrast, the report was clearly
intended to measure the full spectrum of Pontarelli’s ability to engage in full-time work on
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a consistent basis.
The ALJ provided no explanation of how he inferred from the treatment notes that
Dr. Gibbons’ RFC findings in the report were not credible. A person can be fully oriented,
have normal affect, think clearly and still be unable to maintain concentration for extended
periods, or to work in close proximity with others without being distracted. Dr. Gibbons
might have believed that Plaintiff’s improved functioning could not be sustained under the
pressures of full-time work. He might also have thought that Pontarelli’s serious mental
illness caused, or was accompanied by, cognitive and social limitations that were not noted
in the treatment notes because they were not relevant to tracking the results of Plaintiff’s
medication management. The problem is that the ALJ jumped to a finding without building
a logical bridge connecting the record and his conclusion.2
The ALJ further believed that the report included an internal inconsistency because
Dr. Gibbons stated that Plaintiff (1) could “perform activities within a schedule” but (2) could
not complete a normal workday without psychological interruptions. (R. 17). The ALJ laid
great weight on this point, finding that the two conclusions were “materially irreconcilable.”
The Commissioner has not addressed this issue. That may be because Plaintiff’s ability
to work “within a schedule” says little or nothing about his capacity to work full-time on a
sustained basis. The point is underscored by the fact that the box that Dr. Gibbons marked
for “working in a schedule” did not include any specific time period for the schedule in

2

The issue is complicated by the fact that the ALJ’s decision is based on a serious
contradiction. The ALJ gave Dr. Gibbons little weight. He then included an RFC restriction
that Plaintiff could not work in proximity to others. This limitation could only have come
from Dr. Gibbons’ report because no other source mentioned it. Indeed, the Commissioner
concedes as much in her response. The ALJ did not explain how he simultaneously
rejected Dr. Gibbons’ report and silently adopted one of its RFC findings.
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question. A “schedule” does not necessarily involve a full eight-hour day. It could indicate
short-term or medium-term activities. Dr. Gibbons might also have meant that Plaintiff
could work within a structured framework if he were allowed to take periodic breaks. That
is what Dr. Gibbons seems to have meant by finding that Pontarelli had a marked inability
“to complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number of
length of rest periods.” (R. 498) (emphasis added). The ALJ was required to explain his
reasoning more carefully before finding that Dr. Gibbons’ important limitation suffered from
a fatal inconsistency.
The ALJ thought that Dr. Gibbons’ RFC was also contradicted because Pontarelli
admitted that his anxiety had been well-controlled on medication. The Commissioner is
again silent on this issue. For its part, the Court sees no contradiction in the psychiatrist’s
reasoning. The ALJ’s point could only be relevant to the expert report if Dr. Gibbons had
based his RFC restrictions on Plaintiff’s anxiety. Nothing in the report suggests that he
thought that anxiety was relevant, or that he overlooked Plaintiff’s improved symptoms.
Dr. Gibbons was well aware that Pontarelli’s anxiety-related symptoms had abated. (R.
454). Moreover, he never diagnosed Plaintiff as having an anxiety disorder. A more
reasonable assumption is that Dr. Gibbons relied on Plaintiff’s bipolar disorder. The ALJ
was required to discuss the basis of his reasoning more clearly if he concluded otherwise.
Along the same lines, the ALJ also discounted the expert’s opinion because the ALJ
believed that lack of work was the real source of Plaintiff’s daily stress. The ALJ’s only
support for this finding was a stray comment that Pontarelli made to Katrina Drummond
in one of the two meetings they had prior to Ms. Drummond’s report. The Court is again
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unable to follow the basis of the ALJ’s reason for discounting the expert report. Even if the
ALJ’s comment was substantively correct, he failed to explain why that undermined Dr.
Gibbons’ report. The expert report gives no indication that it was based on “stress” at all.
Dr. Gibbons knew that Plaintiff was eager to work. (R. 446, 454). He simply thought that,
even if Pontarelli found a job, he would still experience work-related limitations despite his
desire to be usefully employed.
The same page from Drummond’s report that the ALJ cited suggests why that might
have been the case. Drummond noted that Pontarelli “has a diagnosis of Bipolar Disorder
with [a] history of depressive symptoms including depressed mood, fatigue, social isolation,
lack of interest, hopelessness, worthlessness, difficulty concentrating, neglect of role
functions, recurrent thoughts of death, change in appetite and insomnia[.]” (R. 486). It is
true that some of these symptoms had improved. But it is reasonable to assume that Dr.
Gibbons thought that these formidable and long-standing issues could still have been a
source of work-related problems. (R. 446, 454). Given Dr. Gibbons’ expertise and
familiarity with Plaintiff’s mental health history, the ALJ should have considered that his
RFC findings could not be dismissed by claiming that Plaintiff’s only stress stemmed from
lack of work.
Finally, and most problematically, the ALJ did not believe that Plaintiff’s functioning
was as restricted as Dr. Gibbons stated because of relatively high GAF scores that
Pontarelli had previously received. The ALJ cited Drummond’s score of 58 discussed
above. He also noted that Dr. Yuan gave Plaintiff a 70 at one point and a 50 at another.
The ALJ contrasted these scores with the assessment of 40 that both Dr. Gibbons and Dr.
Boyanchek consistently gave Pontarelli in their treatment notes. The ALJ concluded that
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these lower scores were inconsistent with “the normal or near-normal mental status
observations of the psychiatrists and psychologists.”3 (R. 16).
Substantial evidence does not support this line of reasoning. GAF assessments
must be approached with considerable caution when considering disability claims. That
is because “GAF scores are more probative for assessing treatment options rather than
determining functional capacity and a person’s disability.” Warner v. Astrue, 880 F.
Supp.2d 935, 943 (N.D. Ind. 2012) (internal quotes and citation omitted). See also Jones
v. Colvin, — F. Supp.2d —, 2014 WL 657583, at *3 (N.D. Ind. Feb. 19, 2014) (noting that
a GAF score is only a diagnostic tool that “is not the equivalent of a doctor’s opinion of
functional capacity and is not treated as such by the regulations”). Indeed, the latest
version of the DSM “has abandoned the GAF scale because of its conceptual lack of clarity
. . . and questionable psychometrics in routine practice.” Williams v. Colvin, — F.3d —,
2014 WL 2964078, at * 2 (7th Cir. July 2, 2014) (internal quotes and citation to the DSM-V
omitted).
Contrary to these guidelines, the ALJ relied on GAF scores as signs of Plaintiff’s
long-term functional abilities. He clearly assumed that a score given at one time could be
used to support or contradict findings concerning Plaintiff’s mental condition years later.
That was the basis of his belief that a score of 70 given in February 2010 contradicted a
score of 40 given as late as May 2012. However, GAF scores often fluctuate. Hunt v.

3

It is not clear who the ALJ meant to reference by this comment. Dr. Yuan was the
only psychiatrist other than Dr. Boyanchek and Dr. Gibbons that the ALJ cited. As noted,
there is no evidence that Ms. Drummond was a licensed psychologist. The Court assumes
below that the ALJ intended Dr. Yuan to be the psychiatrist that showed “normal or nearnormal mental status.”
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Astrue, 889 F. Supp.2d 1129, 1146 (E.D. Wis. 2012). The record in this case vividly
illustrates that point. Pontarelli’s scores vacillated from a low of 20 to a high of 70 in a
matter of days. That is hardly surprising given that Plaintiff suffers from bipolar disorder
“with rapid cycling.” (R. 311). The ALJ should have been aware that a bipolar claimant’s
GAF scores could be expected to fluctuate in line with the varying mental states that are
part of his condition. Courts have been clear that these variations can be anticipated even
when a claimant receives proper medical treatment. See Jelinek v. Astrue, 662 F.3d 805,
814 (7th Cir. 2011) (noting that bipolar disorder “is by nature episode and admits to regular
fluctuations even under proper treatment”).
Notably, the Commissioner dissociates herself from the ALJ’s reliance on GAF
scores. She states that the multiple assessments of 40 that Dr. Boyanchek and Dr.
Gibbons assigned were merely given on “a blanket basis regardless of [Dr. Gibbons’]
substantive findings.” (Resp. at 8). That is reason in itself to reject the ALJ’s contrary
assumption. Moreover, the Commissioner goes on to argue that the GAF scores should
not be given special attention at all because they are not directly correlated with the
severity of a claimant’s impairment. The Court agrees, though the Commissioner’s point
undermines much of the ALJ’s reasoning.
GAF scores are not irrelevant to an ALJ’s decision. But courts have rejected again
and again the notion that GAF scores are anything other than momentary “snapshots” of
a claimant’s functioning that cannot be used to assess an individual’s overall functioning.
See, e.g., Sambrooks, — Fed.Appx. —, 2014 WL 270019, at *5; Macklin v. Colvin, 2013
WL 5701048, at *10 (S.D. Ind. Oct. 18, 2013) (noting that GAF scores are “clearly not
indicative of [a claimant’s] ability to function on a day-to-day basis”); Doyle v. Astrue, 2012
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WL 489146, at *6 (N.D. Ind. Feb. 14, 2012) (discussing GAF scores as snapshots of a
claimant’s condition rather than signs of progress); Granados v. Astrue, 2011 WL 746285,
at *7-8 (N.D. Ill. Feb. 24, 2011); Chinderle v. Astrue, 2011 WL 4396914, at *6 (N.D. Ill.
Sept. 20, 2011).
The ALJ’s emphasis on GAF scores led him to unsubstantiated conclusions. He
assumed that the score of 40 that Dr. Boyanchek and Dr. Gibbons assigned as late as
2012 was refuted by Dr. Yuan’s GAF scores of 70 and 50 that were given in 2010. The
ALJ certainly provided no other reason for contrasting Dr. Gibbons’ score with the “normal
and near-normal” findings of other experts. The Court cannot follow how Dr. Yuan’s scores
can reasonably be construed as signs of sustained normal functioning that the ALJ was
entitled to use to discount later (and lower) GAF scores. The record illustrates the problem
in somewhat dramatic terms. Dr. Yuan rated Plaintiff at 70 when he was released from the
hospital in February 2010 after being treated for a suicide attempt. Only six months later
in July 2010, Pontarelli was hospitalized once more when Dr. Yuan feared that he might
again try to kill himself. Thus, the 70 figure is not even reliable evidence of Plaintiff’s
functioning on a relatively short-term basis, much less an indication that Dr. Gibbons was
incorrect years later in his 2012 report.
The ALJ acknowledged Plaintiff’s second hospitalization for suicidal ideation.
Instead of construing it as a sign of ongoing problems, the ALJ concluded that the fact that
Dr. Yuan gave a 50 score upon admission meant that Plaintiff only had “moderate”
restrictions. As before, the ALJ seems to have thought that this was counter-evidence to
Dr. Gibbons’ later assessments. This was seriously erroneous. One problem is that the
ALJ mischaracterized the significance of a 50 GAF score. Only figures between 51 and
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60 indicate “moderate” limitations. A score of 50 represents “serious” symptoms. Pyle v.
Colvin, 2013 WL 3866730, at *7 (N.D. Ind. July 15, 2013). “A GAF rating of 50 does not
represent functioning within normal limits. Nor does it support a conclusion that [a
claimant] was mentally capable of sustaining work.” Campbell v. Astrue, 627 F.3d 299,
307 (7th Cir. 2010).

See also Granados, 2011 WL 746285, at *7 (noting that 50 can

indicate suicidal thoughts “or any serious impairment in social, occupational or school
functioning, such as being unable to hold a job”).
Moreover, the ALJ’s reasoning would fail even if he were correct that a score of 50
indicates moderate symptoms. ALJ Dadabo implicitly used Dr. Yuan’s scores of 70 and
50 as evidence that Plaintiff’s 2010 hospitalizations – both of which constituted serious
episodes of decompensation – were not inconsistent with his negative view of Dr. Gibbons.
The Court can see no other reason why the ALJ focused on Plaintiff’s hospital-related GAF
scores to discount Dr. Gibbons rather than discussing Plaintiff’s decompensation more
fully. The ALJ was correct that the 70 figure suggested that Plaintiff was functioning “pretty
well” (R. 16) upon release from his first hospitalization. It is also the case, however, that
he had just attempted to kill himself, and that Dr. Yuan hospitalized him within six months
because he feared Plaintiff would try again. It goes without saying that persons with
normal or near-normal mental functioning are not ordinarily hospitalized as potential suicide
victims. The ALJ should have considered that GAF scores of 70 and 50 given in the
context of suicide-related hospitalizations are not the best indicators of a claimant’s
subsequent mental functioning.
The ALJ must explain in greater detail how Dr. Gibbons’ assessments (whether in
terms of the GAF scores of 40, or the expert report) are inconsistent with what the ALJ
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thought was Pontarelli’s relatively normal mental state. Plaintiff’s motion is granted on this
issue.
C.

The RFC Issue

The ALJ found that Pontarelli could work if certain non-exertional restrictions were
put in place. These included routine work in the same environment each day. Plaintiff was
further restricted to situations in which he primarily works alone, has no public contact, and
is not required to engage in team coordination. Pontarelli argues that the ALJ’s reference
to “routine work” does not sufficiently account for his limitations in concentration,
persistence, and pace.

The Commissioner argues that the ALJ provided for these

restrictions by including additional limitations that prevent Plaintiff from working with others
or from having contact with the public.
It is well-established that restricting a claimant to “simple, routine tasks that do not
require constant interactions with coworkers or the general public” does not adequately
account for restrictions in concentration, persistence, and pace. Stewart v. Astrue, 561
F.3d 679, 685 (7th Cir. 2009). The Commissioner has not presented any authority for the
claim that additional restrictions like working alone and performing tasks that remain the
same alter this conclusion. Instead, the ALJ cites Parrot v. Astrue, 493 Fed.Appx. 801,
805 (7th Cir. 2012). That case only states that a hypothetical question that excludes
complex tasks is sufficient to account for moderate restrictions in concentration. That is
not the same as arguing that working alone and performing repetitive tasks carry the day.
It is not even clear how working alone relates to concentration. It could just as easily be
designed to account for Plaintiff’s restrictions in social functioning.
Notwithstanding, the Court does not address this issue in detail. The ALJ’s RFC
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requires remand even if the Commissioner’s reasoning is correct. An ALJ is always
obligated to discuss how the evidence supports his RFC restrictions. He must also
describe how he resolved any inconsistencies in the evidence. SSR 96-8p. In this case,
the ALJ Dadabo failed to provide any explanation of how he reached his conclusions
concerning Plaintiff’s non-exertional restrictions.
The ALJ did not cite any medical evidence to support his RFC. He gave little weight
to Dr. Gibbons. He also failed to take note of Dr. Rozenfeld’s PRT other than to state in
passing that Drummond’s report convincingly showed that Plaintiff was less restricted than
Dr. Rozenfeld believed.

But the ALJ gave no reason for giving greater weight to

Drummond, nor did he explain what part of Dr. Rozenfeld’s PRT was erroneous. That is
especially problematic in light of the fact that Drummond did not even make an RFC
assessment. The ALJ was required at least to cite the state-agency psychologist’s
findings, and to discuss them in some minimal way, before he could reject them.
Even if he had relied on Dr. Rozenfeld, moreover, the ALJ could not have used the
PRT to support his finding that Plaintiff should be restricted to working alone.

Dr.

Rozenfeld did not include that limitation in her RFC assessment. To the contrary, she
stated that Pontarelli “would be able to work in proximity with others but not on joint/shared
tasks.” (R. 424) (emphasis added). As the Commissioner notes, the ALJ seems to have
taken this restriction from Dr. Gibbons, even though he gave little weight to the expert
report. The result is contradictory and unexplained: the ALJ both rejected and accepted
parts of Dr. Gibbons’ report, discounted Dr. Rozenfeld’s, and then constructed an RFC
without drawing a link between his findings and the record.
The absence of an adequate discussion of how the ALJ reached his RFC requires
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remand. An ALJ is not permitted to create a “middle ground” RFC without a proper medical
basis and without an explanation of how he reached his conclusions. Norris v. Astrue, 776
F. Supp.2d 616, 637 (N.D. Ill. 2011); Bailey v. Barnhart, 473 F. Supp.2d 822, 838-39 (N.D.
Ill. 2006); see also Newell v. Astrue, 869 F. Supp.2d 875, 891 (N.D. Ill. 2012); Pulaski v.
Astrue, 2012 WL 1932113, at *11 (N.D. Ill. May 25, 2012). On remand, the ALJ shall
explain how the record supports each of the limitations included in the RFC. Plaintiff’s
motion is granted on this issue.
IV. Conclusion
For the reasons stated above, Plaintiff's motion for summary judgment [14] and the
Commissioner’s motion for summary judgment [22] are both granted in part and denied in
part. The ALJ’s decision is reversed, and this case is remanded to the Social Security
Administration under sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with this opinion. It is so ordered.

ENTERED:

__________________________________
DANIEL G. MARTIN
United States Magistrate Judge
Dated: July 7, 2014.

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