Jones v. Astrue

Filing 26

MEMORANDUM Opinion and Order The Commissioners motion for summary judgment is denied, and the Claimants motion for summary judgment is granted. The Court remands this case to the Social Security Administration for further proceedings consistent with this Memorandum Opinion and Order. Signed by the Honorable Iain D. Johnston on 2/6/2014: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
ALTON JONES,

)
)
)
)
) No. 12 CV 50438
) Honorable Iain D. Johnston
) Magistrate Judge
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Secretary of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
The Claimant, Alton Jones, (the “Claimant”) brings this action under 42
U.S.C. §405(g), seeking reversal or remand of the decision by Respondent, Carolyn
W. Colvin, Acting Commissioner of Social Security (“Commissioner”), 1 denying the
Claimant’s application for disability insurance benefits under Title II of the Social
Security Act (“SSA”). This matter is before the Court on cross-motions for summary
judgment. (Dkt. # # 8, 17).
The Claimant argues that the Commissioner’s decision denying his
application for benefits should be reversed or remanded for further proceedings
because the decision of the Administrative Law Judge (“ALJ”) is not supported by
substantial evidence and is contrary to law. The Commissioner argues that the
ALJ’s decision should be affirmed because it is supported by substantial evidence.
For the reasons below, the Commissioner’s motion for summary judgment (Dkt.
#17) is denied, and the Claimant’s motion (Dkt. #8) is granted. The Court remands
1

Commissioner Carolyn W. Colvin has been automatically substituted as the Defendant-Respondent
pursuant to Federal Rule of Civil Procedure 25(d).

1

this matter to the Social Security Administration (“SSA”) for further proceedings
consistent with this Memorandum Opinion and Order.
I. BACKGROUND
A. Procedural History
The Claimant filed an application for disability on July 30, 2009, alleging a
disability onset date of May 31, 2005. R. 145-154. On November 18, 2009, the
application was initially denied, and was denied upon reconsideration on April 12,
2010. R. 67-74; 80-85. On May 17, 2010, the Claimant filed a request for a hearing.
R. 22. The ALJ granted this request and conducted a hearing on April 5, 2011 in
Oak Brook, Illinois. Id. The Claimant and Vocational Expert (“VE”) Cheryl R.
Hosieth testified at the hearing. R. 41-60.
On May 25, 2011, the ALJ issued a decision denying the claim for benefits.
R. 22-33. The Claimant requested the Appeals Council review the ALJ’s decision,
but on February 8, 2011, the Appeals Council denied the review, thereby making
the ALJ’s decision final. R. 1-6; 20 C.F.R. § 404.927. Shortly thereafter, the
Claimant filed this appeal pursuant to 42 U.S.C. §405(g).
B. Hearing Testimony
1. April 5, 2010 Hearing
a. Claimant
At his administrative hearing, the Claimant testified that he was a single
male who lived with his parents. He stated that he had six children who did not

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live with him, but lived in close proximity to his parent’s apartment. R. 42-43; 53.
The Claimant testified that he regularly sees his children on the weekends. R. 53.
When asked about his work experience, the Claimant testified that he had
not been employed at any job longer than four months since May 31, 2005. R. 4344. He then described his work experience prior to May 2005. He stated he was
previously employed in the shipping department at a woodworking company and
also worked as a security guard and maintenance repairman at a hotel and a
dietary aide at a nursing home. R. 44-47.
The Claimant testified that after May 31, 2005, he could not maintain
employment because of his mental health problems. He stated that he suffered
from anxiety, paranoia, and low self-esteem. He also testified that he experienced
“flashbacks” of being molested as a child. R. 54. He explained that he had
difficulties concentrating and getting along with others and occasionally
experienced crying spells. R. 48-55. The Claimant testified that he sought
treatment for his mental health issues in the mid-to-late ‘90’s and also testified that
he received treatment for alcohol and drug abuse around this time. R. 49.
When asked about his current physical capabilities, the Claimant stated that
he could walk a short distance, lift one hundred pounds, climb stairs and reach over
his head without difficulty. R. 50. He also testified that he was able to drive, do
household chores, and go to the grocery store. R. 50.
With regard to his current alcohol and drug use, the Claimant testified that
he consumed alcohol and marijuana infrequently. R. 49-50. When asked what he

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believed his biggest issue was that prevented him from securing long-term
employment, the Claimant stated that he had “trouble taking orders and directions
from people . . . ” and had a difficult time getting along with others. R. 55. When
asked what he believed would happen if he got a job where he could work
independently, the Claimant testified that he did not think he would be successful
because he had “a hard time staying focused . . . ” and “a hard time finishing
things.” R. 56.
b. Vocational Expert
At the administrative hearing, Cheryl Hoiseth – a vocational expert –
testified that she reviewed the exhibits and had heard the Claimant’s testimony
regarding his work history. R. 57. When asked whether an individual with the
Claimant’s characteristics and impairments could perform a job in the current
economy, Ms. Hoiseth answered affirmatively. R. 58. She stated that the Claimant
could perform “medium, unskilled” jobs and specifically noted that the Claimant
could work as a janitor, hand packager, or hospital food service worker. R. 58. She
also testified that if the Claimant was limited to light work, he could perform jobs
as a housekeeping cleaner or cafeteria attendant. R. 58. The Claimant’s attorney
questioned Ms. Hoiseth about the amount of supervisor interaction that was
required for the aforementioned jobs. She testified that instruction would only need
to be given “periodically, maybe once or twice or month.” R. 60.
C. Medical Record Evidence

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Because the issues raised in the Claimant’s appeal relate to (1) whether the
ALJ made an erroneous Residual Functional Capacity assessment and (2) whether
the ALJ made an accurate credibility determination regarding Claimant’s
subjective complaints about his medical condition, only the medical records relating
to these issues will be addressed.
1. Medical Record Evidence: January 2005 – December 2009
The first medical record relating to the Claimant’s mental illnesses is dated
on January 6, 2005. R. 491. This document states that the Claimant arrived at the
Ecker Center for Mental Health (“Ecker Center”) to see psychiatrist Alicia Martin
“after four months of absence.” R. 491. The document indicates that the Claimant
gave a number of excuses as to why he cancelled and failed to show up for his prior
appointments and states that the Claimant was diagnosed with major depression,
history of alcohol and cannabis dependence, and antisocial personality disorder. R.
491. Dr. Martin’s progress notes indicate that on January 6, 2005, the Claimant
denied feelings of “hopelessness or helplessness or anehenodia” and his “expressed
judgment was good.” R. 491. Dr. Martin renewed the Claimant’s prescription for
Prozac and informed the Claimant that his medication needed to be taken
consistently for it to be effective. R. 491. She ordered the Claimant to return to the
Ecker Center in 4-6 weeks. R. 491.
Despite Dr. Martin’s orders, the next medical record concerning the
Claimant’s mental health is dated May 27, 2009. R. 480. At this time, the
Claimant had a comprehensive mental health assessment at the Ecker Center. R.

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480. This assessment diagnosed the Claimant with major depressive disorder. R.
480. The document explains that the Claimant came to the Ecker Center and
reported “life-long difficulties with depression and anger.” R. 475. The document
indicates that the Claimant stated he “was arrested on May 23, 2009 for an assault
on a neighbor” but he denied ever becoming “physical with the other person.” R.
475. This document also indicates that the Claimant had a history of legal
problems, but believed he was being “targeted by Elgin police and was arrested
multiple times without reason.” R. 476. The document states that Claimant
reported “some recent (5-26-09) homicidal ideation” but he had “no intent to harm
anyone.” R. 475. The assessment also indicates that the Claimant reported a loss
of interest in many activities, but that “he was in contact with friends on a regular
basis.” R. 476. The document states the Claimant was oriented and his memory
was good. R. 478. The assessment referred the Claimant for a psychiatric
evaluation with Dr. Alicia Martin. R. 479; 481.
Based on this referral, the Claimant had a psychiatric evaluation on June 9,
2009. R. 420-423. Dr. Alicia Martin’s progress notes indicate that the Claimant
was a client of the Ecker Center in September 2004, but was not consistent with his
treatment. R. 422. The progress notes state that the Claimant described signs and
symptoms of major depression and presented “a history of irritability with physical
aggression.” R. 422. However, Dr. Martin noted that the Claimant “denied feeling
hopeless, helpless, or worthless” and his “judgment was good.” R. 422.

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She prescribed the Claimant Prozac and Risperdal and scheduled a follow-up
appointment in two to three weeks. R. 422.
On June 23, 2009, the Claimant had his follow-up appointment with Dr.
Martin. R. 424. The progress notes indicate that the Claimant reported
improvement with his condition. R. 424. Specifically, the document states that the
Claimant subjectively noticed that he did not have as much anger and had “no
complaints of depression, anxiety, panic attacks, psychotic symptoms, severe mood
swings, or hypomanic episodes.” R. 424. Dr. Martin determined that the Claimant
would continue on the same dose of his medication and ordered the Claimant to
return in one month. R. 424.
On August 6, 2009, the Claimant visited Dr. Martin for his follow-up
appointment. At this time, the Claimant stated that was benefitting from his
medicine, but had noticed some signs of sadness. R. 426. Dr. Martin’s progress
notes indicate that the Claimant was “calm, cooperative and soft spoken . . . and
was coherent and goal directed.” R. 426. The notes also state that Dr. Martin
informed the Claimant that she would be leaving the Ecker Center, and the
Claimant agreed to see another psychiatrist at the Ecker Center. R. 426.
On August 20, 2009, the Claimant visited the Ecker Center and met with
medical assistant Benjamin Harris. R. 427. Harris’ progress notes indicate that the
Claimant stated he was having trouble making it through the day and reported
“nearly constant worry.” R. 427. At this time, Harris gave the Claimant a

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Cognitive Restructuring Worksheet and instructed him to complete a behavioral
goals worksheet for his appointment. R. 427.
The Claimant had an individual therapy session with Harris on August 24,
2009. R. 428. The progress notes from this session indicate that the Claimant
“reported having accomplished his goals from the previous session” and “reported
that he found completing the Worksheets to be helpful with regard to monitoring
his thoughts and discovering what is upsetting him.” R. 428. The Claimant was
scheduled for another session the following week. R. 428.
The next medical records are from the Ecker Center’s psychiatrist Walter
Pedemonte and are dated October 5. 2009. R. 484. These notes indicate that the
Claimant came to Dr. Pedemonte to obtain a refill of his prescription medication. R.
484. Dr. Pedemonte noted that the Claimant was “co-operative,” “psychomotorally
stable” and “oriented to time, place, and person.” R. 484. Dr. Pedemonte refilled
the Claimant’s prescription and ordered a follow-up appointment in eight weeks. R.
484.
On October 6, 2009, the Claimant had a psychological examination for the
Bureau of Disability Determination Services. R. 435-440. This examination was
performed by Licensed Clinical Psychologist Barbara F. Sherman. The exam notes
state that the Claimant was 32-years-old at the time of the exam and was able to
drive himself to the examination site without difficulties. The examination records
indicate that the Claimant reported that he had been “going to the Ecker Center off
and on for a number of years and was unable to keep work because of his explosive

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disorder and major depression.” R. 435. The Claimant stated he began receiving
counseling through the Ecker Center after “he was hospitalized at Saint Joseph’s at
age 18.” R. 436. He reported that when he was 18 “he heard voices . . . but this was
after being overmedicated . . . ” and that “when the medications were changed he
stopped having that experience.” R. 436. The October 6, 2009 examination records
note that the Claimant had adequate vision and hearing, but reported difficulty
sleeping. R. 436. When addressing the Claimant’s social skills, Dr. Sherman
reported that the Claimant’s “socialization skills were reportedly unproblematic . . .
” and that the Claimant “saw himself as getting along adequately with his friends
and s[aw] his children often.” R. 437. Sherman also noted the Claimant
“acknowledged that he got angry easily . . . ” and during times of anger would “yell,
break furniture, punch the wall and throw glasses.” R. 437. Dr. Sherman
determined that the Claimant’s attention, concentration, and memory were
adequate. R. 438. She also concluded that the Claimant’s judgment was “generally
adequate” and that the Claimant did not present signs of psychosis. R. 438. She
concluded by finding that the Claimant “would not be able to manage his funds if he
was eligible for benefits because of his history of substance abuse.” R. 440.
On November 8, 2009, the Claimant had a mental residual functional
capacity assessment performed by psychiatrist Lionel Hudspeth, a State agency
consultant. R. 460-462. This assessment indicates that the Claimant’s ability to
understand both short and detailed instructions was not significantly limited by his
illnesses. R. 460. The assessment also states that the Claimant was able to

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“sustain an ordinary routine without special supervision” and was not significantly
limited in his ability to “make simple work-related decisions.” R. 460. Dr.
Hudspeth determined the Claimant was not significantly limited in his “ability to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and could perform at a consistent pace without an
unreasonable number and length of rest periods.” R. 461. With respect to his ability
to interact with others, Dr. Hudspeth found the Claimant was not significantly
limited in his “ability to ask simple questions or request assistance” and his “ability
to maintain socially appropriate behavior and adhere to basic standards of neatness
and cleanliness.” R. 461. Dr. Hudspeth concluded that the Claimant’s “long
history of behavioral/conduct/criminal actions and difficulty with others,” required
the Claimant to work a job where he would have “no contact with the public and
minimal contact with coworkers and supervisors.” R. 462.
On November 30, 2009, the Claimant returned to the Ecker Center to see Dr.
Pedemonte for a follow-up appointment. R. 502. Dr. Pedemonte’s progress notes
indicate that the Claimant was “psychomotorally stable” and his “insight and
judgment [were] moderate.” R. 502. He ordered the Claimant to return for a followup appointment in eight weeks.
On December 30, 2009, the Claimant returned to visit Dr. Pedemonte for a
follow-up appointment. R. 501. At this time, Dr. Pedemonte found the Claimant to
be “psychomotorally retarded” and found his “attention, concentration, and

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calculation poor.” R. 501. He scheduled a follow-up appointment in eight weeks. R.
501.
2. Medical Record Evidence January 2010 – December 2010
On January 12, 2010, the Claimant had his mental health reassessed at the
Ecker Center. R. 473. The reassessment notes indicate that the Claimant was
returning for individual therapy sessions because he was continuing “to experience
significant impairment in psychosocial functioning . . . ” R. 474. The document
states that the Claimant reported continued difficulty in “coping with symptoms of
depression and managing thoughts/behaviors related to anger.” R. 474. The
assessment recommended that the Claimant continue to receive individual therapy.
Pursuant to this recommendation, the Claimant saw Benjamin Harris for an
individual therapy session on January 21, 2010. R. 518. The progress notes
indicate that the Claimant “demonstrated success” in understanding the
consequences of his anger and was receptive to the suggestions Harris offered the
Claimant to control his anger. R. 518. The Claimant’s next individual therapy
session was scheduled for January 26, 2010. R. 518.
The January 26, 2010 progress notes indicate that the Claimant and Harris
discussed a questionnaire that Harris was given for the Claimant’s Social Security
claim. R. 519. The notes state that the Claimant reported experiencing difficulties
because he was constantly arguing with his girlfriend. R. 519. At this time, the
Claimant stated that he feared he would do something to harm his girlfriend if their
fights continued. The progress notes indicate that Harris and the Claimant

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discussed a plan to minimize the fighting and avoid aggressive behavior and that
the Claimant reported “confidence in his ability to follow through with this plan
when he speaks with his girlfriend.” R. 519.
On February 3, 2010, the Claimant returned for another individual therapy
session with Harris. The progress notes indicate that the Claimant had completed
all of his goals and stated that the arguments with his girlfriend had ceased. The
Claimant reported that he had “gone out to dinner twice during the week with his
girlfriend and friends” and “reported improved mood and high motivation.” R. 520.
At this time, Harris instructed the Claimant to review therapy materials before his
next session. R. 520.
At the Claimant’s next therapy session on February 17, 2010, he “reported
having a good week” and “reported several behavioral changes (e.g., spending time
out of his room interacting with parents, positive conversations with girlfriend,
positive activities) that he related resulted in improvements in mood.” R. 521.
The Claimant’s next individual therapy session was on February 23, 2010. R.
522. The progress notes indicate that the Claimant was again having difficulties
because of negative interactions with his girlfriend. R. 522. The progress notes
state that the Claimant was reminded to engage in relaxation exercises that were
discussed in previous therapy sessions. Another individual therapy session was
scheduled. R. 522.
On March 1, 2010, the Claimant saw Dr. Walter Pedemonte to obtain a refill
for his prescription medications. Dr. Pedemonte’s progress notes indicate that the

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Claimant was “psychomotorally stable” and his “mood and affect were fair.” R. 523.
Dr. Pedemonte refilled the Claimant’s prescription and ordered him to return in
eight weeks. R. 523.
On March 4, 2010, the Claimant met with Benjamin Harris for an individual
therapy session. At this time, the Claimant reported that he had experienced
“suicidal ideation,” but stated “he was able to think of a reason not to harm himself
(i.e., his children)” and denied continued suicidal ideation. R. 524. The progress
notes indicate that the Claimant and Harris formed a safety plan for the next time
the Claimant experienced suicidal thoughts and another therapy session was
scheduled. R. 524.
In March 2010, the Claimant had another three therapy sessions with
Benjamin Harris. During this time, the Claimant reported that many of his
symptoms had not shown improvement. R. 526. Specifically, the Claimant
complained about “continued difficulties with motivation to increase his activity
level and to apply for jobs to meet court requirements.” R. 528. At this time, the
progress notes indicate that Claimant “appeared to demonstrate an ability to realize
mistakes in his thinking that are impeding goal completion,” and agreed to move
his therapy sessions to every other week to give him time to work toward his goals.
R. 528.
The Claimant’s next therapy session was on April 14, 2010. R. 529. The
progress notes indicate that at this time he reported difficulties in completing his
goals. R. 529. The progress notes state that the Claimant was engaging in negative

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thought patterns and “repeatedly verbalized excuses” for such thoughts. R. 529.
Harris noted that at the end of the session, the Claimant stated he would “try not to
give up so easily.” R. 529.
The April 19, 2010 progress notes indicate that the Claimant reported
spending more time with his girlfriend. R. 530. At this session, Harris reviewed
the Claimant’s Relapse Prevention Plan (“the Plan”) and encouraged the Claimant
to review the Plan before his last therapy session. R. 530.
On April 28, 2010, the Claimant had his last individual therapy session. R.
532. The progress notes indicate that the Claimant reported that “he thinks he has
made positive changes with regard to awareness of problem areas (i.e., negative
thinking/behavior patterns, anger expression) as a result of participating in
individual therapy.” R. 532. At this time, Harris informed the Claimant he would
be transferred to a medications-only treatment plan. R. 532. In his discharge
notes, Harris stated that the Claimant was “stable” and had “shown improvement
over the course of individual therapy with regard to management of negative
emotional responses.” R. 533.
On August 11, 2010, the Claimant saw Dr. Walter Pedemonte for another
psychiatric evaluation. R. 536-538. At this time, Dr. Pedemonte noted that the
Claimant was “psychomotorally stable” and his thought process was “within normal
limits.” R. 537. He determined that the Claimant was doing well with his
medication and recommended individual psychotherapy and pharmacotherapy. R.
538-39.

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The Claimant’s last medical records are from December 1, 2010. On that
date, the Claimant saw Dr. Pedemonte for a follow-up appointment. R. 540. At this
time, the progress notes indicate that the Claimant was psychomotorally stable. R.
540. Dr. Pedemonte determined that the Claimant’s judgment and insight were
improving and ordered him to return in three months. R. 540.
D. ALJ’s Decisions and Appeals Council Review
On May 25, 2011, the ALJ issued her decision and denied the Claimant’s
application for benefits. R. 24. In the decision, the ALJ first determined that the
Claimant met the insured status requirements of the SSA through June 30, 2009.
Next, the ALJ found that the Claimant had not engaged in substantial gainful
activity since May 31, 2005. R. 24. Third, the ALJ found that the Claimant had the
following severe impairments: major depressive disorder; explosive disorder;
posttraumatic stress disorder; and a history of alcohol and marijuana abuse. R. 24.
Fourth, the ALJ found that these impairments did not meet or equal one of the
listed impairments in 20 C.F.R. Part 404 Subpart P, Appendix 1. R. 25. Fifth, the
ALJ found that the Claimant had a residual functional capacity “to perform a full
range of work at all exertional levels but with the following non-extertional
limitations: the Claimant should come into no contact with the public for work
related purposes, but can have occasional contact with co-workers and supervisors.”
R. 26. The ALJ determined that the Claimant was limited to unskilled three to four
step simple, repetitive, and routine tasks. R. 26. In making the residual functional
capacity determination, the ALJ relied upon the opinions of psychiatrist Barbara

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Sherman and the State agency medical consultants, and gave little weight to the
Claimant’s former psychiatrist, Dr. Walter Pedemonte, finding that the medical
record did not support some of his opinions regarding the Claimant’s limitations. R.
29-30. The ALJ also considered the Claimant’s testimony, but noted that the
Claimant was not “fully credible” since some of the Claimant’s asserted limitations
were contradicted by evidence in the record. R. 27. Thus, the ALJ determined that
the Claimant was not disabled. R. 32.
The Claimant appealed the ALJ’s decision, but on February 8, 2011, the
Appeals Council denied the Claimant’s request for review. R. 1. This denial made
the decision of the ALJ a final administrative decision by the Commissioner. See 20
C.F.R. § 404.927.
II. LEGAL STANDARDS
A. Standard of Review
A reviewing court may enter judgment “affirming, modifying, or reversing the
decision of the Commissioner, with or without remanding the cause for a
rehearing.” 42 U.S.C. §405(g). This much is clear regarding the standard of review.
If supported by substantial evidence, the Commissioner’s factual findings are
conclusive. 42 U.S.C. §405(g). If the Appeals Council denies a request for review,
the ALJ’s decision becomes the Commissioner’s final decision, reviewable by the
district court. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). But beyond these
axiomatic statements, the courts have provided seemingly conflicting guideposts.

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At one end of the spectrum, court opinions have held that the standard of
review is narrow. See Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (review is
“extremely limited”). The district court’s review is limited to determining whether
substantial evidence supports the Commissioner’s decision and whether the
Commissioner applied the correct legal standard in reaching the decision. Nelms v.
Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009); Schoenfeld v. Apfel, 237 F.3d 788, 792
(7th Cir. 2001). Substantial evidence exists if there is enough relevant record
evidence that would allow a reasonable mind to determine that the decision’s
conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971).
Accordingly, the reviewing court cannot displace the decision by reconsidering facts
or evidence, or by making independent credibility determinations. Elder v. Astrue,
529 F.3d 408, 413 (7th Cir. 2008). Indeed, on review, the courts will give the
decision a commonsensical reading and not pick nits. Rice v. Barnhart, 389 F.3d
363, 369 (7th Cir. 2004). Moreover, a decision need not provide a complete written
evaluation of every piece of testimony and evidence. Pepper v. Colvin, 712 F.3d 351,
362 (7th Cir. 2013). If reasonable minds could differ concerning whether a claimant
is disabled, then the court must affirm so long as the decision is adequately
supported. Elder, 529 F.3d at 413.
At the other end of the spectrum, courts, including the Seventh Circuit, have
been careful to emphasize that the review is not merely a rubber stamp. Scott v.
Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). For example, a “mere scintilla” is not
substantial evidence. Id. Instead, a reviewing court should conduct a critical

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review of the evidence before affirming the Commissioner’s decision. Eichstadt v.
Astrue, 534 F.3d 663, 665 (7th Cir. 2008). If the Commissioner’s decision lacks
evidentiary support or adequate discussion of the issues, then the court must
remand the matter. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Indeed,
even when adequate record evidence exists to support the Commissioner’s decision,
the decision will not be affirmed if the Commissioner does not build an accurate and
logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539,
544 (7th Cir. 2008); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2002); Steele v.
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002); Sarchet v. Carter, 78 F.3d 305, 307 (7th
Cir. 1996). 2 And, unlike most civil litigation in which a decision can be affirmed on
any basis in the record, federal courts cannot do so in Social Security appeals.
Compare Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“The Chenery doctrine
. . . forbids an agency’s lawyers to defend the agency’s decision on grounds that the
agency itself had not embraced.”) with Brosted v. Unum Life Ins. Co., 421 F.3d 459,
467 (7th Cir. 2005) (“We can affirm on any basis in the record”). Therefore, the
Commissioner’s counsel cannot build for the first time on appeal the necessary
accurate and logical bridge. See Parker, 597 F.3d at 925; Toft v. Colvin, No. 08-C2861, 2013 U.S. Dist. LEXIS 72876 *21 (N.D. Ill. 2013) (“The court’s review is
To further show the seeming conflict, scores of cases rely upon the “logical bridge” analysis
and language to remand decisions to the Commissioner. See, e.g. Shauger v. Astrue, 675
F.3d 690, 697-98 (7th Cir. 2012); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). But the “logical bridge” analysis was never
meant to compel a hypercritical approach. Mueller v. Astrue, 860 F.Supp.2d 615, 619 (N.D.
Ill. 2012). Indeed, the Seventh Circuit has provided the following pedestrian explanation of
how an ALJ’s decision establishes a logical bridge: “[T]he ALJ must rest its denial of
benefits on adequate evidence contained in the record and must explain why contrary
evidence does not persuade.” Berger, 516 F.3d at 544.
2

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limited to the reasons and logical bridge articulated in the ALJ’s decision, not the
post-hoc rational submitted in the Commissioner’s brief.”). An exception to the
Chenery doctrine is the harmless-error doctrine, which allows a court to affirm if the
outcome on remand is foreordained. See Osmani v. INS, 14 F.3d 13, 15 (7th Cir.
1994) (harmless error does not require remand “when it is clear what the agency’s
decision has to be”); Sahara Coal Co. v. Office of Workers’ Compensation Programs,
946 F.2d 554, 558 (7th Cir. 1991); see also Parker, 597 F.3d at 924.
B. Disability Standard
Disability insurance benefits are available to a claimant who can establish
that he is under a “disability” as defined in the SSA. Liskowitz v. Astrue, 559 F.3d
736, 739-740 (7th Cir. 2009). “Disability” means an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected . . . to last for a continuous period of not
less than 12 months.” 42 U.S.C. §423(d)(1)(A). An individual is under a disability if
he is unable to perform his previous work and cannot, considering his age,
education and work experience, participate in any gainful employment that exists
in the national economy. 42 U.S.C. §423 (d)(2)(A). Gainful employment is work
usually done for pay or profit, regardless of whether a profit is realized. 20 C.F.R.
§404.1572(b).
The ALJ uses a five-step analysis to determine whether a claimant is
disabled. 20 C.F.R. §404.1520(a)(4)(i – v). Under this analysis, the ALJ must
inquire in the following order: (1) whether the claimant is engaged in substantial

19

gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s severe impairment meets or equals a listed impairment; (4) whether the
claimant can perform past relevant work; meaning whether the claimant can still
work despite the claimant’s physical and mental limitations, which is referred to as
the claimant’s residual functional capacity (“RFC”); and (5) whether the claimant is
capable of performing work in light of the claimant’s age, education and work
experience. Id.; see also Liskowitz, 559 F.3d at 740. After the claimant has proved
that he cannot perform his past relevant work due to the limitations, the
Commissioner carries the burden of showing that a significant number of jobs exist
in the national economy that the claimant can perform. Schmidt v. Astrue, 496 F.3d
833, 841 (7th Cir. 2007).
III. DISCUSSION
A. Contentions of the Parties
In asserting that the ALJ’s decision was not supported by substantial
evidence, the Claimant contends that the matter should be remanded for two (2)
reasons. First, the Claimant contends that the ALJ erred in her residual
functioning capacity (“RFC”) assessment and therefore presented Vocational
Expert, (“VE”) Cheryl Hoiseth an incomplete hypothetical. Essentially, the
Claimant argues that the ALJ failed to incorporate his inability to concentrate and
his inability to control his anger in the RFC assessment. Because of this, the
Claimant contends the VE was presented an incomplete hypothetical. Dkt. #8-2, p.
4-9. Next, the Claimant argues that the ALJ erred in finding the Claimant’s
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subjective complaints were not fully credible. Dkt. #8-2, p. 10. Specifically, the
Claimant contends the ALJ placed too much emphasis on his ability to care for his
children and the gap in his treatment when she determined that the Claimant’s
subjective complaints were contradictory to evidence in the record. Dkt. #8-2, p. 1011.
The Commissioner argues that the ALJ’s decision is supported by substantial
evidence and should be affirmed. The Commissioner claims the ALJ considered all
of the Claimant’s limitations when she made her RFC assessment and therefore
presented a complete hypothetical to the VE. The Commission also contends that
the ALJ did not err when she determined that the Claimant’s subjective complaints
were not fully credible.
B. Analysis
1. The ALJ Considered all of the Claimant’s Limitations when She
Determined the Claimant’s RFC
The Claimant challenges the ALJ’s RFC determination on a number of
grounds. Specifically, he argues that the RFC determination did not incorporate his
limitations in concentration and anger management and this means the RFC is not
supported by substantial evidence.
At step four, an ALJ must determine a claimant’s RFC, or “what an
individual can do despite his or her limitations.” S.S.R. 96-8p. The RFC represents
“the maximum a person can do – despite his limitations – on a regular and
continuing basis, which means roughly eight hours a day for five days a week.”
Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013) (quotation marks and citations
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omitted). In determining a Claimant’s RFC, the ALJ must consider both medical
and non-medical evidence in the record. Dixon v. Massanari, 270 F. 3d 1171, 1178
(7th Cir. 2001). While an ALJ “need not mention every piece of evidence in the
record when forming the RFC determination, she must provide ‘an accurate and
logical bridge’ between the evidence and the conclusion that the claimant is not
disabled.” Simms v. Astrue, 599 F. Supp. 2d 988, 1000 (7th Cir. 2009) (quoting
Zblewski v. Astrue, 302 Fed. Appx. 488, 492-93 (7th Cir. 2008)). Moreover, an RFC
assessment “must include a narrative discussion which describes how the objective
and subjective evidence supports each of the ALJ’s conclusions . . . ” and “must also
explain how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.” Id. (quoting SSR 96-8p).
In this case, the ALJ concluded that the Claimant had the RFC to perform
unskilled, three-to-four step, simple repetitive, routine tasks with the caveat that he
should not come into contact with the public and should only have limited contact
with coworkers and supervisors. R. 57-58. The Claimant argues this assessment is
not supported by substantial evidence because the ALJ failed to incorporate his
limitations in concentration and anger management into the RFC. After reviewing
both the decision and record, the Court disagrees. In this case, the ALJ built the
necessary bridge between the record evidence and her conclusions regarding the
Claimant’s RFC.
To begin, the ALJ’s decision clearly states her determination regarding the
Claimant’s RFC was based on the “record as a whole . . . the claimant’s testimony,

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objective, evidence and medical opinions . . . .” R. 31. With respect to the
Claimant’s limitations in concentration, the ALJ concluded that the Claimant had
“moderate limitation in his ability to maintain concentration, persistence, or pace.”
R. 30. In reaching this conclusion, the ALJ provided a detailed narrative to explain
how the record evidence supported her finding and to explain the inconsistencies
within the record.
Specifically, the decision states that the ALJ gave the Claimant “the benefit
of the doubt” and accepted his complaints regarding his inability to concentrate. R.
30. She found the Claimant’s most recent progress note from December 1, 2010 also
supported her conclusion regarding the Claimant’s moderate concentration
limitations because that record indicated the Claimant’s attention, concentration,
and calculation were fair. R. 29. The ALJ continued by stating that she gave Dr.
Pedemonte’s opinion regarding the Claimant’s “marked limitations in concentration,
persistence, or pace” little weight since “the medical record did not support these
limitations.” R. 29 (emphasis added). She explained that “marked limitations in
concentration, persistence, and pace indicate more than moderate limitation in the
Claimant’s ability to complete even simple tasks” and this is contrary to the other
evidence in the record. R. 29-30. In light of this discussion, the Court finds the ALJ
appropriately explained the inconsistencies in the record with respect to the
Claimant’s limitations in concentration and assessed the Claimant’s RFC
accordingly. Accordingly , the Court rejects the Claimant’s contention that the ALJ
failed to consider his limitations in concentration when she assessed his RFC.

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The same is true with respect to the Claimant’s limitations in anger
management. The ALJ concluded that the Claimant had an RFC to perform a full
range of work at all exertional levels but should not come into contact with the
public for work related purposes and should have only occasional contact with coworkers and supervisors. R. 26. In making this determination, the ALJ referenced
the opinion of psychiatrist Barbara Sherman. R. 30. She noted that Dr. Sherman
diagnosed the Claimant with intermittent explosive disorder and expressly
mentioned the Claimant’s statements regarding his anger and the fact that the
Claimant stated that when he gets angry he will “yell, break things, punch walls,
and throw glass.” R. 30. The ALJ found Sherman’s assessment “consistent with
her clinical findings” and determined that Sherman’s conclusions regarding the
Claimant’s limitations did not limit him from all work. The ALJ accounted for this
limitation as well as the Claimant’s self-proclaimed “inability to take directions
from others” by limiting the Claimant to work that required only “occasional contact
with co-workers and supervisors.” R. 26. Thus, the Court does not find the ALJ
failed to consider the Claimant’s limitations in anger management when she
assessed his RFC.
As further support, the ALJ’s RFC assessment is consistent with the medical
records from psychiatrist Lionel Hudspeth. See R. 456-462. Dr. Hudspteth
performed a mental RFC assessment on the Claimant in November 2009. R. 456462. In making his assessment, Dr. Hudspeth reviewed and analyzed the
Claimant’s medical record and concluded that the Claimant’s restrictions in

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maintaining concentration and social functioning were mild. R. 456. Dr. Hudspeth
opined that the Claimant had “skills sufficient for at least two to three step tasks”
and would “be best served by having no contact with the public and minimal contact
with coworkers and supervisors.” R. 462. This supports the ALJ’s RFC assessment
and shows that any error regarding the ALJ’s failure to discuss all of the
Claimant’s limitations or all of the evidence regarding the Claimant’s limitations is
harmless. See Mueller v. Astrue, 860 F. Supp. 2d 615, 638-39 (N.D. Ill. 2012)
(noting that it is harmless error not to address a limitation when the record
supports an ALJ’s RFC finding). Accordingly, the Court concludes that the ALJ
considered the Claimant’s limitations in concentration and anger management
when she assessed his RFC.
2. The ALJ Failed to Provide the VE with a Complete Hypothetical at the
Administrative Hearing
The Claimant argues the ALJ failed to present the VE with an accurate
hypothetical because the ALJ failed to expressly mention the Claimant’s limitations
in concentration and anger management. The Claimant contends these omissions
caused the VE to give an inaccurate response with respect to the jobs that the
Claimant could perform.
“The hypothetical that an ALJ poses to a VE ‘ordinarily must include all
limitations supported by medical evidence in the record’ including limitations
imposed by depression.” Patty v. Barnhart, 189 Fed. Appx. 517, 521 (7th Cir. 2006)
(quoting Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002)). However, the
hypothetical does not need to include all of the applicant’s alleged impairments or
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subjective complaints. Id. (citing Jones v. Shalala, 10 F.3d 522, 525 (7th Cir. 1993);
Ehrhart v. Sec’y of Health and Human Servs., 969 F.2d 534, 540-41 (7th Cir. 1992)).
An ALJ can rely upon a VE’s response to an incomplete hypothetical “[w]hen the
record supports the conclusion that the vocational expert considered the medical
reports and documents.” Ehrhart, 969 F.2d at 540.
In this case, the ALJ’s hypothetical asked the VE to consider an individual
like the Claimant with respect to age, education, and work experience, “who should
come in no contact with the public for work-related purposes, but can come in
occasional contact with coworkers and supervisors . . . and would be limited to
unskilled, three - to four - step, simple, repetitive, routine tasks.” R. 57-58. The
ALJ inquired whether jobs were available for such an individual. R. 58.
The Claimant contends this hypothetical is incomplete because it failed to
present the VE all of the Claimant’s limitations. The Claimant particularly takes
issue with the instruction which limited his work to “simple, repetitive routine
tasks.” R. 58. He contends this instruction cannot serve as a substitute for
including the specific language regarding the Claimant’s limitations in
concentration, pace, and persistence. The Commissioner responds that this
language is unnecessary because there is evidence that VE reviewed the medical
record and heard the Claimant’s testimony regarding his alleged limitations in
concentration, pace, and persistence.
After reviewing the record, albeit a close call, the Court concludes that there
is insufficient evidence to support the Commissioner’s contention. Although the

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hearing transcripts seem to suggest the VE was present for the entire
administrative hearing and heard the Claimant’s testimony regarding his
limitations in concentration, the evidence is not entirely clear. See R. 41-57. At the
administrative hearing, the Claimant testified that he had difficulty concentrating
and focusing. R. 48. However, during the VE’s testimony the ALJ only asked the
VE whether she “reviewed exhibits and heard testimony regarding the Claimant’s
work history.” R. 57 (emphasis added). This lack of clarity could have been avoided
had the ALJ not asked a leading question. Simply asking the ALJ what she relied
upon and then following up that question with a several simple, non-compound
questions may have avoided this remand. The record is void of any evidence that
indicates the VE had reviewed the Claimant’s medical history and was familiar
with his limitations before she answered the ALJ’s hypothetical. Because of this,
the Court finds the ALJ’s hypothetical incomplete and concludes remand is
warranted. See O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir 2010) (refusing
to find a VE knew of an applicant’s specific limitations in concentration because
there was only evidence that the VE had heard testimony and reviewed evidence of
the applicant’s work history, not her medical history) see also Dobrecevich v. Astrue,
776 F. Supp. 2d. 878, 883 (E.D. Wisc. 2011) (remanding an applicant’s social
security appeal because the ALJ’s hypothetical only stated that the applicant was
limited to “simple, routine tasks,” and the only evidence that the VE knew of the
applicant’s specific limitations was the fact that he had listened to the
administrative hearing).

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The Court also notes that this case does not fall within the second exception
the Seventh Circuit has identified in which the exact language of concentration,
persistence, or pace is unnecessary. See O’Connor, 627 F.3d at 619. In O’Connor,
the Seventh Circuit explained that the an ALJ’s hypothetical which omits the terms
of concentration, persistence and pace can stand if it is “manifest that the ALJ’s
alternative phrasing specifically excluded those tasks that someone with the
claimant’s limitations would be unable to perform.” Id. This exception is
inapplicable as the phrase “simple, repetitive, routine tasks” does not manifestly
exclude tasks that someone with moderate limitations in concentration and focus
arising from major depressive disorder and intermittent explosive disorder could
perform. See White v. Astrue, 820 F. Supp. 2d 839, 841-51 (N.D. Ill. 2011) (finding
the ALJ did not adequately explain how she accounted for Claimant's limitations in
concentration, persistence and pace by limiting Claimant only to simple, repetitive
tasks in the hypotheticals posed to the VE); but see Arnold v. Barnhart, 473 F.3d
816, 820-23 (7th Cir. 2007) (upholding a hypothetical that omitted the specific
language of concentration, persistence, or pace, but included language that
restricted the applicant to low-stress, low-production work because the applicant’s
limitations in concentration, persistence, and pace arose from stressed-induced
headaches, frustration, and anger). The hypothetical here cannot be saved by the
second exception and is therefore incomplete.
The hypothetical also appears deficient because the ALJ failed to include
express language regarding the Claimant’s limitations in anger management.

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While the hypothetical included language regarding the Claimant’s inability to
come into contract with the public and his ability to only have occasional contact
with supervisors and co-workers, it fails to mention the Claimant’s limitations in
anger management. Similar to the Court’s reasoning regarding the omission of the
terms “concentration, persistence, or pace,” the Court finds this omission also
supports remand. The Court acknowledges that the Claimant’s attorney asked the
VE generally about an employer’s tolerance “with what we see in the record . . . of
someone who would be getting angry to the point of being verbally abusive,
screaming, and cursing . . . .” R. 59-60. However, this question was posed after the
VE had responded to the ALJ’s hypothetical and stated that the Claimant could
perform a variety of jobs. R. 59-60. Thus, it is unclear whether the VE considered
the Claimant’s limitations in anger management when she stated that the Claimant
could perform a number of jobs.
The Court finds Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004)
provides additional support with respect to this issue. In Young, the Seventh
Circuit remanded an applicant’s appeal for benefits after it determined the ALJ
failed to include all of the necessary limitations in the hypothetical posed to the VE.
Id. at 1003-05. There, the Seventh Circuit first found that it was not possible to
assume the VE had knowledge of the Claimant’s limitations and used that
knowledge in responding to the ALJ’s hypotheticals because the ALJ “took a
different approach to the hypothetical question and decided to ask the vocational
expert a series of hypothetical questions with increasingly debilitating limitations.”

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Id. at 1003. The court reasoned that the hypothetical questions presented were
flawed because they “made short shrift of the applicant’s social and temperamental
impairments.” Id. at 1004.
The ALJ’s questioning here is similar (albeit not identical) to the questioning
in Young. In this case, the ALJ presented a hypothetical to the VE which asked
whether an individual with the Claimant’s characteristics and RFC could perform
any jobs. R. 57-58. After the VE answered the question affirmatively, the ALJ
continued to ask the VE additional questions with more restrictive limitations. See
R. 58-59. This similar to the questioning in Young, because it appears as though
the VE “was instructed to stick with the particular facts of the hypothetical along
with the claimant’s age, education, and work history.” Young, 362 F.3d at 1003.
Accordingly, the Court finds the ALJ’s failure to include the Claimant’s limitations
in anger management also supports remand. See id. at 1005 (“when the
hypothetical question is fundamentally flawed because it is limited to the facts
presented in the question and does not include all of the limitations supported by
medical evidence in the record, the decision of the ALJ that a claimant can adjust to
other work in the economy cannot stand.”).
3. The Court Declines to Address the Claimant’s Credibility Arguments
Finally, the Claimant argues the decision of the ALJ should be reversed or
remanded because the ALJ failed to properly assess his credibility. He claims that
the ALJ placed too much emphasis on the gap in medical treatment and his ability

30

to care for his children when the ALJ determined the Claimant’s limitations were
not as severe as he alleged. R. 28.
The Court notes the great deference typically afforded to an ALJ’s credibility
determinations, but declines to address this argument since the Court has already
determined remand is warranted for the reasons stated above. See Elder v. Astrue,
529 F.3d 408, 413-14 (7th Cir.2008) (stating that “only when the ALJ's credibility
determination lacks any explanation or support . . . will we declare it to be patently
wrong.”).
IV. CONCLUSION
For the reasons stated above, the Commissioner’s motion for summary
judgment is denied, and the Claimant’s motion for summary judgment is granted.
The Court remands this case to the Social Security Administration for further
proceedings consistent with this Memorandum Opinion and Order.

It is so ordered.

Entered: February 6, 2014
Iain D. Johnston
U.S. Magistrate Judge

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