Colgan v. Commissioner of Social Security

Filing 24

MEMORANDUM AND OPINION. The Commissioner's final decision is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 6/17/2016. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELIZABETH COLGAN,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 15-cv-306-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Elizabeth Colgan is before
the Court, represented by counsel, seeking judicial review of the final agency
decision denying her Disability Insurance Benefits (DIB).
Procedural History
Plaintiff applied for benefits on August 17, 2011, alleging disability
beginning on June 1, 2005. (Tr. 17). After holding an evidentiary hearing, ALJ
Karen Sayon denied the application in a written decision dated October 23,
20123. (Tr. 17-33). The Appeals Council denied review, and the decision of the
ALJ became the final agency decision. (Tr. 1). Administrative remedies have
been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:

This case was referred to the undersigned for final disposition on consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 12.
1

1

1. The ALJ improperly weighed the medical evidence.
2. The ALJ improperly assessed plaintiff’s RFC.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of
the applicable statutes. For these purposes, “disabled” means the “inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(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. §423(d)(3). “Substantial gainful activity” is work activity
that involves doing significant physical or mental activities, and that is done for
pay or profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of
Appeals has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or
equals one of the listed impairments, then the applicant is
considered disabled; if the impairment does not meet or equal a
listed impairment, then the evaluation continues. The fourth step
assesses an applicant's residual functional capacity (RFC) and
2

ability to engage in past relevant work. If an applicant can engage
in past relevant work, he is not disabled. The fifth step assesses
the applicant's RFC, as well as his age, education, and work
experience to determine whether the applicant can engage in other
work. If the applicant can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet
or equal one of the listed impairments acknowledged to be conclusively
disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy,
given his or her age, education and work experience. 20 C.F.R. §§ 404.1520;
Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will
automatically be found disabled if he or she suffers from a listed impairment,
determined at step three. If the claimant does not have a listed impairment at
step three, and cannot perform his or her past work (step four), the burden
shifts to the Commissioner at step five to show that the claimant can perform
some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984).
See also, Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the
five-step evaluation, an “affirmative answer leads either to the next step, or, on
Steps 3 and 5, to a finding that the claimant is disabled… If a claimant reaches
step 5, the burden shifts to the ALJ to establish that the claimant is capable of
3

performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the
decision is supported by substantial evidence and that no mistakes of law were
made. It is important to recognize that the scope of review 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, this
Court must determine not whether plaintiff was, in fact, disabled at the
relevant time, but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were made. See, Books v. Chater, 91
F.3d 972, 977-78 (7th Cir. 1996)(citing Diaz v. Chater, 55 F.3d 300, 306
(7th Cir. 1995)).
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 this 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). However, 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), and cases cited therein.
The Decision of the ALJ

4

ALJ Sayon followed the five-step analytical framework described above.
She determined plaintiff had not been engaged in substantial gainful activity
since her alleged onset date. She found plaintiff had severe impairments of
fibromyalgia, degenerative disc disease of the lumbar and cervical spine,
depression, anxiety, and obsessive compulsive disorder. (Tr. 19). The ALJ
determined these impairments did not meet or equal a listed impairment. (Tr.
20).
The ALJ found plaintiff had the residual functional capacity to perform
work at the light level with physical and mental limitations. (Tr. 22). Based on
the testimony of a vocational expert (VE), the ALJ found plaintiff was unable to
perform past work. However, there were jobs that existed in significant
numbers in the national economy that plaintiff could perform. (Tr. 32-33).
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 plaintiff.
1. Agency Forms
Plaintiff was born on May 26, 1969 and was thirty-five years old at her
alleged onset date of June 1, 2005. (Tr. 199). She was five feet eight inches tall
and weighed one hundred and seventy pounds. (Tr. 202). Plaintiff graduated
from high school and completed pharmacy technician training. (Tr. 203). She
previously worked as a bookkeeper for a roofing company, a clerk for a retail

5

store, a pharmacy technician at a prison, a secretary in a veterinarian’s office,
and a tutor in a writing center. (Tr. 203).
Plaintiff stated that depression, panic attacks, fibromyalgia, bulging
discs, four fused vertebrae, severe allergies, and agoraphobia limited her ability
to work. (Tr. 202). She took Abilify and Wellbutrin for depression; Adderall for
fatigue; Advair and Nasacort for allergies; Bromocriptine for pre-diabetes;
Clindamycin for acne; Estrogen for perimenopause; Flexeril and Vicoprofen for
pain; and a thyroid medication. (Tr. 205).
Plaintiff completed a function report in September 2011 and updated
portions of the report in January 2012. (Tr. 240-56, 270-90). She stated that
she could not use her right hand, she could not regularly show up for work,
and her panic attacks made her need to go home in order to feel safe. (Tr. 240,
270). On a good day, plaintiff stated that she bathes, takes her dogs out,
occasionally does light housework, goes to her brother’s house, or goes to a
doctor’s appointment. In the evenings, if the weather is nice and she is feeling
well, she would sit outside with her dogs for less than an hour. (Tr. 241-42,
271-72). She commented that her depressive episodes can cause her to stay in
bed all day so she does not bathe, change her clothing, or eat. (Tr. 241, 271).
Plaintiff stated that she typically ate leftovers or sandwiches and rarely
made meals on her own. When plaintiff was able to do housework, she did
some laundry, dusting, cleaned the toilets, and loaded the dishwasher. She
could not vacuum, lift anything over five pounds, or frequently bend over. (Tr.
243, 273). She was able to drive but had panic attacks if she left the house
6

alone. (Tr. 244, 274). For fun, plaintiff read, worked puzzles, watched birds,
completed crosswords, and watched television. (Tr. 245, 275).
She claimed to have difficulty lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, climbing stairs, using her hands,
completing tasks, and concentrating. She could walk for about ten minutes
before needing a ten minute rest. She could follow written instructions but had
difficulty with spoken instructions. (Tr. 246, 277). Plaintiff explained that joint
pain, right hand and right arm pain, neck and back pain, random flulike
symptoms, depression, anxiety, agoraphobia, and panic attacks contributed to
her difficulties in the workplace. (Tr. 247-48, 278-79). She had difficulty
turning her head and with range of motion in her back after her surgeries. (Tr.
278). She listed several medications as the cause of side effects such as
jumpiness, dry mouth, dry eyes, sleepiness, weight gain, decreased sex drive,
and increased urination. (Tr. 251-52, 282-83). In January 2012, plaintiff added
a report from an MRI that indicated she had a disc bulge and mild to moderate
bilateral foraminal narrowing. (Tr. 287).
Plaintiff’s husband completed a function report in September 2011. (Tr.
215-22). He lived in a house with plaintiff and had known her for seven years.
Plaintiff’s husband stated that allergies prevented her from performing jobs
outside; her bad back and joints precluded active work or any jobs where
excessive standing or sitting was necessary; her depression and anxiety caused
high absenteeism as well as uncontrollable crying in the workplace; and simple
typing or writing could cause her hands to go numb. (Tr. 215).
7

He stated that on a daily basis, plaintiff drank coffee, read, took
medications, went to doctors’ appointments, performed light cleaning, fed and
watered the house pets, and ate. He stated that plaintiff could do a maximum
of one load of laundry a day. Plaintiff’s sleep was affected by her injuries and
illnesses. (Tr. 216). Plaintiff’s husband prepared most of the meals but about
once a month plaintiff would cook noodles or soup on her own. It would take
plaintiff an hour or two to perform household chores that would take a healthy
person less than an hour. (Tr. 217). Plaintiff went to the store about once every
other month for about an hour and she could not handle finances. (Tr. 218).
He claimed plaintiff had trouble lifting, squatting, bending, standing, reaching,
walking, sitting, kneeling, climbing stairs, remembering, completing tasks,
concentrating, understanding, following instructions, and using her hands. (Tr.
220).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing on
September 23, 2013. (Tr. 41-88). Plaintiff was forty-four years old and lived
with her husband on a farm. (Tr. 47). She was five feet eight inches tall and
weighed one hundred and fifty-five pounds. (Tr. 49). She used to have animals
on the farm but had to slowly get rid of them due to her inability to care for
them. (Tr. 48-49).
Plaintiff had a bachelor’s degree in psychology with a minor in
administration of justice from Southern Illinois University at Carbondale that
she received in 1993. She went back to college from 2005 until 2007 and
8

studied English literature because she wanted to be a high school English
teacher. (Tr. 50). She had good grades but eventually had to stop going to class
because she could not carry her books, she had severe allergies that caused
her to stay home, and she had a nervous breakdown due to stress. (Tr. 50-51).
She had a driver’s license but had difficulty checking her blind spots because
she could fully turn her neck. (Tr. 49).
She and her husband took a trip to the Hoover Dam but her husband
drove and they stopped once every half an hour to an hour for a break. (Tr. 66,
74-75). She was able to clean the toilets in her home and do laundry but could
not sweep the floors or mop. (Tr. 78-79). She testified that she would sit in her
brother’s deer stand for forty-five minutes at a time a few times each summer.
However, she no longer went to the stand after she recently fell from it. (Tr. 66,
82). She occasionally would visit with family and friends and she tried to go
outside for at least ten minutes a day. (Tr. 64).
Plaintiff has several jobs on record. She worked part-time at a Pier One
store for about three years. (Tr. 51) Her job there ended because she had high
absenteeism and she was unable to perform tasks they needed like unloading
trucks or putting things on shelves. After working at Pier One, she got a job at
a veterinary clinic where she worked for about three months until she was fired
because of her personality. She also worked at Southern Illinois University’s
writing clinic for three semesters. At the writing clinic, plaintiff would work two
or three evenings a week and help students with grammar, formulating ideas,
and writing papers. (Tr. 52). She worked part time at her brother’s roofing
9

company for about three years. (Tr. 53). Plaintiff worked at a Lowe’s home
improvement store as a cashier and a manager for three years. (Tr. 53-54). She
also worked at Walgreen’s and at a prison as a pharmaceutical technician for
several years. (Tr. 55-56).
Plaintiff stated that she had both physical and mental illnesses that
made her unable to work. She testified that she had pain in her neck that
would shoot down her right arm. This pain made her unable to use a calculator
or write with a pen. (Tr. 57). She had severe headaches that turned into
chronic migraines and eventually had surgery on her neck to alleviate the pain.
(Tr. 57-58). She had pain in her lower back that would shoot down her legs and
made her knees hurt. (Tr. 58). She had lower back surgery that did not provide
relief and caused her pain to worsen. (Tr. 59).
Plaintiff testified that depression and anxiety affected every aspect of her
life. Depression made it difficult for her to get out of bed in the morning and do
normal day to day activities. (Tr. 60). Her anxiety caused her to have panic
attacks if she was in a crowded room. (Tr. 68). She also had obsessive
compulsive disorder (OCD) which made her focus on unimportant things
instead of her assigned tasks at work. (Tr. 68-69). Plaintiff testified that she
could use a computer only in short intervals because she could not do small
repetitive things with her hands. (Tr. 69). She also stated she had difficulty
concentrating for more than an hour due to her depression and anxiety. (Tr.
70).

10

A vocational expert (VE) also testified. (Tr. 83-89). The VE testified that
plaintiff’s past work included jobs that were classified as light in physical
demand, medium as she performed them, and semi-skilled in nature. (Tr. 83).
The ALJ asked the VE a hypothetical where she was to assume a person
with plaintiff’s age and educational background and could perform light work
and the person could not climb ladders, ropes, or scaffolds. (Tr. 84). The person
could occasionally crouch, balance, crawl, kneel, stoop, climb ramps, and
climb stairs. (Tr. 83-84). Additionally, due to mental impairments in
concentration, persistence, or pace, the person could complete routine,
repetitive tasks. The person would be limited to simple instructions, simple
work related decisions, and no public interaction. (Tr. 85).
The VE testified that this person could perform jobs that exist in a
significant number in the national economy. Examples of such jobs are
merchandise marker, mailroom clerk, and housekeeping jobs. (Tr. 85). The VE
testified that if the person missed more than one day of work per month, or
was off task more than fifteen percent of the day, the person could not
maintain competitive full-time employment. (Tr. 86).
3. Medical Evidence
Plaintiff has extensive medical records for her physical and mental
ailments. The Court will begin with plaintiff’s physical impairments. Plaintiff
began receiving treatment for back pain from her primary care physician, Dr.
Roger Jones, in October 2007. (Tr. 658). Her pain began in her lower back and
traveled through her bilateral lower extremities. Dr. Jones recommended she
11

receive steroid injections to decrease her pain. (Tr. 658). In October 2009,
plaintiff saw a chiropractor for pain in her neck, mid-back, low back, and left
shoulder that radiated down her arm into her hand. (Tr. 429). She was
diagnosed with brachial neuritis or radiculitis NOS, non-allopathic lesions of
the cervical region, and myalgia and myositis unspecified. (Tr. 430).
In March 2010, plaintiff began seeing Neurosurgeon Sonjay Fonn for
treatment of her back and neck. (Tr. 616-8). Plaintiff told Dr. Fonn that she
had back and neck pain for eleven years with pain that radiated down her right
arm. She reported headaches and that physical therapy in the past was
helpful. (Tr. 617). Dr. Fonn ordered an MRI that indicated plaintiff had
moderate central bulge of her C4/5 disc flattening the anterior contour of the
thecal sac and minimal central bulge of the C5/6 and C6/7 disc without
herniation. She also had minimal arthritic changes at L3/4 and L4/5 facets.
(Tr. 624-26). In April 2010, plaintiff had a lumbar facet block and cervical
epidural steroid injections. (Tr. 455-59).
Dr. Fonn administered cervical epidural injections in January and
February of 2011. (Tr. 443, 447, 609). Plaintiff still reported pain and testing
indicated decreased sensation in her neck and back. (Tr. 604, 606). In March
2011, Dr. Fonn performed microdiscectomies for decompression at C4/5,
C5/6, and C6/7. (Tr. 435-36). She reported decreased pain as a result and did
well after surgery. (Tr. 600). At a follow-up appointment in June 2011, plaintiff
reported some symptoms in her right arm and minimal back pain. (Tr. 599).
She was prescribed physical therapy and pain medications. (Tr. 598-99). In
12

August 2011, after an MRI revealed hypertrophy and foraminal narrowing, Dr.
Fonn performed a lumbar epidural steroid injection and a lumbar facet block.
(Tr. 598, 620, 867). In December 2011, an electromyogram revealed nerve
irritation in the right C5/6 nerve distribution. (Tr. 290).
Plaintiff returned to Dr. Fonn several times in the beginning of 2012 and
he administered three rounds of epidural shots in her lower back. (Tr. 860-65).
In April 2012, Dr. Fonn performed a microdiscectomy at L4/5. (Tr. 845).
Plaintiff did not demonstrate significant improvement and in July 2012
reported numbness in her legs. (Tr. 906). Plaintiff was referred to physical
therapy where testing revealed decreased range of motion of the cervical and
lumbar spine and reduced strength in the cervical and lumbar spinal regions.
(Tr. 906). Plaintiff had twelve physical therapy appointments in 2012 but still
reported difficulty standing, sitting, and walking. (Tr. 892-907).
In February 2013, plaintiff reported tenderness in her bilateral sacroiliac
joints. (Tr. 935). Dr. Fonn examined Ms. Colgan in March 2013 and observed
decreased sensation in the right C7 and C8 distributions as well as positive
Spurling's sign 2, Tinel's test 3, cubital and radial tunnel signs, and bilateral
sacroiliac joint tenderness. (Tr. 933). In March 2013, Dr. Fonn performed two
sets of bilateral sacroiliac steroid injections. (Tr. 927, 931).

2

A positive Spurling’s sign, or Spurling’s test, indicates probable nerve root pressure and
demonstrates a need for further imaging studies.
http://onlinelibrary.wiley.com/doi/10.1111/j.15526569.2011.00644.x/abstract;jsessionid=8484C4C77B82D4F3B6C39BD8BDEE6E24.f03t01
3
Tinel’s test is used to diagnose carpal tunnel syndrome.
http://www.ncbi.nlm.nih.gov/pubmed/1461811

13

In August 2013, Dr. Fonn referred plaintiff for treatment with
rheumatologist Dr. Amjad Roumany, M.D. (Tr. 1033-39). Dr. Roumany’s
examination revealed tenderness to palpation and diffuse myofascial tender
points. He ordered further testing to be done but indicated he did not think
plaintiff had a connective tissue disease or underlying inflammatory arthritis.
(Tr. 1034).
Plaintiff’s mental health treatment history began in October 2004 when
she presented to Dr. Jones reporting anxiety. She was taking Buspar, Xanax,
and Lexapro to help alleviate her symptoms. (Tr. 669). Plaintiff regularly saw
Dr. Jones and complained on and off of depression and anxiety related
symptoms. (Tr. 647-666). In May 2008, she reported to Dr. Jones that she had
passive suicidal ideation. (Tr. 655).
In June 2008, plaintiff was hospitalized for a month after experiencing
an onset of increasingly depressive symptoms. (Tr. 980-1014). At the hospital,
plaintiff began receiving treatment from psychiatrist Simeon Grater, M.D.,
where he noted plaintiff’s potential for suicide was moderate and he diagnosed
plaintiff with major depressive disorder, severe. (Tr. 1009-10). Plaintiff attended
several group and individual therapy sessions while hospitalized. (Tr. 9801008). However, in August 2008, plaintiff attempted suicide and was again
hospitalized. (Tr. 377-79).
In October 2008, plaintiff began to regularly see Dr. Grater. He diagnosed
plaintiff with severe recurrent major depression and anxiety disorder and
increased the dosage of her anti-anxiety medication. (Tr. 479-80). Dr. Grater
14

continued to treat plaintiff and regularly saw her until he retired from practice
in May 2012. (Tr. 479-80, 481-82, 483-84, 485-86, 487-88, 489-90, 491-92,
493-95, 496-98, 499-501, 502-04, 505-07, 508-10, 511-13, 514-16, 517-18,
519-21, 522-25, 526-28, 529-31, 887). Dr. Grater frequently changed plaintiff’s
medications due to increased crying spells, angry outbursts, excessive worry,
and severe anxiety and depression. (Ex., Tr. 486, 489, 496-98, 511-13, 52628).
In August 2011, plaintiff also began therapy sessions with clinical social
worker Mary-Ann Wildwood. (Tr. 787). Ms. Wildwood provided therapy sessions
on five occasions during which time plaintiff experianced an emotional
meltdown and had uncontrollable emotional outbursts. (Tr. 782-87, 798). In
May 2012, when Dr. Grater retired, plaintiff began seeing advanced practice
nurse Alyson Wolz at Dr. Grater’s office. (Tr. 887). Ms. Wolz saw plaintiff
several times and indicated plaintiff’s thought process was tangential and
marked by ruminations. (Tr. 938).
4. Consultative Examinations
Dr.

Adrian

Feinerman,

M.D.,

performed

a

physical

consultative

examination in October 2011. (Tr. 711-17). Dr. Feinerman noted that plaintiff
reported she could walk for one block, stand for twenty minutes, and sit for
thirty minutes without problems. (Tr. 712). Plaintiff was taking sixteen different
medications at the time of her consultation. (Tr. 712-13). Upon physical
examination, plaintiff was able to sit, stand, walk, hear, and speak normally.
She was able to lift, carry, and handle objects without difficulty as well. (Tr.
15

717). Dr. Feinerman concluded that plaintiff’s range of motion was diminished
in the following areas: cervical flexion thirty degrees, cervical extension to ten
degrees, right and left lateral cervical flexion to fifteen degrees, and right and
left rotation to thirty-five degrees. (Tr. 719). Dr. Feinerman’s diagnostic
impressions were fibromyalgia, cervical disc disease, lumbar disc disease,
degenerative joint disease, and hypothyroidism. (Tr. 716).
Dr. James Peterson, Ph.D., performed a psychological examination in
October 2011. (Tr. 704-08). Dr. Peterson noted that plaintiff saw a psychiatrist
once every three months and met with a counselor every week. (Tr. 704).
Plaintiff began her exam guarded and defensive but Dr. Peterson stated that
eventually plaintiff was more calm and forthcoming. (Tr. 707). Plaintiff could
recall six numbers forward and four backwards. Her general fund of knowledge
was adequate. Dr. Peterson’s diagnoses were major depressive disorderrecurrent, panic disorder with agoraphobia, and generalized anxiety disorder.
(Tr. 707).
5. RFC Assessments
State agency psychologist Kirk Boyenga, Ph.D. assessed plaintiff’s mental
RFC in November 2011. (Tr. 735-37). He reviewed medical records but did not
examine plaintiff. He felt plaintiff was moderately limited in her ability to
maintain

attention

and

concentration

for

extended

periods,

work

in

coordination or proximity to others without being distracted by them, and
complete a normal workday and workweek without interruptions from
psychologically based symptoms and perform at a consistent pace without an
16

unreasonable number and length of rest periods. (Tr. 735-36). He also opined
that plaintiff was moderately limited in her ability to interact appropriately with
the general public and respond appropriately to changes in the work setting.
(Tr. 736).
Plaintiff had a second mental RFC assessment completed in February
2012 by state agency psychologist Howard Tin, Psy.D. (Tr. 827-29). Dr. Tin
found plaintiff to be moderately limited in her ability to understand and
remember detailed instructions, maintain attention and concentration for
extended periods, perform activities within a schedule, maintain regular
attendance, be punctual within normal tolerances, and work in coordination
with or proximity to others without being distracted by them. (Tr. 827). He also
opined plaintiff was moderately limited in her ability to interact appropriately
with the general public, accept instructions and respond appropriately to
criticism from supervisors, get along with coworkers or peers without
distracting them or exhibiting behavioral extremes, and to maintain socially
appropriate behavior and adhere to basic standards of neatness and
cleanliness. (Tr. 828).
State agency physician C.A. Gotway, M.D. assessed plaintiff’s physical
RFC in March 2012. (Tr. 832-38). He reviewed medical records but also did not
examine plaintiff. He believed plaintiff could occasionally lift twenty pounds
and frequently lift ten pounds. He opined plaintiff could stand, walk, or sit for a
total of six hours in an eight hour workday. (Tr. 832). She was limited to
occasional climbing of ramps and stairs, and occasional balancing, stooping,
17

kneeling, crouching, and crawling. Additionally, she should never climb
ladders, ropes, and scaffolds. (Tr. 833).
6. Opinions of Treating Physician
Dr. Grater completed a mental RFC assessment of plaintiff’s capabilities
in November 2011. (Tr. 742-45). He opined that plaintiff had mild limitations in
her ability to sustain an ordinary routine without special supervision, make
simple work-related decisions, and ask simple questions or request assistance.
(Tr. 743). He felt plaintiff was moderately limited in her ability to maintain
attention and concentration for extended periods, to work in coordination with
or proximity to others without being distracted by them, to interact
appropriately with the general public, to maintain socially appropriate behavior
and adhere to basic standards of neatness and cleanliness, and to set realistic
goals or make plans independently of others. (Tr. 743-44).
Dr. Grater opined that plaintiff had marked limitations in her ability to
accept instructions and respond appropriately to criticism from supervisors,
get along with coworkers or peers without distracting them or exhibiting
behavioral extremes, and in her ability to respond appropriately to changes in
the work setting. (Tr. 743-44). Finally, Dr. Grater felt plaintiff had extreme
limitations in her ability to perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerances, complete a
normal workday and workweek without interruptions from psychologically
based symptoms, perform at a consistent pace without an unreasonable

18

number and length of rest periods, and set realistic goals or make plans
independently of others. (Tr. 743-44).
Dr. Grater and Ms. Wildwood submitted an evaluation of Ms. Colgan's
mental functional capacity, where they opined plaintiff had moderate
limitations in the ability to work in proximity to or coordination with others
without being distracted by them and to interact appropriately with the general
public. (Tr. 1042). They felt plaintiff had marked limitations in the ability to
maintain attention and concentration for extended periods, to accept
instructions and to respond appropriately to criticism from supervisors, to get
along with coworkers without exhibiting behavioral extremes, and to respond
appropriately to changes in the work setting. (Tr. 1042-43). Finally, they stated
she had extreme limitations in the ability to perform activities within a
schedule, maintain regular attendance, and to be punctual and to complete a
workday

or

workweek

without

interruptions

by

psychologically-based

symptoms and to perform at a consistent pace without an unreasonable
number or length of rest periods. (Tr. 1042).
Dr. Grater and Ms. Wildwood concluded that plaintiff could not function
in the workplace due to ongoing psychiatric issues and could not tolerate
stressful situations due to her impairments. Plaintiff's symptoms and
limitations were further aggravated by chronic pain. (Tr. 1043).
Analysis

19

Plaintiff contends that the ALJ erred in weighing the medical evidence
and in forming the RFC assessment. This Court will begin with plaintiff’s
arguments regarding the RFC assessment.
A claimant’s RFC is “the most [the claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). In other words, RFC is the
claimant’s “maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis,” which means eight
hours a day for five days a week, or an equivalent work schedule. Social
Security Ruling 96-8P, 1996 WL 374184, at *2 (July 2, 1996) (“S.S.R. 968P”); Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013).
In assessing a claimant’s RFC, the ALJ must consider all of the relevant
evidence in the record, and provide a “narrative discussion” that cites to
specific evidence and describes how that evidence supports the assessment.
The ALJ’s analysis and discussion should be thorough and “[s]et forth a logical
explanation of the effects of the symptoms, including pain, on the individual’s
ability to work.” S.S.R. 96-8, at *5, 7. Additionally, the Seventh Circuit has
held that an ALJ’s assessment must evaluate “evidence of impairments that are
not severe” and “must analyze a claimant’s impairments in combination.”
Arnett v. Astrue, 676 F.3d 586, 591-92 (7th Cir. 2012), Terry v. Astrue,
580 F.3d 471, 477 (7th Cir. 2009), Craft v. Astrue, 539 F.3d 668, 676 (7th
Cir. 2008).
Plaintiff first argues that the ALJ failed to appropriately consider
plaintiff’s deficits in concentration, persistence, or pace. Notably, plaintiff fails
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to submit evidence as to how her deficits in concentration, persistence, or pace
affect her ability to work. She does not state what limitations were not
addressed by the ALJ’s RFC assessment or what evidence supports her
contention that her deficiencies in concentration, persistence, or pace were not
included in the analysis.
The ALJ felt that the restrictions of routine and repetitive tasks as well as
simple instructions and simple work related decisions accounted directly for
plaintiff’s deficits in concentration, persistence, or pace. The ALJ explained that
plaintiff’s concentration was normal as she was able to read often, complete
crossword puzzles, and she had good grades in college after her alleged onset
date. (Tr. 21). The ALJ also explained that plaintiff’s concentration tested
normal with Dr. Grater. (Tr. 30, 839).
Plaintiff cites the Seventh Circuit’s recent opinions in O’Connor-Spinner
v. Astrue, Yurt v. Colvin, and Varga v. Colvin to support her claim that the
RFC’s restrictions were not sufficient for plaintiff’s deficits in concentration,
persistence, or pace. 627 F.3d 614 (7th Cir. 2010); 758 F.3d 850 (7th Cir.
2014); 794 F.3d 809 (7th Cir. 2015).
In O’Connor-Spinner, the Court found that the ALJ needed to orient the
VE to all of a claimant’s limitations, including deficiencies in concentration,
persistence, or pace. The Court stated that there is no per se requirement that
the phrase "concentration, persistence and pace" be used in the hypothetical,
but it went on to hold that the restriction to simple, repetitive tasks is not an
adequate substitute because it "will not necessarily exclude from the VE's
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consideration

those

positions

that

present

significant

problems

of

concentration, persistence and pace." O'Connor-Spinner, 627 F.3d at 620-21.
In Yurt, the Court stated "[W]e have repeatedly rejected the notion that a
hypothetical like the one here confining the claimant to simple, routine tasks
and limited interactions with others adequately captures temperamental
deficiencies and limitations in concentration, persistence, and pace." Yurt, 758
F.3d at 859. Under Yurt and O'Connor-Spinner, if a claimant has limitations
in maintaining concentration, persistence and pace, those limitations must be
spelled out in the RFC assessment and in the hypothetical question posed to
the VE.
Plaintiff also cites the Seventh Circuit’s recent opinion in Varga. 794
F.3d 809 (7th Cir. 2015). There, the claimant had medical evidence showing
she had difficulties in concentration, persistence, or pace and the ALJ’s RFC
was limited to “simple, routine, and repetitive tasks in a work environment free
of fast paced production requirements, involving only simple, work-related
decisions with few if any work place [sic] changes.” Id at 813. The Court found
that the RFC was not sufficient because “[t]here [was] no evidence that the VE
in this case reviewed Varga's medical history or heard testimony about the
various medical limitations that Varga argues were omitted from the ALJ's
hypothetical. Thus, we would expect an adequate hypothetical to include the
limitations” relating to concentration, persistence, or pace. Id at 814.
The cases plaintiff cites differ from the one at hand in one important way.
The ALJ here explicitly included the phrase “concentration, persistence, or
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pace” within her hypothetical to the VE and within her RFC assessment. In
including the phrase “concentration, persistence, or pace” in her hypothetical
to the VE she made sure the VE would exclude “positions that present
significant problems of concentration, persistence and pace.” O'ConnorSpinner, 627 F.3d at 620-21.
Plaintiff also claims that the ALJ failed to incorporate limitations in her
RFC that related to plaintiff’s limited range of motion in her spine. Plaintiff’s
argument on this point is well taken.
The Commissioner argues that the ALJ’s thorough analysis of the RFC
discussed plaintiff’s spinal pain and how it was alleviated after surgery. The
Commissioner and the ALJ listed several daily activities that plaintiff was able
to perform and that plaintiff had pain relief after her neck surgery. However,
plaintiff’s argument does not focus on her pain, but rather her cervical range of
motion.
Dr. Feinerman’s records included an analysis that showed significant
limitations regarding plaintiff’s cervical range of motion. (Tr. 719). Dr.
Feinerman failed to account for these limitations in his discussion of plaintiff’s
physical capabilities, but that does not diminish the fact that plaintiff’s range
of motion was objectively severely limited. Plaintiff testified that she preferred
not to drive because she could not turn her head to see her blind spots. (Tr.
49). Plaintiff has multiple medical records on file that demonstrate a severely
limited range of motion with regard to her cervical spine. (Ex., Tr. 617, 860-65,
906, 933).
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The ALJ provided a detailed account of most of plaintiff’s medical records
and limitations on file. She thoroughly discussed how she arrived at her RFC
assessment and her reasoning for the limitations she did and did not include.
However, she only once briefly mentions the range of motion limitations while
reviewing the medical evidence. (Tr. 27). The ALJ is required to assess all the
evidence on file, both medical and nonmedical, and determine an RFC. Diaz v.
Chater, 55F.3d 300, 306 (7th Cir. 2005). As plaintiff notes, the ALJ failed to
include a limited range of motion in her hypothetical to the VE and this could
have an impact on whether plaintiff could actually perform the available jobs
the VE listed. O’Connor-Spinner, 627 F.3d 614; Yurt, 758 F.3d 850; Varga,
794 F.3d 809. This is error.
Finally, plaintiff contends that new medical evidence was added to the
record after the state agency consultants issued their opinions and the ALJ
should have submitted the new evidence to the consultants for updated
opinions. She first states that the ALJ should not have relied upon Dr. Tin’s
mental RFC assessment because his opinion was issued in January 2012 and
plaintiff had records from mental health treatment until June 2012. Plaintiff
goes on to list all medical evidence from Ms. Wolz and Dr. Grater during this
time. Plaintiff claims that the ALJ was required to submit this additional
evidence to another psychological consultant for medical scrutiny. Along these
lines, plaintiff then argues that the ALJ erred in relying on the opinion of Dr.
Gotway for plaintiff’s physical RFC because Dr. Gotway formed his opinion
before plaintiff saw Dr. Roumany.
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Plaintiff’s arguments on these points fail. The Commissioner argues that
SSR 96-6p states that ALJs must obtain updated opinions when “additional
medical evidence is received that in the opinion of the administrative law judge
or the Appeals Council may change the state agency medical or psychological
consultant’s finding.” Plaintiff had five treatment sessions with Ms. Wolz after
Dr. Tin issued his opinion. These treatment notes indicated plaintiff had
sleepiness and trouble focusing, but her mental status examinations were
normal and most of her stressors were based on situational problems. (Tr. 25,
887-88, 918-22, 937). It is reasonable to infer that the ALJ was of the opinion
that this additional evidence would not render a new opinion from the state
agency consultants as it reiterated what plaintiff’s record already stated and
Dr. Tin reviewed.
Additionally, Dr. Roumany’s notes showed plaintiff had myofascial tender
points but also that she had normal strength, sensation, gait, and her lab work
was normal. (Tr. 27-28, 1033-39). Dr. Roumany did not provide a new
diagnosis, or any diagnosis for that matter. Again, it seems that the ALJ’s
failure to re-contact the state agency consultant in light of this evidence is
entirely reasonable.
Most importantly, as the Commissioner notes, the Seventh Circuit has
held that when a claimant fails to ask the ALJ to re-contact the state agency
consultants, the appropriate inference is that the claimant “decided that
another expert opinion would not help her.” Buckhanon ex rel. J.H. v.
Astrue, 368 F. App'x 674, 679 (7th Cir. 2010). If plaintiff felt the ALJ needed
25

new consultative examinations and RFC assessments after the more recent
medical evidence was submitted, she should have requested such from the
ALJ. Her failure to request that the ALJ re-contact the consultants does not
equate to an error on the part of the ALJ.
The ALJ is “required to build a logical bridge from the evidence to his
conclusions.” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009). ALJ
Sayon’s opinion was well written and took into account most of plaintiff’s
physical and mental impairments. However, her failure to include limitations
regarding plaintiff’s extremely limited range of motion in her spine is error and
requires remand. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012),
citing Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
The Court wishes to stress that this Memorandum and Order should not
be construed as an indication that the Court believes that plaintiff is disabled
or that he 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
Plaintiff’s motion for summary judgment is granted. The Commissioner’s
final decision denying Elizabeth Colgan’s application for social security
disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and 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.
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IT IS SO ORDERED.

DATE: June 16, 2016.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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