Grosjean v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: REVERSING and REMANDING case to the Social Security Administration for further proceedings consistent with this opinion pursuant to sentence four of 42 U.S.C. section 405(g). Signed by Judge Rudy Lozano on 9/12/2014. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KIBBY L. GROSJEAN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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No. 1:13-CV-88

OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of Social Security’s decision denying Disability Insurance Benefits
and Supplemental Security Income to Plaintiff, Kibby L. Grosjean. For
the reasons set forth below, the Commissioner of Social Security’s
final decision is REVERSED and this case is REMANDED to the Social
Security Administration for further proceedings consistent with this
opinion pursuant to sentence four of 42 U.S.C. section 405(g).

BACKGROUND
On July 13, 2009, Plaintiff, Kibby L. Grosjean (“Grosjean”),
applied for Social Security Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. section 401 et
seq.

She also applied for Supplemental Security Income (“SSI”) under

Title XVI of the Social Security Act, 42 U.S.C. section 1381 et. seq.

Grosjean alleged her disability began on May 17, 2003.

The

Social Security Administration denied her initial applications and
also denied her claims on reconsideration. On July 28, 2011, Grosjean
appeared with her attorney and testified at an administrative hearing
before Administrative Law Judge (“ALJ”) Warnecke Miller (“Miller”).
In addition, Georgette Gunther testified as a vocational expert
(“VE”).

On September 15, 2011, ALJ Miller denied Grosjean’s claims,

finding that Grosjean had not been under a disability as defined in
the Social Security Act.
Grosjean requested that the Appeals Council review the ALJ’s
decision.
became

This request was denied.

the

Commissioner’s

422.210(a)(2005).

final

Accordingly, the ALJ’s decision
decision.

See

20

C.F.R.

§

Grosjean has initiated the instant action for

judicial review of the Commissioner’s final decision pursuant to 42
U.S.C. section 405(g).

DISCUSSION
Grosjean was born on January 6, 1959, and was 44 years old on the
alleged disability onset date.
impairments

include

(Tr. 212).

fibromyalgia,

non-insulin

Grosjean’s alleged
dependent

diabetes

mellitus, headaches, hypertension, chronic fatigue, diverticulitis,
obesity with basal metabolic indicator of 33.7, osteoarthritis, GERD,
minor spondylosis of the C4-C6 level, mild degenerative changes of the
lumbar spine, carpal tunnel syndrome, depression, post traumatic

-2-

stress disorder (“PTSD”), asthma, alcohol abuse (now in recovery),
history of diagnosis of borderline intellectual functioning, and
“neuropathy of the heart.”
education.

(Tr. 258).

(Tr. 17-18).

She has a high school

Her past relevant work includes work as an

assembler, cashier, and stock clerk.

(Tr. 26-27).

The medical

evidence1 can be summarized as follows:
Park Center
Grosjean first treated at Park Center in 1990. (Tr. 493). After
a break in treatment, Grosjean presented in July of 2007 requesting
services for outpatient therapy.

(Tr. 405-11).

She had previously

been involved with Dialectic Behavioral Therapy (“DBT”)2, but that did
not go well for her.

(Tr. 405-11, 676).

On mental status exam she

had the following significant positive findings: excessive worry;
aches and pains; anxiety; fearfulness, and helpless thought content.
(Tr. 405).
limited

She appeared disheveled, overweight, withdrawn, and with

insight

and

judgment.

(Id.).

Her

problems

included

psychiatric instability, anger issues, abuse issues, relationship
deficits, alteration in mood/depression, health maintenance deficit,
and anxiety. (Tr. 408).

She was diagnosed with Post Traumatic Stress

1

The medical evidence in this case is largely undisputed and the Court
has therefore relied heavily on the facts as presented in Grosjean’s opening
brief, supplementing and editing where necessary.
2

Dialectical Behavior Therapy is a cognitive-behavioral treatment
developed to treat chronically suicidal individuals with borderline
personality disorder. http://behavioraltech.org/resources/whatisdbt.cfm (last
visited September 12, 2014). It is effective in reducing suicidal behavior,
psychiatric hospitalization, treatment dropout, substance abuse, anger, and
interpersonal difficulties. Id.

-3-

Syndrome;

major

depressive

disorder,

recurrent

unspecified;

and

borderline personality disorder. (Id.).
In November of 2007, Grosjean saw Viann Ellsworth (“Ellsworth”),
a psychiatric nurse with Park Center.

(Tr. 412).

On mental status

exam she had the following positive signs: depressed mood; blunted
affect; helpless, worthless, and hopeless thought content; and recent
memory problems.
response

was

(Tr. 412-13).

“worse.”

(Tr.

Ellsworth found that her treatment
213).

Ellsworth

noted

that

her

medications were not completely addressing her symptoms, but Grosjean
did not want to change medications before the holidays.
Grosjean was seen again in January of 2008.

(Tr. 414).

(Tr. 416).

On

mental status exam she had the following positive signs: depressed and
anxious mood; helpless and hopeless thought content; suicidal ideation
without plan or intent; and homicidal ideation without plan or intent.
(Tr. 416-17).

Her treatment response was noted as “worse.”

(Tr.

418). Grosjean reported agitation, mood swings, depression, suicidal
and homicidal thoughts at times, hypersomnia, isolation, and anxiety.
(Id.)
In May of 2008, Grosjean saw Ellsworth again. (Tr. 420-23). The
mental status exam shows the following positive findings: depressed
mood, blunted affect, and helpless and hopeless thought content.
(Id.).

Her treatment response was noted as “worse.”

(Tr. 422).

In September of 2008, she saw Ellsworth, and on mental status
exam she had the following positive findings: withdrawn behaviors and

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anxious mood.

(Tr. 424).

Ellsworth found that Grosjean’s treatment

response was “worse.” (Tr. 425).

Grosjean reported that she was

having increased flashbacks, felt on edge, and felt like crying but
could not, and was always tired.

(Id.).

Her fibromyalgia was

bothering her, but her doctor would not give her adequate pain
medications.

(Id.).

In March of 2009, she was seen again by

Ellsworth, and she reported sleep problems. (Tr. 428).

She reported

that the medications helped her, but she had quite a few stressors.
(Id.).

On mental status exam she had the following positive signs:

fluctuating mood; paranoid and helpless thought content; impaired
recent memory; and blunted affect.

(Tr. 428-30).

patient was “symptomatic but stable.”

(Tr. 430).

She found that her
She was seen again

in May of 2009, and she reported that she had been depressed and
stressed off and on.

(Tr. 433).

but she could not.

(Id.).

She wanted to sleep a great deal,

On mental status exam she had the

following positive findings: depressed mood; hopeless and helpless
thought content; impaired recent memory; and blunted affect.
433-35).

(Tr.

In regard to medication compliance she found that she had

missed doses a couple of times, and she was slightly worse from a
treatment standpoint.

(Tr. 435).

Remeron 15 mg was added.

(Tr.

436). She was seen again in December of 2009, and she was having more
flashbacks since her ex-husband tried to force her to have sex.
512).

(Tr.

Her sister also called which triggered flashbacks about sexual

abuse that her sister perpetrated on her when she was a child.

-5-

(Id.)

For two weeks she had problems getting to sleep even though she was
taking Cymbalta and Seroquel.

(Id.).

On mental status exam she had

the following positive signs: anxious mood; paranoid and helpless
thought content; impaired recent memory; and impaired remote memory.
(Tr. 513). Ellsworth found that her patient’s condition was “slightly
worse.” (Id.). She was told to take Cymbalta in the a.m. (Tr. 515).
In May of 2010, she reported to Ellsworth that she was starting to get
a little edgy and irritable.

(Tr. 507).

On mental status exam she

had the following positive signs: hopeless, helpless, and worthless
thought content and impaired recent memory.

(Tr. 508).

She reported

that she had not been coping well with her brother’s death, and she
was angry.

(Id.).

Her son had been in trouble, and he had been

beating up on Grosjean.
(Id.).

(Id.).

Her house was a “total disaster.”

Grosjean was, according to Ellsworth, “much worse.”

(Tr.

510).
In June of 2010, Grosjean saw Ellsworth and reported that she was
still grouchy and uptight as well as crying. (Tr. 502). Grosjean had
noticed a little improvement with the addition of Remeron but not a
great deal.

(Id.).

She reported that she had a therapist who would

come to her house and work with her.

(Id.).

She had sleep problems

that involved awakening in the middle of the night. (Id.). On mental
status exam she had the following positive signs: tearful behavior;
paranoid, hopeless, helpless, and worthless thought content; and
impaired recent memory.

(Tr. 502-04).

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She was fully compliant with

treatment, and she was slightly better.
increased to 30 mg.

(Tr. 504).

Her Remeron was

(Id.).

P. Samant (“Samant”), MSED, of Parke Center evaluated Grosjean
in June of 2010.

(Tr. 493-500).

She had been referred to Samant by

her son’s caseworker. (Tr. 493). She was re-experiencing her symptoms
when she was around her two sons who were aggressive towards each
other

and

home-based

towards

Grosjean.

services.

(Id.).

(Id.).

She

She

was

reported

recommended

experiencing

for

severe

anxieties related to her past trauma of physical and emotional abuse
from her childhood. (Id.).

She was also having difficulty with

parenting her children due to limitations of her mental health
conditions. (Id.).

She reported that she had had children removed

from her care in the past. (Id.).
two younger sons. (Id.).
disorder and treatment.

She had a 25-year-old daughter and

She reported an extensive history of mental
(Tr. 494).

She was having significant

problems such as flashbacks, unwanted thoughts, and/or constant
anxiety related to past trauma.

(Tr. 495).

She had post traumatic

stress difficulties, and she had experienced one episode of sexual
abuse.

(Id.).

She had experienced intrusive thoughts that interfere

with the ability to function in some life domains.

(Id.).

She also

reported that she worried excessively, and she had poor grooming and
hygiene.

(Id.).

She had minimal insight, and she was anxious and

fearful.

(Id.).

She reported significant periods of time in which

she did not remember what she had done or where she had been.

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(Id.).

She was unable to stay on task. (Id.). She had trouble shifting from
one activity to another.

(Id.).

She would become agitated when

confronted with a problem, and she had difficulty thinking through
problems and consequences.

(Tr. 496).

She had a debilitating level

of anxiety as well as trouble sleeping. (Id.).

She was frequently

irritable or others complained that she was irritable.

(Id.).

She

had a loss of interest and pleasure, and she was experiencing
pervasive sadness. (Id.).
(Id.).

She had a moderate level of depression.

Her diagnosis was PTSD; major depressive disorder, recurrent

unspecified; and borderline personality disorder.

(Tr. 498).

Her

Global Assessment of Functioning (“GAF”) was rated at 45.3 (Tr. 499).
Grosjean was seen by Ellsworth again in September of 2010, and
she reported that her medications were working “pretty good.”
572).

(Tr.

She was a little more irritable, and she was forgetting her

morning medications until afternoon. (Id.).

She continued to have

problems sleeping due to pain, and she was also sleepy during the day.
3

GAF is a scoring system for measuring an individual’s overall
functional capacity. Diagnostic and Statistical Manual of Mental Disorders,
DSM-IV-TR, 32-34 (4th ed. 2000)(hereinafter “DMS-IV-TR”). GAF is the
clinician’s judgment of the individual’s overall level of functioning. Id. at
32. The GAF scale is to be rated with respect only to psychological, social,
and occupational functioning. Id. The GAF scale is divided into 10 ranges of
functioning. Id. at 32-34. Making a GAF rating involves picking a single
value that best reflects the individual’s overall level of functioning. Id. at
32. The description of each 10-point range in the GAF scale has two
components: the first part covers symptom severity, and the second part covers
functioning. Id. The GAF rating is within a particular decile if either the
symptom severity or the level of functioning falls within the range. Id. In
most instances, ratings on the GAF scale should be for the current
period—i.e., the level of functioning at the time of the evaluation. Id.
A GAF of 45 is in the decile described as serious symptoms, any serious
impairment in social, occupational, or school functioning—e.g., no friends,
unable to keep a job. Id. at 34.

-8-

(Id.). On mental status exam she had the following positive findings:
fluctuating

and

irritable

impaired recent memory.

mood;

worthless

(Tr. 572-73).

thought

content;

and

Her condition was described

as slightly worse, and her Remeron was increased to 45 mg. (Tr. 575).
In February of 2011 she was seen again, and she reported having
nightmares of past abuse. (Tr. 549). She was acting these out in her
sleep, and she was afraid that someone would get hurt.

(Id.).

She

had been under a great deal of stress. (Id.). She had sleep problems
because of trauma based on nightmares as well as appetite problems.
(Id.).

On mental status exam she had the following positive signs:

depressed,

anxious,

and

irritable

moods;

paranoid,

helpless,

worthless, and hopeless thought content; suicidal ideation without
plan or intent; homicidal ideation without plan or intent; and
overactive and tearful behavior. (Tr. 549-51).
Grosjean was “much worse.”

(Tr. 552).

Ellsworth found that

She added Periactin. (Id.).

In March of 2011, she told Ellsworth that her medication was
working, but she had a tough time getting them. (Tr. 711). On mental
status exam she had the following positive signs: a fluctuating mood
and paranoid, helpless, worthless, and hopeless thought content. (Tr.
712).

She was found to be fully compliant, and the assessment of her

treatment was that she was “much better.”

(Tr. 713-14).

In May of 2011, Grosjean reported that the medications were
working “pretty good,” and she was doing better.

(Tr. 682).

She was

still having problems with sleep because she did not have pain

-9-

medications. (Id.) On mental status exam she had the following
positive signs: fluctuating mood; hopeless, helpless, and worthless
thought content; and impaired recent memory.

(Tr. 682-83).

The

assessment was that she was “much better.” (Tr. 684).
In March of 2011, she underwent an extensive psychological
evaluation by Dr. Danielle Wardell and Dr. Kimberly Harrison at the
request of her home-based caseworker.

(Tr. 675).

The testing was

done to clarify diagnosis, determine her overall IQ, and assess
parenting needs.

(Id.).

The caseworker made the referral upon the

recommendation of the court system which Grosjean was involved with
due to her son not getting to school on a regular basis.
testing showed that she was in the average range.

(Id.).

(Tr. 676-77).

IQ
She

was administered the PAI to assess her personality functioning. (Tr.
677).

The results were valid and considered an accurate reflection

of her personality functioning at that time.

(Id.).

There were two

clinical scales that were significantly elevated, the somatization and
anxiety-related disorders.
have

significant

(Id.).

elevations

on

It was noted that individuals who
these

scales

typically

report

functional impairment due to symptoms associated with sensory or motor
dysfunction, typically they are preoccupied with physical health
status and physical health problems, have multiple anxiety disorders
associated with psychological turmoil, faced with constant rumination,
and are often guilt-ridden and prone to past transgressions, real or
imagined.

(Id.).

It was also found that she likely engages in a

-10-

number

of

anxiety,

maladaptive

but

that

they

behavioral
were

patterns

probably

aimed

ineffective

at
in

controlling
preventing

intrusive experiences such as nightmares and flashbacks. (Id.).

On

the MCMI-III her personality functioning was also assessed, and it was
considered valid and accurate. (Id.). The results indicated that she
was experiencing a considerable amount of post-traumatic stress such
as nightmares, flashbacks, foreshortened sense of future, as well as
general anxiety such as restlessness, being prone to worry, and
feeling out of control due to her worry. (Id.).

She also appeared to

have a personality trait of compulsiveness - she has difficulty being
flexible, adhering to rigid routines, and expects perfection. (Id.).
She was also experiencing a significant amount of depressive symptoms
such as depressed mood, loss of interest, loss of energy, and sleep
difficulties. (Id.).

She was administered the TSI in order to assess

the presence of post-traumatic stress symptoms at that time.
The results were considered valid.

(Id.).

(Id.).

Three scales were

significantly elevated. (Tr. 678). The first one was depression which
reflected frequent feelings of sadness and unhappiness and a general
sense of being depressed, feeling worthless and inadequate, having
hopeless views of the future, a tendency at times to have thoughts of
death and dying, tearfulness, and isolating herself from others.
(Id.).

She also appeared to be experiencing some significant amount

of intrusive experiences such as nightmares, flashbacks, and intrusive
ideation that can be quite upsetting.

-11-

(Id.).

She engaged in a

significant amount of defensive avoidance where she is repeatedly
seeking

to

eliminate

consciousness.

(Id.).

painful

thoughts

or

memories

from

her

One conclusion was that the depressive

symptoms impact her parenting role in that she likely cannot generate
the emotional and/or physical energy it takes to parent her children,
particularly her two sons who were having considerable behavioral
difficulties at that time.

(Tr. 679).

Her diagnosis was major

depressive disorder, recurrent, moderate and PTSD, chronic; rule out
traits of obsessive-compulsive personality disorder. (Tr. 680). Her
GAF was rated at 51.4 (Id.).
Her

progress

was

tracked

through

her

Treatment

Plan.

In

September of 2010 her diagnosis was PTSD; major depressive disorder,
recurrent unspecified; and borderline personality disorder.

(Tr.

According to the treatment plan, her GAF was rated at 45.5

577).

(Id.). She reported that she continued to have mood swings and thinks
about her past physical and sexual abuse, and then stated that she
feels “sad and frustrated sometimes.”

(Tr. 581). She is currently

working with her therapist on past abuse, but the therapist had
reported that she missed the last two appointments.

(Id.).

She had

the same diagnosis and GAF listed in her December 2010 treatment
4

A GAF of 51 shows moderate symptoms or difficulty in social,
occupational, or school functioning (e.g. few friends, conflicts with peers or
co-workers). DSM-IV-TR at 34.
5

As noted previously, a GAF of 45 shows serious symptoms or
difficulties in social, occupational, or school functioning—e.g., no friends,
unable to keep a job. DMS-IV-TR at 34.

-12-

plan.6 (Tr. 556).

She continued in the home-based services program

and she was willing to work on her treatment goals.

(Tr. 559).

She

continued to exhibit stress related to her sons, had difficulties
communicating her feelings, and stated that her “PTSD feelings come
and go.” (Id.).

Her caseworker was working with her to improve her

parenting and communication skills, and she was getting along better
with others.

(Id.).

but her GAF was 51.7

In March of 2011 her diagnoses were the same,
(Tr. 705).

She continued to exhibit occasional

flashbacks, sad affect, mood swings, and difficulties in getting her
children

to

follow

directions.

(Tr.

709).

Grosjean

appeared

unmotivated at times in keeping her house clean and following through
with the consequences she gives her children. (Id.).
The

records

demonstrate

that

Grosjean

received

extensive

counseling, follow-up, and home-based treatment. (Tr. 491, 554, 562,
564, 566, 568, 570, 583, 587, 589, 593, 595, 597, 663, 665, 673, 687,
689, 691, 692, 695, 697, 699, 701, 703, 716, 718, 720, 722, 724, 726,
728, 730, 732, 735, 736, 738, 740, 742, 744, 746, 748, 750, 752, 754,
756, 758, and 760).
scammed out of money.
(Tr. 752, 756).

Grosjean was not paying her bills, and had been
(Tr. 745).

Her home was eventually condemned.

Her two boys were taken from her care and placed in

6

The Commissioner asserts that the GAF was not reassessed - that it
reflects a duplication of the previously measured GAF. (DE 24 at 7). This
Court is not certain if this is a newly assessed GAF or not, but ultimately,
it is not material to the outcome of this case.
7

Again, a GAF of 51 shows moderate symptoms or difficulty in social,
occupational, or school functioning (e.g. few friends, conflicts with peers or
co-workers). DSM-IV-TR at 34.

-13-

a shelter.

(Tr. 748).

In August of 2011, Ellsworth completed a “Mental Impairment
Questionnaire.”

(Tr.

762-66).

Ellsworth

reported

her

current

symptoms as fluctuating moods; feelings of helplessness, hopelessness,
and worthlessness; and impaired recent memory.

(Tr. 762).

In regard

to depressive episodes she found that Grosjean had never been totally
free from depressive symptoms since 2007 when these symptoms had been
moderate to severe in intensity and had significantly interfered with
her ability to function.

(Id.).

In the last four months they have

been moderate to mild and interfere less often.

(Id.).

Ellsworth

found that Grosjean had frequent flashbacks and nightmares of abuse
that interfere mildly with her ability to function. (Id.).

She has

had at least two severe episodes of flashbacks and nightmares that
have interfered significantly with her ability to function for two to
four weeks at a time since November of 2007.

(Id.).

At the time of

the assessment, Grosjean felt that she had fair control of her moods,
but based on her past, this control is easily lost and severely
interferes with her ability to function for weeks to months at a time.
(Tr. 763).

Ellsworth found that Grosjean would have problems with

absenteeism because she frequently has difficulty sleeping as a result
of depression, flashbacks, and nightmares which make it difficult for
her to function the next day. (Id.).

She found that Grosjean would

miss greater than three days of work a month due to these problems.
(Id.).

Ellsworth also found that Grosjean would have difficulty

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maintaining attention and concentration in unskilled work because
depression makes it difficult for her to concentrate and stay on task.
(Id.).

Furthermore, Grosjean could be unexpectedly triggered about

memories of past abuse and when triggered, she is unable to focus on
work tasks. (Id.).

Ellsworth opined that Grosjean would be able to

concentrate and pay attention for less than 85% of the workday.

(Tr.

764).

Dr. Daniel Hauschild
Dr. Daniel Hauschild (“Dr. Hauschild”) performed a psychological
evaluation at the request of Social Security in October of 2009. (Tr.
447).

Grosjean told Dr. Hauschild that she is sometimes too tense,

and she cannot stop thinking in order to fall asleep. (Id.).
reported bad dreams and a history of severe nightmares.

She

(Id.).

She also reported that when she was awake she would have episodes
of disassociation and would see her abusers.

(Id.).

She goes blank,

and she has to touch something to bring herself back to reality.
(Id.).

She stated that her flashbacks are triggered by sights,

smells, and seeing her sons fighting.
about her appointments.

(Id.).

(Id.).

She also ruminates

She is sometimes up until two or

three a.m. due to being in pain, but she is more able to maintain her
sleep since she started taking Lyrica and Vicodin.

(Id.).

On some

days she hurts so much that she cannot do anything, and she frequently
just sits.

(Id.).

She admitted that sometimes she has trouble
-15-

getting out of bed, and she can keep hitting the snooze button.
(Id.).

She reported that once she gets up, she can keep going though

she still needs to take short breaks.
problems with concentration at times.
feelings

of

worthlessness,

self-deprecating statements.

and

(Id.).

(Id.).

she

She also reported

She also acknowledged

reported

(Tr. 448).

that

she

makes

In regard to how she spent

most of her time each day, she reported that she cleaned a little,
rested, ate, took a nap, and then ate a snack, did more work, and then
watched TV for about two hours. (Id.). She reported that her ability
to do dishes, vacuuming, and laundry depend upon the day and how she
was feeling physically.
assistance with shopping.

(Tr. at 449).
(Id.).

She reported that she needed

On mental status exam she repeated

five digits forward and three digits backward.

(Tr. 449).

She could

recall two out of four items that had been presented to her five
minutes earlier.

(Id.).

In regard to serial 7’s she gave up after

sixty seconds. (Tr. 450). She appeared mildly depressed. (Tr. 451).
She acknowledged some crying spells and irritably.

(Id.). She also

admitted to thinking about suicide. (Id.).
His diagnostic impression was PTSD and major depressive disorder,
recurrent, severe without psychotic features. (Id.). He rated her
current GAF as 47.

(Tr. 452).

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Drs. J. Gange and F. Kladder
Dr. Gange completed a psychiatric review technique form on
November 08, 2009.

(Tr. 466).

Dr. Gange noted that Grosjean had

affective disorders and anxiety-related disorders.

(Tr. 466).

Dr.

Gange found that she had mild limitations in daily living activities
and in maintaining social functioning.
episodes of decompensation.

(Id.).

(Tr. 476).

She had no

She also had a moderate degree

of limitation in concentration, persistence, and pace.

(Id.).

Dr. Gange also completed a “Mental Residual Functional Capacity
Assessment” on November 8, 2009.

Dr. Gange found that she was

“moderately limited” in her mental abilities to maintain attention and
concentration for extended periods; to respond appropriately to
changes in the work setting; and to set realistic goals or make plans
independent of others.

(Tr. 480-81).

Dr. Gange noted a remote

treatment history through Park Center, and that she had not required
recent treatment as she obtained medications from her primary care
provider.

(Tr. 482).

Dr. Gange also found that her activities of

daily living remain intact within physical parameters.

(Id.).

Dr.

Gange concluded that the intensity of the symptoms and their impact
on functioning were not consistent with the totality of the evidence,
and specifically her ability to complete tasks on a sustained basis
did not appear to be severely restricted within physical parameters.
(Id.).
In January of 2010, Dr. Kladder affirmed the findings of Dr.

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Gange as reported.

(Tr. 487).

Ortho Northeast
Grosjean saw Dr. Eric Jenkinson of Ortho Northeast (“ONE”) in
June of 2007 for fibromyalgia.

(Tr. 309).

She had pain basically in

all joints, shoulders, neck, hips, back, knees, and ankles.
She had recently been diagnosed with fibromyalgia.

(Id.).

(Id.).
He noted

that Grosjean had been tested for rheumatolic problems, but tests were
negative. (Id.). Grosjean had tried a little therapy but had to stop
because of insurance issues.
continued her Naproxen.

(Id.).

He gave her some Vicodin and

(Tr. 310).

He talked about Lyrica and

getting back to therapy. (Id.).
Grosjean was seen at ONE again in August of 2009 by Dr. Michael
McNamus for chronic pain in both of her ankles.

(Tr. 456).

Symptoms

had been present for many years, but became progressively worse with
time.

(Id.).

An x-ray taken in the office of the bilateral ankles

revealed degenerative changes of the medial and lateral ankle gutters
as well as anterior osteophyte formation at the tibiotalar joint.
(Tr. 457).

His diagnosis was degenerative arthritis, bilateral

ankles, with ankle instability and hammer digit syndrome.
They discussed conservative treatment.

(Id.).

(Id.).

Dr. Jenkinson saw Grosjean again in early September of 2009.
(Tr. 454).

On exam Grosjean had some mild carpal tunnel symptoms or

findings, and the tinel and phalen testing was mildly positive in the

-18-

bilateral shoulders.

(Tr. 454).

Dr. Jenkinson’s diagnosis was

fibromyalgia as well as carpel tunnel, impingement of the shoulders,
lumbar spine spasms and possible facet irritation.

(Id.).

She was

seen by Dr. Jenkinson again in October of 2009 for a follow-up on her
fibromyalgia and possible impingement carpel tunnel syndrome.
453).

She was doing better.

(Id.).

positive impingement on testing.

(Tr.

On physical exam she had mildly

(Id.).

She was seen again in October 2010 by Dr. Jenkinson, and an MRI
showed that L4-5, L5-S1 and L3-4 had some mild degenerative change and
some mild bulging. (Tr. 524-26). There also appeared to be an annular
tear in L4-5. (Id.).

This caused a little foraminal narrowing and

mild facet arthropathy at this level as well as at L5-S1. (Id.).

Dr. Robert Godley
She was seen by Dr. Godley in November of 2008 due to sharp
substernal discomfort and then pressure discomfort over the left
breast with activity such as walking upstairs or if she becomes upset
for the past several months.

(Tr. 316).

He ordered testing.

(Tr.

317). In December of 2008, Dr. Godley discussed the test results with
Grosjean.

(Tr. 339).

The echocardiography was normal.

(Id.).

However, her Myoview stress test was markedly abnormal with a moderate
amount of ischemia in the LAD distribution, anteroseptal and interior
regions.

(Id.).

The

ejection-fraction

recommended cardiac catherization.

-19-

(Id.).

was

57%.

(Id.).

He

This testing was done in

December of 2008, and the results were normal.

(Tr. 341).

Dr. H. M. Bacchus
In September of 2009, Grosjean saw Dr. Bacchus at the request of
Social Security.

(Tr. 443-45).

health problems.

(Id.).

She reported a history of her mental

She also told him about her fibromyalgia,

diabetes, intermittent tingling and numbness in her fingers and toes,
shortness of breath, chest pain, and headaches.

(Id.).

Review of

systems was positive for exertional shortness of breath and fatigue,
depression, insomnia, chest pains, and some other problems.

(Tr.

444).
On physical exam she was 65 inches tall and weighed 208 pounds.
(Id.).
pain.

Her gait was slightly antalgic secondary to left hip and leg
(Id.).

Muscle strength and tone were 5/5 in all extremities

except the lower left extremity which was 4/5.

(Id.).

Grip strength

was 4/5 bilaterally, and fine finger manipulation was preserved.
(Id.).
toes.

There were slight sensory deficits in the distal fingers and
(Id.).

His
diabetes

She had a flat affect and depressed mood.

impression

included

mellitus,

fibromyalgia,

headaches,

non-insulin

depression/anxiety,

(Id.).
dependent

PTSD,

asthma,

hypertension, exertional dyspnea per history, history of atypical
chest

discomfort

with

negative

cardiac

work-up,

hyperlipidemia,

chronic fatigue, diverticulitis, and history of alcohol abuse now in
recovery.

(Tr. 445).

-20-

In January of 2010, Dr. M. Hasanadka reviewed all the evidence
in the file and affirmed Dr. Bacchus’ opinion as written.

(Tr. 488).

State Agency Physical Residual Functional Capacity Assessment
In an undated and unsigned form, a state agency physician found
that Grosjean could occasionally lift and/or carry up to twenty
pounds; frequently lift and/or carry up to 10 pounds; stand and/or
walk for about 6 hours in an 8-hour workday; sit about 6 hours in an
8-hour workday; and push and/or pull the same amounts as shown for
lift and/or carry.

(Tr. 456-65).

The state agency physician also

found non-exertional limitations.

These included only occasional

climbing of ramps/stairs, balancing, stooping, kneeling, crouching,
and crawling.

(Tr. 460).

There was also a limitation of never

climbing ladders, ropes, or scaffolds.

(Tr. 460).

Grosjean was

limited in her ability to reach overhead due to pain and limited range
of motion.

(Tr. 461).

Grosjean’s Testimony
At the hearing before ALJ Miller, Grosjean testified that she has
a high school education.

(Tr. 44).

She began studying data entry at

a community college, but she did not finish the course due to
flashbacks.

(Id.).

When asked why she cannot work full time, Grosjean responded by
noting a variety of physical complaints:

-21-

Well, I can’t stand for very long of a time
because my back and my feet start hurting. And
then I have other body parts that hurt, you know,
to lift, and I can’t lift over my head. This is
as far as I can go right here, is lifting -that’s it. And then I can’t bend. They told me
no bending, no stooping because of my back. And
my ankles –-they told me I couldn’t do a job
where I had to do a lot of walking or walking up
steps.
(Tr. 55).

She testified to pain throughout her body, with most of it

in her feet, hands, back and shoulders.
(Id.).

(Tr. 56).

The pain shifts.

She also testified to debilitating headaches occurring at

least once a week. (Tr. 69).
When asked what an average week would look like for her, Grosjean
noted the following:
Well, now it takes me like a whole day to clean
my house. Actually, the whole week, because I
could only do a little bit each day and I’ll have
to lay down and take a nap because I do have
chronic fatigue syndrome and I get tired. So I
lay down and especially if I start hurting. And
then I’ll get up. You know, I’ll lay down for a
couple hours and then get up and do a little bit
more. Then my whole day does that. And if I,
like if I’m out and I have to get in and out of
my car, when I had my car –I don’t have one now
–but when I did it was very difficult for me
because of the getting in and out and in and out
and it just, it wore me out and I just would hurt
really bad. And like when I have to catch the
bus it’s hard for me to get up on the bus because
it’s hard for me to step up.
(Tr. 56-57).
With regards to her mental impairments, she testified that she
disassociates or blacks out due to her PTSD.

(Tr. 60).

She also

suffers from angry outbursts, memory loss, nightmares, flashbacks, and
-22-

intrusive thoughts.

(Tr. 60-61).

feeling depressed. (Tr. 61-62).
stressful.
a lot.

(Tr. 65).

She sleeps a lot and reports

She finds going out of the house

Crowds bother her as well.

(Id.).

She cries

(Tr. 65).

She does not clean her house and links this to her depression she cannot get motivated to do it.

(Tr. 66).

She explained that her

home was condemned because welfare came and the lights and electric
were not on.

(Tr. 67).

Also, the house was a mess.

(Id.).

She had

not been upstairs in about a month and they took picture of the messes
up there.

(Id.).

After her home was condemned, she lived in a

homeless shelter, and her children (ages 12 and 15) were placed in
foster care.

(Tr. 57, 67).

Testimony of VE Georgette Gunther
VE Gunther testified that, in her opinion, full-time competitive
employment would require that an individual be on-task for 80% of the
work day. (Tr. 79). In addition, an individual who has more than one
unscheduled absence per month would not be capable of competitive
employment.

(Id.).

Review of Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits.

42 U.S.C. § 405(g).

“The findings

of the Commissioner of Social Security as to any fact, if supported

-23-

by

substantial

evidence,

shall

be

conclusive

.

.

.

.”

Id.

Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a decision.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).

In determining

whether substantial evidence exists, the Court shall examine the
record in its entirety, but shall not substitute its own opinion for
the ALJ’s by reconsidering the facts or re-weighing evidence.
v. Barnhart, 347, F.3d 209, 212 (7th Cir. 2003).

Jens

With that in mind,

however, this Court reviews the ALJ’s findings of law de novo and if
the ALJ makes an error of law, the Court may reverse without regard
to the volume of evidence in support of the factual findings.

White

v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
under the Social Security Act, the claimant must establish that he is
disabled.

To qualify as being disabled, the claimant must be 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 has lasted or can be expected to last
for a continuous period of not less than twelve months.”
§§ 423(d)(1)(A) and 1382(a)(1).

42 U.S.C.

To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five step
evaluation:
Step 1:

Is the claimant performing substantial gainful activity: If
yes, the claim is disallowed; if no, the inquiry proceeds
to Step 2.
-24-

Step 2:

Is the claimant’s impairment or combination of impairments
“severe” and expected to last at least twelve months? If
not, the claim is disallowed; if yes, the inquiry proceeds
to Step 3.

Step 3:

Does the claimant have an impairment or combination of
impairments that meets or equals the severity of an
impairment in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404, Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if not, then the
inquiry proceeds to Step 4.

Step 4:

Is the claimant able to perform his past relevant work?
If yes, the claim is denied; if no, the inquiry proceeds to
Step 5, where the burden of proof shifts to the
Commissioner.

Step 5:

Is the claimant able to perform any other work within his
residual functional capacity in the national economy: If
yes, the claim is denied; if no, the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see also
Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case the ALJ found that Grosjean was not engaged in
substantial gainful activity and that she suffered from multiple
severe impairments.

The ALJ further found that Grosjean did not meet

or medically equal one of the listed impairments.

The ALJ found that

Grosjean retained the physical residual functional capacity to perform
a reduced range of light work. More specifically, the ALJ found that:
[T]he claimant has the residual functional
capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except she can
occasionally
lift/carry
twenty
pounds
and
frequently lift/carry ten pounds.
She can
stand/walk for six hours out of an eight-hour day
and sit for six hours in an eight-hour day. She
can occasionally bilaterally push/pull with her
upper extremity and occasionally use bilateral
foot controls. She can occasionally climb ramps
-25-

or stairs but never climb ladders, ropes or
scaffolds. She can occasionally balance, stoop,
kneel,
crouch,
and/or
crawl.
She
can
occasionally reach overhead. She should avoid
concentrated exposure to fumes, odors, dust
gases, poorly ventilated areas, chemicals and
loud noise environments.
She can tolerate
interacting with the public, but cannot tolerate
responsibility for addressing complaints or other
concerns.
Based on moderate difficulty with
pace, she cannot tolerate sudden or unpredictable
work place changes and has a pace that is limited
to goal oriented rather than production pace work
(no fast pace).
(Tr. 19-20). With this RFC, the ALJ found that Grosjean could perform
her past relevant work as a cashier.

(Tr. 26).

that

work,

Grosjean

could

perform

other

The ALJ also found

including

dishwasher, weigher, and producer sorter.

work

as

a

Thus, Grosjean’s claim

failed at both steps four and five of the evaluation process.
Grosjean believes that reversal is required because the ALJ’s
decision

was

not

supported

by

substantial

evidence.

More

specifically, Grosjean believes that the ALJ erred by failing to
properly

evaluate:

(1)

the

opinion

of

Ellsworth,

a

treating

psychiatric nurse; (2) the opinion of Dr. Hauschild, an examining
psychologist; and (3) Grosjean’s credibility.

Each argument will be

examined in turn.

The ALJ’s Consideration of Evidence from Ellsworth
Grosjean claims the ALJ erred in evaluating the evidence obtained
from one of her treating medical providers, Ellsworth.
a psychiatric nurse.

Ellsworth is

As a result, she is not an “acceptable medical
-26-

source,” as defined in 20 CFR 404.1513(a) and 416.913(a).

The Social

Security Administration has provided ALJs with guidance on how to
evaluate opinions from medical sources that are not acceptable medical
sources in Social Security Ruling 06-03p. SSR 06-03p, 2006 WL 2329939
(2006). There must be some evidence from an “acceptable medical
source” for the ALJ to find a medically determinable impairment
exists.

Id.

However, opinions from medical sources that are not

“acceptable medical sources” are to be considered too.

The ruling

recognizes that, as our health care system changes and evolves, more
and more medical professionals who do not qualify as “acceptable
medical sources” are providing medical treatment and evaluation that
would have been provided by an “acceptable medical source” in the
past.

Id. at *3.

The ruling provides that:

Opinions from “other medical sources” may reflect
the source’s judgment about some of the same
issues addressed in medical opinions from
“acceptable medical sources,” including symptoms,
diagnosis and prognosis, what the individual can
still do despite the impairment(s), and physical
and mental restrictions.
Not every factor for weighing opinion evidence
will apply in every case. The evaluation of an
opinion from a medical source who is not an
“acceptable medical source” depends on the
particular facts in each case. Each case must be
adjudicated on its own merits based on a
consideration of the probative value of the
opinions and a weighing of all the evidence in
that particular case.
The fact that a medical opinion is from an
“acceptable medical source” is a factor that may
justify giving that opinion greater weight than
an opinion from a medical source who is not an
-27-

“acceptable medical source” because, as we
previously indicated in the preamble to our
regulations at 65 FR 34955, dated June 1, 2000,
“acceptable medical sources” “are the most
qualified health care professions.”
However,
depending on the particular facts in a case, and
after applying the factors for weighing opinion
evidence, an opinion from a medical source who is
not an “acceptable medical source” may outweigh
the opinion of an “acceptable medical source,”
including the medical opinion of a treating
source. For example, it may be appropriate to
give more weight to the opinion of a medical
source who is not an “acceptable medical source”
if he or she has seen the individual more often
than the treating source and has provided better
supporting evidence and a better explanation for
his or her opinion. Giving more weight to the
opinion from a medical source who is not an
“acceptable medical source” than to the opinion
from a treating source does not conflict with the
treating source rules in 20 CFR 404.1527(d)(2)
and 416.927(d)(2) and SSR 96-2p, “Titles II and
XVI: Giving Controlling Weight To Treating Source
Medical Opinions.”
Id. at *5.

Accordingly, the ALJ should at least consider the same

factors he would consider when determining what weight to give to a
medical opinion from an “acceptable medical source.” Namely, the ALJ
should apply the following factors to determine the proper weight to
give the opinion:
(1) the length of the treatment relationship and
frequency of examination;
(2) the nature
relationship;

and

extent

of

the

treatment

(3) how much supporting evidence is provided;
(4) the consistency between the opinion and the record
as a whole;
(5) whether the treating physician is a specialist;
-28-

(6) any other factors brought to the attention of the
Commissioner.
20 C.F.R. §§ 404.1527(a)-(d) and 416.927(a)-(d); Phillips v. Astrue, 413
Fed. Appx. 878, 884 (7th Cir. 2010)(“In deciding how much weight to give
to opinions from these ‘other medical sources,’ an ALJ should apply the
same criteria listed in § 404.1527(d)(2).”).
The ALJ said the following with regard to Ellsworth:
Although the claimant’s mental health nurse is
not
an
“acceptable”
medical
source,
the
undersigned has considered the statements under
the criteria of 20 CFR 404.1527 and SSR 06-3p,
which essentially parallel the criteria for
giving differential weight to medical source
opinions. The undersigned gives some weight to
those opinions since she has first-hand knowledge
of the claimant (Exhibits 25F; 26F).
The
undersigned finds that overall the opinion was
not supported by the record as a whole. However,
the undersigned has accounted for the claimant’s
limitations in concentration by restricting her
to simple work with no fast pace and by avoiding
sudden or unpredictable work place changes in the
residual functional capacity above.
Likewise,
the restrictions in the residual functional
capacity on pace and work-place changes reflect
this opinion’s discussion of the claimant’s
reaction to stress.
(Tr. 25).

Grosjean’s counsel, after noting that the ALJ failed to

annunciate his reasons for finding that Ellsworth’s opinion was not
supported by the record as a whole, speculated based on the ALJ’s
opinion that his reasons may have been the following: (1)

Grosjean’s

activities of daily living remain intact from a mental standpoint
except for any physical limitations; (2) Grosjean treated at Park
Center but that treatment history is remote - she has not required
-29-

recent treatment; and (3) there is a lack of “probative evidence” that
Grosjean suffered two periods of decompensation.

(DE 19 at 17-18,

citing Tr. 25-26). Grosjean attempts to explain why each of the ALJ’s
apparent reasons is not supported by substantial evidence.

The ALJ,

however, has an obligation to annunciate his opinion in such a manner
that meaningful review is possible.

Bradley v. Barnhart, 175 Fed.

Appx. 87, 90 (7th Cir. 2006)(“the ALJ must at least minimally
articulate his analysis with enough detail and clarity to permit
meaningful appellate review.”). While the Court appreciates counsel’s
attempt to understand the basis for the ALJ’s opinion, this Court will
not be considering the reasons the ALJ might have proffered to support
his opinion - this Court will only consider the stated reasons.8 And,
in this instance, the ALJ’s cursory reasons are simply insufficient
to create the sort of logical bridge between the evidence and his
conclusion that is required.

See Phillips, 413 Fed. Appx. at 885;

Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000)(An ALJ must “build an
accurate and logical bridge from the evidence to his conclusion.”).
That Ellsworth’s opinion is “not supported by the record as a whole,”
without further explanation, is simply too vague to allow meaningful
appellate review, especially given the record before this Court, which

8

Just as the Court will not consider the reasons that Grosjean’s
counsel speculates the ALJ relied upon, the Court will not consider the
Commissioner’s response indicating that “[s]ince Dr. Wardell ... concluded
that Plaintiff had no more than moderate difficulty in functioning, the ALJ
had a reasonable basis for discounting Ellsworth’s more severe limitations.”
Reliance on reasons not annunciated by the ALJ violates SEC v. Chenery Corp.,
318 U.S. 80, 93-95 (1943).

-30-

is rife with evidence that is consistent with Ellsworth’s opinions.
There may be good reasons for giving Ellsworth’s opinion little
weight, but the ALJ has failed to annunciate them.

If Ellsworth’s

opinion were given greater weight, then a finding that the claimant
is disabled would be likely: Ellsworth opined that Grosjean would miss
in excess of three days of work per month, and the VE testified that
absenteeism at that rate would be inconsistent with competitive
employment.

(Tr. 79, 763).

The ALJ’s Consideration of Evidence from Dr. Hauschild
Grosjean also argues that the ALJ did not properly address the
opinions of an examining psychologist, Dr. Hauschild.

Dr. Hauschild

performed a psychological evaluation of Grosjean at the request of
Social Security.
a GAF of 47.

(Tr. 447).

(Tr. 452).

Dr. Hauschild found that Grosjean had

He reported problems similar to those noted

in psychological exams done at Park Center and in the report of
Ellsworth.
The ALJ summarized Dr. Hauschild’s findings, including his
assignment of a GAF of 47, but did not explain what weight he gave to
Dr. Hauschild’s opinions. Whatever weight he assigned to the opinion,
it was clearly not much. After his summary of Dr. Hauschild’s report,
the ALJ stated only the following:
Although the GAF scores are only an indication of
the claimant’s functioning at a particular time
and a subjective estimate of the claimant’s
status in the preceding two weeks [sic].
The
-31-

undersigned finds that the preponderance of the
GAF scores in the record above 50 support a
reasonable
inference
that
the
claimant
experienced
only
moderate
difficulties
in
functioning (DSM IV; Exhibits 17F; 20F).
In
addition, the undersigned finds that the GAF
scores take into account the extreme difficulties
that the claimant was having with parenting her
two children. Although this is a foundational
reason for treatment, it is not an issue that
would be considered for purposes of a Social
Security Administration determination.
(Tr. 25).
The ALJ’s finding that the preponderance of the GAF scores in the
record were above 50 is inaccurate.

In his report dated October 2,

2009, Dr. Hauschild assigned a GAF of 47. (Tr. 447-52).

Samant,

MSED, of Park Center issued an Initial Assessment and Plan dated June
21, 2010, assessing a GAF of 45. (Tr. 493-99). A treatment plan from
Park Center dated September 23, 2010, also included a GAF of 45. (Tr.
577-82).

A treatment plan from Park Center dated December 21, 2010

includes a GAF of 45.

(Tr. 556-61).

A treatment plan from Park

Center dated late March 2011 assigned a GAF of 51. (Tr. 705-10). Dr.
Wardell’s psychological testing report dated June 6, 2011, assigned
a GAF of 51.

(Tr.

675-682).

The Commissioner argues that the scores from the treatment plans
dated September 23, 2010, and March of 2011, are merely reproductions
of GAF scores from earlier assessments. Grosjean contests this. This
Court has no idea who is correct in this regard, but ultimately it

-32-

does

not

matter:

even

if

the

challenged

GAF

scores9

are

not

considered, at least three scores remain and only one of them is over
50. Because the ALJ’s conclusion, lacking in substance to begin with,
relied upon an inaccurate understanding of the factual record, the
Court cannot say that it is based on substantial evidence.
Lastly, the ALJ presumes that the GAF accounts for parenting
problems and that those parenting problems are irrelevant to the
determination of disability.

GAF scores are rated with respect to

psychological, social and occupational functioning. Surely parenting
falls within either the psychological or social categories, so the GAF
may indeed reflect parenting problems, but the ALJ assumes without
explaining that taking parenting problems into account would be
inappropriate.
Grosjean’s

There appears to be at least some connection between

various

mental

impairments

and

her

parenting

insufficiencies: Samant noted in his evaluation of Grosjean that she
was having difficulties with parenting due to limitations of her
mental health conditions, and an evaluation by Drs. Wardell and
Harrison found that Grosjean’s depression was impacting her parenting
in that she likely cannot generate the emotional and/or physical
energy needed to parent effectively.

9

(Tr. 493, 679).

Surely her

The Court presumes that the Commissioner is challenging the GAF score
of 45 reflected in the December 21, 2010, Park Center treatment plan as well
as the two other scores appearing in Park Center treatment plans. Although it
was not referenced explicitly, this is likely because Grosjean’s citation in
the opening brief erroneously referred to page 456 of the transcript rather
than 556, making locating the GAF score difficult until it was properly cited
to in the reply brief. (See DE 19 at 22, DE 29 at 6).

-33-

significant parenting problems at least suggest certain deficiencies
might carry over to the workplace.
According to the Commissioner, the ALJ correctly gave little
weight to Dr. Hauschild’s GAF score of 47 because the Commissioner has
determined that the GAF scale “does not have a direct correlation to
the severity requirements in [the Social Security Administration’s]
mental disorders listings.”

(DE 24 at 6, citing 65 Fed. Reg. 50,746,

50, 746-65 (Aug. 21, 2000)).

The Commissioner notes that, “[t]he GAF

scale merely gives a clinician’s opinion of a patient’s single worst
problem (symptom or limitation) at the time of the evaluation.”
24 at 7, citing DSM-IV-TR at 32-33).

(DE

While this may be true, the ALJ

did not make this argument, and the Commissioner’s decision to advance
it here therefore violates SEC v. Chenery Corp., 318 U.S. 80, 93-95
(1943).

As the Seventh Circuit noted in Martinez v. Astrue, this is

a continuing problem in Social Security cases.

Martinez v. Astrue,

Nos. 10-1957, 10-2603, 10-2080, 2011 WL 148810 at *1 (7th Cir. Jan 19,
2011)(“[I]n defiance of the principle of SEC v. Chenery Corp., 318
U.S. 80, 87-88, 63 S.Ct 454, 87 L.Ed. 626 (1943), the Justice
Department’s lawyers who defend denials of disability benefits often
rely heavily on evidence not (so far as appears) relied on by the
administrative law judge, and defend the tactic by invoking an
overbroad conception of harmless error.”)(quoting Spiva v. Astrue, 628
F.3d 346 (7th Cir. 2010)). The Seventh Circuit has recently described
the Commissioner’s continued violations of Chenery as nothing less

-34-

than professional misconduct for which sanctions are warranted. While
this Court will exercise its discretion by not imposing sanctions,
this is a serious violation which will not be condoned by the Court.
Putting aside the Chenery violation, Seventh Circuit precedent
suggests that GAF values have been viewed as one valuable indicator
of ability to work in the past, albeit a finding of disability should
not be based solely on a GAF score.

The DSM/IV-TR itself notes that

a GAF in the range of 41-50 would reflect serious symptoms or any
serious impairment in functioning, for example, being unable to keep
a job.

DSM-IV-TR at 34.

For example, in Campbell v. Astrue, the

Court noted 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.”

See Campbell v.

Astrue, 627 F.3d 299, 307 (7th Cir. 2010); see also Zoephel v. Astrue,
2013 WL 412608 (7th Cir. 2013).10

The ALJ’s Credibility Assessment
Grosjean argues that the ALJ improperly discredited her testimony
in violation of SSR 96-7p.

In light of the ALJ’s other errors, this

Court finds no compelling reason to explore this argument.

10

Once the

The Court notes that the most current version of the
Diagnostic and Statistical Manual no longer uses the GAF scoring
system. Caldwell v. Colvin, 2014 WL 4328317, at *5 n.2, No.
1:13-cv-01003-SEB-DML (Aug. 27, 2014). However, because it was
utilized by Grosjean’s health care providers, it remains relevant
here.
-35-

ALJ properly considers evidence from Ellsworth and Dr. Hauschild, he
will need to reassess his opinion regarding Grosjean’s credibility.
In doing so, the ALJ should be mindful not to “cherry-pick” the
evidence regarding Grosjean’s daily living activities.

Scott v.

Astrue, 647 F.3d 734 (7th Cir. 2011)(ALJ may not “cherry-pick” from
mixed results in order to support a denial of benefits).

CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED to the
Social Security Administration for further proceedings consistent with
this opinion pursuant to sentence four of 42 U.S.C. section 405(g).

DATED: September 12, 2014

/s/RUDY LOZANO, Judge
United States District Court

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