Mason v. Commissioner of Social Security

Filing 28

ORDER GRANTING 16 Motion for Summary Judgment. The Commissioners final decision is REVERSED and this matter is REMANDED for rehearing and reconsideration of the evidence pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Magistrate Judge Clifford J. Proud on 8/7/14. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEE ANN MASON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

)
)
)
)
)
)
)
)
)

Civil No.

13-550-CJP1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff Lee Ann Mason is before the Court,
represented by counsel, seeking judicial review of the final decision of the Commissioner of
Social Security denying her application for Supplemental Security Income (SSI) benefits.
For the reasons set forth below, the Commissioner’s decision is reversed and this matter is
remanded for rehearing and reconsideration of the evidence pursuant to sentence four of
42 U.S.C. § 405(g).
PROCEDURAL HISTORY
Lee Ann Mason previously received a partially favorable decision in September 2009
that found she was disabled from August 25, 2007 through November 30, 2008 (Tr. 228).
Mason then applied for SSI in July 2010 alleging disability due to back pain, bipolar
disorder, and anxiety disorder since August 25, 2007 (Tr. 165). Mason’s application for
SSI was denied at the initial stage and on reconsideration. After holding an evidentiary
hearing, Administrative Law Judge (ALJ) Kim Nagle denied the application for benefits in a

1

This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c) (Doc. 10).
Page 1 of 28

decision dated March 7, 2012 (Tr.17–30). Mason’s request for review was denied by the
Appeals Council, and ALJ Nagle’s decision became the final agency decision (Tr. 1).
Mason has exhausted her administrative remedies and has filed a timely complaint in this
court seeking judicial review of the ALJ’s adverse decision.
APPLICABLE LEGAL STANDARDS
A.

Disability Standard
To qualify for SSI, a claimant must be disabled within the meaning of the applicable

statutes. 2 For these purposes, “disabled” means the claimant is “unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). A
“physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.

42 U.S.C. § 1382(d).

“Substantial gainful activity” is work activity that involves doing significant physical or
mental activities for pay or profit. 20 C.F.R. § 416.972.
The Social Security regulations set forth a sequential five-step inquiry to determine
whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4); Weatherbee v. Astrue, 649
F.3d 565, 569 (7th Cir. 2011). If the ALJ determines that the claimant is disabled or not
disabled at any step of the five-step inquiry, the inquiry ends without proceeding to the
next step.

20 C.F.R. § 404.920(a)(4).

The first step considers whether the claimant is presently unemployed. 20 C.F.R. §

2

The statutes and regulations pertaining to Supplemental Security Income (SSI) are found at 42
U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416.
Page 2 of 28

416.920(a)(4)(i). If the answer is “no,” the claimant is not disabled and the inquiry is
over; if the answer is “yes,” the inquiry proceeds to the next step.

Id. The second step

evaluates whether the claimant has an impairment or combination of impairments that is
severe, medically determinable, and meets the durational requirement.
416.920(a)(4)(ii).

20 C.F.R. §

Again, if the answer is “no,” the claimant is not disabled and the

inquiry is over; if the answer is “yes,” the inquiry proceeds to the next step.

Id. The third

step analyzes whether the claimant’s severe impairment(s) meet or equal one of the listed
impairments acknowledged to be conclusively disabling. 20 C.F.R. § 416.920(a)(4)(iii).
If the answer is “yes,” the claimant is automatically deemed disabled; if the answer is “no,”
the inquiry proceeds to the next step.

Id.

Before continuing to step four, the claimant’s residual functional capacity (“RFC”) is
assessed. 20 C.F.R. § 416.920(a)(4). The fourth step assesses whether the claimant can
perform past relevant work given his or her RFC. 20 C.F.R. § 416.920(a)(4)(iv). If the
answer is “yes,” the claimant is not disabled and the inquiry is over; if the answer is “no,”
the inquiry proceeds to the next step.

The fifth and final step assesses whether the

claimant can perform other work given his or her RFC, age, education, and work
experience.

20 C.F.R. § 416.920(a)(4)(v).

disabled and the claim is denied.

Id.

If the answer is “yes,” the claimant is not

On the other hand, if the answer is “no,” the

claimant is deemed disabled. Id.
B.

Judicial Review
The scope of judicial review of the Commissioner’s decision is limited.

“The

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). Thus, the Court must determine
not whether Mason was in fact disabled, but whether the ALJ’s findings were supported by
Page 3 of 28

substantial evidence and whether any errors of law were made. Jelinek v. Astrue, 662
F.3d 805, 811 (7th Cir. 2011) (“On judicial review, a court will uphold the Commissioner's
decision if the ALJ applied the correct legal standards and supported his decision with
substantial evidence.”)
The Supreme Court has defined “substantial evidence” as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). In reviewing for “substantial evidence,” the entire
administrative record is taken into consideration, but the Court does not reweigh evidence,
resolve conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ.

Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997).

In addition to

supporting the decision with substantial evidence, the ALJ must also include an adequate
discussion of the issues and “build an accurate and logical bridge” from the evidence to
each conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
While judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See Parker v. Astrue, 597 F.3d 920, 921 (7th Cir.
2010). “If a decision lacks evidentiary support or is so poorly articulated as to prevent
meaningful review, a remand is required.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir.
2012) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)); Villano v. Astrue,
556 F.3d 558, 562 (7th Cir. 2009) (“If the Commissioner's decision lacks adequate
discussion of the issues, it will be remanded.”)
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in formulating
this Memorandum and Order. The following summary of the record is directed to the
points raised by Mason in her complaint and addressed in this Order.
Page 4 of 28

A.

Mason’s Background and DIsability Allegations
Mason submitted a number of forms to the Social Security Administration,

including a Function Report, a Physical Impairments Questionnaire, a Work History Report
(Tr. 161–210). Mason also testified at an evidentiary hearing in front of ALJ Nagle on
February 28, 2012 (Tr. 36–70). The following is a summary of Mason’s background and
allegations regarding her disability as presented on the agency forms and at the evidentiary
hearing.
Lee Ann Mason was born in June 1976 and was 31 years old on the alleged onset
date—August 25, 2007. She is 5 feet, 5 inches tall, and she weighed approximately 145
pounds at the time of the evidentiary hearing. Mason lives in Shumway, Illinois with her
husband and her daughter who was seven years old at the time of the evidentiary hearing.
Mason graduated from high school and finished one year of college. She does not
have any vocational training or military experience. She has an erratic work history, and
between 1996 and 2003, she drew a paycheck from 34 different employers (Tr. 147–51).
Despite the number of jobs she has had, Mason has only made a total of approximately
$33,000.00 in her entire lifetime (Tr. 147–51). Her past relevant work includes working
as a cashier/food preparer at a gas station and as a waitress. She last worked on a
full-time basis in 2003. She left her job due to pregnancy complications, and she did not
look for work after giving birth to her daughter. In 2006, she worked as a cashier at a gas
station for one day, but then quit because “[she] just didn’t feel like it.” (Tr. 41).
Mason has had back pain all day, every day since 2007. The pain is in her lower
back and down her right leg; she also has numbness in her toes. She can only sit for about
45 minutes to an hour before she has to get up and move around or lay down. She also
said that she “can only do so many things around the house” before she needs to lie down to
Page 5 of 28

relax her back. For a number of years, Mason has taken a muscle relaxer and used a
fentanyl patch to relieve the pain. When she has break through pain, she uses Vicodin or
Tylenol 3 with codeine.
Mason also takes medication for her mental impairments. These medications are
“always changing,” however, because “we haven’t got my medication right.” She has days
when she is extremely high, days when she is extremely low, and in-between days. She
explained that she experiences low days the most, high days the second most, and
in-between days the least.
During the day, Mason does chores around the house, including unloading and
loading the dishwasher, dusting, and folding clothes. She drives her daughter to and from
the bus stop every day. Her family has one dog and five cats that she cares for. Mason
indicated that four other people, including her husband, help her take care of her daughter
and the pets. Two to three times a week, she cooks simple meals, such as frozen dinners,
sandwiches, or Hamburger Helper. She goes to the store once or twice a month. Mason
watches television during the day, but most of the time she is not able to follow the plot.
She also does not pay bills, use the checkbook, or handle the bank accounts because she
cannot concentrate to do so.
Mason explained that her daily activities depend on her mood.

When she is

hypomanic, she tries to keep busy because she is highly agitated, has trouble concentrating,
and cannot sit down.

She showers and brushes her teeth.

She cooks, cleans, folds

laundry, prepares dinner, etc. However, she takes a 15–20 minute break after each chore
and lies down because if she does not take breaks then she is in extreme pain for two to
three days afterwards. During a depressive episode, she lays on the couch or in bed all
day. She goes three to six days without changing her clothes, showering, or brushing her
Page 6 of 28

teeth, and she only does so when her husband tells her that her hair is greasy and she has
body odor. She still does household chores, but her husband has to tell her to do them.
She still takes her daughter to and from the bus stop; however, she only has to drive two
blocks, she stays in her pajamas, and she sets an alarm to remind her to do both. She
also still takes her dog out because otherwise her daughter or husband will have to clean up
a mess in the house; again, she stays in her pajamas when she takes her dog out.
Mason’s daughter and her husband are the primary people that she socializes with.
She also goes to her mother’s house or her sister’s house once or twice a month. She does
not socialize with anyone else. When she is hypomanic, it is difficult to interact with
people. For example, she explained that she talks extremely fast and it is difficult for
others to follow along. Additionally, when someone is speaking to her, she will see their
mouth moving and hear the words, but she does not comprehend what they are saying.
She also has difficulty interacting with people when she is depressed. She said that she
does not want to be around people or talk to people. She often does not answer her phone.
When her husband and daughter come home from work and school, she retreats to the
bedroom. She does not help her daughter with homework or make her a snack.
B.

Medical Records
Mason receives primary care at the Cowden Medical Clinic in Cowden, Illinois from

Cindy Rich, a nurse practitioner. Mason began going to the Cowden Medical Clinic in
2006, however, there are virtually no medical records from the clinic prior to 2009 (Tr.
436, 723). Between January 2009 and January 2012, Mason saw Ms. Rich more than
once a month, with very few exceptions. At least one visit a month was related to her back
pain.
According to the records, Mason has had back pain since at least 2005 (See Tr.
Page 7 of 28

696). At that time, an MRI revealed that she had mild degenerative disc disease with
minimal disc bulges from the L2–L3 through L5–S1, but no central canal or neural
foraminal stenosis (Tr. 696). Her condition worsened over time (See Tr. 766, 784–85).
An MRI in October 2010 revealed disc dehydration and disc bulges at multiple levels, an
annular tear at L5, facet arthropathy at multiple levels causing indentation on the thecal sac
and mild narrowing of the foramina (Tr. 760–61). It also revealed mild displacement of
the nerve root at L3–L4 and L4–L5 (Tr. 761). Because this Order focuses on Mason’s
mental impairments, most of the medical records regarding Mason’s back pain are not
particularly relevant, and therefore a very brief summary will suffice. Mason has seen a
number of doctors for her back pain, including pain management specialists and
neurosurgeons (See Tr. 706). She has tried a number of treatments to alleviate her pain
including physical therapy, chiropractic therapy, over-the-counter pain relievers,
prescription pain relievers, pain reliever injections, oral steroids, and epidural steroid
injections (Tr. 386, 407, 409, 706, 818, 827). Since January 2009, Mason has used a
fentanyl patch for her back pain (Tr. 437–38). In November 2010, Mason was told that
she is not a candidate for surgery because there is no evidence of nerve root compression
and no indication that her condition is unstable (Tr. 789–90).
In addition to her back pain, Mason has a long history of mental impairments. She
was hospitalized for several days at Sarah Bush Lincoln Health Center in 1997 and 2001
for depression and suicidal ideations (Tr. 258–79; 280–303). Between 2001 and 2008, it
is clear that Mason received psychiatric care, however due to a lack of records from this
time period, it is not clear who she saw, how frequently she saw them, or what specific
treatments she received (See Tr. 720–21).
In June 2008, Cindy Rich referred Mason to Heartland Human Services (“HHS”) for
Page 8 of 28

psychiatric services (Tr. 720–21). Mason met with Dr. Stephanie van Ulft, a psychiatrist,
who thought Mason’s most likely diagnosis was Bipolar Disorder II with a history of
substance abuse (Tr. 721). Mason described periods of depression where she had low
mood, poor concentration, increased anxiety, sleep problems, was tearful, and overate (Tr.
720). She also described period where she felt “hyper” and stayed up late, had racing
thoughts, engaged in risky activities, and went shopping more frequently (Tr. 720). By
this time, Mason had tried a number of psychiatric medications including Effexor,
Cymbalta, Prozac, Celexa, Serzone, Zoloft, Paxil, Elavil, Trazodone, Wellbutrin, Xanax,
Ativan, Klonopin, Vistaril, Zyprexa, and Seroquel (Tr. 720).

However, some of the

antidepressants caused her to become more manic (Tr. 721).

Dr. van Ulft restarted

Mason on Zyprexa as a mood stabilizer because Mason recalled doing well in the past on
that medication; she also continued Mason’s prescription for Xanax (Tr. 721).
Following Mason’s initial visit with Dr. van Ulft, there are no records from HHS
through December 2008; however, subsequent records reveal that Mason was seen on a
number of occasions (See Tr. 322, 327).

The records from January 2009 through

January 2012 reveal that Mason continued to receive psychiatric services on a regular and
consistent basis.
Mason had regular therapy appointments with Barbara Proctor, MA, LCPC, QMHP.
Mason saw Ms. Proctor on at least 20 occasions between January 2009 and January 2012,
and the record suggests that her appointments with Ms. Proctor would have been even
more frequent but for Mason’s financial constraints (See, e.g., Tr. 335). In addition to
therapy appointments with Ms. Proctor, Mason regularly saw a psychiatrist for
management of her medications. She saw Dr. van Ulft five times in a seven month span
from January to July 2009 (Tr. 327–42, 991). Dr. van Ulft assigned Mason GAF ratings
Page 9 of 28

between 55–65 on four occasions and maintained her diagnosis as Bipolar II. However,
during this same time period, Ms. Proctor assigned a GAF rating of 50 on two occasions
and indicated Mason’s diagnosis was Bipolar I, most recent episode depressed, moderate
(Tr. 319, 322).
In August 2009, after Dr. van Ulft had left HHS, Mason began seeing a new
psychiatrist, Dr. Elbert Lee, at Sarah Bush Lincoln Health Center (Tr. 495). At the initial
visit, Dr. Lee gave Mason a GAF score of 50 (Tr. 495). Mason saw Dr. Lee 10 more times
over the next 15 months (Tr. 480–95; 543–48).
maintained a diagnosis of Bipolar II.

For the first 12 months, Mason

However, at one point in December 2009, Ms.

Proctor indicated that Mason’s diagnosis was Bipolar I, most recent episode depressed,
moderate (Tr. 316). At the same time, Ms. Proctor assigned a GAF rating of 64 (Tr. 316).
In August 2010, Dr. Lee updated Mason’s diagnosis to Bipolar Disorder Not Otherwise
Specified (Tr. 480–95; 543–51; 992–94). In September 2010, Dr. Lee added a diagnosis
of panic disorder without agoraphobia (Tr. 546–48).
In December 2010, Mason switched back to a psychiatrist at HHS (See Tr. 586;
588–90). That month, she saw Dr. Pat Kinne for the first and only time (Tr. 588–90). In
March 2011, Mason saw Dr. Manoher Bearelly for the first time (Tr. 861). She saw Dr.
Bearelly eight more times over the next 10 months (Tr. 861–65, 905–09). Initially, Dr.
Bearelly listed Mason’s diagnoses as Bipolar I, currently hypomanic and post-traumatic
stress disorder; Dr. Bearelly further noted that Mason had “Cluster B personality
traits/likely borderline personality [disorder]” (Tr. 861). At the third visit in April 2011,
Dr. Bearelly dropped the personality disorder diagnosis (See Tr. 905). At the fifth visit in
August 2011, Dr. Bearelly indicated Mason’s diagnoses “by history” included Bipolar
Disorder Not Otherwise Specified and Caffeine Induced Anxiety Disorder (Tr. 918). Dr.
Page 10 of 28

Bearelly continued to use these diagnoses throughout the remaining visits (Tr. 921, 941–
47). During this same time period, Ms. Proctor indicated twice that Mason’s diagnosis
was Bipolar II, and assigned a GAF rating of 57 on three occasions (Tr. 864, 902, 933,
934).
Between from January 2009 to January 2012, Mason’s psychiatric medications
were changed, or the dosages were adjusted, on a near constant basis, sometimes because
of intolerable side effects, and other times because of continuing or worsening symptoms.
Mason tried a number of new psychiatric medications including, Geodon, Seroquel,
Lamictal, Abilify, Remeron, Depakote, Lithium, and Buspar. She also retried a number of
psychiatric medications that she had previously used, including Wellbutrin, Effexor,
Trazodone, Xanax, and Cymbalta which she augmented with Folate and Vitamin B-12.
She also used Ambien for sleep.
Despite taking medication and attending therapy, Mason’s condition was not
stabilized and she continued to experience psychiatric symptoms (See Tr. 586, 865, 934).
For example, at counseling sessions in the year prior to the administrative hearing, Mason
reported struggling with “ups and downs” (Tr. 907), “not doing well” (Tr. 910), feeling
“stressed out” (Tr. 917), feeling like “I will jump out of my skin” (Tr. 923), increased anxiety
(Tr. 910, 923, 927), feeling manic (Tr. 920), memory problems (Tr. 917, 956), concerns
with depression (Tr. 907, 923), suicidal ideations (Tr. 923), difficulty handling stressors
(Tr. 859, 860, 924), problems with her husband (Tr. 907, 920, 923, 924), and irregular
sleeping habits (Tr. 923, 943, 945).
In addition to Mason’s self-reports, Ms. Proctor recorded her own observations of
Mason’s depressive symptoms, such as negative thought patterns (Tr. 907), lack of
confidence (Tr. 907), isolation (Tr. 859, 923), lack of motivation and the need for
Page 11 of 28

prompting or encouragement (Tr. 859, 907, 923, 924), and feelings of worthlessness (Tr.
920). At other times, Ms. Proctor observed that Mason was preoccupied and distracted
(Tr. 910), noticeably manic (Tr. 917, 923), had irrational thoughts and beliefs (Tr. 860),
lacked communication skills (Tr. 920, 923), had difficulty handling her symptoms and
stressors (Tr. 859, 860, 907, 910, 915, 917, 920, 924), and needed to develop coping skills
(Tr. 859, 860, 907, 910, 915, 917, 920, 924).
On March 29, 2011, approximately eleven months prior to the administrative
hearing, Ms. Proctor completed a Mental Functional Capacity Report which Dr. Bearelly
signed off on six days later (Tr. 864–65). They opined that Mason was markedly limited
in activities of daily living; according to the form that meant Mason has “serious difficulty
performing ADLs without direct supervision, or in a suitable manner, or on a consistent,
useful, routine basis, or without undue interruptions or distractions.” They opined that
Mason was also markedly limited in social functioning; according to the form that meant
Mason exhibited “behaviors that are not acceptable in the course of dealing with
supervisors, co-workers, or the public. Factors considered are such as social isolation,
avoidance of interpersonal relationships, fear of strangers, altercations, evictions, or
firings.” Ms. Proctor and Dr. Bearelly further opined that Mason was extremely limited in
concentration, persistence, and pace; according to the form that meant Mason “cannot
complete tasks without extra supervision or assistance or in accordance with quality and
accuracy standards or at a consistent pace without an unreasonable number and length of
rest periods or without undue interruptions or distractions.” Ms. Proctor and Dr. Bearelly
indicated that Mason had experienced 4 or more episodes of decompensation in the
previous year and estimated that she would be absent more than three times a month due
to her impairments or treatment. They explained that their opinion was based on the fact
Page 12 of 28

that Mason’s mood disorder has not be stabilized completely and [she] has episodes of
marked hyper-arousal, jitteriness, and poor concentration.” They further explained that
“her physical limitations exagerate [sic] her mental health concerns.”
C.

Consultative Examinations & State Agency RFC Assessments
In September 2010, the state agency had Mason evaluated by Vittal Chapa, an

internist (Tr. 506–11). The following month, a state-agency medical consultant, Richard
X. Smith, reviewed Mason’s medical records and completed a Physical RFC Assessment
(Tr. 71–78).

Because this Order focuses on Mason’s mental impairments, it is not

necessary to detail the results of Dr. Chapa’s report or Dr. Smith’s assessment.
The state agency also had Mason evaluated by Jerry L. Boyd, a clinical psychologist,
in September 2010 (Tr. 499–503). The examination lasted 40 minutes. Boyd diagnosed
Mason with bipolar disorder; poly-substance and alcohol dependence, both in reported
remission; generalized anxiety disorder with panic attacks; and personality disorder with
avoidant and borderline features. He assigned a GAF score of 50. He found that Mason
was an adequate communicator and could follow moderately complex instructions. He
further found that Mason had “a markedly reduced stress tolerance and reduced initiative
and persistence,” and that she remained unconfident and avoidant despite medication and
mental health treatment.
The following month, a state-agency medical consultant, Joseph Mehr, Ph.D.,
reviewed Mason’s medical records but did not examine her, and completed a Psychiatric
Review Technique Form and a Mental RFC Assessment (Tr. 513–30). Mehr opined that
Mason was moderately limited in activities of daily living, in maintaining social functioning,
and in maintaining concentration, persistence, or pace (Tr. 523). He further opined that
Mason had suffered no episodes of decompensation of extended duration (Tr. 523). Mehr
Page 13 of 28

then completed a function-by-function assessment of Mason’s ability to sustain 20 different
mental activities during a normal workday and workweek (Tr. 527–28). He indicated that
Mason was moderately restricted in her ability to understand and remember detailed
instructions and markedly restricted in her ability to carry out those instructions; he
further determined that Mason was moderately restricted in her ability to respond
appropriately to changes in the work setting (Tr. 527–28). Even though Mehr previously
opined that Mason was moderately limited in maintaining social functioning, he found that
she was not significantly limited in any mental activities related to social functioning (Tr.
528).
After completing the function-by-function assessment, Mehr translated his findings
into a specific RFC, opining that Mason was capable of: understanding and remembering
instructions for simple, routine, repetitive jobs; maintaining sufficient attention and
concentration to persist at and complete work activities for the period of time required of
the general work force; maintaining adequate pace and endurance; performing at common
minimally acceptable rates; accepting instruction and supervision; tolerating the type of
interaction required for training; and getting along with coworkers.
D.

Vocational Expert’s Testimony
Following Mason’s testimony at the evidentiary hearing on February 28, 2012, a

vocational expert (VE) testified. The ALJ asked the VE a series of hypothetical questions.
The first question required the VE to assume a person who was able to do work at the light
exertional level, with the following postural limitations:




Occasional climbing ladders, ropes, and scaffolds;
Occasional stooping; and
Occasional reaching overhead on the non-dominant left side.
Page 14 of 28

(Tr. 63). The ALJ then parroted the RFC assessment of the non-examining consultant,
Joseph Mehr, and added: “So I’m limiting the individual to simple, routine, repetitive tasks
given moderate limitations in concentration.” (Tr. 64).

The VE testified that this

hypothetical person could perform her past job as a cashier (Tr. 64–65).
For the second and third hypothetical questions, the ALJ asked the VE to assume
the same hypothetical person, but with two additional limitations:



Must be able to sit and stand at will at her workstation provided she was
not off task more than 10% of the workday; and
Must be limited to low-stress work defined as no more than occasional
decision making and occasional changes in the work setting.

(Tr. 65, 66). The VE testified that this hypothetical person could not perform any of her
past jobs, but there were unskilled occupations that exist in significant numbers in the
local area that the person could perform, such as marker, router, and stock assistant (Tr.
65–66).
The VE further testified that the hypothetical person would be precluded from
working at the unskilled, light level if:



She had mood swings that would lead her to be off-task at least 20% of the
day; or
She was consistently absent from work one or two days per month

(Tr. 67, 68).
THE DECISION OF THE ALJ
ALJ Nagle followed the five-step analytical framework outlined in 20 C.F.R. §
416.920(a)(4).

At step one, the ALJ determined that Mason had not engaged in

substantial gainful activity since she applied for benefits on July 26, 2010 (Tr. 19). At step
two, the ALJ found that Mason had the severe impairments of back pain, mood disorder,
and anxiety disorder, and the non-severe impairment of headaches (Tr. 19). At step three,
Page 15 of 28

the ALJ determined that Mason’s impairments did not meet or equal Listing 1.04 for
disorders of the spine, Listing 12.04 for affective disorders, or Listing 12.06 for anxiety
related disorders (Tr. 20–24).
The ALJ then determined that Mason had the residual functional capacity to
perform work at the light exertional level, except that she must be able to sit or stand
alternatively at will at her workstation; she can only occasionally balance, climb ladders,
ropes, or scaffolds, and reach overhead on the left; she must be employed in a low stress
job requiring no more than occasional decision making and occasional changes in the work
setting; and she is limited to simple, routine, repetitive tasks (Tr. 24). At steps four and
five, based on the testimony of a vocational expert, the ALJ concluded that Mason could not
do her past work, but she could perform other jobs which exist in significant numbers in
the national and local economy. As a result, Mason was not disabled.
ISSUES RAISED BY PLAINTIFF
In her brief (Doc. 18), Ms. Mason raises the following issues:
1. The ALJ erred at Step 3 in determining that Mason did not meet a listed impairment;
2. The ALJ erred in assessing Mason’s residual functional capacity; and
3. The ALJ erred in assessing Mason’s credibility.
ANALYSIS
Within each of the broad issues raised by Mason and listed above are a number of
sub-arguments based on a variety of purported errors made by the ALJ. The Court has
carefully reviewed each of Mason’s arguments and the commissioner’s responses.
Mason’s strongest argument is that the ALJ did not properly evaluate the medical opinions
in the record regarding the severity and limiting effects of her mental impairments. This
Page 16 of 28

error in turn led to other errors, which together serve to undermine the ALJ’s
determination that Mason was not disabled, and necessitate remand of this matter for
further proceedings.
A.

Evaluation of the Medical Opinions Regarding Mason’s Mental Impairments
The ALJ considered three medical opinions: (1) the Mental Function Capacity

Report completed by Mason’s treating counselor, Ms. Proctor, and one of her treating
psychiatrists, Dr. Bearelly (“the treating sources”); (2) the report completed by Jerry Boyd,
Ph.D., the examining state agency consultant; and (3) the Psychiatric Review Technique
form and Mental RFC Assessment completed by Joseph Mehr, Ph.D., the non-examining
state agency consultant. The treating sources’ opinion, if credited, would compel a finding
that Mason is disabled. However, the ALJ determined that the treating sources’ opinion
deserved “little weight,” while the examining consultant’s opinion deserved “some weight,”
and non-examining consultant’s opinion deserved “great weight” (Tr. 27–28). Although
she did not explicitly say so, the ALJ essentially rejected the treating sources’ opinion and
relied on the non-examining consultant’s analysis in determining the severity of Mason’s
impairments at Step 3 and her mental RFC.
The opinion of a treating source generally is entitled to controlling weight if it is
supported by medical findings and not inconsistent with other substantial evidence in the
record. Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013) (citing Elder v. Astrue, 529
F.3d 408, 415 (7th Cir. 2008)). Even when the opinion is not entitled to controlling
weight, it is “still entitled to deference” and cannot simply be rejected. Social Secrutiy
Ruling 96-2P, 1996 WL 374188, at *4 (July 2, 1996) (“S.S.R. 96-2P”).

“In many cases, a

treating source's medical opinion will be entitled to the greatest weight and should be
adopted, even if it does not meet the test for controlling weight.” Id.
Page 17 of 28

If a treating source’s opinion is not entitled to controlling weight, the ALJ must
determine what weight to give that opinion, as well as any other medical opinion in the
record, using the factors provided in the federal regulations. See Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009) (internal citations omitted); 20 C.F.R. § 416.927(c). These
factors include the length, nature, and extent of the treating relationship and the frequency
of examinations; the supportability and consistency of the opinion with the record as a
whole; whether the physician is a specialist; and any other factors the claimant or others
bring to the ALJ's attention. Moss, 555 F.3d at 561 (internal citations omitted); 20 C.F.R.
§ 416.927(c). If the ALJ discounts the opinion of a treating source, the ALJ must offer
“good reasons” for doing so. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). See
also Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011) (“An ALJ who chooses to reject a
treating physician's opinion must provide a sound explanation for the rejection.”); S.S.R.
96-2P at *4 (“[D]ecision must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the [opinion] and the reasons for that weight.”)
Here, while the ALJ did not explain as much, the treating sources’ opinion was not
entitled to controlling weight because it was contradicted by the report of the
non-examining consultant.3 Therefore, “the presumption falls out and the checklist comes

3

There may be an additional reason that the opinion is not entitled to controlling weight. The
opinion appears to have been authored by Ms. Proctor and then co-signed by Dr. Bearelly. Ms.
Proctor is not an “acceptable medical source” under the federal regulations, and therefore her
opinion is not entitled to controlling weight. See 20 C.F.R. §§ 416.913, 416.927. However, the
Social Security Administration has instructed that her opinion is nevertheless important and should
be considered and evaluated using the same checklist of factors for weighing the opinions of
acceptable medical sources. Social Security Ruling 06-03P, 2006 WL 2329939, at *4–5, 6 (Aug. 9,
2006); see 20 CFR § 416.913(a) (explaining evidence from other medical sources “may” be used to
Page 18 of 28

into play.” Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). Given that Ms. Proctor
and Dr. Bearelly were both treating sources who examined Mason over an extended period
of time, the checklist required the ALJ to give great weight to their evidence unless it was
seriously flawed. Id. The ALJ claimed that a number of purported flaws in the treating
sources’ opinion justified giving it “little weight.” She attacked the opinion as “vague and
imprecise” and noted that there was no “function-by-function analysis” (Tr. 28). She also
claimed that the opinion was “internally inconsistent and not supported by the medical
evidence of record” (Tr. 28).

However, a review of the record reveals that the ALJ’s

reasons for discounting the treating sources’ opinion were perfunctory and superficial.
1. Supportability of the Treating Sources’ Opinion
The ALJ’s assertion that the treating sources’ opinion was vague and imprecise is
essentially a finding regarding the supportability of that opinion.

In other words,

according to the ALJ, the treating sources’ findings lacked explanations and objective
grounding in the treatment notes. This conclusion is not factually or legally sound. First,
there is no legal authority that requires a treating source to express his or her opinion
regarding the claimant’s functional capacity on a function-by-function basis. See Knox v.
Astrue, 327 F. App'x 652, 657 (7th Cir. 2009). Second, the treating sources’ opinion was
a form report that consisted mostly of check-box style questions, and the questions did not
invite further explanation or include space for comments (See Tr. 864–65). See Larson v.
Astrue, 615 F.3d 744, 751 (7th Cir. 2010).

That being said, each of the questions

regarding mental limitations elaborated on what was meant by a marked limitation, and
Ms. Proctor and Dr. Bearelly left a general explanation for their opinion in the space
provided at the end of the report (See Tr. 864–65). Finally, there is no indication that the
show the severity of claimant’s impairment and how it affects their ability to work).
Page 19 of 28

ALJ read the opinion in conjunction with the medical records. See Larson, 615 F.3d at
751 (“Although by itself a check-box form might be weak evidence, the form takes on
greater significance when it is supported by medical records.”) There are hundreds of
pages of treatment notes and other medical records from Ms. Proctor and Dr. Bearelly, as
well as various other medical professionals, that appear to corroborate their opinion about
Mason’s mental limitations. See supra pp. 9–13.
The Court is particularly troubled by ALJ’s unsound portrayal of the treating
sources’ opinion as unsupported because the ALJ said nothing about the supportability of
the non-examining consultant’s opinion on which she relied. That consultant offered very
little explanation for his conclusion that Mason remained capable of some types of work.
He stated “This 34 year old woman with a history of bipolar disorder and anxiety is
oriented, free of marked memory impairment, and is mostly independent in activities of
daily living” and also that “she is noted to have reduced stress tolerance” (Tr. 529). That is
it. He did not articulate how those facts supported his belief that Mason retained sufficient
memory, attention, concentration, persistence, pace, and social skills to perform simple
jobs or a routine and repetitive nature. Nor did he acknowledge vast swaths of the medical
record that appear to be inconsistent with his opinion. Simply put, the explanations in the
treatment notes of Ms. Proctor and Dr. Bearelly are much more extensive than the few
sentences the non-examining consultant offered to explain his conclusions, yet the ALJ
adopted the opinion of the consultant.
2. Consistency of the Treating Sources’ Opinion with the Record as a Whole
The Court turns next to the ALJ’s claim that the treating sources’ opinion was
“internally inconsistent and not supported by the medical evidence of record.” In support
of this finding, the ALJ gave one explicit example of evidence which she claimed was
Page 20 of 28

inconsistent with the opinion as a whole. In particular, the ALJ pointed out that the
treating sources assigned a GAF score of 57, indicating moderate symptoms or
impairment,

4

one month prior to issuing their opinion that Mason was markedly or

extremely limited in all domains of mental functioning (Tr. 28, 864–65). The ALJ further
claimed that the treating sources’ opinion was similarly inconsistent with the GAF score of
50 assigned by the examining consultant in September 2010, which suggested “serious but
not disabling symptoms” (Tr. 25).
However, the latter conclusion regarding the GAF score of 50 is flat out wrong. The
Seventh Circuit has previously explained that “[a] GAF rating of 50 does not represent
functioning within normal limits. Nor does it support a conclusion that [the claimant] was
mentally capable of sustaining work.” Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir.
2010). Therefore, a GAF score of 50 does in fact suggest disabling symptoms, and is
completely consistent with the treating sources’ opinion. As for the former conclusion that
the GAF score of 57 is inconsistent with the treating sources’ opinion, that conclusion is not
valid under Seventh Circuit law. A GAF score “does not reflect the clinician’s opinion of
functional capacity.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). It is nothing
more than a snapshot of an individual’s condition on one particular day. See Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011). “A person who suffers from a mental illness
will have better days and worse days, so a snapshot of any single moment says little about
her overall condition.” Id. Simply put, for Ms. Proctor and Dr. Bearelly, the GAF score of

4

The ALJ incorrectly stated that a GAF score of 57 “indicat[es] serious, but not marked impairment
with the claimant’s function” (Tr. 28). On the GAF scale, a score between 60–51 actually indicates
moderate symptoms or impairment, while a score between 50–41 indicates serious symptoms or
impairment (See, e.g., Tr. 563). DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 34 (4th ed. 2000).
Page 21 of 28

57 was only one piece of data that they factored into their ultimate opinion. The ALJ
needed to analyze whether the opinion was consistent with the treatment notes as a whole,
and Mason’s range of GAF scores over time, not one GAF score cherry-picked from the
medical file. Id.
Accordingly, the ALJ’s reason for discounting the treating sources’ opinion as a
whole is not sustainable. The Court will next consider whether the ALJ gave good reasons
for discounting the treating sources’ specific findings.
a. Activities of Daily Living
The treating sources opined that Mason was markedly limited in activities of daily
living, and the ALJ claimed this finding was inconsistent with the GAF scores of 57 and 50.
Again, for the same reasons the Court just explained, this is not a “good” reason to discount
this particular finding. The ALJ also cited to a treatment note from December 2010 in
which Mason’s “therapists found her completely independent in daily activities except for
house care at that time” (Tr. 21–22). The treatment note the ALJ cited to was from Dr. Pat
Kinne, a psychiatrist whom Mason saw on only one occasion, and simply states “Level of
functioning: Independent, needs help with house cleaning, husband helps” (Tr. 589).
However, the ALJ either entirely ignored or, at a minimum, failed to mention medical
evidence that supports the treating sources’ opinion. In particular, there are a number of
treatment notes and assessments from Ms. Proctor, the long-time treating therapist,
regarding Mason’s daily living and self-care skills (Tr. 558, 586, 913, 915, 923, 924, 929).
There are some general statements, much like the one in Dr. Kinne’s note, and there are
also some detailed assessments of Mason’s daily living and self-care skills—both of which
are largely consistent with the treating sources’ opinion. “An ALJ has the obligation to
consider all relevant medical evidence and cannot simply cherry-pick facts that support a
Page 22 of 28

finding of non-disability while ignoring evidence that points to a disability finding.”
Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); Indoranto v. Barnhart, 374 F.3d
470, 474 (7th Cir. 2004) (“Although the ALJ need not discuss every piece of evidence in the
record, he must confront the evidence that does not support his conclusion and explain
why it was rejected.”) Because the ALJ failed to mention or analyze relevant evidence that
contradicted her decision to discount the treating sources’ opinion regarding Mason’s
impairment in performing activities of daily living, that decision cannot be upheld.
b. Social Functioning
The treating sources opined that Mason was markedly limited in social functioning;
given a very generous reading, the ALJ’s decision appears to suggest that this opinion was
inconsistent with the evidence.

In particular, the ALJ noted that Mason had “no

significant social or emotional issues” with her husband. The ALJ further suggested that
any problems Mason did have were due to situational stressors, such as her husband’s
extended working hours and financial problems, not her mental impairments (Tr. 26). It
is difficult to fathom how the ALJ determined that Mason has no issues with her husband
when the record is replete with references to Mason’s ongoing, and sometimes intense,
conflicts with her husband (Tr. 305, 312, 326, 327, 330, 341, 543, 562, 577, 586, 720,
907, 920, 923, 924, 937). For example, statements in the psychiatric records include:
“separated from husband” (Tr. 305); “divorcing husband” (Tr. 312); “her marriage is not
good because she does not see eye to eye with her husband” (Tr. 543); “It appeared that her
relationship with her husband is not going well” (Tr. 586); “She went on to talk about stress
related to her relationship with her husband” (Tr. 920); and “severe conflict with husband”
(Tr. 937). In light of this evidence, it seems that rational minds would have a difficult time
concluding that Mason had “no significant social or emotional issues” with her husband.
Page 23 of 28

Furthermore, no doctor opined that Mason’s conflicts with her husband were just a
response to situational stressors as opposed to evidence of her chronic mental
impairments. Rather, it appears that Mason’s problems with her husband are part and
parcel of her mental impairment, and made even worse by situational stressors.
The ALJ also noted that Mason “is social with her mother, with whom she speaks
with [sic] at least several times a month;” that Mason “leaves the house at least three times
a day to walk her dog and shops without any mention of problems doing so;” and that
Mason was “reported as being ‘polite’ with [her] therapist indicating a pleasant social
demeanor” (Tr. 26).

However, there are several significant problems with the ALJ’s

insinuation that this evidence contradicts the treating sources’ opinion.
First, the ALJ made no mention of the numerous references in the record to Mason’s
repeated issues with her mother throughout her lifetime (Tr. 332, 333, 337, 340, 495, 496,
579, 583).5 Furthermore, the ALJ did not provide any explanation for her belief that the
fact that Mason speaks with her mother a handful of times every month was inconsistent
with the treating sources’ opinion that she was markedly limited in social functioning. The
same goes for the fact that Mason takes her dog to the bathroom, goes to the store once or
twice a month without incident, and was polite to her psychiatrist during one 25-minute
appointment. These facts show that Mason’s mental impairments have not rendered her
homebound and completely unable to handle the most mundane and familiar social
situations. See Bauer v. Astrue, 532 F.3d 606, 608–09 (7th Cir. 2008) (“This is just to say
that the plaintiff is not a raving maniac who needs to be locked up.”)

5

They say little, if

Statements in the psychiatric records regarding her mother include: “mom drives me nuts” (Tr.
579); “My anxiety is really up . . . my mom has a lot to do with that” (Tr. 583); “mom man-handled
her once two weeks ago. Pt. is moving out of her mother’s house” (Tr. 496); “mother kicked me and
Kaylee (daughter) out onto the streets” (Tr. 340).
Page 24 of 28

anything, about her ability to appropriately interact at work with the public, her
co-workers, and her supervisors on a sustained and continuous basis. See Punzio v.
Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (“[H]er ability to struggle through the activities of
daily living does not mean that she can manage the requirements of a modern workplace.”)
Finally, the ALJ yet again ignored evidence that supports the treating sources’
opinion.

For example, there was no mention in the ALJ’s decision of the numerous

treatment notes about Mason’s mood swings, irritability, avoidant characteristics, and
tendency to isolate herself—all qualities which undoubtedly impair Mason’s ability to
function socially. See, e.g., supra pp. 9, 12. Indoranto v. Barnhart, 374 F.3d 470, 474
(7th Cir. 2004) (“Although the ALJ need not discuss every piece of evidence in the record,
he must confront the evidence that does not support his conclusion and explain why it was
rejected.”)
For these reasons, the ALJ’s decision to discount the treating sources’ opinion
regarding Mason’s impairment in social functioning cannot be upheld.
c. Concentration, Persistence, and Pace
The treating sources opined that Mason was extremely limited in concentration,
persistence, and pace.

The ALJ’s decision appears to suggest that this opinion was

inconsistent with the evidence of Mason’s daily activities on her “high days,” which included
cooking, cleaning, laundry, self-care, and driving her daughter to and from the bus stop.
Again, there are a couple significant problems with the ALJ’s assessment of the evidence.
First, the ALJ did not consider how Mason copes with and carries out her daily
activities on “high” days. See Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008). The
uncontradicted evidence establishes that on “high” days, Mason was highly agitated, had
trouble concentrating, and had to rest for 15 to 20 minutes between chores. Furthermore,
Page 25 of 28

the ALJ failed to consider Mason’s daily activities during her depressive episodes and the
frequency with which Mason experiences those episodes. See Bjornson v. Astrue, 671
F.3d 640, 647 (7th Cir. 2012) (criticizing ALJ’s decision for concentrating on the claimant’s
daily activities on her one or two good days each week); Martinez v. Astrue, 630 F.3d 693,
697 (7th Cir. 2011) (criticizing ALJ’s finding that “Martinez's severe depression is well
controlled by drugs—when she takes them—but ignor[ing] the fact that during manic spells
Martinez had stopped taking her medications”); Bauer v. Astrue, 532 F.3d 606, 608–09
(7th Cir. 2008) (“Suppose that half the time she is well enough that she could work, and
half the time she is not. Then she could not hold down a full-time job.”)

The

uncontradicted evidence establishes that Mason has a “high” day only a fraction of the time.
Simply put, the fact that Mason performed minimal daily activities on her own time,
at her own pace during a fraction of her days is not necessarily inconsistent with the
treating physicians’ opinion that she is extremely limited in her overall ability to maintain
concentration, persistence, and pace. See Spiva v. Astrue, 628 F.3d 346, (7th Cir. 2010)
(“But an ability to engage in ‘activities of daily living’ (with only mild limitations) need not
translate into an ability to work full time.”); Johansen v. Barnhart, 314 F.3d 283, 288 (7th
Cir. 2002) (“[I]nvolvement in ‘minimal’ daily activities does not necessarily contradict a
claim of disability.”)

For these reasons, the ALJ’s decision to discount the treating

sources’ opinion regarding Mason’s impairment in concentration, persistence, and pace
cannot be upheld.
In sum, the ALJ’s determination that the treating sources’ opinion was inconsistent
with the evidence is deeply flawed.

At times, the ALJ ignored particularly relevant

evidence, made unsupported and irrational inferences about other evidence, and failed to
include an adequate discussion. Furthermore, the ALJ made no effort to explain how the
Page 26 of 28

non-examining consultant’s opinion was more consistent with the evidence than the
treating sources’ opinion. It appears to the Court that the non-examining consultant’s
opinion is at odds with the medical evidence as a whole, and neither the consultant nor the
ALJ gave the Court any reason to think otherwise.
To conclude, the ALJ failed to give good reasons for discounting the treating
sources’ opinion, and therefore that decision cannot be upheld. Additionally, the ALJ
failed to even mention, let alone evaluate, the treating sources’ opinion that Mason was
likely to be absent from work more than three times a month on average (Tr. 865). This
issue is critical because the VE testified that Mason would be precluded from all work if she
was consistently absent one to two days per month (Tr. 68). Because the ALJ’s evaluation
of the treating sources’ opinion is unsound, the Court is precluded from meaningfully
reviewing the ALJ’s conclusion that Mason did not meet a listed impairment, the
assessment of Mason’s credibility, and the assessment of Mason’s RFC. This matter must
be remanded for reevaluation of the treating sources’ opinion.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Mason is disabled or that she should
be awarded benefits. On the contrary, the Court has not formed any opinions in that
regard, and leaves those issues to be determined by the Commissioner after further
proceedings.
CONCLUSION
Lee

Ann

Mason’s

motion

for

summary

judgment

is

GRANTED.

The

Commissioner’s final decision denying Mason’s application for Supplemental Security
Income benefits is REVERSED and REMANDED to the Commissioner for rehearing and
Page 27 of 28

reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of Plaintiff Lee Ann Mason.

IT IS SO ORDERED.
DATE: August 7, 2014
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

Page 28 of 28