Kakoczki v. Colvin
Filing
34
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 8/25/2016.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL S. KAKOCZKI,
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Claimant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the U.S. Social
Security Administration,
Defendant.
No. 14 CV 9207
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Claimant Michael Kakoczki (“Claimant”) seeks judicial review under 42 U.S.C. §
405(g) of a final decision of Defendant Commissioner of the Social Security
Administration (“SSA”) denying his claim for Social Security Supplemental Security
Income (“SSI”) benefits under Title XVI of the Social Security Act (“the Act”). The
parties have consented to the jurisdiction of a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). Before the court is Claimant’s motion to reverse the decision of
the Commissioner’s (Dkt. 20) and the Commissioner’s motion for summary judgment
(Dkt. 30). For the reasons that follow, Claimant’s motion is granted and the
Commissioner’s motion is denied. This case is remanded to the SSA for further
proceedings consistent with this opinion.
I.
A.
BACKGROUND
Procedural History
On May 23, 2011, at the age of eighteen, Claimant filed a Title XVI SSI
application alleging a disability due to bipolar disorder, obsessive compulsive disorder
(“OCD”), seizure disorder, anxiety, memory deficit, and learning disability beginning May
1, 2011. (R. 177, 180-88.) The application was denied initially on October 18, 2011
and upon reconsideration on January 26, 2012. (R. 68-69.) After both denials,
Claimant filed a timely request for a hearing, which was initially scheduled for June 15,
2012 before an Administrative Law Judge (“ALJ”). (R. 27-37, 85-86.) Claimant
appeared for the hearing without a representative. (R. 27-37.) After being informed of
his rights to representation, the hearing was rescheduled to provide time for Claimant to
seek counsel. (Id.) On March 6, 2013 Claimant appeared for the rescheduled hearing
along with his representative and his mother. (R. 38-67.) A Vocational Expert (“VE”)
was also present to offer her testimony. (Id.) On April 26, 2013, the ALJ issued a
written determination finding Claimant not disabled and denying his SSI application. (R.
10-21.) Claimant sought review by the Appeals Council (“AC”), which was denied on
September 16, 2014. (R. 1-3.)
B.
Medical Evidence
Claimant’s medical records indicate that he has been a patient at Dreyer Medical
Clinic (“Dreyer”) since January 2010. (R. 534.) Dr. Carlos Barrios initially tended to
Claimant on January 18, 2010 for psychotherapy and medication management. (Id.) At
the time, Claimant’s symptoms included grandiose features such as commandeering
attitude, flight of ideas, hyper-verbal speech, reckless activities, and mood swings. (Id.)
He was prescribed Abilify for bipolar disorder, Intuniv for Attention Deficit Hyperactive
Disorder (“ADHD”), and Lamictal as a mood stabilizer. (R. 535.) Dr. Barrios noted he
was in otherwise stable condition. (Id.)
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On May 6, 2010, Dr. Ammar Katerji, Claimant’s former pediatric neurologist,
wrote a letter regarding his treatment of Claimant. (R. 620-21.) Dr. Katerji listed
Claimant’s impairments as a learning disability, behavior difficulty, ADHD, and seizure
disorder. (R. 620.) Dr. Katerji noted that Claimant improved on his medication, but
Claimant felt his medication caused tremors and anxiety. (Id.) Dr. Katerji suggested
that Claimant remain on his medication. (Id.)
Claimant continued to visit Dr. Barrios at Dreyer for psychotherapy. Throughout
the course of his visits, Claimant reported having altercations with his mother’s
boyfriend. (R. 543-44.) On July 27, 2010, he reported knee pain without specific injury.
(R. 545-46.) After a review of an x-ray, Dr. Barrios concluded that Claimant did not
have any fracture or dislocation, but suggested that Claimant lose weight. (R. 549-50,
616-17.) On September 28, 2010, after complaints of drowsiness, Dr. Barrios
decreased his dosage of Abilify. (R. 551-52.) On November 8, 2010, Claimant reported
decreased drowsiness and felt energetic enough to return to the gym. (R. 555-56.) On
March 14, 2011, Dr. Barrios reported that Claimant was dealing reasonably well with his
medication and he had good control of his symptoms. (R. 564.) He further reported
that Claimant was looking for a job and planned to graduate high school and attend
college. (Id.) Claimant asked Dr. Barrios about decreasing his medication and it was
agreed that his Intuniv dosage would be decreased. (Id.)
On July 10, 2011, Claimant began to see Dr. John Zhang at Dreyer. (R. 580-81.)
Dr. Zhang noted that Claimant had a history of temporal lobe epilepsy, which causes
mood and behavioral disturbances and cognitive impairments. (R. 581.) Dr. Zhang
continued to prescribe Claimant Abilify and Intuniv. (Id.) On September 28, 2011,
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Claimant saw Dr. Brian O’Shaughnessy at Dreyer, who noted that after a neurological
examination, he found no significant abnormalities. (R. 592.) He noted that Claimant’s
headaches may be migraines, but they are “not frequent enough” to warrant
preventative medication. (Id.) Dr. O’Shaugnessy also stopped his antiepileptic
medication, as Claimant no longer had seizures. (Id.) Dr. O’Shaugnessy’s
assessments regarding Claimant’s seizures are supported by Dr. Katerji, who noted on
November 9, 2010 that Claimant had not had “any seizures for a period of time.” (R.
367.)
On September 21, 2011, state agency doctor Dr. Glen Wurglitz completed
Claimant’s psychological evaluation. (R. 493-99.) Dr. Wurglitz noted that Claimant’s
mood was pleasant and stable during the evaluation. (R. 495.) He had a friendly
interaction style and his speech quality was steady. (Id.) He was oriented to person,
place, time, and the purpose of the office visit. (Id.) With regard to his short-term
memory, Dr. Wurglitz found Claimant’s memory to be poor and he was unable to
remember names and could not recall items without assistance. (Id.) Dr. Wurglitz
found Claimant to be cognitively capable of performing tasks with complex instruction.
(R. 496-97.) He also found Claimant to be capable of understanding, remembering, and
carrying out detailed instructions. (R. 497.) Dr. Wurglitz further opined that Claimant
had social traits that may interfere with his interactions with supervisors, coworkers, and
the general public to a mild or moderate degree. (Id.) Dr. Wurglitz assessed bipolar
disorder, learning disorder, ADHD, history of epilepsy, and educational and
occupational problems. (Id.) He gave Claimant a GAF score of 61. (Id.)
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On September 27, 2011, Dr. Roopa Karri of Disability Determination Services
completed an internal medical consultative examination. (R. 501-04.) A physical exam
returned normal results. (R. 503.) Dr. Karri noted that Claimant had a history of bipolar
disorder, anxiety, and a learning disability. (R. 504.) Dr. Karri also reported that
Claimant had a history of seizures, but that they were under control even without
medication. (Id.) Finally, Dr. Karri noted that Claimant was obese. (Id.)
On October 7, 2011, Dr. Ellen Rozenfeld completed a Psychiatric Review
Technique Form (“PRTF”) and a mental Residual Functional Capacity (“RFC”)
assessment. (R. 505-22.) In the PRTF form, Dr. Rozenfeld assessed Claimant for
several listings impairments, such as 12.02 for organic mental disorders, 12.04 for
affective disorders, and 12.09 for substance addiction disorders. (R. 505.) Dr.
Rozenfeld noted that Claimant had mild limitations in activities of daily living and
moderate limitations in maintaining social functioning, as well as maintaining
concentration, persistence, and pace. (R. 515.) Dr. Rozenfeld reviewed Claimant’s
medical file and determined Claimant’s allegations regarding his activities of daily living
were consistent with his medically determinable impairments. (R. 517.) However, Dr.
Rozenfeld noted that while Claimant had a long history of treatment, the record showed
that he was “doing fairly well.” (Id.) She also noted that Claimant had a severe mental
impairment that does not meet or equal a listing impairment and he retained the
sufficient mental capacity to perform operations of a routine and simple nature on a
sustained basis. (R. 517.)
In her mental RFC assessment, Dr. Rozenfeld found that Claimant would be
moderately limited in his ability to understand, remember, and carry out detailed
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instructions, maintain attention and concentration for extended periods, interact
appropriately with the general public, and get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. (R. 519-20.) Dr. Rozenfeld opined
that Claimant retained the mental capacity to concentrate on, understand, and
remember routine and repetitive instructions. (R. 521.) She further opined that his
ability to carry out tasks with adequate persistence and pace would be limited for
complex tasks but adequate for routine and repetitive tasks. (Id.) She stated that
Claimant would be capable of following an ordinary routine without special supervision
and he could make simple, work-related decisions. (Id.) Dr. Rozenfeld concluded that
Claimant would be able to work in proximity with others but not on joint or shared tasks.
(Id.) He would be able to handle supervisory contact and his ability to handle stress
would be adequate to tolerate routine changes in the workplace. (Id.)
On March 19, 2012, Dr. Barrios wrote a note to the SSA to provide clinical
information regarding Claimant’s impairments. (R. 626-27.) He reported that he treated
Claimant from 2008 through 2011 and during this time, he was diagnosed with bipolar
disorder and ADHD. (R. 626.) Dr. Barrios noted that Claimant’s bipolar symptoms
include mood lability, impulsive behavior, anger problems, physical aggression, and
anxiety. (Id.) Dr. Barrios further noted that Claimant had difficulty maintaining selfhygiene, conducting household chores, working on his own, or managing money. (R.
627.)
On July 6, 2012, Claimant was admitted to Provena Medical Center after
experiencing homicidal ideations and hallucinations. (R. 633-34.) He was diagnosed
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with bipolar disorder and temporal lobe epilepsy. (R. 634.) He was instructed at
discharge to follow-up with Dr. Zhang. (Id.)
C.
Individualized Education Program (“IEP”)
Claimant has been through several IEPs throughout the course of his education.
In April 1998, Claimant’s academic performance was evaluated by Aurora Public
School. (R. 301-08.) Claimant’s communication skills were below average and it was
noted that he was weak in his auditory memory. (R. 303.) It was determined that he
was eligible for special education based upon his performance. (R. 304.)
From 2005 through 2006, Claimant underwent a reevaluation with West Aurora.
(R. 314-50.) Claimant’s math and verbal testing scores were in the impaired range. (R.
324.) It was noted that he had trouble remembering and understanding what people
say, understanding new ideas, answering questions, and all aspects of reading and
writing. (R. 328.) While he passed his classes, Claimant’s teachers remained
concerned with his behavior in unstructured settings. (R. 329.) After the evaluation, it
was determined that Claimant remained eligible for special education. (R. 314.)
In May 2011, another evaluation was conducted by West Aurora High School.
(R. 409-34.) It was noted that Claimant continued to have deficits in the areas of math,
reading, writing, and short-term memory. (R. 432.) However, he had made positive
contributions to class and “most of his work gets turned in.” (R. 416.) His social and
emotional status was not listed as a concern during the reevaluation. (Id.) While he
continued to pass his classes, his grades were low. (Id.) Because of his medications,
he was often drowsy in class, however it was determined that Claimant was capable of
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functioning well while awake. (Id.) At the end of the evaluation, he was found eligible to
continue his special education services. (R. 409.)
D.
Claimant’s Testimony
Claimant was present during the rescheduled March 6, 2013 hearing and offered
testimony. (R. 38-67.) He testified that he completed high school but dropped out of
college after one week. (R. 42.) He further testified that he lives at home with his
mother and stepfather. (Id.) Claimant explained that he was formerly employed at
Jewel but stopped working because he was stressed and confused. (R. 43.) He got
confused because he was being told to do too many tasks at once. (R. 54.)
Claimant could not remember the last time he had a seizure but testified that he
was taking medication to control his epilepsy. (R. 44.) He denied any side effects from
the medication. (Id.) Claimant sometimes has feelings of low self-esteem and
sometimes has difficulty concentrating and focusing. (Id.) He also has memory loss.
(Id.) He suffers crying spells once a month due to his depression. (R. 45.) He also
suffers from panic attacks and anger spells around twice a week. (Id.) Claimant has
difficulty sleeping and generally only sleeps for five hours. (R. 48.) The only
hospitalization Claimant could recall was when he was younger due to medication
problems. (R. 47.)
With respect to chores, Claimant testified that he usually completes his chores
once a week. (R. 49.) He is able to manage his personal care, get dressed, shower,
clean his room, and prepare food to eat. (Id.) He can also do laundry, wash the dishes,
vacuum, and take out the garbage. (R. 50.) Claimant stated that he does not watch
much television but plays video games often. (R. 52.) He also helps take care of his
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dog. (Id.) Claimant spends time with his friends and families. (R. 51.) He testified that
he no longer goes to the gym because he wants to spend time with his mom and help
around the house. (Id.)
E.
Witness Testimony
Claimant’s mother was also present at the hearing and offered testimony. She
testified that she had to offer assistance to Claimant when he was working at Jewel by
setting his alarm and giving him his medication. (R. 60.) She further stated that
Claimant was very stressed and overwhelmed at the job and would often get headaches
that lasted for days. (R. 61.) With regard to his seizures, Claimant’s mother testified
that he has not had a seizure since 2010. (R. 63.) However, Claimant’s mother stated
that he has been struggling with his bipolar disorder and anxiety for many years and it
affects his daily life. (Id.) She stated that he cannot handle money, cannot understand
the concept of time, and has trouble retaining information. (Id.)
F.
VE Testimony
The VE described Claimant’s previous job at Jewel as a bagger. (R. 65.) The
ALJ asked the VE whether an individual with Claimant’s age, education, and work
experience, but who could not have contact with the public and is restricted to two to
three step simple, repeated, and routine tasks, would be able to perform any jobs in the
national economy. (Id.) The VE stated that such an individual would be precluded from
performing his past job as a bagger but there are packager jobs available. (Id.) The VE
also found that Claimant would be able to perform sorting and assembling jobs. (R. 66.)
If Claimant is incapable of sustaining full-time employment, the VE testified that he
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would not be employable. (Id.) The VE also stated that Claimant would be precluded
from all competitive work if he was off-task for at least 15 percent of the workday. (Id.)
II.
A.
LEGAL ANALYSIS
Standard of Review
Because the Appeals Council denied review, the ALJ’s findings constitute the
final decision of the agency. (R. 1-3); see Herron v. Shalala, 19 F.3d 329, 332 (7th Cir.
1994). The findings of the ALJ as to any fact, if supported by substantial evidence, shall
be conclusive. 42 U.S.C. § 405(g); see also Scott v. Barnhart, 297 F.3d 589, 593 (7th
Cir. 2002); 42 U.S.C. § 1383 (“The final determination of the Commissioner after a
hearing under paragraph (1) shall be subject to judicial review as provided in section
405(g) of this title to the same extent as the Commissioner's final determinations under
section 405 of this title.”) Although the court affords great deference to the ALJ’s
determination, it must do more than merely rubber stamp the ALJ’s decision. See
Griffith v. Sullivan, 916 F.2d 715 (7th Cir. 1990) (citing Delgado v. Bowen, 782 F.2d 79,
82 (7th Cir. 1986)). In order to affirm the ALJ’s decision, the court must find the
decision to be supported by substantial evidence on the record as a whole, and must
take into account whatever in the record fairly detracts from its weight. See Universal
Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951). Substantial evidence is more
than a mere scintilla; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Kepple v. Massanari, 268 F.3d 513 (7th Cir.
2001) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The court may not displace the ALJ’s judgment by reconsidering facts or
evidence or making credibility determinations. See Skinner v. Astrue, 478 F.3d 836,
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841 (7th Cir. 2007). Where conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that determination falls upon the
ALJ, not the courts. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). An ALJ
must articulate her analysis by building an accurate and logical bridge from the
evidence to her conclusions, so that the court may afford the claimant meaningful
review of the ALJ’s ultimate findings. See Pepper v. Colvin, 712 F.3d 351 (7th Cir.
2013). It is not enough that the record contains evidence to support the ALJ’s decision
and the court must remand if the ALJ does not rationally and sufficiently articulate the
grounds for that decision, so as to prevent meaningful review. (Id.)
B.
Analysis under the Social Security Act
To qualify for Social Security benefits, a claimant must be under a disability
within the meaning of the Act. A disability is defined as the “inability 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.” 42 U.S.C. §
1382c(a)(3)(A); see also Barnhart v. Walton, 535 U.S. 212, 217-22 (2002). Pursuant to
the Act, Claimant is disabled only if her physical or mental impairments are of such
severity that she is unable to do her previous work and cannot, when “considering her
age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether such work exists in
the immediate area in which she lives, or whether a specific job vacancy exists for her,
or whether she would be hired if she applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
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Under the authority of the Act, the SSA has established a five-step sequential
evaluation process for determining whether Claimant is disabled. See 20 C.F.R. §
404.1520(a). This five-step sequential evaluation process requires the ALJ to inquire:
1.
Is Claimant presently engaging in substantial gainful activity? See 20 C.F.R. §
404.1572 et seq.
2.
Does Claimant have a severe medically determinable physical or mental
impairment that interferes with work and is expected to last at least 12 months?
3.
Does the impairment meet or equal one of a list of specific impairments
enumerated in the regulations? See 20 C.F.R. § Pt. 404, Subpt. I, App. 1.
4.
Is Claimant unable to perform her former occupation?
5.
Is Claimant unable to perform any other work?
20 C.F.R. § 404.1520(a)(4); Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
Claimant has the burden of establishing steps one through four. At step five the burden
shifts to the Commissioner to establish that Claimant is capable of performing work.
See Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
C.
ALJ’s Determination
On April 26, 2013, the ALJ issued a written decision denying Claimant’s SSI
application. (R. 10-21.) At the first step, the ALJ determined that Claimant had not
engaged in substantial gainful activity since his alleged onset date. (R. 15.) At step
two, the ALJ found that Claimant has the severe impairments of seizure disorder,
bipolar disorder, learning disability, and ADHD. (Id.) At step three, the ALJ found that
Claimant does not have an impairment or a combination of impairments that meet or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
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Subpart P, App’x 1. (R. 15-16.) Before step four, the ALJ determined that Claimant had
the RFC to perform a full range of work at all exertional levels but with certain nonexertional limitations, such as the inability to climb ladders, ropes, or scaffolds, avoiding
concentrated exposure to work hazards such as unprotected heights and moving
machinery, avoiding public contact other than occasional contact with coworkers and
supervisors, and performing only two to three step repeated routine tasks. (R. 17.) In
so finding, the ALJ evaluated the medical opinions of Claimant’s treating physicians and
found they did not deserve controlling weight. (R. 18-19.) The ALJ also did not find
Claimant’s allegations regarding his symptoms to be fully credible. (R. 18.) At step
four, the ALJ concluded that Claimant did not have any past relevant work. At step five,
after taking into consideration Claimant’s age, education, lack of work experience, and
RFC, the ALJ concluded that he is able to make a successful adjustment and perform
jobs existing in significant numbers in the national economy. (R. 20-21.)
III.
DISCUSSION
In challenging the ALJ’s decision, Claimant proffers two arguments. First,
Claimant contends that the ALJ’s RFC determination was not supported by substantial
evidence. (Pl. Mot. at 11-13.) Next, Claimant argues that the ALJ erred in rendering
her credibility determination. (Pl. Mot. at 14-15.)
A.
RFC Assessment
Claimant argues that the ALJ erred in her RFC assessment for two reasons.
First, he argues that the ALJ failed to reconcile the opinion of his treating physician Dr.
Barrios with the medical evidence. In her written opinion, the ALJ noted that she gave
no weight to Dr. Barrios’ medical source statement, “as his treatment notes do not
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support his findings.” (R. 19, 626-27.) The ALJ added that “Dr. Barrios [gave]
examples of the claimant not seeking treatment for mononucleosis as evidence that his
mother should have power of attorney; yet his mother lets the claimant go out alone and
drive daily; he also sees his friends; and had a job and did not get into trouble.” (R. 19.)
The ALJ goes further to note that “Dr. Barrios last saw the claimant on April 26, 2011,
and the letter claiming that the claimant is disabled is dated March 19, 2012.” (Id.) The
court finds the ALJ’s reasons for discrediting Dr. Barrios’ opinion to be insufficient.
First, the ALJ failed to explain why Dr. Barrios’ medical opinion was not entitled
to controlling weight. A treating physician’s opinion is entitled to controlling weight if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence. See Larson v. Astrue, 615 F.3d
744, 749 (7th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2)). An ALJ must offer good
reasons for discounting a treating physician’s opinion. See Campbell v. Astrue, 627
F.3d 299, 306 (7th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2)).
Here, the ALJ appears only to have considered and attributed weight to Dr.
Barrios’ medical source statement rather than the whole of his treatment notes. The
ALJ is correct that the last time that Dr. Barrios saw Claimant was on April 26, 2011.
(R. 569-70.) However, the ALJ did not seem to consider Dr. Barrios’ treatment notes
dating back to January 2010 when he first began to treat Claimant. These treatment
notes are pertinent to understanding Claimant’s mental impairment, as they discuss
Claimant’s symptoms of grandiose features, hyper-verbal speech, reckless behavior,
and mood swings. (R. 534, 540.) They also discuss his altercations with his mother’s
boyfriend because Claimant made a blow torch out of a spray can. (R. 540, 543.) The
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Commissioner attempts to defend the ALJ’s decision by arguing that Claimant misread
Dr. Barrios’ notes and that Dr. Barrios noted that Claimant did not burn his home with a
make-shift blow torch. However, this argument is unavailing as the error is not in the
misinterpretation of the treatment notes, but rather in the ALJ’s failure to consider the
treatment notes at all in her determination. Moreover, while the ALJ gave “no weight” to
Dr. Barrios’ medical source statement as his treatment notes did not support his
findings, the ALJ failed to mention or explain the inconsistency. Again, the
Commissioner attempts to defend the ALJ by arguing that Plaintiff failed to explain how
the treatment notes would have supported a finding of disability. This argument also
fails, as the ALJ is tasked with providing the requisite “good reasons” for denying
controlling weight to a treating physician. Campbell, 627 F.3d 299 at 306; 20 C.F.R. §
404.1527(d)(2). The ALJ did not do so here.
The ALJ appears to have ignored the treating physician rule, which directs the
ALJ to give controlling weight to the medical opinion of a treating physician if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence. See 20 C.F.R. § 404.1527(d)(2); see
also Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006). “If the treating physician's
medical opinion is well supported and there is no contradictory evidence, there is no
basis on which the ALJ, who is not a physician, could refuse to accept it.” Bauer v.
Astrue, 532 F.3d 606, 608 (7th Cir. 2008). However, once well-supported contradicting
evidence is introduced, the treating physician’s evidence is no longer entitled to
controlling weight. Id. At that point the treating physician’s evidence is just one more
piece of evidence for the ALJ to weigh....and the rule goes on to list various factors that
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the ALJ should consider, such as how often the treating physician has examined the
claimant, whether the physician is a specialist in the condition claimed to be disabling,
and so forth. Id. The checklist is designed to help the ALJ decide how much weight to
give the treating physician’s evidence. Id.
Again, here, the ALJ only addressed Dr. Barrios’ medical source statement and
there is no indication that the ALJ considered any of the remaining treatment notes of
Dr. Barrios, who has the longest standing relationship with Claimant than any other
doctor of record. While the ALJ claims that the medical source statement was
inconsistent with the treatment notes, the ALJ goes no further to explain the
inconsistency and thus the court is unable to determine whether there was cause for the
ALJ to deny controlling weight to Dr. Barrios’ medical opinion. And while it remains
unclear as to what weight the ALJ assigned to Dr. Barrios’ overall medical opinion,
assuming that the ALJ did in fact deny Dr. Barrios controlling weight, she did not follow
the second step of the treating physician rule, which directs the ALJ to go through the
regulatory factors to determine the appropriate weight to designate to the treating
physician’s medical opinion. A reasonable review of the factors would appear to
suggest giving controlling weight to Dr. Barrios, as he had an established treatment
relationship with Claimant longer than any doctor on record, specialized in the field of
psychiatry, and offered the initial evaluation of Claimant’s mental impairments. (R. 53435, 563-65.) Because the ALJ failed to follow the treating physician rule, remand is
required for further evaluation of Dr. Barrios’ treatment records.
Next, Claimant argues that the ALJ failed to consider his obesity when assessing
his RFC. Though Claimant did not list obesity as an impairment in his disability
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application, according to SSR 02-1P * 3 (S.S.A.), 2002 WL 34686281, an ALJ should
consider the effects of obesity together with the underlying impairments, even if the
individual does not claim obesity as an impairment. See Clifford, 227 F.3d 863 at 873.
But a failure to explicitly consider the effects of obesity may be harmless error. This is
especially the case where a claimant fails to articulate how obesity has further limited
the conditions and functioning. See Hernandez v. Astrue, 277 F. App'x 617, 624 (7th
Cir. 2008) (pointing out that the claimant “did not articulate how her obesity exacerbated
her underlying conditions and further limited her functioning—as it was her burden to
do.”).
Here, Claimant argues that there was ample evidence of his obesity but the ALJ
nevertheless failed to account for this impairment. However, Claimant’s argument is
insufficient on this point, as he has failed to show the court that he is more limited in his
functionality due to his obesity. See Hernandez, 266 F. App’x 617 at 624 (citing
Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006)); see also Skarbek v.
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (“[B]ut here the claimant herself is silent in
this regard, [and] we have repeatedly excused as harmless error the failure of an ALJ to
explicitly address the claimant's obesity as SSR 02-1p prescribes so long as the ALJ
demonstrated that he reviewed the medical reports of the doctors familiar with the
claimant's obesity.”) The ALJ considered Claimant’s obesity but determined that it was
a non-severe impairment. (R. 18.) After a review of the medical evidence, the ALJ
reasonably concluded that “there is no evidence that alone or in combination with
another impairment his obesity results in any work related limitations.” (Id.) Because
Claimant did not allege further limitations preventing him from engaging in work
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activities, the court finds the ALJ’s analysis of Claimant’s obesity to be sufficient. See
Prochaska, 454 F.3d 731 at 736-37 (citing Skarbek, 390 F.3d 500 at 504 (“[A]lthough
the ALJ did not explicitly consider obesity it was factored indirectly into the ALJ’s
decision.”)). Though the ALJ’s explanation may not have been explicit regarding
Claimant’s obesity, this was harmless error.
B.
Credibility Determination
Claimant also believes that the ALJ’s credibility determination was not supported
by substantial evidence, arguing in part that she failed to comply with SSR 96-7p. At
the outset, the court notes that the SSA has recently updated its guidance about
evaluating symptoms in disability claims. See SSR 16-3p, 2016 WL 1119029 (March
16, 2016). The new ruling eliminates the term “credibility” from the Administration’s subregulatory policies to “clarify that subjective symptom evaluation is not an examination
of the individual’s character.” SSR 16-3p at *1. Though SSR 16-3p post-dates the
ALJ's hearing in this case, the court will review the ALJ’s determination in much the
same way as previously done. See Cole v. Colvin, No. 15-3883, 2016 WL 3997246, at
*1 (7th Cir. July 26, 2016) (“The change in wording is meant to clarify that [ALJs] aren't
in the business of impeaching claimants' character; obviously [ALJs] will continue to
assess the credibility of pain assertions by applicants, especially as such assertions
often cannot be either credited or rejected on the basis of medical evidence.”).
As before, under SSR 16-3p, the ALJ must carefully consider the entire case
record and evaluate the “intensity and persistence of an individual's symptoms to
determine the extent to which the symptoms affect the individual's ability to do basic
work activities.” SSR 16-3p at *2. The ALJ is obligated to consider all relevant medical
18
evidence and may not cherry-pick facts to support a finding of non-disability while
ignoring evidence that points to a disability finding. Goble v. Astrue, 385 Fed.Appx.
588, 593 (7th Cir. 2010). However, the ALJ need not mention every piece of evidence
so long as she builds a logical bridge from the evidence to her conclusion. Craft v.
Astrue, 539 F.3d 668 (7th Cir. 2008.) In making a credibility determination, the ALJ
“may not disregard subjective complaints merely because they are not fully supported
by objective medical evidence.” Knight, 55 F.3d 309 at 314. Rather, SSR 16-3p
requires the ALJ to consider familiar factors in addition to the objective medical
evidence: (1) the claimant’s daily activities; (2) the location, duration, frequency and
intensity of the pain or other symptoms; (3) factors that precipitate and aggravate the
symptoms, (4) the type, dosage, effectiveness and side effects of medication; (5) any
treatment, other than medication, for relief of pain or other symptoms; (6) any measures
the claimant uses to relieve the pain or other symptoms; and (7) any other factors
concerning the claimant’s functional limitations and restrictions due to pain or other
symptoms. SSR 16-3p at *7. Consequently, the court will only reverse the ALJ’s
credibility finding if it is “patently wrong.” The ALJ’s credibility determination is patently
wrong if it lacks “any explanation or support.” Elder v. Astrue, 529 F.3d 408, 413-14
(7th Cir. 2008).
Here, the ALJ evaluated Claimant’s testimony under SSR 96-7p, but ultimately
found it to be “not fully credible.” (R. 20.) She gave several reasons for so finding, such
as his ability to perform a variety of activities of daily living like driving, going out alone,
testing, watching movies, playing video games, caring for the dog, and other chores.
(Id.) Nonetheless, while the ALJ did list Claimant’s daily activities, those activities are
19
fairly restricted to his household and not of a sort that necessarily undermines or
contradicts his claims of having difficulty with his mental impairments when he is away
from his family. See Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (“The ALJ
should have explained the ‘inconsistencies’ between claimant’s activities of daily
living…and the medical evidence”); see also Day v. Astrue, 334 F. App’x 1, 8 (7th Cir.
2009) (“However, we have cautioned against placing undue weight on a claimant’s
household or outdoor activities, which the ALJ did here, in assessing his ability to work
full-time.”). Further, even while spending time with his family, Dr. Barrios’ treatment
notes indicate that Claimant had confrontations with his mother’s boyfriend. (R. 54041.) It was also reported in a psychological examination that he had poor short term
memory, cannot concentrate fully on a task through to finish, and was unable to
“demonstrate adequate ability in completing a multiple-step task.” (R. 495-96.)
The ALJ also found Claimant incredible because, while she acknowledged that
Claimant got stressed and confused in his last job, she accommodated for his inability
to complete multiple tasks at work in her RFC assessment. (R. 20.) While the ALJ
ostensibly accounted for Claimant’s mental impairments by limiting him to “no more than
occasional contact with coworkers and supervisors” and “two to three step simple
repeated routine tasks,” (R. 17), the Court is concerned that the ALJ did not fully
consider the extent of Claimant’s capabilities. Indeed, the SSA has explained a
“claimant’s [mental] condition may make performance of [even] an unskilled job as
difficult as an objectively more demanding job.” See SSR 85–15; Craft, 539 F.3d 668 at
677. Because the ALJ failed to build the requisite bridge between her findings and the
20
medical evidence, remand is required. On remand, the ALJ shall conduct the
symptoms evaluation as defined by SSR 16-3p.
IV.
CONCLUSION
For the foregoing reasons, Claimant’s motion for summary judgment is granted
and the Commissioner’s motion is denied. This case is remanded to the SSA for further
proceedings consistent with this opinion. It is so ordered.
____________________________
Michael T. Mason
United States Magistrate Judge
Dated: August 25, 2016
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