Rinehart v. Colvin
Filing
26
MEMORANDUM Opinion and Order: For the foregoing reasons, Plaintiff's motion 16 is denied and the Commissioner's motion for summary judgment 23 is granted. The final decision of the Commissioner is affirmed. - Signed by the Honorable Susan E. Cox on 2/6/2018. Mailed notice (np, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD H. RINEHART,
Plaintiff,
v.
NANCY A. BERRYHILL, 1 Acting
Commissioner of Social Security,
Defendant.
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No. 16 C 9556
Magistrate Judge
Cox
MEMORANDUM OPINION AND ORDER
Plaintiff Richard H. Rinehart (“Plaintiff”) appeals the decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his disability insurance benefits
(“DIB”) under Title II of the Social Security Act. Plaintiff filed a brief [dkt. 16] to reverse or
remand the decision of the Commissioner of Social Security, and Defendant responded with a
motion for summary judgment. [dkt. 23]. We hereby construe Plaintiff’s brief in support of
reversing the decision of the Commissioner as a motion. For the following reasons the
Commissioner’s Motion for Summary Judgment is granted and Plaintiff’s brief is denied.
I. Background
a. Procedural History and Plaintiff’s Background
Plaintiff filed a Title II application for disability and DIB on January 2, 2013.
(Administrative Record (“R”) 214-15). Plaintiff alleged an onset date of disability beginning on
August 16, 2012. (R. 214). Plaintiff’s claim was denied initially on April 19, 2013 and again at the
reconsideration stage on September 26, 2013. (R. 126-55, 162-65). Plaintiff timely requested an
1
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of
Civil Procedure 25(d).
administrative hearing, which was held on March 12, 2015 before Administrative Law Judge
(“ALJ”) Lee Lewin. (R. 40, 166). Plaintiff was represented by counsel, and both a Medical Expert
(“ME”) and a Vocational Expert (“VE”) testified during the hearing. (R. 83-124). On April 3,
2015, the ALJ issued a written decision denying Plaintiff disability benefits. (R. 17-35). On
August 5, 2016, the Appeals Council denied Plaintiff’s appeal, and the ALJ’s decision became the
final decision of the Commissioner. (R. 1-6). Plaintiff filed the instant action on October 6, 2016.
[dkt. 1].
Plaintiff was born on September 9, 1960, and was 51 years old on his alleged disability
onset date. (R. 34). Plaintiff suffers from primarily mental and social limitations. Plaintiff’s
medical records reveal diagnoses of bipolar II disorder, alcohol dependence, adult ADHD, social
phobia and HIV. (R. 434, 27). Plaintiff testified that he has been sober since June 4, 2010. (R. 62).
Plaintiff’s medical records begin in August of 2012 2 when Plaintiff saw Dr. Todd Hargan,
M.D. (R. 321). Dr. Hargan noted on August 17, 2012 that Plaintiff had lower energy, decreased
mood and anger since he stopped testosterone. (R. 339). Dr. Hargan then started Plaintiff on
monthly testosterone injections which continued into 2013. (R. 321-39, 347-68). Dr. Hargan also
continued Plaintiff on Celebrex. (R. 339). Soon after, Dr. Hargan referred Plaintiff for a
psychological evaluation for anxiety and anger symptoms. (R. 338). Dr. Hargan opined that
Plaintiff had lipodystrophy, or fat redistribution, common in HIV patients due to their
medications, and he discussed treatment options with Plaintiff. (R. 337, 397, 28). Plaintiff
continued to see Dr. Hargan throughout 2013, during which Dr. Hargan indicated that Plaintiff’s
anxiety was not well controlled on several occasions. (R. 409, 412, 449). Then in April of 2014,
Dr. Hargan noted Plaintiff had a headache associated with muscle spasm when he followed up for
2
The record request cover page indicates that Dr. Hargan had treated Plaintiff prior to August 2012, but
due to Dr. Hargan moving his office, the previous records remained at the old office. (R. 320). A review of
the Record shows that these previous records were not obtained.
2
his HIV. (R. 457-58). In July of 2014 Plaintiff reported the muscle spasm had resolved. (R. 460).
On March 28, 2013, Plaintiff saw Dr. Robert V. Prescott, Ph.D, for a formal mental status
evaluation for the bureau of Disability Determination Services (“DDS”). (R. 386-91). Plaintiff
reported to Dr. Prescott that he was not currently receiving any mental health treatment. (R. 387).
Dr. Prescott diagnosed Plaintiff with major depression; moderate, intermittent explosive disorder;
anxiety disorder; alcohol abuse that is currently in remission according to Plaintiff; and adult
antisocial activities. (R. 390). Dr. Prescott opined Plaintiff would be unable to handle funds and
performed a “little less well than expected” given his age, educational and work history on the
cognitive portion of the evaluation. (Id.) However, Dr. Prescott also noted that Plaintiff lives by
himself and is able to dress and bathe himself, use public transportation, and do his own laundry.
(Id.) Additionally, Dr. Prescott noted Plaintiff could recall four of five items after a five-minute
delay. (R. 389).
On that same day, Plaintiff reported to Dr. Donald F. Pochyly, M.D., for an internal
medicine consultative examination for DDS. (R. 397-400). Plaintiff reported that he had poor
memory due to excessive alcohol intake for 30 years and was taking Trazadone, Cymbalta, and
Alprazolam for depression and anxiety. (R. 397). On examination, Plaintiff had normal ranges of
motion for his joints except for the left shoulder, which had limited ranges of motion and was
tender to inspection. (R. 398).
A note from Dr. Mark Gindi, M.D. on November 12, 2013 indicated Plaintiff had a current
Global Assessment of Function (“GAF”) 3 score of 65. (R. 441). Dr. Gindi also recommended that
3
Although the GAF is not used in the most recent version of the Diagnostic and Statistical Manual of
Mental Disorders (“DSM V”), it was used in the previous version of that text (“DSM IV”), and is often
relied on by doctors, ALJs, and judges in social security cases. See Steele v. Colvin, No. 14 C 3833, 2015
WL 7180092 at *1 (N.D. Ill. Nov. 16, 2015). The lower the score, the greater the degree of impairment. Id.
A score between 41 and 50 indicates “serious symptoms” such as suicidal ideation, severe obsessional
rituals, or frequent shoplifting or “any serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job, cannot work).” A score between 51 and 60 represents “moderate
3
Plaintiff continue taking Seroquel, Trazodone, Cymbalta, and start psychotherapy. (Id.)
On August 14, 2013, Plaintiff saw Dr. Robert Shulman, M.D., complaining of anxiety,
anger and emotional dysregulation. (R. 431). Plaintiff informed Dr. Shulman of his prior alcohol
abuse and reported that he used to drink a liter of vodka daily, until a successful recovery three
years ago. (Id.) Plaintiff reported that after achieving sobriety, his moods worsened especially after
being fired from his job. (Id.) Dr. Shulman also noted that Plaintiff has a long history of social
anxiety that was masked by his drinking. (Id.)
Upon examination, Dr. Shulman noted normal findings, including concentration within
normal limits and coherent thoughts. (R. 434). Plaintiff was cooperative and alert, but his mood
was anxious and depressed. (Id.) Dr. Shulman diagnosed bipolar II disorder, alcohol dependence,
adult attention deficit disorder, and social phobia. (Id.) Dr. Shulman gave a current GAF score of
51-60, indicating moderate symptoms or moderate difficulty in social, occupational, or school
functioning. (Id.)
Plaintiff continued to see Dr. Shulman over the next few months upon which various
medications were tried. (R. 558, 552, 545, 539). Then, on March 10, 2014, Plaintiff reported that
he felt like he was “at an even keel” and despite some persisting inattention and poor
concentration, he felt much better overall. (R. 528). The following month, Dr. Shulman again
adjusted Plaintiff’s medication to help with Plaintiff’s continuing difficulty with concentration.
(R. 521). In June of 2014, Plaintiff had better focus and concentration and stable a mood. (R. 515).
Then, in August of 2014, Dr. Shulman noted Plaintiff as being stable and benefiting from Nuvigil,
along with better concentration. (R. 501). Dr. Shulman also noted that Plaintiff had become very
involved with running Dual Diagnosis Anonymous (“DDA”) groups. (Id.)
symptoms” or “moderate difficulty in social, occupational, or school functioning.” Id. Anything above 60
would indicate mild symptoms. Id.
4
In September of 2014, Plaintiff reported that he developed side effects to Nuvigil and was
back to the baseline in terms of focus and concentration. (R. 496.) The following month Dr.
Shulman noted that Plaintiff had no overt irritability and mood was much more stable. (R. 489).
Dr. Shulman also noted that Plaintiff had not tried Deplin medication yet due to cost. (Id.) Upon
mental status examination, Dr. Shulman indicated Plaintiff was within normal limits. (R. 490).
Plaintiff also saw Dr. Hargan twice in October of 2014 and Dr. Hargan indicated there was
some setback in Plaintiff’s HIV treatment. (R. 467, 470). Dr. Hargan noted that Plaintiff’s noncompliance caused the last regimen to fail, but that now Plaintiff reported he fixed the issue that
caused the non-compliance. (R. 470). Dr. Hargan also continued to treat the neuropathy in
Plaintiff’s feet with Cymbalta. (R. 471).
On January 21, 2015 Dr. Shulman completed a mental impairment questionnaire. (R. 47378). Dr. Shulman gave a current GAF score of 65 and stated Plaintiff had no overt abnormalities
on mental exam. (R. 473). Dr. Shulman also noted however, Plaintiff can still experience
impulsivity, some irritability, impatience and distractibility. (Id.) Dr. Shulman indicated Plaintiff
had marked limitations in difficulties in maintaining social functioning and deficiencies of
concentration, persistence or pace. (R. 477). Dr. Shulman also opined that there had been one or
two episodes of decompensation. (Id.)
b. The ALJ’s Decision
The ALJ issued a written decision on April 3, 2015 following the five-step analytical
process required by 20 C.F.R. 404.1520. (R. 20-35). As an initial matter, the ALJ found that
Plaintiff met the insured status requirements of the Act through December 31, 2016. (R. 22). At
step one, the ALJ found Plaintiff had not engaged in substantial gainful activity from the alleged
onset date of August 16, 2012 through the date last insured of December 31, 2016. (Id.) At step
two, the ALJ concluded that Plaintiff had the severe impairments of bipolar disorder II (BP II),
5
personality disorder, generalized anxiety disorder (GAD)(also diagnosed as social phobia and
panic disorder), attention deficit disorder (ADHD), human immunodeficiency virus (HIV)
infection, and left shoulder arthritis (DJD). (Id.) Other impairments were to determined to be nonsevere. (R. 22-23). At step three, the ALJ concluded Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed impairment.
(R. 23-26). Prior to step four, the ALJ found that through the date of last insured, Plaintiff
maintained the residual function capacity (“RFC”) to perform light work, except that he could
perform simple, routine, repetitive tasks; can have occasional, brief, and superficial contact with
co-workers, supervisors, and the general public; can tolerate proximity to co-workers but cannot
perform conjoined tasks, teamwork, or group work; can make independent decisions and can
tolerate routine workplace changes, but cannot tolerate fast-paced production rate or strict quota
requirements. (R. 26).
In making this finding, the ALJ determined Plaintiff’s general credibility to be undermined
and his allegations to be “exaggerated because they are not well supported by the medical
evidence of record.” (R. 30). Factors considered by the ALJ included that there was no significant
progression of Plaintiff’s HIV or manifestations or mental impairments, and extensive range of
daily activities which were inconsistent with alleged levels of social phobia, memory loss or pain.
(Id.)
Second, the ALJ gave little weight to the medical opinion of Plaintiff’s treating physician,
Dr. Shulman, and the mental impairment questionnaire he completed on January 21, 2015. (R. 30).
The ALJ determined Dr. Schulman’s opinion to be inconsistent with the record and that there was
insufficient explanation or support for his opinion. (R. 31). The ALJ also explained that Dr.
Schulman’s opinions were not supported by the evidence to show one or two episodes of
decompensation. (Id.) The ALJ stated that this “suggests he may not be aware of the definition of
6
these concepts by the Social Security disability standards.” (Id.)
Third, the ALJ gave little weight to Dr. Hargan, who treated Plaintiff’s HIV longitudinally.
(R. 31). The ALJ also found that Dr. Hargan’s opinions were not explained sufficiently when
marking that Plaintiff was incapable of tolerating low stress jobs. (R. 31, 572). This was in light of
the normal mental examination findings in his treatment records and good control of HIV
manifestations with compliance. (Id.)
Fourth, the opinions of the state agency physicians and psychologists were given little
weight because there had been considerable development of the medical record after they formed
their respective opinions. (R. 32-33). The ALJ gave the greatest weight to Dr. Mark Oberlander,
Ph.D, the ME 4 who testified at Plaintiff’s hearing. (R. 33). The ALJ stated that Dr. Oberlander
reviewed the entire record and extensively questioned Plaintiff at the hearing. (Id.) The ALJ
“essentially adopted” Dr. Oberlander’s mental RFC because it was supported by the record as a
whole. (Id.)
At step four, the ALJ concluded Plaintiff was not capable of performing his past relevant
work as a flight attendant. (R. 34.) Finally, at step five, the ALJ found there were jobs that existed
in significant numbers in the national economy that Plaintiff could perform. (Id.) Specifically, the
ALJ relied upon testimony from the VE in concluding that Plaintiff could perform light work such
as a housekeeper, food preparer, and packer. (R. 35). Because of this determination, the ALJ found
Plaintiff not disabled under the Act. (Id.)
c. Issues Before the Court
Plaintiff raises two primary arguments on appeal. First, Plaintiff argues that the ALJ’s
symptom analysis is erroneous. Second, Plaintiff contends that the ALJ’s RFC assessment is not
4
The record refers to Dr. Oberlander as a medical expert and as psychological expert in the transcript
without further clarification. (R. 33, 40, 203).
7
supported by substantial evidence. The Court addresses each of these issues in turn.
II. Social Security Regulations and Standard of Review
The Social Security Act requires all applicants to prove they are disabled as of their date
last insured to be eligible for disability insurance benefits. ALJs are required to follow a standard
five-step test inquiry to assess whether a claimant suffers from a disability as defined in the Social
Security Act. The ALJ must determine: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
severe impairment meets or equals impairment listed by the Commissioner; (4) whether the
claimant is capable of performing past relevant work; and (5) considering the claimant's age,
education, and prior work experience, whether they are capable of adjusting to other work in the
national economy. 20 C.F.R. § 404.1520. An affirmative answer leads either to the next step, or at
steps 3 and 5, a finding of disabled. A negative answer at any point other than step 3 leads to a
finding of not disabled. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). The burden of proof
rests with the claimant in steps one through four, and shifts to the Commissioner in step five. Id.
Section 405(g) of the Compilation of The Social Security Laws states “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is limited to determining if
the final decision of the Commissioner of Social Security is based upon substantial evidence and
the proper legal criteria. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007). In reviewing a commissioner’s decision, the Court may not “reweigh
evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute
[its] own judgment for that of the Commissioner.” Young v. Barnhart, 362 F.3d 995, 1001 (7th
8
Cir. 2004). Even where “reasonable minds could differ” or an alternative position is also supported
by substantial evidence, the ALJ’s judgment must be affirmed if supported by substantial
evidence. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008); Scheck, 357 F.3d at 699.
Although not required to address every piece of evidence when denying benefits, “the
ALJ’s analysis must provide some glimpse into the reasoning behind her decision to deny
benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001). The reasoning must “build an
accurate and logical bridge form the evidence to his conclusion,” sufficient to allow a reviewing
court an ability to assess the findings and provide the claimant meaningful judicial review. Moore
v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014); Clifford, 227 F.3d at 872. “An ALJ has a duty to
fully develop the record before drawing any conclusions ... and must adequately articulate his
analysis so that we can follow his reasoning.” See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
III. Discussion
A. The ALJ’s Assessment of Plaintiff’s Subjective Symptom
Statements was Supported by Substantial Evidence
Plaintiff argues that the ALJ erred in assessing his subjective symptom statements and
credibility pursuant to Social Security Ruling (“SSR”) 16-3p. In 2016, the Commissioner
rescinded SSR 96-7p and issued SSR 16-3p, eliminating the use of the term “credibility” from the
symptom evaluation process, but clarifying that the factors to be weighed in that process remain
the same. See SSR 16-3p, 2016 WL 1119029, at *1, *7 (March 16, 2016). The ruling makes clear
that ALJs “aren’t in the business of impeaching claimants’ character,” but does not alter their duty
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.” Cole v. Colvin, 831 F.3d 411, 412
(7th Cir. 2016) (emphasis in original).
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However, the Social Security Administration recently clarified that SSR 16-3p only applies
when ALJs “make determinations on or after March 28, 2016,” and that SSR 96-7p governs cases
decided before the aforementioned date. See Notice of Social Security Ruling, 82 Fed. Reg. 49462
n.27 (Oct. 25, 2017). Here, the ALJ issued his decision on April 3, 2015. (R. 17). Therefore, SSR
16-3p does not apply retroactively and the ALJ properly applied SSR 96-7p. As discussed below,
even if Plaintiff were correct and only SSR 16-3p was to apply, it is immaterial.
According to the SSR 96-7p, “[i]n determining the credibility, the adjudicator must
consider the entire case record, including the objective medical evidence, the individual’s own
statements about symptoms, statements, information provided by treating or examining physicians
or psychologists or other persons about the symptoms and how they affect the individual, and any
other relevant evidence in the case record.” SSR 96-7p. Moreover, SSR 96-7p goes on to say that
a “determination or decision must contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” Id. A court will affirm a credibility determination as long as the ALJ
gives specific reasons that are supported by the record for his findings. Skarbek v. Barnhart, 390
F.3d 500, 505 (7th Cir. 2004).
The lack of objective evidence is not by itself reason to find a Plaintiff’s testimony to be
incredible. See Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th Cir. 2005). The ALJ must also
consider “(1) the Plaintiff’s daily activity; (2) the duration, frequency, and intensity of pain; (3) the
precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of medication; and
(5) functional restrictions.” See Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004); see also
SSR 96-7p at *3. An ALJ may not discredit a claimant’s testimony about his symptoms “solely
because there is no objective medical evidence supporting it.” Villano, 556 F.3d at 562 (citing 20
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C.F.R. § 404.1529(c)(2)); see Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (“The
administrative law judge cannot disbelieve [the claimant’s] testimony solely because it seems in
excess of the ‘objective’ medical testimony.”). Even if a claimant’s symptoms are not supported
directly by the medical evidence, the ALJ may not ignore circumstantial evidence, medical or lay,
which does support claimant’s credibility. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539-40
(7th Cir. 2003). SSR 16-3p, like former SSR 96-7p, requires the ALJ to consider “the entire case
record, including the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information provided by
medical sources and other persons; and any other relevant evidence in the individual’s case
record.” SSR 16-3p, at *4.
Here, the ALJ properly considered the factors set forth above and provided specific and
well-supported reasons for his conclusions. In regards to Plaintiff’s physical limitations, Plaintiff
directs the Court to his testimony regarding his daily gym attendance in an attempt to support his
allegations of being disabled. However, this testimony only further solidifies the ALJ’s finding.
During the hearing the ALJ asked Plaintiff about his trips to the gym. (R. 51). Plaintiff testified
that it takes 30 minutes to walk to the gym, but he has to stop about every twelve minutes because
of neuropathy in his feet. (R. 50-51).
Next, when asked about what he does at the gym, Plaintiff testified that he does “ab”
workouts and weight training. (R. 51-52). Plaintiff further testified that “what I truly get out of it is
walking to the gym and walking home,” explaining that this was because it allowed him to be in
“his own world.” (R. 52). Additionally, the ALJ considered Plaintiff’s other daily activities such
as taking public transportation regularly and leading a self-help group three times a week. (R. 30).
The ALJ found that this evidence did not substantiate Plaintiff’s testimony of virtual complete
inability to be around others. (Id.)
11
In regards to his mental limitations, Plaintiff argues that the ALJ stated he would give him
the benefit of the doubt, but failed to do so by adopting the ME’s testimony which did not give
Plaintiff any benefit of the doubt. The ALJ discussed Plaintiff’s testimony regarding daily memory
loss and misplacing things, but noted that it was not supported by objective evidence in the record.
(R. 30). A review of the record supports this finding in that there are no doctor’s notes stating
Plaintiff complained of memory problems, only what was discussed at the hearing.
Although an ALJ may not discount a claimant’s pain allegations based solely on a lack of
supporting objective evidence, 20 C.F.R. § 404.1529(c)(2), the ALJ may consider that factor “as
probative” in assessing the claimant’s symptoms. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000); see also Jones v. Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010) (noting that “discrepancies
between the objective evidence and self-reports may suggest symptom exaggeration.”).
The ALJ broke down Plaintiff’s subjective complaints and gave each respective complaint
an explanation as to why the record did not support Plaintiff’s allegations. (R. 33-34). The ALJ
limited Plaintiff to a range of light work because of manifestations from HIV medications, some
left shoulder pain, and some lower extremity neuropathy. The ALJ explained that although
Plaintiff had reports of exacerbations of pain, he also had many normal examinations and had
engaged in daily activity that was inconsistent with having sedentary limitations. (R. 33).
In sum, it is well-established that “[n]ot all of the ALJ’s reasons must be valid as long as
enough of them are.” Halsell v. Astrue, 357 Fed.Appx. 717, 722-23 (7th Cir. 2009)(emphasis in
original). The Court agrees with the Commissioner that Plaintiff has failed to show that the ALJ’s
subjective symptom evaluation was unreasonable or unsupported by substantial evidence. The
Court is satisfied with the ALJ’s analysis and finds that the ALJ’s conclusion regarding Plaintiff’s
12
subjective symptom statements is supported by substantial evidence. 5
B. The ALJ’s RFC Assessment is Supported by Substantial Evidence
Lastly, Plaintiff contends that the ALJ’s RFC assessment is not supported by substantial
evidence, namely because the ALJ erred in evaluating deficits with concentration, persistence or
pace, erred in considering deficits in social functioning, and failed to give proper weight to the
opinion evidence. A plaintiff’s RFC is an administrative assessment of what work-related
activities an individual can perform despite his limitations. 20 C.F.R § 404.1545; Social Security
Ruling (“SSR”) 96-8p; Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2011). In assessing a
plaintiff’s RFC, the ALJ must consider both medical and nonmedical evidence in the record. Id.
Additionally, the ALJ’s RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts. SSR 96-8p; see also Brisco ex
rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). For the reasons that follow, the Court
concludes that the ALJ’s RFC determination is supported by substantial evidence.
1. Concentration, Persistence, or Pace and Social Functioning
Plaintiff argues that contrary to the ALJ’s conclusion, Plaintiff’s allegations are not
exaggerated and are well supported by the record. Plaintiff directs the Court to his own testimony
when the ALJ inquired about Plaintiff’s difficulties with concentration. However, this testimony
does not undermine the ALJ’s reasoning as Plaintiff would have it. When Plaintiff was asked by
the ALJ how his concentration would affect his ability to work, he gave an example of an incident
where he misplaced his sewing kit. (R. 68-69). Plaintiff testified that incidents like this would
happen daily, and that his treatment provider was aware of this problem. (R. 70). However,
5
In regards to Plaintiff’s physical limitations, Plaintiff additionally argues that the ALJ did not give him the
“benefit of the doubt”, as stated in his decision, for if he had, a Grid Rules determination under 201.14
would have been rendered. In order to prevail on his Grid theory, Plaintiff must establish that the ALJ’s
RFC determination that he can perform light work is not supported by substantial evidence. As will be
discussed in the next section, Plaintiff has not established that the ALJ’s RFC determination is unsupported
by substantial evidence.
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Plaintiff does not direct the Court to any objective evidence in which a treatment provider
indicated Plaintiff reported this problem. Additionally, Plaintiff testified that another way his
concentration problems would affect his work was his fear that “Dr. Jekyll, Mr. Hyde” would
come out. (Id.)
Here, the ALJ found that Plaintiff had moderate difficulties with concentration, persistence
or pace. (R. 24). The ALJ based this finding on treatment records from Plaintiff’s treating
psychiatrist who described Plaintiff as having poor concentration after trying various medications.
(Id.) The ALJ contrasted this with the consultative examiner’s note that Plaintiff was attentive, had
intact memory and is able to pay for bills and live independently. (R. 25.) The ALJ also noted that
Plaintiff appeared to have mild difficulty with concentration at the hearing, but also took into
consideration Plaintiff’s reports of how his past alcohol abuse affected his memory. (Id.) The
Court agrees with the Commissioner that Plaintiff has not shown that the evidence calls for a more
restrictive RFC.
In regards to Plaintiff’s deficits in social functioning, the ALJ found Plaintiff had moderate
difficulties, citing to Plaintiff’s reporting’s of difficulty getting along with others, including family
members. (R. 24). To account for these moderate difficulties, the ALJ limited Plaintiff to have
only occasional contact with the public, co-workers and supervisors. (R. 33). The ALJ further
limited Plaintiff to be precluded from production rate stress, and tandem tasks at work. The ALJ
measured this against Plaintiff’s lack of any previous incarcerations or arrests, and no inpatient
treatment due to suicidal ideation or social anxiety.
Plaintiff argues that the record shows he has no ability to get along with others, even on a
superficial basis. Plaintiff also argues that the VE testified superficial contact meant “stopping in
throughout the day” and that Plaintiff is not capable of having such contact. [dkt. 16, pg. 10].
(R. 121). However, Plaintiff does not direct the Court to any evidence that was not considered by
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the ALJ or that would show Plaintiff is not capable of superficial contact. The ALJ discussed
objective medical evidence which included Plaintiff’s ceasing to see his therapist due to his
bipolar symptoms being under control. (R. 27, 32). Moreover, his testimony regarding his ability
to go to the gym daily, his ability to lead a group three times a week, and that he had been a flight
attendant for over 20 years. The ALJ’s evaluation of these symptoms was supported by substantial
evidence and Plaintiff has failed to offer a persuasive or well-developed argument to the contrary.
2. The ALJ Properly Weighed the Medical Opinion Evidence
Plaintiff further argues that it was error for the ALJ to afford little weight to his treating
physicians, Dr. Shulman and Dr. Hargan, improper consideration of social worker Jason
McVicker, and to conclude that there is no evidence of decompensation. Plaintiff also argues that
significant alterations of medications for his ADD and fluctuating mood are evidence of
decompensation. [dkt 16, pg. 10]. The Court agrees with the Commissioner that the ALJ
adequately explained why little weight was given to Plaintiff’s treating physician’s opinions and
that there were no episodes of decompensation.
a. Dr. Shulman
First, the ALJ recognized Dr. Shulman had a longitudinal treating relationship with
Plaintiff. (R. 30). However, the ALJ explained that the fact Dr. Shulman is a treating source is
outweighed by the inconsistency of the opinions or the lack of explanation or support for his
opinions. (R. 31). The ALJ highlighted inconsistencies with Dr. Shulman’s opinions such as
stating that Plaintiff has no overt abnormalities upon mental status examination, but then marked
that Plaintiff had limitations on the mental questionnaire. (R. 32). Many of Plaintiff’s mental status
examinations were normal, yet Dr. Shulman gave a GAF score of 51 to 60 which is more
consistent with moderate symptoms. (R. 31). A review of the record reveals that almost all of Dr.
Shulman’s notes were void of much substance to support the conclusions he made in the
15
questionnaire.
Dr. Shulman completed a Medical Impairment Questionnaire in which he opined that
Plaintiff had marked limitations in concentration, persistence, or pace and maintaining social
functioning, and one to two repeated episodes of decompensation lasting at least two weeks within
a twelve month period. (R. 477). The ALJ found there was no evidence in the record of any
inpatient, or intensive, psychiatric treatment after the alleged onset date that would support Dr.
Shulman’s finding that Plaintiff had suffered one or two episodes of decompensation. (R. 25, 31).
The Court agrees with the Commissioner that this is consistent with Dr. Oberlander’s opinion,
whom the ALJ gave great weight, that Plaintiff had not experienced any periods of
decompensation. (R. 100). Dr. Oblerander testified that Dr. Shulman failed to identify which of
Plaintiff’s diseases he was referring to in regards to decompensation. (R. 112). Dr. Oblerander
testified that even if a disease was specifically identified, there was no evidence decompensation
for any of Plaintiff’s diseases. (R. 113).
Dr. Oberlander was also questioned at the hearing regarding Plaintiff’s medication
schedule, and still concluded that this did not amount to an episode of decompensation.
(R. 100-01, 108-113). This is supported by Plaintiff’s medical records which show that his mental
examinations did not show significant changes even when switching medications. (R. 481-483,
496-97). Thus, the Court is able to follow the ALJ’s reasoning for giving Dr. Shulman’s opinion
little weight and the ALJ’s determination that Plaintiff did not experience episodes of
decompensation is supported by substantial evidence.
b. Dr. Hargan
Plaintiff also argues that Dr. Hargan’s notes were consistent throughout the record. The
ALJ acknowledged that Dr. Hargan was a treating source but, similarly to Dr. Shulman,
determined that factor was outweighed by the inconsistency of his opinion with the record, and
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lack of explanation or support. (R. 31). The ALJ took note of Plaintiff’s longitudinal treatment
with Dr. Hargan for HIV, but found that Plaintiff’s moderate anxiety and depression reported did
not justify work-preclusive stress intolerance as opined by Dr. Hargan. (R. 31). A review of the
record confirms that Dr. Hargan did not adequately explain his findings, even when given the
opportunity to do so. (R. 573-76). The Court agrees with the Commissioner that Plaintiff has not
pointed to any evidence that the ALJ did not consider and it is not the Court’s duty to re-weigh the
record evidence.
c. Social Worker McVicker
Finally, Plaintiff argues that the opinion of his former psychotherapist, Jason McVicker,
should have been given more weight. Mr. McVicker submitted a letter, which was written on
March 11, 2015 that summarized his treatment relationship with Plaintiff. (R. 577). Mr. Vicker
wrote that Plaintiff was a patient at various times over the past decade and most recently from the
summer of 2013 to August of 2014, which was their last meeting. (Id.) Mr. Vicker noted that
Plaintiff had made great progress and mastery in managing his symptoms. (Id.) Mr. Vicker also
indicated that Plaintiff was still “…prone to bouts of intermittent rage, explosive outburst, and
intensely negative perceptions of others.” (Id.) The ALJ contrasted this with the fact that during
the decade of time in which Mr. Vicker was treating Plaintiff, Plaintiff was working on
international flights, serving passengers and always being in proximity to others. (R. 33). The ALJ
gave Mr. Vicker’s opinion little weight because he found it was unsupported by a majority of the
objective findings in the record. The Court finds the ALJ’s assessment to be supported by
substantial evidence and is therefore affirmed.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is denied and the Commissioner’s motion for
summary judgment is granted. The final decision of the Commissioner is affirmed.
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Entered: 2/6/2018
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U.S. Magistrate Judge, Susan E. Cox
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