Alma v. Colvin

Filing 20

MEMORANDUM Opinion and Order: For the reasons stated above, Plaintiff's Motion for Summary Judgment 11 is granted. Pursuant to sentence four of 42 U.S.C. §405(g), the ALJ's decision is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with this opinion. - Signed by the Honorable Susan E. Cox on 7/10/2017. [For further details see order] Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBIN ALMA
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner Social Security
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 16 C 2035

Magistrate Judge Susan Cox

MEMORANDUM OPINION AND ORDER
Plaintiff Robin Alma (“Plaintiff”) seeks to overturn the final decision of the
Commissioner of Social Security (“Commissioner” or “Defendant”) denying his
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social Security Act. The parties consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and
Plaintiff filed a motion for summary judgment. After careful review of the record, the
Court now grants Plaintiff’s motion and remands the case for further proceedings.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI on December 13, 2010, alleging that he became
disabled on October 1, 2008. (R. 319). After the request was denied initially and upon
reconsideration, Administrative Law Judge Jose Anglada (the “ALJ”) held a hearing on
August 31, 2012 at which Plaintiff and a vocational expert (“VE”) testified. (R. 122-62).
On October 26, 2012, the ALJ issued a written decision finding found that Plaintiff was
not disabled. (R. 188-204). The Appeals Council remanded the case on February 11,

1

2014 and instructed the ALJ to evaluate a third-party report submitted by Plaintiff’s wife,
reconsider Plaintiff’s residual functional capacity (“RFC”) with specific references to the
record, and pose more carefully-constructed hypothetical questions to the VE. (R. 21023). The ALJ then held a supplemental hearing on September 22, 2014. (R. 43-82).
Plaintiff and a VE again provided testimony. The ALJ issued a second written decision
on October 31, 2014, once again finding that Plaintiff is not disabled. (R. 15-35). The
Appeals Council denied review on December 30, 2015, making the ALJ’s decision the
Commissioner’s final decision. (R. 1-5). Plaintiff now seeks judicial review of the ALJ’s
denial of benefits.
FACTUAL BACKGROUND
Plaintiff was 46 years old at the time of the second administrative hearing. He
last worked as the manager of a hotel food and bar service department before quitting
due to his mental impairments. Plaintiff, who is obese and has a long history of alcohol
and cocaine use, described his primary restrictions as severe neck pain and difficulties
stemming from bipolar disorder.
A.

MEDICAL HISTORY

Plaintiff sporadically complained of spasms in his neck muscles and related pain
to his treating physician Dr. Syed Akhter in 2009 and 2010. A February 23, 2012
radiology report revealed multilevel degenerative disc changes in Plaintiff’s neck,
including facet and uncinated arthritis. (R. 787). On July 14, 2012, an MRI of the
cervical spine showed diffuse spondylosis and degenerative changes with an
osteophyte complex at all levels from C2-C3 through C6-C7. (R. 789). Dr. Akhter
prescribed the narcotic pain medication Vicodin and the anti-inflammatory meloxicam to

2

treat Plaintiff’s pain. He also recommended an orthopedic consultation, but Plaintiff
reported that he could not find a specialist who would accept his Medicaid insurance.
(R. 791). The record does not reflect Plaintiff’s condition from the fall of 2012 through
2013, but by January 2014 Dr. Akhter noted chronic neck pain that radiated through
Plaintiff’s left arm at a level of seven out of ten with medication and nine out of ten
without medication. (R. 1047). Dr. Akhter continued to prescribe both Vicodin and
meloxicam, though Vicodin was no longer covered by Plaintiff’s insurance. (R. 1046).
Dr. Akhter therefore added the pain medication Norco to Plaintiff’s medication regimen.
(R. 1045). By the time of Dr. Akhter’s last treatment notes in March and May 2014,
Plaintiff reported that his pain levels continued to be seven to eight out of ten and that
he was still unable to find an orthopedic surgeon who would accept Medicaid. (R.
1041).
The great majority of the medical record concerns Plaintiff’s mental health
history. Plaintiff was admitted to St. Joseph’s Hospital in February 2008 for outpatient
treatment after drinking alcohol and taking cocaine for the past seven months. (R. 437).
He reported that he had been off psychiatric medication for the past two years and had
been experiencing panic attacks since 2000. After his release, Plaintiff continued to
receive treatment from his primary care physician Dr. Akhter, who described “very
severe” panic attacks in August 2008 and noted ongoing anxiety throughout his
treatment notes. (R. 593). Dr. Akhter treated Plaintiff with the tranquilizer Xanax, which
he continued to prescribe throughout 2008.

(R. 586-96).

Despite that treatment,

however, Plaintiff presented at St. Elizabeth’s Hospital in September 2008 complaining
that he was hearing voices and feeling depressed. (R. 452). He was subsequently

3

admitted for six days of psychiatric treatment for mood swings, hostility, and
noncompliant medication management. Plaintiff was diagnosed with bipolar disorder
without psychosis and alcohol abuse and was treated with Depakote, Seroquel, Ativan,
Zoloft, Xanax and various non-psychotropic medications. (R. 449).
The record does not show what follow-up care Plaintiff received, but by August
2009 he began individual therapy at the Community Counseling Centers of Chicago
(“Community Counseling”).

His intake form reflects that Plaintiff continued to take

Depakote, Seroquel, Xanax, and Zoloft. (R. 506). Psychiatrist Dr. Ahmed noted that
Plaintiff was only sleeping two to three hours each night. Plaintiff received multiple
treatment sessions at Community Counseling throughout late 2009, 2010, and 2011
while, at the same time, receiving treatment and prescription medications from his
primary physician Dr. Akhter. An entry dated November 12, 2010 states that Plaintiff
had been given Seroquel, Zoloft, and Xanax from Dr. Akhter but had discontinued
treatment with Dr. Ahmad because his depression prevented Plaintiff from making his
appointments. (R. 480). Plaintiff’s diagnosis fluctuated throughout this period to some
degree. In October 2010 it was bipolar disorder with severe psychotic features,
including hearing voices, nightmares, mania, and sleep that was restricted to two to four
hours each night. (R. 459-63). At other times, the diagnosis included instead a mood
disorder with an unspecified psychosis and a panic disorder without agoraphobia. (R.
458).

Plaintiff’s psychiatric symptoms persisted even though the Community

Counseling notes state that his cocaine dependence was in full remission by June 2010
and his alcohol abuse was in partial remission. (R. 458).

4

At some point in late 2010, Plaintiff no longer received Xanax prescriptions from
Dr. Akhter and was given Klonopin instead from a different treating source. He reported
that his anxiety levels increased as a result. (R. 471). By March 2011, Plaintiff reported
that he was not sleeping for up to three days at a stretch and that he was again hearing
voices. (R. 477). As a result, Plaintiff’s counselor sent him to the emergency room for
immediate psychiatric intervention. (R. 477). Plaintiff was subsequently admitted to St.
Mary of Nazareth Hospital on March 16, 2011 for depression with suicidal ideation and
auditory hallucinations. (R. 666). Blood tests showed no traces of alcohol or illicit drug
use. (R. 666). Psychiatrist Dr. Shephali Patel diagnosed Plaintiff with bipolar disorder
with severe episodes accompanied by psychosis and assigned a Global Assessment of
Functioning (“GAF”) score of 20 to 30. (R. 667). Plaintiff was released after five days of
treatment and began to receive monthly medical consultations at Community Mental
Health Services. The treatment notes from that agency contain few descriptive entries
but report sleeplessness, extreme agitation, and depression that were treated with
Thorazine, Klonopin, Trazedone, Abilify, and Lithium. (R. 714-25).
Plaintiff’s mental health treatment in 2012 was primarily with Dr. Akhter, who
continued to note depression, anxiety, and a bipolar disorder, together with medications
to treat those conditions. (R. 791-801). There are no records for 2013. On January 7,
2014, however, Plaintiff was admitted to the Advocate Illinois Masonic Medical Center
for suicidal thoughts, auditory hallucinations, severe depression, and poor sleep. (R.
928). He was currently taking twenty medications to treat his physical and psychiatric
symptoms. (R. 869). Psychiatrist Dr. Rajeev Panguluri recommended that Plaintiff’s
psychotropic medications should include Abilify, Trazedone, Xanax, and Lexapro. (R.

5

869).

Plaintiff subsequently began outpatient treatment at Advocate Illinois with

psychiatrist Dr. Zachary Friedman and other treaters. Dr. Friedman noted on January
22, 2014 that Plaintiff had not slept for two days. (R. 916). Consequently, Plaintiff’s
medication regimen was changed by February 2014 to include Abilify, Buspar,
Sertraline, Restoril, Xanax, and Trazodone.

(R. 912).

Despite these medications,

Plaintiff had difficulty leaving his home for treatment due to ongoing anxiety. (R. 898,
904). In the last treatment note dated May 13, 2014, however, Plaintiff reported that the
recent addition of the bipolar medication Latuda had reduced his mood swings and
permitted him to sleep up to five hours a night. (R. 896).
B.

THE ALJ’S DECISION

Applying the familiar five-step evaluation procedure for disability cases, the ALJ
found at step one that Plaintiff had not engaged in substantial gainful activity since his
alleged onset date of October 1, 2008. (R. 18). His severe impairments at step two
were degenerative disc disease of the cervical spine, obesity, an affective mood
disorder, and polysubstance abuse disorder. (R. 18). At step three, the ALJ concluded
that Plaintiff’s obesity and neck impairments did not meet or medically equal a listed
impairment, either singly or in combination. (R. 19). Plaintiff’s mental impairments,
however, met the requirements of listing 12.04 (affective disorders) and listing 12.09
(substance abuse disorder) because Plaintiff experienced marked restrictions in his
social functioning and concentration, persistence, and pace when he used drugs and
alcohol. (R. 19-20). Because such a finding meant that Plaintiff would be disabled, the
regulations required the ALJ to determine if Plaintiff would continue to be disabled if he
did not have a substance abuse disorder. See 20 C.F.R. § 404.1535(b)(1). The ALJ

6

concluded that substance abuse materially contributed to Plaintiff’s mental functioning
and that he would not meet or equal a listed impairment if he did not use drugs or
alcohol. (R. 20-21). Accordingly, the ALJ continued with the five-step analysis.
Before moving to step four, the ALJ found that Plaintiff’s testimony concerning
the severity of his symptoms was not fully credible. The ALJ also gave only some
weight to the report issued by Plaintiff’s wife and to the written opinion of consulting
psychiatrist Dr. Kenneth Levitan. (R. 27-28). Great weight was given to the physical
RFC report issued by non-examining expert Dr. Julio Pardo. (R. 27). The ALJ assigned
moderate weight to an RFC report submitted by Plaintiff’s treating physician Dr. Syed
Akhter but dismissed a mental RFC issued by treating psychiatrist Dr. Michael Reinstein
by giving it slight weight. (R. 28, 31). The ALJ further adopted and rejected parts of a
report given by treating psychiatrist Dr. Zachary Friedman. (R. 31-32).
The ALJ then formulated a complex RFC assessment that fell into two parts. He
concluded that if Plaintiff stopped abusing drugs and alcohol, then prior to July 2012 he
would be able to perform light work with no additional exertional or non-exertional
restrictions. Multiple mental restrictions, however, would be required. Plaintiff could not
focus for extended periods of time; could only have casual contact with the general
public and co-workers; would be restricted to “dealing with things as opposed to
people”; and could be off-task for five percent of the time. (R. 22). That RFC changed,
however, as of July 2012 based on the ALJ’s conclusion that Plaintiff’s neck condition
had worsened at that time. The ALJ now found that Plaintiff could carry out what he
identified as sedentary work, though he also concluded that Plaintiff could stand and
walk for six hours during an eight-hour workday. Numerous non-exertional limitations

7

were also identified.

As for the mental RFC, the ALJ removed the restriction that

Plaintiff could be off-task for five percent of each workday. (R. 28-29). Based on these
findings, the ALJ found at step four that Plaintiff could not perform his past relevant work
as a hotel manager and bartender. (R. 32). Relying on the testimony of the VE, the
ALJ further found that a significant number of jobs existed in the national economy that
Plaintiff could perform both before and after July 2012.

(R. 32-33).

He therefore

concluded that Plaintiff was not disabled.
LEGAL STANDARD
Judicial review of the Commissioner’s final decision is authorized by Section
405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this decision, a
court may not engage in its own analysis of whether Plaintiff is severely impaired as
defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th
Cir. 2004) (citation omitted). Nor may it “displace the ALJ’s judgment by reconsidering
facts or evidence or making credibility determinations.” Castile v. Astrue, 617 F.3d 923,
926 (7th Cir. 2010) (quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The
court’s task is to determine whether the ALJ’s decision is supported by substantial
evidence, which is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir.
2011) (quoting Skinner, 478 F.3d at 841)).
In making this determination, the court must “look to whether the ALJ built an
‘accurate and logical bridge’ from the evidence to her conclusion that the claimant is not
disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue,
539 F.3d 668, 673 (7th Cir. 2008)). The ALJ need not, however, “provide a complete

8

written evaluation of every piece of testimony and evidence.’” Pepper v. Colvin, 712
F.3d 351, 362 (7th Cir. 2013) (quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir.
2005) (internal citations and quotation marks omitted)). Where the Commissioner’s
decision “’lacks evidentiary support or is so poorly articulated as to prevent meaningful
review,’ a remand is required.” Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th
Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)).
To recover DIB or SSI under Titles II and XVI of the Social Security Act, a
claimant must establish that she is disabled within the meaning of the Act. Keener v.
Astrue, 2008 WL 687132, at *1 (S.D. Ill. Mar. 10, 2008). 1 A person is disabled if she is
unable to perform “any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 20 C.F.R. § 404.1505(a); Crawford v. Astrue, 633 F. Supp.2d 618, 630 (N.D.
Ill. 2009). In determining whether a claimant suffers from a disability, the ALJ conducts
a standard five-step inquiry, which involves analyzing “(1) whether the claimant is
currently employed; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment is one that the Commissioner considers conclusively disabling;
(4) if the claimant does not have a conclusively disabling impairment, whether he can
perform his past relevant work; and (5) whether the claimant is capable of performing
any work in the national economy.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir.
2012) (citing 20 C.F.R. § 404.1520). “The claimant bears the burden of proof in each of
the first four steps.” Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). If the
1

The regulations governing the determination of disability for DIB are found at 20 C.F.R. §
404.1501 et seq., and are virtually identical to the SSI regulations set forth at 20 C.F.R. §
416.901 et seq.

9

claimant meets her burden of proof at steps one through four, the burden shifts to the
Commissioner at step five. Moore v. Astrue, 851 F. Supp.2d 1131, 1139-40 (N.D. Ill.
2012).
DISCUSSION
Plaintiff argues that the ALJ erred by (1) not demonstrating that substance abuse
materially contributed to Plaintiff’s mental limitations, (2) incorrectly assigning weights to
various expert medical reports, and (3) failing to adequately explain how the record
supports the mental RFC assessment. The Court agrees that remand is required on
each of these topics.
A.

Plaintiff’s Substance Abuse

A claimant who is addicted to drugs or alcohol cannot be found to be disabled for
social security purposes on that basis alone. However, substance abuse may impose
restrictions on a claimant’s ability to work.

When that is the case, and when the

claimant is found to be disabled, he is not entitled to disability benefits if substance
abuse is “a contributing factor material to the Commissioner’s determination that the
individual is disabled.”

42 U.S.C. § 423(d)(2)(C).

Thus, “[w]hen an applicant for

disability benefits both has a potentially disabling illness and is a substance abuser, the
issue for the [ALJ] is whether, were the applicant not a substance abuser, she would still
be disabled.” Kangail v. Barnhart, 454 F.3d 627, 628 (7th Cir. 2006). If the claimant is
disabled, the ALJ must evaluate which of her current limitations would remain if the
claimant stopped using alcohol or drugs. 20 C.F.R. § 404.1535(b)(2); see also Whitney
v. Astrue, 889 F. Supp.2d 1086, 1094 (N.D. Ill. 2012).

10

As noted, the ALJ found that if Plaintiff stopped using drugs and alcohol, he
would have moderate instead of marked restrictions in his social functioning and in his
ability to maintain concentration, persistence, and pace, thereby precluding him from
meeting or equaling the requirements of listing 12.04. See 20 C.F.R. Pt. 404, Subpt. P,
App.1, at § 12.04(B) (requiring at least two marked limitations in a claimant’s activities of
daily living, social functioning, or concentration, or one marked restriction plus a finding
of repeated episodes of decompensation).
fronts.

The ALJ approached this issue on two

First, he concluded throughout the decision that Plaintiff’s need for serious

psychiatric interventions such as hospitalization was precipitated by his use of drugs
and alcohol. That was based, in part, on the ALJ’s belief that Plaintiff’s symptoms were
well controlled by medication when he was not abusing these substances. Second, the
ALJ cited specific record evidence that he thought supported a finding that, without
substance abuse, Plaintiff would experience moderate instead of marked restrictions in
social functioning and in his ability to concentrate.
Substantial evidence does not support either of the ALJ’s lines of reasoning.
Part of the problem is that the ALJ was uncertain when, or even if, Plaintiff had stopped
using two of the three substances that allegedly contributed to the debilitating emotional
symptoms he experienced at times – cocaine, Xanax, and alcohol. The ALJ stated that
Plaintiff’s cocaine abuse went into remission at some point between 2009 and 2010 but
that it was unclear “whether claimant’s alcohol and Xanax abuse are in current partial or
full remission.”

(R. 18).

The ALJ’s uncertainty on this critical issue created an

evidentiary conundrum: If the ALJ did not know if Plaintiff continued to use alcohol or
Xanax throughout the disability period, it is difficult to understand how he went about

11

deciding what part of the record reliably reflected what Plaintiff’s mental functioning
would be if he were fully sober. As shown below, the ALJ addressed the issue by citing
evidence that frequently misread what Plaintiff’s treating physicians stated or made
assumptions about Plaintiff’s substance use that the record contradicts.
The ALJ’s first evidentiary support illustrates the problem. The ALJ cited several
years’ of treatment notes from Plaintiff’s primary care physician Dr. Akhter to claim that
Plaintiff displayed normal affect and was functional when he abstained from using
substances like Xanax. (R. 25). It is true that Dr. Akhter stated at times that Plaintiff
was functional with medication. The ALJ failed to recognize, however, that one of the
medications that enabled Plaintiff to function adequately was Xanax, which Dr. Akhter
prescribed on numerous occasions. (R. 555, 558-62, 564, 566, 569, 571, 573, 575,
577, 581, 595). The ALJ could not logically cite Dr. Akhter’s notes as evidence that
Plaintiff could control his symptoms if he abstained from Xanax when Dr. Akhter
repeatedly treated Plaintiff’s anxiety with that medication. The ALJ’s oversight of Dr.
Akhter’s use of Xanax fails to build a logical bridge between the record and the ALJ’s
belief that Xanax “stood in the way of [Plaintiff’s] ability to manage his depression and
anxiety.” See Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (“The ALJ is not
required to discuss every piece of evidence, but must build a logical bridge from
evidence to conclusion.”).
Having relied on Dr. Akhter’s notes to claim that Plaintiff’s symptoms were well
controlled, the ALJ then cited the same notes as evidence that substance abuse
substantially contributed to his mental downturns. The ALJ noted that Plaintiff was
sometimes inconsistent in how he accounted for his use of drugs and alcohol to Dr.

12

Akhter and to the social workers he saw at Community Counseling. (R. 26). That fact
is undisputed. That does not mean, however, that substance abuse was a material
factor in causing Plaintiff’s mental turmoil. The ALJ tried to make that point by engaging
in a series of illogical inferences. He noted, for example, that Plaintiff told Dr. Akhter in
July 2008 that he had not been using illicit substances. (R. 26, 595). The ALJ said that
Plaintiff misled Dr. Akhter at that time because a September 2009 note from Community
Counseling stated that he had tested positive for recent cocaine use. (R. 26, 514). The
fact that Plaintiff took cocaine in September 2009, however, does not shed any light on
the relation between substance abuse and Plaintiff’s condition fourteen months earlier in
July 2008.

Nor does it demonstrate that substance abuse exacerbated Plaintiff’s

condition in September 2009. Contrary to the ALJ’s belief, Dr. Akhter actually noted on
September 28, 2009 that Plaintiff had been “much more stable with medication” and had
not experienced any episodes of panic attack since his last visit.

(R. 569).

That

undercuts the ALJ’s claim that Plaintiff’s cocaine use in September 2009 was a major
cause of his symptoms. Moreover, Dr. Akhter renewed Plaintiff’s Xanax prescription at
that visit, strongly indicating that he thought that Xanax improved Plaintiff’s condition
instead of making it worse. (R. 569).
That is not to say that no evidence exists supporting the ALJ’s belief that Plaintiff
abused Xanax. The ALJ cited Plaintiff’s self-report to Community Counseling employee
Nina Henry LPHA (Licensed Practitioner of the Healing Arts) that “he abuses his
Xanax.” 2

(R. 506).

Whether Plaintiff abused Xanax or was even addicted to it,

2

Ms. Henry also noted that Plaintiff’s substance use had both positive and negative
consequences. Among other things, it improved his social skills, helped him maintain
relationships, and reduced his symptoms of discomfort. It also contributed to his irritability and
anxiety. (R. 507). Even if the ALJ had cited these entries (which he did not), he would have

13

however, does not address the issue at hand. The relevant questions are whether
Xanax materially contributed to Plaintiff’s marked restrictions in social functioning and
concentration, and what his restrictions would be if he stopped using it. The ALJ was
unable to identify a physician or psychiatrist who found that Xanax caused Plaintiff’s
problems. No expert appeared at the hearing to explain the effect that Xanax or any
other substance had on Plaintiff’s mental health.
More importantly, the record strongly suggests that Xanax did not have the
adverse effect on Plaintiff’s mental condition that the ALJ assumed was the case. In
addition to Dr. Akhter’s many Xanax prescriptions, other treating physicians prescribed
the tranquilizer to alleviate Plaintiff’s symptoms. Xanax was used in September 2008 to
treat Plaintiff after he was admitted to St. Elizabeth’s hospital and on January 7, 2014
when he was admitted to Advocate Illinois for psychiatric treatment. (R. 449, 869). The
psychiatrists who treated Plaintiff in these hospital settings clearly thought that Xanax
was therapeutic, not that it exacerbated Plaintiff’s mental condition. The ALJ tried to
support his belief that Xanax was a primary cause of Plaintiff’s mental dysfunction by
suggesting that his March 2011 hospitalization at St. Mary’s was triggered by his
alleged abuse of that drug. (R. 25). Yet blood tests taken upon admission to St. Mary’s
showed no traces of benzodiazepine drugs, which include Xanax. (R. 660). By failing
to recognize that Plaintiff’s physicians prescribed Xanax over a multi-year period to treat
his mental condition, the ALJ had no ground for finding that Xanax was responsible for

been required to explain why Plaintiff’s social functioning would improve without the use of
substances when Ms. Henry said he functioned better with substances. As it stands, however,
the entry cannot act as an evidentiary “gap filler” for the ALJ’s decision because “regardless
whether there is enough evidence in the record to support the ALJ’s decision, principles of
administrative law require the ALJ to rationally articulate the grounds for her decision and
confine our review to the reasons supplied by the ALJ.” Steele, 290 F.3d at 941.

14

Plaintiff’s marked limitations or that he could control his symptoms if he abstained from
using it. See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the
obligation to consider all relevant medical evidence and cannot simply cherry-pick facts
that support a finding of non-disability while ignoring evidence that points to a disability
finding.”).
The ALJ placed less weight on Plaintiff’s use of cocaine and alcohol, though he
attempted to link Plaintiff’s use of those substances to his periodic mental downturns.
Like the evidence concerning Xanax, however, the ALJ failed to demonstrate any
causal link between substance abuse and Plaintiff’s condition. The ALJ claimed that
Plaintiff’s cocaine use was the cause for his 2008 hospitalization at St. Elizabeth’s. (R.
19). Intake notes from St. Elizabeth’s noted the use of alcohol and cocaine. (R. 452).
At no point, however, did Plaintiff’s psychiatrists attribute his need for hospitalization to
substance abuse. (R. 448-53). That makes it unclear why the ALJ found a connection
between substance abuse and Plaintiff’s psychosis. Plaintiff’s cocaine use went into
remission by 2010, so that drug had no relation to any part of the subsequent record.
The ALJ attributed Plaintiff’s March 2011 psychiatric hospitalization at St. Mary’s to drug
and alcohol use. (R. 25). Yet blood tests carried out at the hospital show that Plaintiff
had not been using illicit drugs or alcohol prior to admission.

(R. 666).

Nor did

Plaintiff’s treatment plan at St. Mary’s cite sobriety as a goal, suggesting that his
psychiatrists did not believe that a causative link existed between substance abuse and
Plaintiff’s psychotic episode. (R. 667). By speculating about the medical causes of
Plaintiff’s decompensations without any supporting medical testimony or evidence, the
ALJ erroneously “played doctor” by reaching his own conclusions on a topic in which he

15

had no expertise. See Rohan v. Chater, 89 F.3d 966, 970 (7th Cir. 1996) (“ALJs must
not succumb to the temptation to play doctor and make their own independent medical
findings.”).
Instead of citing substance abuse, many of Plaintiff’s medical treaters attributed
his severe mental downturns to the fact that Plaintiff did not always take his
psychotropic medications on a regular basis. Notes from St. Mary’s and St. Elizabeth’s,
for example, both attribute Plaintiff’s decompensation to medical non-compliance.
Plaintiff also reported that he had not taken his medications for three weeks prior to his
2014 admission to Advocate Illinois.

(R. 868).

To his credit, the ALJ recognized

Plaintiff’s failure to comply with his medication regimen. 3 The ALJ never explained,
however, why he thought that substance abuse played a crucial role in Plaintiff’s need
for hospitalizations when Plaintiff’s doctors attributed the problem to medical non-

3

The ALJ’s brief consideration of this issue appears to have construed Plaintiff’s inability to
comply with his medication requirements against him. The ALJ found, for example, that
Plaintiff’s 2011 hospitalization at St. Mary’s did not constitute an episode of decompensation, in
part, because it was triggered by Plaintiff’s failure to take his medications. (R. 19). That
suggests that the ALJ did not properly construe what the regulations require. He found that
none of Plaintiff’s hospitalizations involved an episode of decompensation because they were
not of extended duration. But an episode of decompensation is not necessarily the same as an
episode of extended duration. An episode is demonstrated “by an exacerbation in symptoms or
signs that would ordinarily require increased treatment[.]” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
at § 12.00(C)(4). An episode of extended duration is an episode that lasts for two weeks,
though shorter episodes can still satisfy the durational requirement under some conditions. Id.
The fact that Plaintiff’s hospitalizations were not of extended duration, much less that they were
triggered by medical non-compliance, does not prevent them from potentially being episodes of
decompensation. See Larson v. Astrue, 615 F.3d 744, 750 (7th Cir. 2010) (“An incident – such
as hospitalization or placement in a halfway house – that signals the need for a more structured
psychological support system would qualify as an episode of decompensation.”). Changes in
medication outside of a hospital setting can also signal an episode. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, at § 12.00(C)(4). Since this case already requires remand, the ALJ should reevaluate the question of whether Plaintiff had any episodes of decompensation, as well as
whether he satisfied the durational requirement by experiencing “more frequent episodes of
shorter duration.” Id. As part of that, the ALJ should consider that Dr. Reinstein assessed three
or more episodes of decompensation, and Dr. Freidman found one or two episodes of extended
duration. (R. 403, 1005).

16

compliance. The ALJ should have recognized that Plaintiff’s periodic inability to follow
his doctors’ directives could have been a symptom of his bipolar disorder, not a sign
that substance abuse was at issue. Courts have repeatedly stated that “mental illness
and bipolar disorder in particular . . . may prevent the sufferer from taking her prescribed
medicines or otherwise submitting to treatment.” Kangail, 454 F.3d at 630. See also
Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2011) (noting that “people with serious
psychiatric problems are often incapable of taking their prescribed medications
consistently”); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010). The ALJ did not
consider the relation between Plaintiff’s medical non-compliance, his mental
impairment, and his periodic need for specialized psychiatric care.

That not only

ignores the record, it fails to consider the possibility that Plaintiff’s use of drugs and
alcohol was an attempt to relieve his troubling symptoms, not the cause of them. See
Kangail, 454 F.3d at 629 (stating that “bipolar disorder can precipitate substance abuse,
for example as a means by which the sufferer tries to alleviate her symptoms”). Dr.
Akhter said as much as early as 2007 by finding that when Plaintiff ran out of Xanax, he
increased his drinking in an attempt to control his anxiety. (R. 607).
The ALJ’s silence on this aspect of Plaintiff’s condition is made more problematic
by his failure to recognize the lengths to which Plaintiff’s psychiatrists went to treat his
symptoms and the scope of the medication regimens they imposed on him. Plaintiff
was prescribed a complex array of tranquilizers, antidepressants, antipsychotics, and
sleeping medications over time, often in shifting combinations with one another. These
included Trazadone, Zoloft, Busperone, Xanax, Ambien, Latuda, Seroquel, Paxil, Abilify,
Klonopin, Depakote, Lithium, Haldol, Lexapro, Sinequan, Thorazine, Ativan, and

17

Restoril. Plaintiff also took medications for other problems, including Lisinopril, Avalide,
Toprol-XL, Meloxicam, Gemfibrozil, Albuterol, Amlodipine, Atorvistatin, Prednisone,
Moxifloxacin, Nitroglycerin, Vicodin, Norco, and Morphine. Indeed, Plaintiff was taking
twenty different medications when he was admitted to Advocate Illinois in 2014. (R.
869). Even an individual who does not suffer from bipolar disorder might reasonably be
expected to have difficulty in taking combinations of these medications on a regular
basis. Not surprisingly, Plaintiff stated that he needed help in taking his prescriptions.
(R. 370). Yet the ALJ overlooked all of Plaintiff’s psychotropic medications except for
Xanax, Seroquel, and Latuda. (R. 26). See Spaulding v. Astrue, 702 F. Supp.2d 983,
999 (N.D. Ill. 2010) (stating that an ALJ errs when he fails to consider all of a claimant’s
relevant medications). The ALJ’s failure to consider Plaintiff’s ability to comply with this
complex medication treatment fails to support the ALJ’s conclusion that a causal link
existed between Plaintiff’s use of drugs and alcohol and his fluctuating bipolar
symptoms.
In addition to a broad claim that substance abuse exacerbated Plaintiff’s
symptoms, the ALJ also gave specific reasons why his social functioning was markedly
limited on drugs but would only be moderately restricted if Plaintiff were sober. The ALJ
said that Plaintiff was agitated and irritable when he took drugs. (R. 19). That fails to
distinguish between Plaintiff’s behavior before and after his cocaine use went into
remission. He was also “very agitated” at an August 2011 treatment session, was
panicky during a June 2012 meeting with Dr. Akhtar, and became so irritable in May
2014 that he broke items in his kitchen during an argument with his wife. (R. 714, 797,
898). The ALJ also thought that the marked social restriction prior to sobriety was

18

justified because consulting psychiatrist Dr. Levitan abruptly ended his interview with
Plaintiff in May 2011 when Plaintiff became aggressive. But the ALJ never explained
why substance abuse was responsible for Plaintiff’s agitation during the psychiatric
exam.

Plaintiff had been released from St. Mary’s in late March 2011, where no

substance abuse had been noted, and the ALJ cited no evidence that Plaintiff used
drugs or alcohol between that date and his May 28, 2011 interview with Dr. Levitan. Far
from supporting the ALJ’s conclusion, that suggests that Plaintiff had a marked social
restriction even when he was not taking drugs.
The ALJ thought that Plaintiff’s social functioning would improve without
substances because he maintained a good relationship with his primary care physician
during remission. However, the ALJ cited no evidence suggesting that Plaintiff had a
difficult relationship with Dr. Akhter even when he used cocaine. By contrast, evidence
shows that Plaintiff was unable to function at times vis-à-vis his other medical treaters
whether he was drinking or not.

Plaintiff testified that anxiety prevented him from

leaving his home to keep some of his doctors’ appointments or even to go beyond his
front door. (R. 54, 57, 59-60, “I’m just stuck in there.”). The record supports that
testimony. Plaintiff was unable to leave his home on May 7, 2014 in a timely manner to
meet with his psychiatrist due to anxiety.

(R. 898).

On April 10, 2014, he told

psychiatrist Dr. Friedman that had been experiencing significant difficulty in leaving his
home for three weeks because of anxiety. (R. 904). Accordingly, Plaintiff testified at
the second hearing in 2014 that Advocate Illinois had recommended more intense
treatment and would soon begin sending a therapist to his home to provide treatment,
including phone calls that had already begun at the rate of two a day. (R. 56-57).

19

Instead of discussing those facts, the ALJ found that Plaintiff’s social functioning
would improve because he was working to repair the relationship with his wife following
a multi-year affair with another woman. (R. 20). See 20 C.F.R. Pt. 404. Subpt. P,
App.1, at §12.00(c)(2) (stating that social functioning includes a claimant’s relations with
family members). The ALJ never explained what that had to do with substance abuse.
He overlooked that Plaintiff and his wife both described highly-strained relations
between Plaintiff and his family. Ms. Alma complained that Plaintiff “will not talk or
spend time with anyone,” while Plaintiff testified that he does not talk to his children,
suffers from serious mood swings, and can easily “snap” by suddenly becoming
extremely angry. (R. 58, 137, 372). The ALJ cited treating psychiatrist Dr. Friedman’s
expert report to support his conclusion that Plaintiff would only have a moderate
restriction in social functioning without substance abuse.

In reality, however, Dr.

Friedman directly contradicted that conclusion by stating that Plaintiff’s social limitation
was marked. (R. 1005).
The ALJ’s reasons for distinguishing between marked and moderate restrictions
in Plaintiff’s ability to maintain concentration are equally flawed.

The ALJ found a

marked limitation when Plaintiff used drugs and alcohol because they allegedly caused
auditory hallucinations.

As noted above, Plaintiff also suffered from auditory

hallucinations during his 2011 hospitalization at St. Mary’s, where blood tests revealed
no drug or alcohol use, and during his 2014 stay at Advocate Illinois, when he had not
been drinking. The ALJ further reasoned that Plaintiff could not complete projects when
he used drugs. But he cited no evidence suggesting that Plaintiff’s inability to do so was
related to substance abuse or that his capacity for finishing tasks improved when he

20

was sober. Plaintiff’s wife testified that had had “no interest in completing tasks.” (R.
382). Certainly, Plaintiff’s ability to take his medications consistently had not improved
by stopping drugs and alcohol; Dr. Panguluri’s May 7, 2014 intake assessment at St.
Mary’s Hospital states that Plaintiff had not taken his medications for the past three
weeks. (R. 868). Nevertheless, the ALJ reasoned that Plaintiff’s ability to maintain
concentration was greater when he was sober because he was able to watch television.
(R. 21).

Even assuming that the ability to watch television is relevant to the

concentration needed to work on a full-time basis, Plaintiff’s wife stated that his capacity
for doing so had decreased in recent years and that he no longer payed attention to
what he watched. (R. 372).
Finally, the ALJ thought that Plaintiff’s capacity for maintaining concentration
would improve during sobriety because Dr. Friedman’s July 1, 2014 expert report
assessed a moderate restriction in concentration, persistence, and pace. (R. 1005).
That is true, but the ALJ failed to note that Dr. Friedman’s assessment conflicted with
other expert evidence. Treating psychiatrist Dr. Reinstein found that Plaintiff would
have “frequent” deficiencies in the ability to concentrate and that he had “poor or no”
ability to maintain regular work attendance, complete a normal workday, perform at
consistent pace, or sustain an ordinary routine without special supervision. (R. 402-03).
Dr. Reinstein did not attribute those problems to substance abuse, and the ALJ never
discussed the issue. Moreover, consulting psychiatrist Dr. Levitan stated that Plaintiff
“would have difficulty handling regular work pressure and stress,” even though the ALJ
cited no evidence showing that Plaintiff had been taking drugs or alcohol prior to Dr.

21

Levitan’s interview. (R. 672). As discussed more fully below, the ALJ never reconciled
these conflicting assessments.
Without adequately explaining how Plaintiff’s substance abuse affected his
mental functioning, and in the absence of any discussion of why his social functioning
and concentration would improve without drugs or alcohol, the ALJ failed to build a
logical bridge between the record and his conclusion that substance abuse materially
contributed to Plaintiff’s marked restrictions in social functioning and ability to maintain
concentration, persistence, and pace.
B.

The Medical Expert Opinions

The regulations require ALJs to “evaluate every medical opinion we receive”
regardless of its source. 20 C.F.R. § 404.1527(c). An ALJ does so by applying six
factors set out in the regulations, including the nature of the treating relationship, the
physician’s specialty, and the consistency between the expert conclusions and other
record evidence. Edge v. Berryhill, No. 15 CV 50292, 2017 WL 680365, at *4 (N.D. Ill.
Feb. 21, 2017) (“An ALJ is not only required to evaluate every medical opinion in the
record . . . but he must do so by applying the checklist of six factors set forth in 20
C.F.R. § 404.1527(c)(2)-(6).”). Plaintiff argues that the ALJ failed to comply with this
directive in his evaluation of the reports issued by consulting psychiatrist Dr. Levitan,
treating psychiatrists Dr. Friedman and Dr. Reinstein, and treating physician Dr. Akhter.
1.

Dr. Levitan

Dr. Levitan examined Plaintiff on May 28, 2011 but was unable to complete the
examination after Plaintiff became so aggressive that the psychiatrist terminated the
interview after feeling threatened by Plaintiff. Nevertheless, Dr. Levitan concluded that

22

Plaintiff would experience difficulty in handling regular work pressure and stress. (R.
672). The ALJ rejected that finding and gave slight weight to the expert report on the
ground that Plaintiff had taken unprescribed Xanax on March 2, 2011 and failed to
report it to Dr. Levitan. (R. 27). That fails to build any bridge between the record and
the ALJ’s consideration of the expert report. For the reasons discussed above, the ALJ
never explained why Xanax contributed to Plaintiff’s mental impairment when his
treating physicians repeatedly used it to treat his symptoms. Even if such a link existed,
moreover, the ALJ failed to show that it was at work during Dr. Levitan’s exam. Plaintiff
was hospitalized at St. Mary’s on March 16, 2011, where blood tests showed that he
had not been using drugs like Xanax. (R. 660). The ALJ cited no evidence suggesting
that Plaintiff took Xanax between his discharge from St. Mary’s on March 21, 2011 and
his exam with Dr. Levitan on May 28, 2011. That left a three-month gap between
Plaintiff’s last documented use of Xanax and his interview with Dr. Levitan. Assuming
that a link existed between Xanax and Plaintiff’s mental downturns, therefore, the ALJ
did not show that it was at issue when Plaintiff saw the consulting psychiatrist. That
requires the ALJ to restate his reasons for evaluating Dr. Levitan’s report and to
consider the finding that Plaintiff would experience difficulty in handling the stress of
ordinary work.
2.

Dr. Reinstein

The ALJ also gave slight weight to the October 13, 2013 expert report of treating
psychiatrist Dr. Michael Reinstein. Dr. Reinstein found, inter alia, that Plaintiff had an
extreme restriction in his social functioning, would experience frequent deficiencies in
his ability to concentrate, and would need to be absent from work twice a month due to

23

his mental impairment. (R. 402-03). An ALJ is required to give controlling weight to a
treating source opinion when it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence[.]” 20 C.F.R. § 404.1527(d)(2).
The ALJ discounted Dr. Reinstein’s report because it did not contain “objective
observations,” did not account for Plaintiff’s substance abuse, conflicted with Dr.
Akhter’s report, and because Dr. Reinstein had only treated Plaintiff for a few months.
(R. 28). None of these reasons constitute substantial evidence for the ALJ’s evaluation
of the report.

The ALJ never explained what he meant by requiring “objective

observations.” Dr. Reinstein filled out a questionnaire that included checkboxes similar
to those routinely used in the Psychiatric Review Techniques and mental RFC
assessments submitted by the Social Security Administration’s psychological experts.
This was not limited to merely re-stating Plaintiff’s subjective complaints, as the ALJ
stated. Instead, Dr. Reinstein evaluated Plaintiff’s capacity for sustaining work activity,
following instructions, and getting along with co-workers. Insofar as the ALJ believed
that Dr. Reinstein was required to cite objective psychological tests to support his
report, many courts have rejected such an assumption when mental functioning is at
issue. See, e.g., Ripley v. Colvin, No. 12 C 9462, 2014 WL 2457702, at *12 (N.D. Ill.
June 2, 2014) (citing cases).

Dr. Reinstein’s report was based on his expert

observation of Plaintiff during mental status exams, including Plaintiff’s symptoms. The
ALJ failed to note that the listings themselves state that mental conditions are assessed
by evidence that includes a claimant’s “symptoms.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
at § 12.00(B). As discussed below, moreover, the ALJ gave significant weight to parts

24

of Dr. Zachary Friedman’s report even though it cited no more “objective” tests than did
Dr. Reinstein’s. (R. 1000-06). The ALJ was not entitled to apply a criterion to discount
Dr. Reinstein’s report without also using it in relation to Dr. Friedman’s.
The ALJ’s remaining reasons are no more persuasive.

He criticized Dr.

Reinstein for only having treated Plaintiff for a few months but failed to explain why the
same reasoning did not apply to Dr. Friedman, who had seen Plaintiff for less than six
months before issuing his report. (R. 1000). Dr. Friedman and Dr. Reinstein were both
treating sources who were considerably more familiar with Plaintiff’s functioning than
any other medical source. Nevertheless, the ALJ faulted Dr. Reinstein because he did
not address the relation between Plaintiff’s symptoms and his substance abuse. As
shown above, however, the ALJ did not properly explain why a causal relation existed
between the two. Dr. Reinstein’s report contained a narrative section concerning the
“extent, if any” that drugs or alcohol affected Plaintiff’s symptoms.

(R. 403).

Dr.

Reinstein did not fill it out, though he completed every other section in the report. Since
the ALJ had no knowledge of why Dr. Reinstein chose not to describe a relation
between drugs and Plaintiff’s symptoms, the ALJ should have considered the possibility
that Dr. Reinstein did not believe that such a link existed.
As for Dr. Akhter’s report, which found that Plaintiff could carry out low-stress
work, the ALJ did not address why Dr. Akhter was more reliable on this issue than Dr.
Reinstein. The regulations require an ALJ to consider an expert’s field of specialty. 20
C.F.R. § 404.1527(b)(5) (“We generally give more weight to the opinion of a specialist
about medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist.”).

Dr. Reinstein was a psychiatrist with specialized

25

training in assessing Plaintiff’s ability to tolerate work stress; Dr. Akhter was Plaintiff’s
primary care physician.

The ALJ was obligated to explain why Dr. Akhter’s non-

specialized finding was more reliable that Dr. Reinstein’s before using it to give less
weight to the treating psychiatrist’s report. That requires remand so that the ALJ can
restate the basis of his reasoning with greater clarity.
3.

Dr. Akhter

The ALJ assigned moderate weight to Dr. Akhter’s report, which was issued on
August 6, 2012. (R. 761-64). Dr. Akhter thought that Plaintiff’s physical RFC was
significantly more limited than either of the two assessments the ALJ included in his
decision. Plaintiff could rarely lift and carry even less than ten pounds; had multiple
non-exertional restrictions in his ability to stoop, crouch, and move his head; and had
significant restrictions in using his left arm for overhead reaching. Dr. Akhter also stated
that Plaintiff could only stand for one hour before he would need to sit and that he could
not stand for even two full hours during an eight-hour workday.
The ALJ discounted these findings by stating that pain, which Dr. Akhter cited as
a basis for the RFC assessment, “is not an impairment nor a recognized diagnosis.” (R.
31). That gave the ALJ no ground for criticizing Dr. Akhter’s report. Plaintiff’s pain was
clearly a symptom of his severe cervical disc disease. The inclusion of a claimant’s
symptoms like pain is not only appropriate in a medical opinion, it constitutes an
essential element of an expert report. The regulations define a medical opinion like Dr.
Akhter’s as a statement “reflecting judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental restrictions.”

26

20 C.F.R. §

404.1527(a)(1) (emphasis added). Instead of criticizing Dr. Akhter on this point, the ALJ
was required to consider whether the record supported the doctor’s conclusions. A
cervical spine study conducted in March 2012 showed multi-level degenerative disc
disease and osteoarthritis in Plaintiff’s neck, while a July 2012 MRI revealed extensive
cervical spondylosis, degenerative disc disease, and osteophyte complexes in the neck.
(R. 758, 787). Dr. Akhter prescribed Vicodin to treat Plaintiff’s pain and referred him to
an orthopedic specialist. Plaintiff’s complaints about neck pain continued throughout
2014. (R. 1040-47). Plaintiff described his pain in January 2014 as a sharp sensation
that radiated down his left arm, causing pain at a level of seven out of ten with
medication and nine out of ten without it. (R. 1047). If the ALJ disagreed with Dr.
Akhter’s assessment of this evidence, then he was required under SSR 96-2p to explain
why the report was not well-supported by the record, and thus not entitled to controlling
weight, as well as to discuss the weight that should have been given to it by “using all of
the factors” set out in the regulations. SSR 96-2p.
The ALJ also rejected Dr. Akhter’s RFC on the basis that Plaintiff’s neurological
exams were normal and that he had intact reflexes and sensations. But Dr. Akhter
never claimed that Plaintiff suffered from a neurological problem that affected his
reflexes; his RFC was based instead on objective tests that demonstrated severe
degenerative changes in Plaintiff’s cervical spine.

The ALJ never addressed why

Plaintiff’s reflexes cast any light on that issue. The ALJ further criticized Dr. Akhter
because it was allegedly “incongruous” for the doctor to have found that Plaintiff could
stand for one hour at a time but could only stand for less than two hours during a normal
workday. (R. 31). The plain meaning of Dr. Akhter’s RFC, however, is that Plaintiff

27

could stand for a full sixty minutes at one stretch and would then be able to stand off
and on for up to fifty-nine minutes during the rest of the workday. The ALJ cited no
evidence that he thought refuted such a finding. Accordingly, substantial evidence does
not support the ALJ’s consideration of Dr. Akhter’s expert report.
4.

Dr. Zachary Friedman

Treating psychiatrist Dr. Friedman issued his report on July 1, 2014.

Dr.

Friedman noted that Plaintiff had struggled with significant anxiety and panic that made
it difficult at times for him to leave his house. He assessed marked restrictions in
Plaintiff’s ADLs and social functioning but thought that Plaintiff would only experience
moderate restrictions in his ability to maintain concentration, persistence, and pace.
Nevertheless, Dr. Friedman found that Plaintiff would not be able to meet competitive
standards for completing a normal workday without experiencing an unreasonable
number of interruptions and could not maintain attention for two-hour periods.

(R.

1003). He also found that Plaintiff’s mental symptoms would require him to be absent
from work more than four days each month, though Dr. Friedman did not expect his
impairment to last more than twelve months with treatment. (R. 1000-06).
The ALJ assigned significant weight to Dr. Friedman’s RFC assessment
concerning Plaintiff’s ability to maintain concentration, persistence, and pace.
Unfortunately, the ALJ did not provide any explanation of why he did so. Despite Dr.
Friedman’s overall finding of a moderate restriction, he also thought that Plaintiff would
be unable to maintain a normal work pace without experiencing an unreasonable
number of interruptions. (R. 1003). Such a finding calls into question how Plaintiff
would be able to maintain full-time work on a sustained basis even with a moderate

28

restriction in concentration, persistence, and pace. The ALJ overlooked Dr. Friedman’s
finding, thereby failing to explain how the expert’s report supported a conclusion that
Plaintiff would be able to sustain a normal work schedule.
The ALJ may have thought that he addressed this issue by taking note of Dr.
Friedman’s finding that Plaintiff’s symptoms would require him to miss more than four
days of work each month. The ALJ did not think that barred full-time work because Dr.
Friedman also found that Plaintiff’s condition was not expected to last more than twelve
months with treatment. But the record plainly shows that Plaintiff’s mental symptoms
had already persisted for many years notwithstanding extensive treatment, including
therapy, medications, and hospitalizations. Moreover, Plaintiff’s other treating
psychiatrist Dr. Reinstein disagreed with Dr. Friedman, stating that Plaintiff suffered
from a chronic illness that made his prognosis “very guarded.” (R. 401). The ALJ was
not entitled to adopt Dr. Friedman’s conclusion without explaining why he chose it over
Dr. Reinstein’s equally-expert conclusion. See Young, 363 F.3d at 1001 (“Weighing
conflicting evidence from medical experts, however, is exactly what the ALJ is required
to do.”).

The ALJ stressed in other parts of his decision that Plaintiff’s functioning

improved in March 2014 after he began taking Latuda. (R. 30). Insofar as the ALJ
believed that addressed the issue, he failed to account for the fact that Plaintiff’s
condition fluctuated over time and had not heretofore been successfully treated on a
sustained basis. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (“The very
nature of bipolar disorder is that people with the disease experience fluctuations in their
symptoms, so any single notation that a patient is feeling better or has had a ‘good day’
does not imply that the condition has been treated.”).

29

The ALJ rejected Dr. Friedman’s other domain findings by stating that Plaintiff’s
treatment records show that he can manage his symptoms with medication. That fails
to explain anything meaningful about Plaintiff’s functioning for the reasons discussed
earlier. The ALJ never noted that Dr. Friedman thought that Plaintiff had a marked
limitation in social functioning. In addition, both Dr. Reinstein and Dr. Friedman thought
that Plaintiff had a marked restriction in his ability to carry out ADLs. The ALJ disagreed
with that finding by citing an October 2010 form from Community Counseling stating that
Plaintiff had a mild restriction in “self-care.”

(R. 28, 462).

That falls far short of

explaining why the ALJ rejected the conclusions of Plaintiff’s treating psychiatrists. The
form the ALJ cited was an intake checkbox issued by Jennifer Labrador, QMHP
(Qualified Mental Health Practitioner). The ALJ never explained why a non-specialist
like Ms. Labrador was more qualified to assess Plaintiff’s functioning on an intake form
than experts like Dr. Friedman or Dr. Reinstein were after treating Plaintiff for several
months. Moreover, the intake form that Ms. Labrador completed only stated that she
assessed a mild self-care restriction because Plaintiff was able to get out of bed and eat
one meal a day. (R. 463). Even if such minimal activities supported Ms. Labrador’s
finding, the regulations define ADLs as more than the ability to care for one’s self. They
also include “activities such as cleaning, shopping, cooking, taking public transportation,
paying bills, [and] maintaining a residence.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, at §
12.00(B)(1). The ALJ never considered these issues in his evaluation of Dr. Friedman’s
or Dr. Reinstein’s ADL assessment. Dr. Friedman stated that Plaintiff could not use
public transportation. (R. 1004). Plaintiff testified that he had not cleaned or done
housework “in years.” (R. 137). Nor does he shop or even leave his house for long

30

periods of time. (R. 54, 59, 138). The ALJ’s silence on these issues, combined with his
failure to discuss more fully how the record contradicts Dr. Friedman’s other findings,
does not explain the weight the ALJ assigned to the expert report. Remand is therefore
required so that the ALJ can restate the basis of his reasoning concerning the reports of
Dr. Friedman, Dr. Akhter, Dr. Reinstein, and Dr. Levitan.
C.

The RFC

As noted, the ALJ formulated two RFC assessments based on his belief that
Plaintiff’s cervical spine condition deteriorated after July 2012, thereby requiring an RFC
of sedentary work with non-exertional restrictions instead of the light work that was
assessed prior to July 2012. The ALJ did not believe that Plaintiff’s mental condition
became worse after July 2012 though, as discussed below, he altered the mental RFC
notwithstanding that finding. Plaintiff challenges the ALJ’s mental RFC assessments
but does not discuss the physical RFC.

Since this case already requires remand,

however, the Court addresses both of the ALJ’s assessments.
The ALJ gave great weight to the physical RFC issued in August 2011 by stateagency expert Dr. Julio Pardo, who found that Plaintiff could perform light work. (R. 27).
That supports the ALJ’s assessment of light work prior to July 2012. However, the ALJ
neither explained how he went about assessing the RFC of sedentary work after July
2012 nor properly identified what that work constituted.

The ALJ described the

sedentary work that Plaintiff could perform as the ability to “stand and walk for six hours
in an eight-hour workday and could sit for six hours in an eight-hour workday.” (R. 28).
That condition is incompatible with sedentary work. The regulations define sedentary
work as involving only occasional walking or standing, meaning that a claimant is only

31

required to walk or stand no more than two hours during an eight-hour workday. See
SSR 83-10; Haynes v. Barnhart, 416 F.3d 621, 627 n.2 (7th Cir. 2005). A claimant who
is able to walk or stand for up to six hours a day is capable of doings so “frequently”
under SSR 83-10. See SSR 83-10 (“‘Frequent’ means occurring from one-third to twothirds of the time.”). The ALJ’s exertional restrictions suggest that he meant to find that
Plaintiff had the ability to work at a reduced range of light work, not sedentary work.
See 20 C.F.R. § 404.1567(b) (defining the requirements of light work).
The ALJ’s confusion on this point is not erroneous in itself, as a person who can
carry out light work is deemed to be able to perform sedentary work. See 20 C.F.R. §
404.1567(b). However, the ALJ gave no reason why Plaintiff could carry out tasks at a
reduced range of light work after July 2012. Only Dr. Pardo and Dr. Akhter issued
physical RFCs, and the ALJ disagreed with both assessments concerning Plaintiff’s
functioning after July 2012. That left it to the ALJ to explain what evidence supported
the RFC and how he inferred from it that Plaintiff could perform a reduced range of light
work.

See SSR 96-8p (“The RFC assessment must include a narrative discussion

describing how the evidence supports each conclusion, citing specific medical facts . . .
and nonmedical evidence (e.g., daily activities, observations).”). As it stands, the Court
is unable to discern what line of reasoning led the ALJ to assess the post-July 2012
physical RFC. That requires remand. See Norris v. Astrue, 776 F. Supp.2d 616, 637
(N.D. Ill. 2011) (“The ALJs are not permitted to construct a ‘middle ground’ RFC without
a proper medical basis.”).
The same problems apply to the ALJ’s mental RFC. Despite his finding that
Plaintiff’s mental condition did not deteriorate after July 2012, the ALJ altered the mental

32

RFC after that date and found that Plaintiff was less restricted than before. The ALJ
said that prior to July 2012 Plaintiff would need to be off task up to five percent of the
time, but he eliminated that restriction in the second mental RFC. However, the ALJ
neither explained what it was in the record that supported such a change nor gave any
indication of how he went about assessing either of Plaintiff’s mental RFCs. The ALJ
could not have relied on the mental RFC issued by state-agency expert Dr. Donald
Henson because the ALJ only gave it “some” weight. (R. 27). Dr. Levitan’s concerns
about Plaintiff’s ability to handle the stresses of regular work were not considered
because the ALJ erroneously concluded that Dr. Levitan’s report was tainted by
Plaintiff’s alleged use of Xanax. Dr. Reinstein’s mental RFC was dismissed out of hand,
and Dr. Friedman’s RFC was not properly considered for the reasons discussed above.
Since an RFC assessment is a legal instead of a medical conclusion, an ALJ is entitled
to assess a claimant’s RFC without an expert’s guidance when the record is sufficient to
do so and when the ALJ adequately explains the basis of his reasoning.FDAS Instead
of doing so, the ALJ improperly accepted and rejected parts of Dr. Friedman’s findings
and cobbled together a mental RFC that depended on the unexplained premise that
Plaintiff’s alcohol and Xanax use was at the heart of his mental problems and that he
could function adequately in the workplace if he would only comply with treatment. That
requires remand so that the ALJ can explain the basis of his reasoning on this issue
more carefully.

See Bailey v. Barnhart, 473 F. Supp.2d 822, 839 (N.D. Ill. 2006)

(“Having rejected the available medical record upon which to base an RFC assessment,
the ALJ was then required to call a medical advisor and/or obtain clarification of the
record to flesh out what she needed to support her decision.”); Harper v. Berryhill, No.

33

16 C 5075, 2017 WL 1208443, at *8 (N.D. Ill. April 3, 2017) (“Having rejected the only
RFC[s] in the record, and without a medical expert to clarify matters, the ALJ was
obligated to explain more carefully how the evidence supported his RFC assessment.”).
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [11] is
granted.

Pursuant to sentence four of 42 U.S.C. §405(g), the ALJ’s decision is

reversed, and this case is remanded to the Social Security Administration for further
proceedings consistent with this opinion.
ENTER: 7/10/2017

_______________________________
Susan E. Cox
United States Magistrate Judge

34