Pitman v. Commissioner of Social Security Administration

Filing 33

OPINION AND ORDER: The decision of the Commissioner is REMANDED for further proceedings consistent with this order. Signed by Magistrate Judge Andrew P Rodovich on 3/31/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MELISSA M. PITMAN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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Case No. 1:15-cv-356

OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Melissa M. Pitman, on November 24, 2015.2 For the
following reasons, the decision of the Commissioner is REMANDED.
Background
The plaintiff, Melissa Pitman, filed an application for Disability Insurance Benefits on
April 16, 2012, alleging a disability onset date of January 8, 2008. (Tr. 23). The Disability
Determination Bureau denied Pitman’s application on July 12, 2012, and again upon
reconsideration on August 23, 2012. (Tr. 23). Pitman subsequently filed a timely request for a
hearing on September 20, 2012. (Tr. 23). A hearing was held on October 1, 2013, before
Administrative Law Judge (ALJ) William D. Pierson, and the ALJ issued an unfavorable

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2
On February 8, 2016, this case was reassigned to Magistrate Judge Susan L. Collins upon the parties’
consent under 28 U.S.C. § 636(c), and then was reassigned to Magistrate Judge Andrew P. Rodovich. On August 5,
2016, the court ordered the parties to file any objection to Magistrate Judge Rodovich conducting all further
proceedings in this case. Because neither party filed an objection, this court finds that the parties voluntarily consent
to Magistrate Judge Rodovich under 28 U.S.C. § 636(c).

decision on April 22, 2014. (Tr. 23–46). Vocational expert (VE) Amy Kutschbach, Pitman, and
Pitman’s husband testified at the hearing. (Tr. 23). The Appeals Counsel denied review, making
the ALJ’s decision the final decision of the Commissioner. (Tr. 1–6).
The ALJ found that Pitman last met the insured status requirements of the Social Security
Act on June 30, 2012. (Tr. 25). At step one of the five step sequential analysis for determining
whether an individual is disabled, the ALJ found that Pitman had not engaged in substantial
gainful activity from her alleged onset date of January 8, 2008 through her date last insured of
June 30, 2012. (Tr. 26). At step two, the ALJ determined that Pitman had the following severe
impairments: cervical and lumbar degenerative disc disease, a history of asthma and bronchitis,
chronic obstructive pulmonary disease, a history or right (dominant) carpal tunnel release
surgery, left carpal tunnel syndrome, left shoulder pain, fibromyalgia, insomnia, sleep apnea,
obesity, inflammatory arthritis, major depressive disorder, and post-traumatic stress disorder.
(Tr. 26). The ALJ found that the above impairments had more than a minimal effect on Pitman’s
ability to work. (Tr. 26).
At step three, the ALJ concluded that Pitman did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments. (Tr.
26). The ALJ determined that there was no evidence that Pitman had an exacerbated symptom
or any additional impairment because of her obesity and that her obesity did not meet or equal a
listing when considered singly or in combination with her other severe impairments. (Tr. 26).
Specifically, the ALJ found that Pitman did not meet Listing 1.04, Disorders of the Spine,
because there was no evidence of spinal arachnoiditis to satisfy part B or lumbar spinal stenosis
that resulted in pseudo-claudication to satisfy part C. (Tr. 26-27). Also, the ALJ concluded that
she failed to meet Listing 1.02, Major Dysfunction of a Joint, because there was no evidence that

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she could not use her upper extremities for fine and gross movements. (Tr. 27). Pitman did not
meet Listing 3.02A, chronic pulmonary disease, because a May 2012 pulmonary function study
yielded a post medication reading of 1.08, which exceeded the required level for Pitman’s height.
(Tr. 27).
The ALJ has indicated that there was evidence that Pitman had symptoms under the
paragraph A criteria for mental impairments, but that she did not satisfy the paragraph B criteria
of listings 12.04 and 12.09, which required at least two of the following:
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation,
each of extended duration.
(Tr. 27). The ALJ defined a marked limitation as more than moderate but less than extreme and
repeated episodes of decompensation, each of extended duration, as three episodes within one
year or once every four months with each episode lasting at least two weeks. (Tr. 27).
Pitman’s testimony indicated that she was limited in the above areas, however, the ALJ
found that her allegations were not entirely credible. (Tr. 27). The ALJ found that Pitman’s
husband’s reports were generally credible. (Tr. 27). Pitman’s husband indicated that Pitman’s
physical conditions limited her daily activities. (Tr. 27). He reported that she played games on
the computer until her back started to hurt and that she was unable to maintain her personal care
due to back pain and shortness of breath. (Tr. 27). Also, he stated that she drove, shopped for
groceries with the assistance of her daughter, and sometimes dusted and did laundry. (Tr. 2728). However, she took breaks when she did the chores. (Tr. 28).
Pitman’s husband reported that she talked on the telephone once or twice a week, went
out to eat about once a month, and got along well with authority figures. (Tr. 28). He stated that
she could pay attention for 30 minutes and follow written instructions but at times she needed
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spoken instructions repeated. (Tr. 27-28). The ALJ assigned some weight to Pitman’s
husband’s reports. (Tr. 28). The ALJ concluded that he had a motivation in Pitman receiving
benefits but that his reports appeared honest and were not consistent with a finding of disability.
(Tr. 28).
The ALJ found that Pitman had mild restrictions in daily living activities. (Tr. 28). The
ALJ indicated that her limitations were primarily due to her physical condition. (Tr. 28). Pitman
testified that her children did the housework, dishes, and their own laundry. (Tr. 28). She stated
that she cooked, but that she prepared meals that did not require her to stand for long periods of
time. (Tr. 28). She reported that her daily activities included computer games, jigsaw puzzles,
and watching television. (Tr. 28).
The ALJ found that Pitman had mild limitations in her ability to maintain social
functioning. (Tr. 28). Pitman testified that she did not have friends, but that she had a good
relationship with her mother and occasionally went to lunch with her sister. (Tr. 28). The ALJ
indicated that she was reasonably conversant and easy to interview at the consultative
psychological evaluation. (Tr. 28). Also, the ALJ reported that Pitman interacted with
healthcare providers without difficulty. (Tr. 28).
The ALJ found that Pitman had moderate difficulties in concentration, persistence, or
pace. (Tr. 28). The ALJ indicated that Pitman had numerous psychosocial stressors and ongoing
pain, which caused distractions and created difficulties with sustained concentration and focus.
(Tr. 28). However, Pitman drove herself to her consultative psychological evaluation, arrived on
time, and understood most of the interview and examination questions. (Tr. 28). The examiner
noted that Pitman’s long-term memory was intact. (Tr. 28). Also, the examiner reported that
Pitman gave a reasonably detailed description of activities from the previous day, recalled five

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digits forward and four backward, her arithmetic skills were well-developed, and that she did not
have deficits in general knowledge, common sense, or verbal abstract reasoning. (Tr. 28). The
examiner rated Pitman’s overall level of functioning, Global Assessment of Functioning (GAF),
at 65. (Tr. 29). The ALJ determined that Pitman’s mental impairments did not cause at least two
marked limitations or one marked limitation and repeated episode of decompensation, each of
extended duration to satisfy paragraph B or paragraph C. (Tr. 29).
The ALJ then assessed Pitman’s residual functional capacity as follows:
through the last date insured the claimant has the residual functional
capacity to perform a limited range of sedentary work as defined in
20 CFR 404.1567(a): except she can sit for six hours and stand/walk
for two hours during an eight-hour workday, frequently bend and
stoop in addition to what was required to sit, and lift up to ten
pounds; she cannot use her upper extremities on a constant basis,
but can frequently reach and perform fine and gross manipulation
tasks; and as to postural changes she can occasionally kneel, crouch,
balance, and climb stairs and ramps, but can never climb ladders,
ropes, or scaffolds; with respect to her work environment, she can
tolerate less than occasional exposure to concentrated amounts of
fumes, dust, gases, and extreme cold; she retained the mental
residual functional capacity to perform simple routine repetitive
tasks; she can maintain a sufficient level of concentration to perform
simple tasks and can remember simple work-like procedures.
(Tr. 29-30). The ALJ read and considered all the evidence of record and determined the RFC
was more consistent with the medical findings, treatment records, and overall evidence in the
record than the allegations made by Pitman. (Tr. 30). The ALJ also considered attorney Shull’s
argument that there was good cause to reopen the unfavorable decision issued by the prior ALJ
on December 13, 2010. (Tr. 30). To support his argument, attorney Shull referenced Pitman’s
worsening depression and her new diagnoses of fibromyalgia, chronic obstructive pulmonary,
sleep apnea, insomnia, vitamin D deficiency, and borderline diabetes. (Tr. 30). The ALJ
concluded that new evidence existed, however, a detailed analysis showed that it was not

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material evidence. (Tr. 30). The ALJ determined that the new evidence was irrelevant and that
it did not show that the prior decision was contrary to the weight of the evidence. (Tr. 30).
The ALJ noted that the prior ALJ did not consider Pitman’s diagnosis of fibromyalgia but
that she did consider Pitman’s subjective complaints. (Tr. 31). The ALJ found that Pitman’s
subjective complaints of pain in multiple areas and other symptoms were not different in nature
and/or severity than the prior decision. (Tr. 31). After the December 23, 2010 decision, Dr.
Rudy Kachmann reported that while an MRI study of the cervical and lumbar areas showed a
lumbar degenerative disc disease it was nothing unusual. (Tr. 31-32). The ALJ noted that
MRI’s in August and November of 2012 revealed relatively unchanged findings. (Tr. 32).
Pitman’s diagnostic test results with respect to her left thumb, hands, wrists, left shoulder,
and feet failed to show any additional significant findings that required greater functional
limitations than those found in the prior decision. (Tr. 32). The prior ALJ considered Pitman’s
physical examinations by treating sources and a consultative examiner. (Tr. 32). The exams
showed: normal gait; no difficulty walking; mild halting features getting on and off the exam
table and out of a chair; limited range of motion in neck, back, hips, and ankles; intact motor
power in the extremities; tenderness in the thoracic and lumbar spines; and normal fine-finger
manipulation abilities. (Tr. 32).
The prior ALJ did not specifically reference the May 13, 2009, evaluation by Dr. Michele
Thurston, but the ALJ noted that it was in Pitman’s file. (Tr. 32). Dr. Thurston did not diagnose
Pitman with fibromyalgia, but she found tender points along the musculature in the paraspinal
muscles and muscle knots in the scapula bilaterally. (Tr. 32). The ALJ found that evaluations
after the December 13, 2010 decision did not reflect greater functional limitations. (Tr. 32). The
ALJ indicated that the examination by Family Associates in February and April of 2011 showed

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that Pitman walked without any disturbance of gait. (Tr. 32-33). At the February 2012 exam,
Dr. Kachmann noted that Pitman walked with a normal gait, but that she had tenderness in her
neck, shoulder, low back, and right/left buttock areas. (Tr. 33). Dr. Monica Reddy in September
of 2012 also reported full and painless range of motion of the lumbar, as well as the cervical
spine. (Tr. 33). From September 2012 to August 2013, Pitman showed moderate restriction in
lumbar range. (Tr. 33). The ALJ noted that beginning in 2012 Pitman’s condition worsened, yet
the records did not show greater functional limitations than those observed by the prior ALJ.
(Tr. 34).
The ALJ determined that the evidence after the December 13, 2010 decision did not show
that Pitman had any pulmonary symptoms or functional limitations greater than those already
considered. (Tr. 34). The previous evidence reflected a history of treatment for breathing
ailments in 2007, 2008, and 2009. (Tr. 34). The ALJ indicated that Pitman had exacerbations of
chronic obstructive pulmonary disease (COPD) in January, April, and November of 2011. (Tr.
34). Also, in May of 2012, a pulmonary function study showed severe obstructive lung defect
with mild response to bronchodilator that required hospitalization for exacerbation of COPD.
(Tr. 35).
Dr. Eustace Fernandes noted decreased breath sounds, diminished inspiratory excursion,
and increased AP diameter, but no use of accessory muscles of respiration. (Tr. 35). The ALJ
found Dr. Fernandes’ records noteworthy because they indicated that Pitman continued to smoke
and that she consistently denied chest pain or tightness. (Tr. 35). The ALJ found inconsistencies
in Dr. Fernandes’ treatment record. (Tr. 35). Also, the ALJ noted that Dr. Fernandes’ records
indicated that Pitman could do activities of daily living without assistance and housework
without limitations but that she was unable to participate in sports. (Tr. 35). The ALJ concluded

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that these assessments were self-reports made by Pitman. (Tr. 35). Dr. Fernandes referred
Pitman for pulmonary rehab. (Tr. 35). However, the ALJ noted that there was no record that she
followed his recommendation. (Tr. 35). The ALJ also noted examinations by other sources that
found Pitman was breathing easily and that her lungs were clear. (Tr. 35).
The prior ALJ addressed Pitman’s insomnia and sleep apnea. (Tr. 36). In her June 2009
consultative psychological evaluation, Pitman reported that she had difficulty falling and staying
asleep and that she slept for approximately five hours a night. (Tr. 36). The ALJ concluded that
the new evidence showed that Pitman had mild sleep apnea. (Tr. 37). On September 16, 2013,
Pitman reported that her treatment of Modafinil/Provigil was working well, but she made
inconsistent statements when she testified. (Tr. 37). She testified that despite taking the
medication she had to nap two to three days a week and that shortly after her naps she was ready
to go back to sleep. (Tr. 37). The ALJ found that Pitman’s sleep problems could be controlled
by proper treatment and that Pitman failed to show that her sleep problems were disabling for a
period of 12 months. (Tr. 37).
The ALJ also determined that there was no evidence to support that Pitman’s borderline
diabetes could not be controlled with proper treatment or that it was disabling for a period of 12
months. (Tr. 37). In May of 2013, Pitman had an elevated fasting insulin and was started on
Metformin. (Tr. 37). It was recommended that she have 1200 calorie diet and that she exercise
five times a week. (Tr. 37). The ALJ also concluded that there was no evidence that Pitman’s
vitamin D deficiency affected her ability to work nor did Pitman mention complications or a
need for more aggressive treatment. (Tr. 37).
Pitman testified that her hands cramped after five to ten minutes and that she could not
use them to handle items for more than 15 minutes out of an hour. (Tr. 37-38). Pitman indicated

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that she was unwilling to have surgery on her left hand because she claimed that her right carpal
tunnel surgery did not help. (Tr. 38). However, the ALJ reported that examinations by other
sources did not support her allegations. (Tr. 38). A June 2012 consultative exam noted normal
dexterity and normal muscle strength in all four extremities, as well as Dr. Lutz noted normal
power and strength in upper extremities. (Tr. 38). Dr. Reddy indicated that Pitman had no pain,
swelling, or crepitus in her fingers, wrists, and elbows. (Tr. 38). In June of 2012 and February
and August of 2013, Dr. Fernandes noted normal muscle strength and tone and normal power in
her upper extremities. (Tr. 38).
The ALJ indicated that the evidence also did not support Pitman’s complaints of
kaleidoscope vision followed by severe headaches. (Tr. 38). The ALJ found that the testing did
not reveal any abnormalities. (Tr. 38). The ALJ determined that the impairment was not severe
after considering Pitman’s limited treatment, the absence of significant abnormalities, and the
minimal effect it had on her ability to work. (Tr. 39).
The ALJ noted that Pitman indicated that her medications did not help. (Tr. 39). Yet, the
ALJ found that Dr. Lutz’s exams consistently showed that she was not in acute distress. (Tr. 39).
The ALJ concluded that her statements were generally unbelievable because it seemed unlikely
that she would continue treatment with Dr. Lutz for a year and a half without improvement. (Tr.
39). The ALJ also noted that Pitman’s testimony indicated that she had extremely limited
physical capabilities. (Tr. 39). She stated that after sitting an hour she needed to walk, but after
walking she could sit for only 15 to 20 minutes before needing to walk again. (Tr. 39). The ALJ
found that Pitman’s testimony was not fully credible. (Tr. 39). He noted that her testimony of
an inability to sit for short durations was contradicted by her ability to drive to the hearing, Fort
Wayne, the grocery store, and doctors’ appointments in her hometown. (Tr. 39-40).

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The ALJ found that the physicians’ recommendations to walk as much as possible,
continue increased activities, range of motion stretching, and aerobic activities were not
consistent with an inability to work or to do sedentary work activities. (Tr. 40). The ALJ also
noted that given Pitman’s allegations of totally disabling symptoms her treating doctors failed to
include any work restrictions in her treatment records. (Tr. 40). State agency medical
consultants determined that Pitman could perform medium work activities, however, the ALJ
assigned little weight to their opinions because they were outdated and inconsistent with the prior
decision that limited Pitman to light work. (Tr. 40).
The ALJ generally agreed with the prior ALJ’s decision but noted that Pitman’s
symptoms worsened in 2012. (Tr. 40). The ALJ found that diagnostic testing showed a mild
lumbar disc disease and a mild to moderate cervical disc disease. (Tr. 40). Therefore, in
considering those results and Pitman’s absence of functional limitations on physical examination,
the ALJ found that she was capable of sitting for six to eight hours during an eight hour
workday. (Tr. 40). Also, due to her obesity and shortness of breath, she was limited to two
hours standing and/or walking, occasional postural changes, and no climbing of ladders, ropes,
or scaffolds. (Tr. 40). However, she was capable of bending or stooping. (Tr. 40). The ALJ
accommodated Pitman’s shoulder and hand pain by not requiring her to lift/carry more than ten
pounds and limiting her to only frequent reaching and fine/gross manipulation tasks. (Tr. 40).
The ALJ limited Pitman to work that involved less than occasional exposure to extreme cold.
(Tr. 40). Also, to prevent exacerbations of the Pitman’s chronic pulmonary disease, she was
limited to less than occasional exposure to concentrated amounts of fumes, dust, and gases. (Tr.
40).

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The prior ALJ’s decision determined that Pitman’s mental condition was not severe. (Tr.
41). She accounted for limitations in her RFC by limiting Pitman to routine, repetitive tasks that
required a goal-oriented, but not a fast pace. (Tr. 41). The ALJ stated that he considered that
Pitman’s depression had worsened since the prior decision. (Tr. 41). However, he was in
general agreement and found that Pitman could perform simple, routine, and repetitive tasks and
maintain sufficient level of concentration to perform simple tasks and remember simple worklike procedures. (Tr. 41).
The ALJ considered Pitman’s testimony that her depression was worse after the prior
decision and before her treatment at the Bowen Center. (Tr. 42). The ALJ indicated that in
August 2011 Pitman complained that she wanted to cry all the time, but a September 2011 visit
to the emergency room indicated that she was cooperative and displayed a calm affect and
appropriate mood. (Tr. 42). Also in November 2011, she complained that she was crying,
irritable, tired, and not sleeping well. (Tr. 42). She was prescribed Lexapro and reported that the
medication was helping. (Tr. 42). The ALJ found that the medical facts and objective medical
findings were inconsistent with the allegations of severe and disabling limitations of function
lasting 12 months in duration despite treatment. (Tr. 42).
In June of 2012, Dr. Fernandes reported that Pitman was alert and oriented to person,
place, and time. (Tr. 42). Also in June 2012, consultative psychological evaluator Kenneth
Bundza, Ph.D., determined that Pitman did not have any marked cognitive or intellectual
impairments and rated her overall functioning at 65. (Tr. 42). The State agency psychologist
agreed with Dr. Bundza’s GAF rating and his mental status exam results, and concluded that
Pitman did not have a severe mental impairment. (Tr. 42). The ALJ noted that Pitman’s
depression did worsen in 2011 but that Pitman reported it lasted only six months. (Tr. 42).

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Treatment records after Pitman started at the Bowen Center indicated that she had no
deficiencies in personal care or social interaction. (Tr. 43). The records showed that she was
able to maintain good eye contact and communicate and that her speech had normal content,
comprehension, and tone. (Tr. 43). The ALJ found that Pitman’s therapy records indicated
worsening symptoms but that the treatment records failed to show that Pitman had greater
functional limitations than those given in the previous RFC. (Tr. 44).
At step four, the ALJ found that Pitman could not perform her past relevant work. (Tr.
45). Considering Pitman’s age, education, work experience, and RFC, the ALJ concluded that
there were jobs in the national economy that she could perform, including sorter (400 to 450 jobs
regionally, 20,000 jobs in Indiana, and 500,000 jobs nationally), assembler (100 to 150 jobs
regionally, 5,000 jobs in Indiana, and 230,000 jobs nationally), and a final assembler (200 to 240
jobs regionally, 10,000 jobs in Indiana, and 500,000 jobs nationally). (Tr. 45).
Discussion
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097
(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the
correct legal standards and supported his decision with substantial evidence.”). Courts have
defined substantial evidence as “such relevant evidence as a reasonable mind might accept to
support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28
L. Ed. 2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,

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217, 83 L. Ed. 2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ’s
decision if the ALJ supported his findings with substantial evidence and if there have been no
errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However,
“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Disability insurance benefits are available only to those individuals who can establish
“disability” under the terms of the Social Security Act. The claimant must show that she is
unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). The Social Security regulations enumerate the five-step sequential evaluation to
be followed when determining whether a claimant has met the burden of establishing disability.
20 C.F.R. §§ 404.1520. The ALJ first considers whether the claimant is presently employed or
“engaged in substantial gainful activity.” 20 C.F.R. §§ 404.1520(b). If she is, the claimant is
not disabled and the evaluation process is over. If she is not, the ALJ next addresses whether the
claimant has a severe impairment or combination of impairments that “significantly
limits . . . physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c); see
Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the
combined effects of the claimant’s impairments). Third, the ALJ determines whether that severe
impairment meets any of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404,
subpt. P, app. 1. If it does, then the impairment is acknowledged by the Commissioner to be
conclusively disabling. However, if the impairment does not so limit the claimant’s remaining
capabilities, the ALJ reviews the claimant’s “residual functional capacity” and the physical and

13

mental demands of her past work. If, at this fourth step, the claimant can perform her past
relevant work, she will be found not disabled. 20 C.F.R. §§ 404.1520(e). However, if the
claimant shows that her impairment is so severe that she is unable to engage in her past relevant
work, then the burden of proof shifts to the Commissioner to establish that the claimant, in light
of her age, education, job experience, and functional capacity to work, is capable of performing
other work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R.
§§ 404.1520(f).
First, Pitman has argued that the ALJ failed to incorporate his conclusion that Pitman had
moderate difficulties in concentration, persistence, or pace into the hypothetical question posed
to the VE. The ALJ’s RFC assessment and the hypothetical posed to the VE must incorporate all
of the claimant’s limitations supported by the medical record. Yurt v. Colvin, 758 F.3d 850, 857
(7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010));
Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ relies on testimony
from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the
claimant’s limitations supported by medical evidence in the record.”). That includes any
deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d at 857;
O’Connor-Spinner, 627 F.3d at 619 (“Among the limitations the VE must consider are
deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th
Cir. 2009) (indicating the hypothetical question “must account for documented limitations of
‘concentration, persistence, or pace’”) (collecting cases). The most effective way to ensure that
the VE is fully apprised of the claimant’s limitations is to include them directly in the
hypothetical. O’Connor-Spinner, 627 F.3d at 619.

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However, ALJs do not need to state explicitly “concentration, persistence, or pace” in the
hypothetical for all cases. Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619. Rather, a
court may assume a VE’s familiarity with a claimant’s limitations, despite deficiencies in the
hypothetical, when the VE independently reviewed the medical record or heard testimony
directly addressing those limitations. O’Connor-Spinner, 627 F.3d at 619; Simila v. Astrue, 573
F.3d 503, 521 (7th Cir. 2009). This exception does not apply if the ALJ poses a series of
increasingly restrictive hypotheticals because courts infer that the VE’s attention is focused on
the hypotheticals and not the record. O’Connor-Spinner, 627 F.3d at 619; Young v. Barnhart,
362 F.3d 995, 1003 (7th Cir. 2004). The ALJ posed a series of increasingly restrictive
hypotheticals. (Tr. 101-104). Therefore, this exception does not apply.
An ALJ’s hypothetical may omit “concentration, persistence, or pace” when it is clear
that the ALJ’s phrasing specifically excluded tasks that someone with the claimant’s limitations
could not perform. O’Connor-Spinner, 627 F.3d at 619. For example, courts have upheld
hypotheticals that restricted a claimant to low-stress work when the limitations were stress or
panic related. See Johansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002) (upholding
a hypothetical formulated in terms of “repetitive, low-stress” work because the description
eliminated positions likely to trigger symptoms of the panic disorder that originated the
claimant’s moderate limitations in concentration, persistence, or pace); Arnold v. Barnhart, 473
F.3d 816, 820, 823 (7th Cir. 2007) (upholding a hypothetical that restricted the claimant to lowstress, low-production work when stress-induced headaches, frustration, and anger caused the
claimant’s difficulties in concentration, persistence, or pace). The ALJ did not use the term lowstress nor are the ALJ’s limitations stress or panic related. Therefore, this exception does not
apply.

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Courts may uphold a hypothetical that does not mention “concentration, persistence, or
pace” when the underlying conditions were mentioned and the link between the underlying
condition and the concentration difficulties was apparent enough to incorporate those difficulties
by reference. See Simila, 573 F.3d at 521–22 (upholding the hypothetical but indicating the
failure to include the specific limitations was “troubling”). Generally, terms like “simple,
repetitive tasks” alone do not exclude from the VE’s consideration those positions that present
significant problems with concentration, persistence, or pace. Stewart, 561 F.3d at 684–85
(finding hypothetical limited to simple, routine tasks did not account for limitations of
concentration, persistence, or pace); see Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.
2003) (posing hypothetical as individual of borderline intelligence did not account for limitations
of concentration). The ALJ did not mention Pitman’s underlying conditions. Therefore, this
exception does not apply.
The ALJ found that Pitman had moderate difficulties in concentration, persistence, or
pace. (Tr. 28). The ALJ posed the following hypothetical to the VE:
Please assume an individual of the claimant’s age, education, and
past work. Such hypothetical individual is capable of sitting for
six to eight hours out of an eight hour work day, carrying, pushing
and pulling ten pounds throughout the work day. The individual’s
-- no ropes, ladders, or scaffolds, occasional stairs and ramps,
frequent bending and stooping in addition to what is already
required to sit. The individual is capable of frequent reaching and
frequent fine and gross manipulation with the upper extremities.
The individual is limited to simple, routine, repetitive tasks. The
individual can maintain the concentration required to perform
simple tasks, and can remember simple work like procedures. I’m
going to add to that the individual’s limited to more – to occasional
exposure – to less than occasional exposure to concentrated and
extreme amounts of fumes, dust, and gases as well as extreme cold.
Could such an individual be able to perform the past work as she
performed it or as it is otherwise performed in the national
economy?

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(Tr. 101-102). Based on the hypothetical, the VE determined that Pitman could not perform her
past relevant work but that she could perform work in the sedentary level. (Tr. 102).
The Commissioner has argued that the ALJ limited Pitman to simple, routine, and
repetitive tasks and remembering only simple work-like procedures and work where she could
maintain a sufficient level of concentration to perform simple tasks. Therefore, the
Commissioner contends that the ALJ went beyond a limitation to unskilled work or simple and
repetitive tasks. The Commissioner also has made arguments that pertained to the ALJ’s RFC.
However, Pitman’s contention is that the ALJ did not include moderate limitations in
concentration, persistence, or pace in his hypothetical to the VE.
The ALJ limited Pitman to simple, routine, and repetitive tasks. Courts repeatedly have
held terms like “simple, repetitive tasks” alone do not exclude from the VE’s consideration those
positions that present significant problems with concentration, persistence, or pace. Stewart, 561
F.3d at 684–85 (finding hypothetical limited to simple, routine tasks did not account for
limitations of concentration, persistence, or pace); see also Varga, 794 F.3d at 814.
However, the ALJ went further and found that Pitman could maintain the concentration
required to perform simple tasks and could remember simple work-like procedures. The ALJ’s
hypothetical failed to go beyond the limitation of simple, repetitive tasks. A hypothetical that
described an individual who could “remember and carry out unskilled task[s] without special
considerations” did not account for claimant's limitations in concentration, persistence, or pace.
Yurt v. Colvin, 748 F.3d 850, 855, 858–59 (7th Cir. 2014). Therefore, limiting Pitman to
remembering and carrying out simple tasks did not suffice. See Reed v. Colvin, 2016 WL
3537194, at *5 (N.D. Ind. 2016). Limitations to “simple, repetitive tasks” in the hypothetical
posed to VEs do not generally account for limitations in concentration, persistence, and pace.

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O'Connor–Spinner, 627 F.3d at 620 (where the claimant's concentration problems were
depression-related and a hypothetical for "repetitive tasks with simple instructions" was found
inadequate). The hypothetical failed to account for Pitman’s psychosocial stressors and ongoing
pain that the ALJ found caused her distractions and that created difficulties for her to sustain
concentration and focus. (Tr. 28).
Therefore, the ALJ erred on this issue. On remand, the ALJ should include Pitman’s
limitations in concentration, persistence, or pace in the hypothetical presented to the VE.
Next, Pitman has argued that the ALJ improperly evaluated the credibility of her
symptom testimony. This court will sustain the ALJ’s credibility determination unless it is
“patently wrong” and not supported by the record. Bates v. Colvin, 736 F.3d 1093, 1098 (7th
Cir. 2013); Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Prochaska v. Barnhart, 454
F.3d 731, 738 (7th Cir. 2006) (“Only if the trier of fact grounds his credibility finding in an
observation or argument that is unreasonable or unsupported . . . can the finding be reversed.”).
The ALJ’s “unique position to observe a witness” entitles his opinion to great deference. Nelson
v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.
2006). However, if the ALJ does not make explicit findings and does not explain them “in a way
that affords meaningful review,” the ALJ’s credibility determination is not entitled to deference.
Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). Further, “when such determinations rest
on objective factors or fundamental implausibilities rather than subjective considerations [such
as a claimant’s demeanor], appellate courts have greater freedom to review the ALJ’s decision.”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000); see Bates, 736 F.3d at 1098.
The ALJ must determine a claimant’s credibility only after considering all of the
claimant’s “symptoms, including pain, and the extent to which [the claimant’s] symptoms can

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reasonably be accepted as consistent with the objective medical evidence and other evidence.”
20 C.F.R. ' 404.1529(a); Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective
complaints need not be accepted insofar as they clash with other, objective medical evidence in
the record.”); Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). If the claimant’s
impairments reasonably could produce the symptoms of which the claimant is complaining, the
ALJ must evaluate the intensity and persistence of the claimant’s symptoms through
consideration of the claimant’s “medical history, the medical signs and laboratory findings, and
statements from [the claimant, the claimant’s] treating or examining physician or psychologist,
or other persons about how [the claimant’s] symptoms affect [the claimant].” 20 C.F.R.
' 404.1529(c); see Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005) (“These
regulations and cases, taken together, require an ALJ to articulate specific reasons for
discounting a claimant’s testimony as being less than credible, and preclude an ALJ from merely
ignoring the testimony or relying solely on a conflict between the objective medical evidence and
the claimant’s testimony as a basis for a negative credibility finding.”).
Although a claimant’s complaints of pain cannot be totally unsupported by the medical
evidence, the ALJ may not disregard an individual’s statements about symptoms solely based on
objective medical evidence. SSR 16-3p, at *53; see Moore v. Colvin, 743 F.3d 1118, 1125 (7th
Cir. 2014) (“‘[T]he ALJ cannot reject a claimant’s testimony about limitations on her daily

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The Social Security Administration updated its guidance about evaluating a claimant’s symptoms. See SSR
16-3p, 2016 WL 1119029 (effective March 28, 2016). SSR 16-3p superseded SSR 96-7p and removed the term
“credibility” from the Administration’s policies. SSR 16-3p at *1. The new policy clarifies that an ALJ should not
examine a claimant’s character similar to an adversarial proceeding when evaluating the claimant’s subjective
symptoms. SSR 16-3p at *1. Although SSR 16-3p post-dates the ALJ hearing in this case, a regulation that clarifies
rather than changes existing law is appropriate on appeal. Pope v. Shalala, 998 F.2d 473, 482–83 (7th Cir. 1993),
overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999). Because SSR 16-3p clarifies the
Administration’s policies, this court will evaluate the ALJ’s findings under the Administration’s new guidance. See
Roper v. Colvin, 2016 WL 3940035, at *3 (N.D. Ill. July 21, 2016) (finding it appropriate to consider the new
regulation on appeal).

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activities solely by stating that such testimony is unsupported by the medical evidence.’”)
(quoting Indoranto, 374 F.3d at 474); Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004)
(“If pain is disabling, the fact that its source is purely psychological does not disentitle the
applicant to benefits.”). Rather, if the
[c]laimant indicates that pain is a significant factor of his or her
alleged inability to work, the ALJ must obtain detailed descriptions
of the claimant’s daily activities by directing specific inquiries about
the pain and its effects to the claimant. He must investigate all
avenues presented that relate to pain, including claimant’s prior
work record, information and observations by treating physicians,
examining physicians, and third parties. Factors that must be
considered include the nature and intensity of the claimant’s pain,
precipitation and aggravating factors, dosage and effectiveness of
any pain medications, other treatment for relief of pain, functional
restrictions, and the claimant’s daily activities. (internal citations
omitted).
Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994); see Zurawski v. Halter, 245 F.3d 881,
887-88 (7th Cir. 2001).
In addition, when the ALJ discounts the claimant’s description of pain because it is
inconsistent with the objective medical evidence, he must make more than “a single, conclusory
statement . . . . The determination or decision must contain specific reasons for the weight given
to the individual’s symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the adjudicator
evaluated the individual’s symptoms.” SSR 16-3p, at *9; see Minnick v. Colvin, 775 F.3d 929,
937 (7th Cir. 2015) (“[A] failure to adequately explain his credibility finding by discussing
specific reasons supported by the record is grounds for reversal.”) (citations omitted); Zurawski,
245 F.3d at 887; Diaz v. Chater, 55 F.3d 300, 307–08 (7th Cir. 1995) (finding that the ALJ must
articulate, at some minimum level, his analysis of the evidence). He must “build an accurate and
logical bridge from the evidence to his conclusion.” Zurawski, 245 F.3d at 887 (quoting
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Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). A minor discrepancy, coupled with the
ALJ’s observations is sufficient to support a finding that the claimant was incredible. Bates, 736
F.3d at 1098. However, this must be weighed against the ALJ’s duty to build the record and not
to ignore a line of evidence that suggests a disability. Bates, 736 F.3d at 1099.
First, Pitman contends that the ALJ improperly faulted her for her respiratory problems.
The ALJ reported that Pitman had exacerbations of breathing problems but that they were short
lived and resolved with treatment. (Tr. 36). The ALJ noted that Dr. Fernandes’ records
indicated that Pitman continued to smoke despite shortness of breath and that she consistently
denied chest pain or tightness. (Tr. 35). Also, the ALJ found that the record did not indicate that
Pitman followed Dr. Fernandes’ referral for pulmonary rehabilitation. (Tr. 35). Pitman contends
that Dr. Fernandes reported that she was in compliance with her treatment. The ALJ failed to
question Pitman about her lack of treatment and thus must not draw inferences from this failure.
See Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (“[T]he ALJ ‘must not draw any
inferences’ about a claimant’s condition unless the ALJ has explored the claimant’s explanations
as to the lack of medical care.”) (quoting SSR 96-7p).
Pitman has argued that the ALJ cherry-picked evidence. Pitman indicated that the ALJ
failed to cite that she had made attempts to cut down on her cigarette smoking. The ALJ found
that Pitman’s diagnosis of asthmatic bronchitis was associated with tobacco abuse. (Tr. 34). The
Commissioner acknowledged that it was unreliable to rest a credibility determination on
Pitman’s use of tobacco. The ALJ only noted that Pitman continued to smoke and that smoking
exacerbated her symptoms. The Commissioner has argued that the ALJ did not find that if
Pitman stopped smoking her ability to work would be restored or that her statements were less
credible because she smoked.

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Next, Pitman has argued that her statement that the medications taken to control her sleep
problems worked well was not inconsistent with her testimony that she napped two or three days
a week. Pitman contends that it was improper for the ALJ to assume that since she stated that the
medications helped her that she no longer had problems. The Commissioner contends contrary
to Pitman’s argument that the ALJ discussed Pitman’s sleep apnea in his RFC finding and
restricted her to sedentary work with appropriate limitations in postural activities and
maintaining concentration. The ALJ listed Pitman’s sleep apnea as a severe impairment at step
two. (Tr. 26). Therefore, the ALJ found that Pitman’s sleep apnea placed limitations on her and
did not ignore evidence.
Pitman has argued that the ALJ failed to cite contrary evidence regarding problems
relating to her hands. She referred to a MRI taken in 2013 that showed a number of objective
problems with her hands. However, the ALJ did account for other evidence and considered
Pitman’s carpal tunnel syndrome a severe impairment at step two. Also, he discussed the nerve
conduction studies, which showed mild bilateral median neuropathy and placed a restriction on
fine and gross manipulation in the RFC. The ALJ credited Pitman’s complaints, therefore the
ALJ’s failure to reference the MRI taken in 2013 was inconsequential to the outcome of
disability.
The ALJ acknowledged Pitman’s diagnosis of respiratory issues, sleep apnea, and carpal
tunnel syndrome. He cited medical evidence that suggested Pitman was capable of only
sedentary work and placed restriction on her fine and gross manipulation in the RFC. Also, to
account for Pitman’s respiratory issues, the ALJ limited her work environment to tolerate less
than occasional exposure to concentrated amounts of fumes, dust, gases, and extreme cold. (Tr.

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30). Therefore, the ALJ accounted Pitman’s limitations and discussed her medical history at
length building a logical bridge from the evidence to his conclusion.
Pitman contends that the lack of clarity in the ALJ’s questioning undercut his finding that
her testimony about the effectiveness of her treatment was inconsistent. Pitman contends that the
ALJ failed to make clear in his questioning whether he was inquiring into the long term or short
term effects of her medications. The Commissioner has argued that the ALJ’s credibility
findings do not have to specify which statements were not credible. Rather, the ALJ concluded
that Pitman’s limiting effects of her impairments were not adequately reflected in the medical
opinion evidence, treatment history, and activities for the period in question.
The ALJ cited substantial evidence in the record which was inconsistent with Pitman’s
testimony. Pitman reported that Cymbalta was helpful, treatment with intramuscular morphine
sulfate and valium made her back pain feel much better, and Dr. Lutz’s exams from December
2011 to August 2013 reported her as pleasant and in no acute distress. (Tr. 39). The Seventh
Circuit has held that where an ALJ's credibility determination has evidentiary support, it is not
patently wrong. Crawford v. Astrue, 633 F.Supp.2d 618, 633–34 (N.D. Ill. 2009); See Jens v.
Barnhart, 347 F.3d 209, 213–14 (7th Cir. 2003) (where the ALJ's credibility determination was
supported by evidence in the record, it was not patently wrong even though the ALJ did not
specify which of claimant's statements were not credible, nor provide evidentiary support in his
decision).
Next, Pitman has argued that the ALJ inappropriately considered her activities of daily
living, like her ability to drive. The ALJ noted that Pitman was able to drive to Fort Wayne for
doctor appointments, the grocery store, local doctor appointments, and the hearing. (Tr. 39-40).
The ALJ indicated that Pitman’s ability to drive was inconsistent with her extremely limited

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capacities for sitting. (Tr. 39-40). Instead of making assumptions, the ALJ should have inquired
into this issue at the hearing. The ALJ failed to explain how the ability to drive undermined her
medical complaints.
The ALJ found that Pitman’s physicians’ recommendations for treatment were not
consistent with her alleged significant limitations. (Tr. 40). The ALJ noted that Pitman’s
doctors recommended that she walk as much as possible, bike, and swim and that she do aerobic
exercises, tai chi, and yoga. (Tr. 40). The ALJ concluded that if Pitman was as limited as she
alleged her doctors would not recommend such a rigorous regimen of activities. Pitman has
argued that the treatment suggested by her doctors was appropriate for her fibromyalgia. The
regulations expressly permit the ALJ to consider a claimant's treatment history. 20 C.F.R. §
404.1529(c)(3)(v). Because the ALJ’s are given deference, the court will not question the ALJ’s
finding that Pitman’s treatment was rigorous given her alleged impairments. See Simila v.
Astrue, 573 F.3d 503, 519 (7th Cir. 2009). Therefore, the ALJ reasonably found that these
activities were inconsistent with Pitman’s testimony and her claims of limitations.
Pitman has argued that since she was unemployed medical records will be devoid of work
restrictions. The absence of major work restrictions in Pitman’s medical records does not
illuminate the question of her credibility because she was unemployed throughout the time in
question. Eskew v. Astrue, 462 Fed.Appx 613, 616 (7th Cir. 2011) (unpublished). Finally,
Pitman has argued that the ALJ failed to consider her good work history. The Commissioner
correctly has argued that work history was just one factor among many and it was not
dispositive. Shumaker v. Colvin, 632 Fed.Appx. 861, 867 (7th Cir. 2015).
Pitman has pointed to errors in the ALJ’s credibility analysis, however, it was not
patently wrong. Therefore, the ALJ has built an accurate and logical bridge from the evidence to

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his credibility finding. The ALJ properly consider Pitman’s subjective complaints and provided
specific evidence to undermine the credibility of those complaints. He based his analysis on
multiple factors as the regulations require. However, since this matter is being remanded on a
separate issue, the ALJ can explain his credibility determination on remand.
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this order.
ENTERED this 31st day of March, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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