Chappuis v. Commissioner of Social Security
MEMORANDUM AND ORDER, The Commissioner's final decision denying plaintiff'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. Signed by Judge J. Phil Gilbert on 10/10/2017. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SARAH JO ANNE CHAPPUIS
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Case No. 17-cv-00019-JPG-CJP
MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Sarah Jo Anne Chappuis (plaintiff),
represented by counsel, seeks judicial review of the final agency decision denying her
application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)
pursuant to 42 U.S.C. § 423.
Plaintiff filed for DIB on September 4, 2013, and for SSI on January 13, 2014, alleging a
disability onset date of August 19, 2012. (Tr. 225-41.) Plaintiff’s claims were denied at both the
initial and reconsideration levels and she later requested a hearing (Tr. 12; 93-129.)
Administrative Law Judge (ALJ) Robert S. Robison conducted the evidentiary hearing on May
17, 2016 (Tr. 35-92), and issued an unfavorable decision on July 29, 2016. (Tr. 14-34.) The
Appeals Council denied review, and the ALJ’s decision became the final agency decision. (Tr.
1-6.) Plaintiff exhausted her administrative remedies and filed has a timely complaint in this
Court. (Doc. 1.)
Issues Raised by Plaintiff
Nancy A. Berryhill is now the Acting Commissioner of Social Security. See, Casey v. Berryhill, 853 F.3d 322 (7th
Cir. 2017). She is automatically substituted as defendant in this case. See Fed. R. Civ. P. 25(d); 42 U.S.C. §405(g).
Plaintiff makes the following arguments:
1. The ALJ failed to properly weigh the medical evidence.
2. The ALJ erroneously evaluated plaintiff’s subjective complaints.
3. The hypotheticals the ALJ posed to the vocational expert (VE) failed to account for her
limitations in concentration, persistence, or pace.
Applicable Legal Standards
To qualify for DIB and SSI, a claimant must be disabled within the meaning of the
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
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
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42 U.S.C. § 423, et seq.,
and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c, et
seq., and 20 C.F.R. pt. 416. As is relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20
C.F.R. § 416.925 detailing medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the
DIB regulations. Most citations herein are to the DIB regulations out of convenience.
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
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, the Court must determine: (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, 512513 (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) ([u]nder 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 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 the Commissioner made no mistakes of law. This 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 only
whether the ALJ’s findings were supported by substantial evidence and whether the ALJ made
any errors of law. 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)). This Court uses the Supreme Court’s definition of
substantial evidence: “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); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). While judicial
review is deferential, however, 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
ALJ Robison followed the five-step analytical framework set forth above. He determined
plaintiff met the insured status requirements through September 30, 2017 and had not engaged in
substantial gainful activity since August 19, 2012. ALJ Robison determined plaintiff had severe
impairments of residuals of cervical spine fusion following a motor vehicle accident with
comminuted C6 fracture, with two subsequent motor vehicle accidents in 2010 and 2011 and
myalgias and myositis; fibromyalgia with 18/18 tender points after hearing; headaches;
adjustment disorder; anxiety; and depression. (Tr. 19.) The ALJ opined plaintiff had moderate
difficulties with concentration, persistence, or pace, which “could reasonable [sic] cause
moderately [sic] limitations in concentration with detailed or complex tasks only; however, the
evidence suggests she can still concentrate sufficiently to sustain the performance of simple,
routine tasks with no limitations in persistence or pace.” (Tr. 20.) The ALJ determined plaintiff
had the RFC to perform light work with additional limitations. (Tr. 21.) ALJ Robison found
plaintiff was unable to perform any past relevant work, but was not disabled because she was
able to perform other jobs that existed in the economy. (Tr. 27-28.)
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
In the agency forms, plaintiff alleged a neck injury, anxiety, depression, kidney stones,
urinary tract infections, and a fracture of the C6 vertebrae limited her ability to maintain
employment. (Tr. 266.) Plaintiff completed three years of college and previously worked as a
nurse. (Tr. 267, 298.)
Plaintiff stated she had trouble getting out of bed in the mornings because of pain and
anxiety. She had difficulty standing and sitting due to pain from her neck injury and was
restless. She experienced numbness and weakness in her hands. Her anxiety hindered her
concentration and she became anxious with any amount of stress. (Tr. 278.) Plaintiff laid in bed
most of her mornings and rested inside the remainder of the day. Plaintiff’s mom helped
transport her son. Plaintiff could not sleep for more than a couple hours at a time. She was
unable to cook because of a lack of energy from her medication, pain, numbness, weakness in
her neck, arms, and hands, and nausea. Plaintiff could not perform household chores. She could
not go out alone because she had no energy and her medications impaired her judgment.
Plaintiff could not pay bills, count change, handle a savings account, or use a checkbook. (Tr.
288-90.) Plaintiff stated her medications for anxiety, depression, and pain made employment
impossible. (Tr. 287.) She indicated her only hobby was watching television. (Tr. 291.)
Plaintiff could walk about twenty to thirty minutes before needing to rest. She could pay
attention for approximately ten minutes and sometimes could not follow written instructions at
all. She handled spoken instructions “better.” (Tr. 292.)
Plaintiff alleged she was fired from a job because of problems getting along with others.
She could not handle stress well and she preferred a routine. (Tr. 293.)
ALJ Robison presided over an evidentiary hearing on May 17, 2016, at which plaintiff
was represented by counsel.
Plaintiff testified she could use a computer for about ten minutes before she experienced
contractions and her hands went numb. She needed a twenty-minute break before she could use
the computer again. (Tr. 55-56, 68.) She used her phone to text, look at emails, and visit
Facebook. Plaintiff could use the microwave to heat up leftovers and make simple meals. She
could dress and bathe herself. (Tr. 55-56.)
Plaintiff was involved in three motor vehicle accidents. In 2003, an accident resulted in a
fracture of a vertebra in her neck, along with a herniated disc, for which she underwent a fusion
surgery. She subsequently returned to work. In 2010, plaintiff was involved in a head-on
collision. In 2011, another vehicle rear-ended plaintiff. (Tr. 57-59.)
Plaintiff’s parents drove her from Springfield, Illinois to Florida in 2012 for vacation.
Plaintiff and her husband lay on the beach and tried to relax. She did not actually get in the
water but stayed in the shallow area along the shore. (Tr. 59-62.)
In 2013, plaintiff attended a St. Patrick’s Day parade, where people ate and drank
throughout the day and night. Plaintiff was at the parade for about four hours. She had drinks
and ate lunch. (Tr. 64-65.)
Plaintiff visited the emergency room a handful of times since 2012 for panic attacks and
pain. She never stayed overnight for mental health reasons. Plaintiff did not have a psychiatrist,
psychologist, therapist, or counselor. (Tr. 66-67.)
Plaintiff received trigger point injections in her trapezius area, which relieved, but did not
prevent, contractions. (Tr. 69.) Plaintiff discussed pain, migraines, achiness, and stiffness with
Dr. Fortin.3 She discussed her anxiety, depression, headaches, and pain with Dr. Western. (Tr.
A VE testified at the hearing regarding several hypothetical individuals with various
functional limitations. The first hypothetical person was plaintiff’s age and had the same
background and work experience. She could perform light work but could not climb ladders,
ropes, or scaffolds; could occasionally stoop, kneel, crouch, crawl, and climb; could occasionally
reach overhead; could not operate motor vehicles; had to avoid hazards; could understand,
remember, and carry out simple, routine tasks; was able to use judgment in making work-related
decisions; could interact appropriately with the public, co-workers, and supervisors; and could
respond appropriately to changes in routine in the normal work environment. (Tr. 79-81.) The
VE opined this person could not perform plaintiff’s past work but could perform other positions
that existed in the economy, such as a housekeeper, fast food worker, and sorter. (Tr. 81-82.)
The hearing transcript refers to a “Dr. Fordon,” which the Court believes to be Dr. Fortin.
If the same hypothetical individual were also limited to only occasional interaction with
the public, she would be unable to maintain employment as a fast food worker, but could work as
a bench assembler. (Tr. 82.)
If the hypothetical person was additionally limited to a work environment where she had
to only occasionally make commensurate decisions and there were no more than occasional
changes in routine, she could work as a housekeeper, bench assembler, and sorter. (Tr. 82-83.)
If the hypothetical person was limited to sedentary work, instead of light work, she could
not perform the previously identified jobs. She could work, however, as a sealer, circuit board
screener, and assembler. (Tr. 83-84.)
The unskilled, SVP 2 jobs identified permitted two fifteen-minute breaks, a lunchbreak of
approximately twenty to thirty minutes, and two unscheduled breaks, one in the A.M. and one in
the P.M., to be less than six minutes each. (Tr. 84-85.) An employer would tolerate no absences
during a probationary period of ninety days and then one absence each month, not to exceed ten
absences. These absences included vacation, personal, and annual leave days. A person who
was absent more than one day each month would not be able to maintain employment. (Tr. 8586.)
Throughout the relevant period, plaintiff consistently reported headaches; neck, shoulder,
and back pain; and fatigue. She also complained of anxiety, numbness in her hands, left arm
weakness, and aching in her legs. Plaintiff primarily treated with Dr. Claude Fortin, Dr. Randy
Western, and Chris Carver, a nurse practitioner.
In February 2012, plaintiff demonstrated a positive Tinel’s sign at both elbows and point
tenderness over the trapezius, bilaterally. Dr. Fortin assessed plaintiff with cervicalgia and
cervical radiculopathy. He prescribed plaintiff gabapentin and suggested trigger point injections.
In March 2012, plaintiff presented to Dr. Katie Asp. A review of plaintiff’s symptoms
demonstrated neck and arm pain, and weakness on the left side. Dr. Asp assessed plaintiff with
She advised plaintiff to continue her gabapentin and consider trigger point
injections. (Tr. 474-75.)
In July 2012, Dr. Western also assessed plaintiff with cervicalgia, along with fatigue. He
prescribed hydrocodone and noted plaintiff “[h]ad been doing relatively well” until a recent
“flare up.” (Tr. 400-01.)
In August 2012, plaintiff followed up with Dr. Asp and reported numbness and tingling
in her hands, and pain radiating up and down her arms. Trigger point injections offered her
“good relief” but the pain eventually returned.
Dr. Asp assessed plaintiff with cervical
radiculopathy. (Tr. 476-77.)
In November 2012, x-rays of plaintiff’s lumbar spine demonstrated no fracture or
malalignment. (Tr. 425, 605-06.) An x-ray of her sacrum coccyx was normal. (Tr. 431.)
On March 16, 2013, plaintiff presented to St. John’s Hospital with complaints of an
altered mental status. Plaintiff’s boyfriend stated plaintiff was “drinking and partying all day”
and was lying in bed when she experienced tremors.
Plaintiff was assessed with alcohol
intoxication. The hospital advised her to avoid drinking large amounts of alcohol and discharged
her. (Tr. 380-86.)
In August 2013, Dr. Western prescribed plaintiff Carisoprodol and Tramadol for her
cervicalgia and ordered an x-ray of the cervical spine. (Tr. 396-97.) The x-ray revealed an
anterior cervical fusion at C5-C7 with stable postsurgical changes without evidence of hardware
Plaintiff also presented to Dr. Fortin and, upon examination,
demonstrated point tenderness in the trapezii, full nuchal range of motion, and no occipital nerve
tenderness. Her motor strength was 5/5 throughout and her gait was steady. Dr. Fortin included
occipital neuralgia in his diagnosis and administered trigger point injections to plaintiff’s
trapezii. (Tr. 472-73, 455.)
In July 2014, plaintiff presented to Red Bud Regional Hospital with complaints of neck
and shoulder pain, and numbness and tingling in both hands. She was assessed with cervical
radiculopathy and discharged home with prednisone and Norco. (Tr. 590-96.)
In August 2014, Dr. Western noted new symptoms of achiness in plaintiff’s legs and
increased arm weakness. Dr. Western also observed plaintiff had “a fairly strong component of
anxiety” and prescribed her Prozac. (Tr. 728-29.)
In October 2014, plaintiff presented to Ms. Carver and reported bilateral knee and elbow
pain, which worsened during the previous six months. On examination, plaintiff demonstrated a
normal gait and her strength was 5/5 in the upper and lower extremities. Plaintiff’s attention
span and concentration were adequate. Ms. Carver assessed plaintiff with Klippel’s disease,
cervicalgia, cervical radiculopathy, myalgia and myositis, and joint pain in the knee and elbow.
Ms. Carver referred plaintiff to a rheumatologist and administered trigger point injections along
the right and left paracervical and trapezius muscle regions. (Tr. 570-71; 725.)
X-rays of plaintiff’s left and right elbows from December 2014 returned “negative”
impressions. (Tr. 670-71.) An x-ray of plaintiff’s left knee showed mild lateral patellar tilt
suggesting a patellar tracking abnormality and an x-ray of plaintiff’s right knee showed slight
lateral patellar tilt, but was otherwise unremarkable. (Tr. 672-73.) Plaintiff presented to Dr.
Jeffrey Horvath that same day and he noted the images were “fairly unimpressive.”
examination, plaintiff demonstrated a normal gait, excellent grip, and intact strength, sensation,
and reflexes. Her wrists, elbows, and shoulder all moved well without tenderness or synovitis.
She had full range of motion of the knees. Dr. Horvath assessed plaintiff with knee and elbow
joint pain and cervical myofascial pain syndrome. (Tr. 574-75.)
In March 2015, Ms. Carver assessed plaintiff with occipital neuralgia, and myalgia and
myositis. He increased plaintiff’s dosage of gabapentin and administered left occipital nerve
block and bilateral trigger point injections. (Tr. 577-78.)
MRIs of plaintiff’s lumbar spine from April 2015 demonstrated mild spondylosis. (Tr.
579-80, 791-92.) MRIs of her cervical spine showed a cervical fusion at C5-C7 and relatively
mild spondylosis. (Tr. 580-81, 789-90.)
On May 15, 2015, plaintiff reported her anxiety symptoms were fairly well-controlled
with Prozac and Lorazepam, but there was room for improvement. Plaintiff also reported her
pain was much improved since the increased dose of gabapentin. Her naprozen also helped with
pain. (Tr. 897-99.)
On May 29, 2015, plaintiff received trigger point and occipital nerve block injections.
(Tr. 893). Ms. Carver noted,
The MRI of the cervical spine does show the previously completed fusion
however there are no other findings which would be contributing to her level of
discomfort. The MRI of the lumbar spine is also essentially negative. There are
no findings which would be contributing to the difficulty sitting that she reports. .
.I indicated I would complete the [disability] paperwork as well as possible
however she may need to see another provider to obtain an examination as
thorough as what is requested on the 6 page form. I requested additional
information, she states she has not been able to work for the past 3 years
indicating she has difficulty sitting or standing however this does not appear to be
the case when she has been in this office.
(Tr. 894). When Ms. Carver pressed plaintiff for more information she stated she was “too
anxious.” An addendum noted plaintiff contacted the office requesting Dr. Fortin complete the
form because she was concerned Ms. Carver would “negatively affect her” disability claim. (Tr.
In June 2015, plaintiff received trigger point injections. She presented to Dr. Fortin with
complaints of persistent left arm tingling and left hand involuntary jerking. Her hand numbness
and spasms appeared to be worsening. Dr. Fortin noted the sedation was likely attributable to
her increased dose of gabapentin. He ordered an EMG of plaintiff’s left arm and reduced the
gabapentin. (Tr. 888-90.)
In October 2015, plaintiff underwent an EMG and nerve stimulation study in the left arm
and cervical paraspinal muscles. The findings were unremarkable. She received occipital nerve
block injections and Dr. Fortin noted fibromyalgia type symptoms. Dr. Fortin’s assessment
included fibromyalgia, for which he prescribed Co-Q10 and magnesium. (Tr. 864-68.)
On November 30, 2015, plaintiff received trigger point and occipital nerve block
injections. (Tr. 851-52.) Plaintiff complained of headaches and tingling in her arms. She was
taking Prozac for depression. Her Cymbalta was not helpful and she was very drowsy. (Tr. 85355.)
Plaintiff received occipital nerve block and trigger point injections in January 2016. She
continued to complain of disabling fatigue, restless limbs, and “tickly” in her arms at night. She
was frequently sleepy. Dr. Fortin’s assessment included chronic fatigue. (Tr. 843-46.)
Plaintiff underwent a sleep study on January 23, 2016 and gave a history of snoring and
daytime fatigue. She demonstrated no significant sleep disordered breathing. (Tr. 841.)
In February 2016, plaintiff presented to Dr. Harris with complaints of immobility and
muscle weakness. Plaintiff visited the emergency room the previous week with an episode of
light-headedness, palpitations, dizziness, and shortness of breath. She stated she had significant
headaches and disabling fatigue that almost “paralyze[d] her.” Her symptoms were worsening
over the previous couple of months. Dr. Harris prescribed plaintiff Verapamil. (Tr. 834-36.)
In March 2016, plaintiff attended a follow-up appointment with Dr. Harris and reported
feeling exhausted, experiencing increased anxiety and a racing heart, and continued issues with
nausea and loss of appetite. (Tr. 821-23.)
In April 2016, Dr. Ish Singla assessed plaintiff with fatigue and tachycardia, which was
likely benign and attributable to anxiety/stress. (Tr. 813-16.)
In May 2016, Dr. Fortin assessed plaintiff with fibromyalgia. (Tr. 809-12.) Dr. Horvath
confirmed Dr. Fortin’s diagnosis that same month. He noted plaintiff’s long-standing history of
chronic diffuse widespread pain in both muscles and joints, with soft tissue tenderness. Plaintiff
demonstrated 18/18 fibromyalgia soft tissue tender points and a fibromyalgia impact
questionnaire (FIQ) score of 27 out of 31. Dr. Horvath based his diagnosis on plaintiff’s clinical
presentation, multiple soft tissue tender points, and an FIQ score “much greater than 13.” Dr.
Horvath recommended a regular, low impact aerobic exercise program.
plaintiff with anxiety, depression, and fatigue.
He also assessed
Dr. Horvath suggested a healthy diet, heat
therapy, and a trial of cognitive behavioral therapy or a psychologist. (Tr. 801-04.)
Dr. Randy Western’s Disability Impairment Questionnaire
On May 3, 2016, Dr. Western completed a Disability Impairment Questionnaire and
expressed that his opinions applied as far back as August 1, 2012. (Tr. 615-19.) He listed
diagnoses of anxiety, depression, myofascial pain, migraine headaches, fibromyalgia, and
occipital neuralgia. He indicated plaintiff’s impairments were expected to last at least twelve
months. He stated plaintiff was not a malingerer. Plaintiff’s primary symptoms were headaches
and daily pain in her neck, arms, hands, legs, and back. Weather, activity, mental stress, and
anxiety aggravated plaintiff’s pain. (Tr. 615-16.)
Dr. Western stated plaintiff could perform a job in a seated position for less than one hour
in an eight-hour workday. She could perform a job standing and/or walking for less than one
hour. She could frequently lift and/or carry up to five pounds, occasionally lift up to ten pounds,
and never lift more than ten pounds. She could frequently grasp, turn, and twist objects with her
left and right hands; occasionally use both hands and/or her fingers for fine manipulations; and
never/rarely use either arm for reaching. Plaintiff’s symptoms would frequently interfere with
her attention and concentration. She required unscheduled breaks every hour. Plaintiff would
likely be absent from work more than three times each month.
Anxiety and depression
magnified plaintiff’s pain. (Tr. 617-19.)
Dr. Claude Fortin’s Questionnaires
In June 2015, Dr. Fortin completed a Spinal Impairment Questionnaire.
diagnosed plaintiff with neck pain, a cervical fusion, and degenerative spine disease. Plaintiff
had a limited range of motion in her neck, along the trapezius. She also had trigger points along
the posterior neck and trapezius.
Plaintiff’s impairments limited her to sitting and
standing/walking for two hours in an eight-hour workday. (Tr. 583-88.)
In May 2016, Dr. Fortin completed a Disability Impairment Questionnaire. (Tr. 620-24.)
Dr. Fortin indicated his opinions applied as far back as August 1, 2012. (Tr. 624.) He listed
plaintiff’s diagnoses as cervicalgia, cervical radiculopathy, migraine headaches, chronic fatigue,
low back pain, and fibromyalgia. Abnormal MRIs of plaintiff’s cervical and lumbar spine
supported his opinions. He expected plaintiff’s impairments to last at least twelve months. Dr.
Fortin stated plaintiff was not a malingerer. Her primary symptoms were headaches, constant
neck and bilateral arm pain, and fatigue. (Tr. 620-21.)
Dr. Fortin opined plaintiff could perform a job in a seated position for less than one hour
in an eight-hour workday. She could perform a job standing and/or walking for less than one
hour in an eight-hour workday. Plaintiff could frequently carry up to five pounds, occasionally
carry up to twenty pounds, and never carry more than twenty pounds. She could occasionally
grasp, turn, and twist objects with both hands; occasionally use both hands and her fingers for
fine manipulations; and never/rarely use either arm for reaching. Plaintiff’s symptoms would
frequently interfere with her attention and concentration. Dr. Fortin opined plaintiff would need
to take unscheduled breaks every thirty minutes. She would likely be absent from work more
than three times each month. Her anxiety may reduce her tolerance to pain. (Tr. 622-24.)
Dr. Harry Deppe’s State-Agency Psychological Examination
On December 12, 2013, Dr. Deppe conducted a psychological consultation of plaintiff.
Plaintiff stated she was prescribed lorazepam, which calmed her down when her neck hurt. She
described her sleep as fair to good and her appetite as good. She stated she spent her average day
cleaning, doing laundry, watching television, and shopping. Her relationships with others were
good. Dr. Deppe opined plaintiff’s ability to relate to others; understand and follow simple
instructions; and maintain attention required to perform simple, repetitive tasks were intact. Her
ability to withstand the stress and pressures associated with day-to-day work activity was good.
Dr. Deppe diagnosed plaintiff with adjustment disorder, with mixed emotional features. (Tr.
Dr. Vital Chapa’s State-Agency RFC Assessment
On December 12, 2013, Dr. Chapa evaluated plaintiff. He noted complaints of neck pain
and a limited range of motion of the cervical spine. There was no definite evidence of cervical
radiculopathy on examination and no muscle atrophy. Plaintiff’s reflexes were symmetric and
her sensory examination was within normal limits. Her handgrips were 5/5 in both hands. (Tr.
State-Agency Psychiatric Review Techniques
Dr. Lionel Hudspeth performed a psychiatric review technique of plaintiff on December
19, 2013. He diagnosed plaintiff with affective and anxiety-related disorders and determined
plaintiff had mild difficulties in maintaining concentration, persistence, or pace. (Tr. 97-98.) Dr.
Donald Henson rendered the same opinions on June 19, 2014. (Tr. 109-10.)
Dr. Lenore Gonzalez’s State-Agency RFC Assessment
On December 20, 2013, Dr. Charles Kenney determined plaintiff could occasionally lift
and/or carry twenty pounds; frequently lift and/or carry ten pounds; sit for a total of about six
hours in an eight-hour workday; and push and/or pull and unlimited amount. (Tr. 99-101.) On
June 24, 2014, Dr. Gonzalez made the same findings. (Tr. 111-12.)
Plaintiff first contends the ALJ erred in evaluating the opinions of plaintiff’s treating
Pursuant to 20 C.F.R. § 404.1527(c), the Social Security Commission gives
controlling weight to a medical opinion from a treating source, so long as it is (i) “well-supported
by medically acceptable clinical and laboratory diagnostic techniques” and is (ii) “not
inconsistent with the other substantial evidence in [the] case record.”
Dr. Fortin and Dr. Western completed questionnaires from plaintiff’s attorney regarding
plaintiff’s functional capacity, in which they opined plaintiff could sit and stand/walk for less
than one hour. (Tr. 620-24.) The doctors expressed these opinions by circling “<1” under pretyped questions, but did not elaborate on the basis for these opinions. Instead, they listed
evidence such as MRIs in another section entitled “Clinical and laboratory findings that support
your diagnoses,” which preceded three pages of function-related questions. The ALJ afforded
the statements limited weight after concluding the record did not support such “extreme”
restrictions. (Tr. 26.)
The ALJ pointed out that during several physical examinations, the doctors noted no
atrophy or acute distress, a consistently normal or steady gait, and 5/5 muscle strength and motor
function. He also referred to the statements as “assembly-line medical source statement checkoff forms” and observed that plaintiff was able to sit “well over an hour at the hearing . . . .” (Tr.
26.) The ALJ’s analysis is logical and he “minimally articulate[d]” his reasons for assigning the
medical source statements little weight. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004);
see Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001) (ALJ properly discredited treating
source opinion, in part, because the source expressed the opinion by writing “yes” next to a pretyped question without elaborating on the basis); Kelley v. Sullivan, 890 F.2d 961, 964 (7th Cir.
1989) (stating “the ALJ’s reliance on his own observations could hardly be more appropriate”
where the claimant’s case “rested in large part” on her limitations in sitting and standing).
Plaintiff also asserts the ALJ erred in not expressly weighing the factors in 20 C.F.R. §
404.1527 when evaluating the statements.
If the ALJ determines the treating physician’s
opinions are not entitled to controlling weight, he must weigh the opinions like any other medical
evidence, in consideration of the factors set forth in 20 C.F.R. § 404.1527(d). Campbell v.
Astrue, 627 F.3d 299, 308 (7th Cir. 2010); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007).
These factors evaluate (1) whether an examining relationship existed; (2) the treatment
relationship, including the length, nature, and extent of the treatment; (3) whether the physician’s
opinion is supported by sufficient explanations and objective medical evidence; (4) whether the
physician’s opinion is consistent with other opinions in the record; (5) whether the physician is a
specialist; and (6) any other factors brought to the ALJ’s attention.
The Seventh Circuit has not clearly opined on whether an ALJ must explicitly list the
In Campbell, the Seventh Circuit remanded a case where “[t]he ALJ’s decision
indicate[d] that she considered opinion evidence in accordance with [the regulations]”, but did
not “explicitly address the checklist of factors as applied to the medical opinion evidence.”
Campbell, 627 F.3d at 308. However, in Schreiber v. Colvin, 519 F. App’x 951, 959 (7th Cir.
2013), the Seventh Circuit stated that “while the ALJ did not explicitly weigh each factor in
discussing [the treating physician’s] opinion, his decision makes clear that he was aware of and
considered many of the factors”. See also Elder v. Astrue, 529 F.3d 408 (7th Cir. 2008) (ALJ not
in error when he addressed only two of the six factors); Henke v. Astrue, 498 F. App’x 636, 640
n.3 (7th Cir. 2012) (stating “[t]he ALJ did not explicitly weigh every factor while discussing her
decision to reject [the treating source’s] reports, but she did note the lack of medical evidence
supporting [the] opinion . . . and its inconsistency with the rest of the record.”).
Despite the ambiguity, the regulations state the ALJ will “consider” the factors, but do
not impose a duty to elaborate on each one, 20 C.F.R. § 404.1527, and the Seventh Circuit has
not definitively held otherwise.
Here, it is evident from ALJ Robison’s decision that he
considered the factors. He acknowledged Dr. Western was plaintiff’s primary care physician and
Dr. Fortin was plaintiff’s treating neurologist (factors one and five). ALJ Robison also detailed
the objective evidence the doctors utilized, such as physical examinations, MRIs, and nerve
conduction studies (factor three). In sum, the ALJ’s opinion establishes he was aware of and
considered the factors in the regulations. Thus, his evaluation of the medical evidence was not
Plaintiff next asserts the ALJ improperly evaluated plaintiff’s subjective complaints. A
credibility4 determination is entitled to “special deference,” and the reviewing court will overturn
it only if it is “patently wrong.” Briscoe v. Barnhart, 425 F.3d 345, 354 (7th Cir. 2005). ALJ
the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with
the medical evidence . . . .
He noted plaintiff experienced relief from treatment; was treated at the ER for alcohol
intoxication after “partying all day” in 2013; travelled to Florida; reported significant activities
of daily living (ADLs) such as cleaning, laundry, and grocery shopping; and did not exhibit
difficulty sitting for longer than an hour at the hearing.
Plaintiff asserts the ALJ erroneously equated plaintiff’s ADLs, vacationing, and
“partying” with an ability to maintain employment. The Seventh Circuit has “urged caution in
equating [ADLs] with the challenges of daily employment.” Beardsley v. Colvin, 758 F.3d 834,
838 (7th Cir. 2014). However, it is proper for the Commissioner to consider a claimant’s
activities pursuant to SSR 16-3p, which provides the ALJ will consider an individual’s “daily
activities” when evaluating “the intensity, persistence, and limiting effects of an individual’s
Here, ALJ Robison did not equate plaintiff’s activities with fulltime employment but,
rather, used the evidence to contradict her specific complaints. Plaintiff alleges she is disabled,
in part, because she cannot sit or stand/walk for more than an hour at a time. Thus, driving to
Florida from Illinois, attending a parade “all day,” and engaging in household chores bears
directly on plaintiff’s allegations of how her impairments affect her functioning. Moreover, the
SSR 16-3p took effect on March 16, 2016, and supersedes SSR 96-79 (“Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements”). The new ruling eliminates use of the term
“credibility,” but is only a clarification.
ALJ specified other valid reasons for finding plaintiff’s complaints not entirely consistent with
the record. See Schreiber v. Colvin, 519 F. App’x 951, 962 (7th Cir. 2013) (ALJ properly
considered plaintiff’s ADLs because he did not place “undue weight” on them). For instance,
ALJ Robison noted plaintiff could sit for more than an hour at the hearing and received relief
from trigger point injections. Although plaintiff contends considering plaintiff’s response to
treatment was an error, SSR 16-3p directs an ALJ to consider the “treatment. . .an individual
receives . . . for relief of pain or other symptoms” when evaluating credibility. The ALJ’s
assessment of the intensity, persistence and limiting effects of plaintiff’s symptoms may not have
been perfect, but it was not “patently wrong.” Schreiber, 519 F. App’x at 961.
Plaintiff also attacks the basis of the RFC assessment and asserts the ALJ erroneously
failed to accommodate plaintiff’s limitations in concentration, persistence, or pace in the
hypotheticals posed to the VE.
The two arguments fold into each other, so they will be
addressed as one. “RFC is what an individual can still do despite his or her limitations,” and
“must be based on all of the relevant evidence in the case record.” SSR 96-8p. The Seventh
Circuit “generally [has] required the ALJ to orient the VE to the totality of a claimant’s
limitations,” which is best accomplished when the ALJ includes all of the claimant’s limitations
“directly in the hypothetical.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
Here, the ALJ stated in his decision that plaintiff has moderate difficulties in
concentration, persistence, or pace, which “could reasonable [sic] cause moderately [sic]
limitation in concentration with detailed tasks only.”
However, “she can still concentrate
sufficiently to sustain the performance of simple, routine tasks with no limitations in persistence
or pace.” (Tr. 20.) The ALJ incorporated into his RFC that plaintiff was able to “understand,
remember, and carry out simple tasks that are routine.” (Tr. 21.) His hypothetical to the VE
included an identical limitation.
Neither the RFC nor the hypothetical accounted for moderate difficulties maintaining
concentration. A line of Seventh Circuit cases has repeatedly rejected the notion that confining a
person to simple, routine tasks captures limitations in concentration, persistence, or pace. Varga
v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015), and cases cited therein. See also O’ConnorSpinner, 627 F.3d at 620.
The Commissioner, however, asserts that a hypothetical need not list every detail of a
claimant’s impairments if the VE reviewed all of the evidence prior to hearing. The Seventh
Circuit has stated that a hypothetical need not include the exact phraseology “concentration,
persistence, or pace” if “the record shows that the VE independently reviewed the medical record
or heard testimony directly addressing those limitations.” O’Connor-Spinner, 627 F.3d at 619.
“The exception to the general rule, however, does not apply where, as here, the ALJ poses a
series of increasingly restrictive hypotheticals to the VE, because in such cases we infer that the
VE’s attention is focused on the hypotheticals and not on the record.” Id.
The Commissioner’s argument is unavailing because there is no indication the VE
independently reviewed the medical record or actually heard testimony addressing plaintiff’s
difficulties in concentration. Moreover, the ALJ utilized a series of increasingly restrictive
hypotheticals, which also causes the exception to fall out of play.
The hypotheticals in the present case failed to account for plaintiff’s limitations in
concentration, persistence, or pace, and the VE was not oriented to all of plaintiff’s limitations.
Because the ALJ relied on the VE’s testimony in steps four and five of his analysis, the decision
was not based on substantial evidence. Remand is therefore required.
The Commissioner’s final decision denying plaintiff’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.
IT IS SO ORDERED.
DATE: October 10, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE
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