Edmondson v. Commissioner of Social Security

Filing 24

OPINION AND ORDER. This case is REMANDED to the Commissioner of Social Security for proceedings consistent with this Opinion. Signed by Judge William C Lee on 10/28/14. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AMY EDMONDSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL NO. 1:13cv313

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for
Disability Insurance Benefits (DIB) as provided for in the Social Security Act. 42 U.S.C. §
405(g). Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the
[Commissioner] shall file a certified copy of the transcript of the record including the evidence
upon which the findings and decision complained of are based. The court shall have the power
to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the [Commissioner], with or without remanding the case for a
rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by
substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g). The law provides that an
applicant for disability insurance benefits must establish an "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than 12 months. . .
." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is "an
impairment that results from anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C.
§423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must be
shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial
gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945
(1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the
burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v.
Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity since February 27,
2008, the alleged onset date (20 CFR 404.1571 et seq.).

2

3.

The claimant has the following severe impairments: obesity, bi-polar disorder,
post traumatic stress disorder post childhood abuse, schizoaffective disorder, left
knee issue, and degenerative disc disease (20 CFR 404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),04.1525 and 404.1526).

5.

After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except the claimant could only occasionally climb ladders, ropes,
scaffolds, ramps or stairs, and could only occasionally balance, stoop, kneel,
crouch and crawl. Additionally, the claimant must avoid concentrated exposure
to moving machinery and exposure to unprotected heights. Moreover, the
claimant is limited to simple, routine and repetitive work performed in a work
environment free of fast-paced production requirements and only occasional
interactions with coworkers, but could work around coworkers throughout the day
without any tandem tasks. Additionally, work would need to be isolated from the
general public with only occasional interactions with supervisors. Finally, the
claimant would need to sit or stand alternatively, but would not be off task more
than 10% of the work period.

6.

The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7.

The claimant was born on August 2, 1983, and was 24 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date. The
claimant subsequently changed age category to closely approaching advanced age
(20 CFR 404.1563).1

8.

The claimant has a limited education and is able to communicate in English (20
CFR 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled.” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national

1

This is incorrect. A person “closely approaching advanced age” is a person aged 5054. As Plaintiff was born in 1983, she is currently only 31 years old, which puts her in the
“younger person” age category. 20 C.F.R. Section 404.1563.
3

economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a).
(Tr. 20-34).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
insurance benefits. The ALJ’s decision became the final agency decision when the Appeals
Council denied review. This appeal followed.
Plaintiff filed her opening brief on June 9, 2014. On August 20, 2014, the defendant
filed a memorandum in support of the Commissioner’s decision, and on August 30, 2014,
Plaintiff filed her reply. Upon full review of the record in this cause, this court is of the view
that the ALJ’s decision should be remanded.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287,
2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized
that test as follows:
The following steps are addressed in order: (1) Is the claimant presently
unemployed? (2) Is the claimant's impairment "severe"? (3) Does the
impairment meet or exceed one of a list of specific impairments? (4) Is the
claimant unable to perform his or her former occupation? (5) Is the claimant
unable to perform any other work within the economy? An affirmative answer
leads either to the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops the inquiry and
leads to a determination that the claimant is not disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160,
162n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the
nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative
inquiry.
Plaintiff protectively filed an application for Disability Insurance Benefits on November
4

29, 2010, alleging disability beginning on October 15, 2008. Plaintiff and a vocational expert
testified at an administrative hearing before ALJ Robert Butler. On July 20, 2012, the ALJ
determined that Plaintiff was not disabled because she retained the residual functional capacity
(RFC) to perform a significant number of light level jobs in the national economy. On August
30, 2013, the Appeals Council denied Plaintiff’s request for a review of the ALJ’s decision,
thereby making the ALJ’s decision the final decision of the Commissioner.
Plaintiff was 28 years old on the date of the ALJ’s decision (Tr. 35, 189). She had a high
school education (Tr. 233), and past relevant work experience as a health aide (semi-skilled,
medium as generally performed, but light as performed by Plaintiff) (Tr. 103-04). After her
alleged disability onset date, from 2008 through 2010, Plaintiff worked as a cashier at a grocery
store (light level, semi skilled), albeit not at the substantial gainful activity level (Tr. 20, 104).
Plaintiff’s medical history is as follows. On April 15, 2011, her primary care physician,
Lisa N. Booth, M.D., documented left knee pain and noted that Plaintiff was ambulating with a
cane. On April 18, 2011, x-rays revealed minimal patellofemoral degenerative change. On May
12, 2011, an MRI revealed a small Baker’s cyst and joint effusion. On May 18, 2011, Dr. Booth
referred her to an orthopaedic physician, Karl T. Wagner, M.D., for further evaluation. Dr. Wagner

reviewed the MRI, found peripatellar tenderness, and diagnosed patellar chondromalacia. In
response, Dr. Wagner prescribed pain medication (Ultram), an anti-inflammatory (Mobic), and
physical therapy. Plaintiff pursued physical therapy for her left knee issues from May 25, 2011
to June 22, 2011. On September 12, 2011, Dr. Booth revised the medication regimen to Flexeril,
Vicodin, and Mobic. On November 8, 2011, Dr. Booth renewed the diagnosis of left knee pain
and noted that some days Plaintiff continued to have trouble ambulating. As a result, Dr. Booth

5

maintained the Mobic prescription and referred her back to Dr. Wagner.
On May 22, 2009, Dr. Booth identified a keloid scar on Plaintiff’s neck. On July 20,
2009, Dr. Booth noted that Plaintiff experienced neck pain and could not move her right arm.
Dr. Booth then diagnosed cervicalgia, took her off work, and prescribed Naprosyn, Flexeril, and
Darvocet. On August 21, 2009, an MRI of the cervical spine showed mild posterior ligamentous
hypertrophy at C5-C6 and C6-C7. On August 21, 2009, an MRI of the thoracic spine showed
atypical hemangioma at T-1 or T-4, and mild right posterior vertebral spurring at T-1 and T-2.
On August 21, 2009, an MRI of the lumbar spine showed a broad-based central L4-L5
disk protrusion with mild bilateral facet arthropathy, and an L5-S1 bulge with mild left-sided
foraminal stenosis and mild to moderate bilateral facet arthropathy. On August 28, 2009, Dr.
Booth again diagnosed cervicalgia and back pain.
On January 13, 2011, the consultative examiner identified lumbar range of motion
deficits in forward flexion and extension.
On April 15, 2011, Dr. Booth renewed the diagnosis of cervicalgia and back pain, and
prescribed Naprosyn and Flexeril. On August 22, 2011, Dr. Booth documented that Plaintiff’s
low back pain radiated into both thighs. Dr. Booth also elicited a positive straight leg raising test
bilaterally and noted that pain limited Plaintiff’s range of motion. Consequently, Dr. Booth
ordered another lumbar MRI. On August 25, 2011, Plaintiff underwent a lumbar MRI that
revealed L4-L5 broad-based central disk protrusion with mild disk space narrowing, a posterior
tear of the annulus fibrosis, mild ventral impression of the thecal sac, and mild bilateral
degenerative facet arthropathy; L5-S1 broad-based disk bulge with mild left foraminal stenosis,
mild bilateral recess stenosis, and degenerative facet arthropathy.

6

After evaluating the MRI, Dr. Booth referred Plaintiff to Robert M. Shugart, M.D., an
orthopaedic surgeon. On September 9, 2011, Dr. Shugart examined Plaintiff, recommended
conservative care, and set up an L4-L5 epidural injection. On September 12, 2011, Dr. Booth
renewed the Flexeril, Vicodin, and Mobic prescriptions. On October 5, 2011, David S.
Stensland, M.D., an orthopaedic surgeon, diagnosed a lumbar herniated nucleus pulpolsus and
administered an L4-L5 interlaminar epidural injection. On November 30, 2011, Dr. Stensland
again diagnosed a lumbar herniated nucleus pulpolsus and administered another L4-L5
interlaminar epidural injection. Plaintiff then pursued physical therapy for her back issues from
December 28, 2011 to March 5, 2012.
On March 10, 2005, a mental health therapist advised Plaintiff that Seroquel could cause
weight gain. On June 29, 2011, her weight was 280 pounds and her BMI was 41. On July 7, 2011,
her weight was 281 pounds. On August 22, 2011, Dr. Booth communicated to Plaintiff that weight
loss would help with back and pain. On September 9, 2011, her height was 5’7” and her weight was
265 pounds.

On June 2, 2004, Northeastern Center staff recorded bipolar disorder and acute stress
disorder and assigned Plaintiff a Global Assessment of Functioning (GAF) score of 50.
From March 10, 2005 to April 27, 2006, Plaintiff received mental health services from Saint
Joseph County (Michigan) Community Mental Health Services. During this treatment period,
Plaintiff’s GAF scores ranged from 40 to 45. Her psychiatrist variously diagnosed her with post
traumatic stress disorder (PTSD), binge eating disorder, major depressive disorder, and noted a
history of alcohol abuse, history of sexual abuse, and history of attention deficit hyperactivity
disorder (ADHD). The treatment regimen included medication management and outpatient

7

therapy. Her psychiatrist variously prescribed Zonegram, Abilify, Seroquel, Paxil, and Lexapro.
On December 23, 2008, consultative examiner, Vijay G. Kamineni, M.D., diagnosed
generalized anxiety disorder and major depressive disorder.
From December 29, 2010 to April 5, 2012, Plaintiff received mental health services from
Northeastern Center. During this treatment period, Plaintiff’s GAF scores ranged from 38 to 52.
Her psychiatrist, Sylvia Rutten, M.D., variously diagnosed her with PTSD, schizoaffective
disorder, and avoidant personality disorder. The treatment regimen included medication
management, individual therapy, dialectical behavior therapy, group therapy, and individual
ADL training in the home. Her psychiatrist prescribed Prazosin and Saphris.
On January 19, 2011, a consultative psychologist, Dan L. Boen, Ph.D., conducted a
Mental Status Examination. His diagnostic impressions encompassed major depressive disorder
and social phobia and a GAF score of 55.
On January 31, 2011, as a part of the “Psychiatric Review Technique”, a DDB nonexamining consultative psychologist, F. Kladder, Ph. D., diagnosed Plaintiff with major
depressive disorder and social phobia and identified moderate limitations in activities of daily
living, moderate limitations in maintaining social functioning, mild limitations in maintaining
concentration, persistence and pace, and no episodes of decompensation. This same consultative
psychologist also completed the Mental Residual Functional Capacity Assessment (MRFCA),
which noted the following mental health functional deficits: (1) moderate limitation in the ability
to understand and remember detailed instructions; (2) moderate limitation in the ability to carry
out detailed instructions; (3) moderate limitation in the ability to maintain attention and
concentration for extended periods; (4) moderate limitation in the ability to complete a normal

8

workday and workweek without interruptions from psychologically based symptoms; (5)
moderate limitation in the ability to perform at a consistent pace without an unreasonable
number and length of rest periods; and (6) moderate limitation in the ability to accept
instructions and respond appropriately to criticism from supervisors.
On April 5, 2012, the treating psychiatrist, Dr. Rutten, completed a mental residual
functional capacity assessment and arrived at the following limitations: (1) moderate limitation
in the ability to remember locations and work-like procedures; (2) moderate limitation in the
ability to understand and remember detailed instructions; (3) moderate limitation in the ability to
carry out detailed instructions; (4) moderate limitation in the ability to sustain an ordinary
routine without special supervision; (5) moderate limitation in the ability to work in coordination
with or proximity to others without being distracted by them; (6) moderate limitation in the
ability to make simple work related decisions; (7) moderate limitation in the ability to complete a
normal workday and workweek without interruptions from psychologically based symptoms; (8)
moderate limitation in the ability to perform at a consistent pace without an unreasonable
number and length of rest periods; (9) moderate limitation in the ability to interact appropriately
with the general public; (10) moderate limitation in the ability to ask simple questions or request
assistance; (11) moderate limitation in the ability to accept instruction and to respond
appropriately to criticism from supervisors; (12) moderate limitation in the ability to get along
with co-workers or peers without distracting them or exhibiting behavioral extremes; (14)
moderate limitation in the ability to maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; (15) moderate limitation in the ability to respond to
changes in work setting; (16) moderate limitation in the ability to be aware of normal hazards

9

and take appropriate precautions; (17) marked limitation in the ability to travel in unfamiliar
places or use public transportation; and (18) moderate limitation in the ability to set realistic
goals or make plans independent of others.
In support of remand, Plaintiff first argues that the ALJ’s sit/stand limitation is defective
because the frequency of position changes is not enumerated as required by relevant case law.
The ALJ’s RFC contains the following limitation: “[T]he claimant would need to sit or stand
alternatively...” Plaintiff contends that this sit/stand limitation does not possess the required
specificity. It must either enumerate the frequency of position changes or it must specify that the
claimant is able to choose to sit or stand when the claimant feels it necessary. In this regard, the
limitation must clearly indicate that the worker has control over when to initiate a position
change. As the Seventh Circuit stated in Arnett v. Astrue, 676 F.3d 586 (7th Cir 2012):
An RFC must be specific about the required frequency of standing and sitting.
SSR 96–9p, 1996 SSR LEXIS 6, at *18–19 (July 2, 1996). Arnett's RFC provides
that she must be able to alternate between sitting and standing “throughout the
workday.” This does not specify a particular frequency, and does not require that
Arnett be able to choose to sit or stand when she feels it is necessary. See
Ketelboeter v. Astrue, 550 F.3d 620, 626 (7th Cir.2008) (concluding that RFC
specifying applicant be able to alternate between sitting and standing at
applicant's option was adequate); Schmidt v. Astrue, 496 F.3d 833, 845 (7th
Cir.2007).
In the present case, the ALJ did not clearly indicate that it is the Plaintiff who has control over
when to initiate a position change. The ALJ’s use of the term “alternatively” provides no
clarification because sit/stand inherently involves alternating. Thus Plaintiff concludes that the
RFC does not satisfy the requirements of Ketelboeter and Arnett, supra.
The Commissioner, however, asserts that the ALJ explicitly quantified the sit/stand
option in his RFC finding wherein the ALJ found that Plaintiff “would need to sit or stand

10

alternatively, but would not be off task for more than 10% of the work period.” The
Commissioner argues that the ALJ specifically quantified that Plaintiff could alternate her need
to sit or stand within the parameters of not being off task for more than 10% of the eight hour
work period. The Commissioner explains that allowing up to 10% of the workday for alternating
Plaintiff’s position translates to six minutes per hour during which time she could alternate her
position, which would be in addition to her normal work breaks and lunch time.
The Commissioner argues that, additionally, the vocational expert fully understood the
parameters of the sit/stand option the ALJ contemplated. The Commissioner points out that in
response to a hypothetical question posed by the ALJ, the vocational expert testified that there
would still be thousands of light unskilled jobs available that a person could perform if that
person could sit or stand alternatively given the person was not off task more than 10% of the
work period (Tr. 108-09). See Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003) (the
hypothetical question need only contain a description of limitations supported by the medical
record); Ehrhart v. Sec'y of Health and Human Servs., 969 F.2d 534, 540-41 (7th Cir. 1992)
(vocational expert testimony constitutes substantial evidence for finding as to what jobs a
claimant can perform with her particular limitations).
However, in reply, the Plaintiff still contends that the sit/stand frequency requirement is
absent from the ALJ’s RFC. Plaintiff explains that the Commissioner essentially maintains that
an “on or off” task percentage goal is the same as a frequency requirement. Plaintiff argues that
the Commissioner is incorrect. Plaintiff notes that, conceivably, a worker could meet a
designated task percentage goal with a near infinite variety of sit/stand frequencies. However,
whether a worker could meet a particular task percentage goal with a particular sit/stand

11

frequency requires the opinion of a vocational expert. In order to obtain that expert opinion, the
RFC in a hypothetical must contain both the particular sit/stand frequency and the particular task
percentage goal. As the ALJ omitted the sit/stand frequency, Plaintiff requests a remand.
This Court agrees with Plaintiff that the ALJ’s RFC analysis and hypothetical fail to meet
the requirements set forth in Arnett and Ketelboeter. Accordingly, this case will be remanded on
that basis.
Next, the Plaintiff argues that the ALJ failed to incorporate into the RFC all the limiting
effects related to her mental health impairments and failed to consider the combined impact of all
the impairments. An ALJ must evaluate all relevant evidence when determining an applicant's
RFC, including evidence of impairments that are not severe. 20 C.F.R. § 404.1545(a). Moreover,
an ALJ may not ignore entire lines of evidence. See Zurawski v. Halter, 245 F.3d 881, 888 (7th
Cir. 2001). Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.2008). When explaining why, in
assessing the RFC, the ALJ “must consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe,’” SSR 96-8p explains:
While a “not severe” impairment(s) standing alone may not significantly
limit an individual's ability to do basic work activities, it may-when considered with limitations or restrictions due to other
impairments--be critical to the outcome of a claim.
SSR 96-8p, 1996 WL 374184 at *5.
In the present case, Dr. Rutten opined that Plaintiff would be limited in the following
ways not included in the ALJ’s RFC: (1) marked limitation in the ability to travel in unfamiliar
places or use public transportation; (2) moderate limitation in the ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness; (3) moderate
limitation in the ability to accept instruction and to respond appropriately to criticism from

12

supervisors; (4) moderate limitation in the ability to sustain an ordinary routine without special
supervision; (5) moderate limitation in the ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms; and (6) moderate limitation in the
ability to perform at a consistent pace without an unreasonable number and length of rest
periods.
The ALJ did not explain in his decision why he rejected these limitations, while
including the vast majority of Dr. Rutten’s other limitations. Plaintiff argues that the ALJ
violated the prohibition against “picking and choosing” only the evidence that supports an ALJ’s
position. See Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.1984); Garfield v. Schweiker,
732 F.2d 605, 609 (7th Cir.1984); Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir.2000). The ALJ
analyzed Dr. Rutten’s opinion as follows:
I find Dr. Rutten’s opinion very credible and give it significant weight. Dr. Rutten
had been treating the claimant for a while and was familiar with the claimant’s
symptoms, treatment, and limitations. Dr. Rutten’s opinion was well supported by
medically acceptable clinical and laboratory diagnostic techniques and was
consistent with other evidence in the claimant’s case record.
Plaintiff argues that it makes no sense that the ALJ excluded any part of Dr. Rutten’s
opinion. Plaintiff claims that this lapse in logic also suggests that the ALJ failed to build an
accurate and logical bridge between the evidence and the result. See Sarchet v. Chater, 78 F.3d
305, 307 (7th Cir.1996).
Plaintiff’s mental health limitations as set forth by Dr. Rutten contain a supervision
paradox. Plaintiff requires special supervision to sustain an ordinary routine, but—at the same
time---Plaintiff possesses reduced ability to accept instruction from supervisors and to respond
appropriately to criticism from supervisors. An employee cannot both be left alone and specially

13

supervised, but that is what Plaintiff requires. Plaintiff argues that the excluded limitations set
forth above also indicate that Plaintiff is much more limited than the ALJ’s RFC indicates.
Plaintiff also contends that the ALJ erred in not according controlling weight to Dr.
Rutten’s opinion, as he was the treating psychiatrist. A treating doctor's opinion receives
controlling weight if it is “well-supported” and “not inconsistent with the other substantial
evidence” in the record. 20 C.F.R. § 404.1527(d)(2); see Punzio v. Astrue, 630 F.3d 704, 710
(7th Cir.2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010). An ALJ must offer “good
reasons” for discounting the opinion of a treating physician. Martinez v. Astrue, 630 F.3d 693,
698 (7th Cir.2011); Campbell, 627 F.3d at 306. In the present case, the ALJ’s endorsement of
Dr. Rutten’s opinion, referred to above, explicitly acknowledges that Dr. Rutten’s opinion is
consistent with the other evidence of record. Plaintiff argues that under these circumstances, case
law and Social Security Regulations required the ALJ to give Dr. Rutten’s opinion controlling
weight and to include all its limitations in a hypothetical at the hearing and in the RFC contained
in the decision.
In response, the Commissioner states that the ALJ was not required to incorporate Dr.
Rutten’s limitations verbatim into his RFC finding. The Commissioner asserts that the ALJ
formulated his mental RFC finding based upon the opinion of Dr. Rutten and of the other
medical sources of record, in addition to other evidence of Plaintiff’s mental functioning ability.
The Commissioner argues that a commonsense reading of the ALJ’s RFC finding shows that the
RFC finding is consistent with and accounted for Dr. Rutten’s limitations. The ALJ notes that
the ALJ found Plaintiff could perform simple, routine and repetitive work performed in an
environment free of fast-paced production requirements and involving only simple work related

14

decisions and routine work place changes (Tr. 25). Plaintiff could have only occasional
interaction with co-workers, but could work around co-workers throughout the day without any
tandem tasks (Tr. 25). Additionally, work would need to be isolated from the general public with
only occasional interactions with supervisors (Tr. 25). The Commissioner argues that the
moderate limitation in the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms was accommodated by restricting Plaintiff
to only simple, routine and repetitive work performed in an environment free of fast-paced
production requirements and involving only simple work related decisions and routine work
place changes (Tr. 25). The social limitations of no contact with the public and only occasional
contact with others accounted for the moderate limitation in the ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness (Tr. 25).
Plaintiff’s moderate limitation in the ability to accept instruction and to respond appropriately to
criticism from supervisors was accommodated by limiting Plaintiff to only occasional
interactions with supervisors (Tr. 25). Plaintiff’s moderate limitation in the ability to sustain an
ordinary routine without special supervision was accommodated by work involving only simple
work-related decisions and routine work place changes (Tr. 25). The Commissioner argues that,
contrary to Plaintiff’s assertions, Dr. Rutten’s opinion did not suggest Plaintiff “requires special
supervision.” Rather, Dr. Rutten opined Plaintiff would have a moderate limitation in the ability
to sustain an ordinary routine without special supervision, but did not opine that she required
special supervision (Tr. 608). In addition, Plaintiff’s moderate limitation in the ability to perform
at a consistent pace without an unreasonable number and length of rest periods was
accommodated by the ALJ’s restriction to an environment free of fast-paced production

15

requirements (Tr. 25). As for the assessed marked limitation in the ability to travel in unfamiliar
places or use public transportation, none of the jobs the vocational expert identified as consistent
with the ALJ’s RFC finding required travel in unfamiliar places or using public transportation
(Tr. 108-09). See U.S. Department of Occupational Titles (DOT), mail sorter # 209.687-026;
photo copy machine operator # 207.685-014; cleaner # 323.687-014, vol. 1 (4th Ed. 1991). The
Commissioner concludes that a logical reading of the ALJ’s mental RFC findings shows that Dr.
Rutten’s assessed limitations were accounted for in the ALJ’s mental RFC finding.
While the Commissioner may be correct that perhaps the majority of Plaintiff’s mental
limitations were accounted for in the ALJ’s RFC finding, the court finds that the RFC finding is,
at best, somewhat ambiguous. This Court cannot be certain that the ALJ or the vocational expert
properly considered all of Plaintiff’s limitations. And, in fact, it is confusing to the Court that
the ALJ would expect anyone with Plaintiff’s myriad physical and mental health problems and
limitations to be able to perform substantial gainful activity on a regular basis. Therefore, as the
case is being remanded for a further look at the sit/stand frequency issue, the Court will also
remand for further proceedings with respect to the mental health component of the RFC finding.
Conclusion
On the basis of the foregoing, this case is hereby REMANDED to the Commissioner for
proceedings consistent with this opinion.
Entered: October 28, 2014.
s/ William C. Lee
William C. Lee, Judge
United States District Court

16