Tucker v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Andrew P Rodovich on 3/29/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CHRISTINA M. TUCKER,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Case No. 1:16-cv-4
OPINION AND ORDER
This matter is before the court on the petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Christina M. Tucker, on January 4, 2016.2 For the following
reasons, the decision of the Commissioner is AFFIRMED.
The plaintiff, Christina M. Tucker, filed an application for Supplemental Security Income
on December 18, 2012, alleging a disability onset date of October 1, 2012. (Tr. 10). The
Disability Determination Bureau denied Tucker’s application on April 9, 2012, and again upon
reconsideration on June 12, 2013. (Tr. 10). Tucker subsequently filed a timely request for a
hearing on July 10, 2013. (Tr. 10). A hearing was held on October 2, 2014, before
Administrative Law Judge (ALJ) Terry Miller, and the ALJ issued an unfavorable decision on
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).
On April 1, 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 October 12, 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).
December 17, 2014. (Tr. 10-26). Vocational expert (VE) Sharon D. Ringenberg, Tucker, and
Tucker’s mother, Anne Johnson, testified at the hearing. (Tr. 10). The Appeals Council denied
review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-6).
At step one of the five step sequential analysis for determining whether an individual is
disabled, the ALJ found that Tucker had not engaged in substantial gainful activity since
December 18, 2012, the application date. (Tr. 12). At step two, the ALJ determined that Tucker
had the following severe impairments: history of low back pain, likely myofascial, obesity,
history of headaches including migraines, major depressive disorder/depressive disorder, and
anxiety. (Tr. 12). The ALJ reported that Tucker’s impairments, or combination of impairments,
were severe and more than minimally affected her ability to perform work related activities that
required heavy lifting, extreme climbing, and more than occasional performance of other
postural maneuvers. (Tr. 12). Also, the ALJ indicated that she must avoid exposure to loud
noises and bright flashing lights, and that she could not tolerate sudden or unpredictable work
place changes. (Tr. 12). Finally, he found that Tucker could not maintain tasks requiring intense
or focused attention for prolonged periods and that her ability to interact with others was
diminished. (Tr. 12).
The ALJ found that Tucker’s right shoulder complaints were resolved in less than seven
months and that her allegations of ongoing pain were not supported by the evidence. (Tr. 12).
Tucker claimed that her fingers locked up, but she was unsure of how long it had been
happening. (Tr. 12). The ALJ determined that the evidence was insufficient to establish a severe
hand, finger, or wrist impairment. (Tr. 12-13). Tucker reported that she had left arm numbness
that tingled and extended down to her fingertips at her October 9, 2013 and November 28, 2013
primary care visits. (Tr. 13). However, the ALJ indicated that both examinations were normal.
(Tr. 13). Tucker saw R. Yu Mendador, M.D., who reported no abnormal upper extremity
findings and no diagnosis of hand or wrist problems. (Tr. 13.)
The ALJ also found that Tucker’s left arm complaints were resolved in less than 12
months and that her examination results were normal. (Tr.13). On November 8, 2012, Tucker
complained about her right wrist and reported that she was unable to lift more than two pounds.
(Tr. 13). She was prescribed Naprosyn, which the ALJ indicated appeared to be effective
because no further reports of wrist pain were made during treatment. (Tr. 13). Moreover,
Tucker had full range of motion and her fine manipulation, gross manipulation, gripping, and
grasping were intact at the 2013 consultative physical examination. (Tr. 13).
Tucker testified that she experienced pain in the back of her legs if her legs got cold and
that at times she felt like her foot was curving in. (Tr. 13). She reported that Dr. Yu-Mendador
believed that neuropathy was present in her legs due to a previous head injury. (Tr. 13).
However, the ALJ indicated that Tucker was prescribed Neurontin for treatment of restless leg
syndrome (RLS). (Tr. 13). The ALJ noted that the records did not indicate that Tucker failed to
respond to treatment for RLS or that it occurred for the 12-month durational requirement. (Tr.
13-14). Tucker also complained of chest pain, but the ALJ found that Dr. Yu-Mendador’s
records showed intermittent complaints of chest pain and that no cardiac testing had been
recommended or performed. (Tr. 14). The ALJ noted that at Tucker’s most recent visit in May
2014 she did not complain of chest pain. (Tr. 14).
At step three, the ALJ concluded that Tucker did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments. (Tr.
14). Specifically, the ALJ found that Tucker did not meet Listing 1.04, Disorders of the Spine,
because there was no evidence of root compression, limitation in motion, motor loss, and she
performed a positive straight leg test. (Tr. 14). Also, the ALJ found that Tucker’s mental
impairments did not meet the criteria of Listings 12.04 or 12.06. In finding that Tucker did not
meet the above listings, the ALJ considered the paragraph B criteria for mental impairments,
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. 14). 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. 14-15).
The ALJ found that Tucker had mild restrictions in daily living activities. (Tr. 15). The
ALJ indicated that the treatment record was inconsistent with the testimony of Tucker and her
mother that Tucker had more bad days than good and stayed in bed on bad days. (Tr. 15).
Throughout her treatment at the Bowen Center, which began in late 2012, psychiatrist S.
Maharjan, M.D., reported that Tucker was able to do her daily routine and daily chores with no
reports of her spending days in bed. (Tr. 15). The function reports completed by Tucker and her
mother in January of 2013 indicated that Tucker prepared simple meals, washed dishes, and
helped care for the family’s pets. (Tr. 15). Also, Tucker reported that she enjoyed television,
movies, and listening to music, but that she had a diminished interest in writing and drawing.
(Tr. 15). She testified that she spent her time playing games and on the computer. (Tr. 15).
Also, she occasionally needed to be reminded about her self-care. (Tr. 15). She stated that she
was able to cook microwavable meals and on the stovetop occasionally. (Tr. 15). The ALJ
concluded that the record as a whole failed to establish more than mild limitations in activities of
daily living. (Tr. 15).
The ALJ found that Tucker had moderate difficulties in social functioning. (Tr. 15).
Tucker reported that she did not have an interest in having friends. (Tr. 15). However, the ALJ
noted that during her treatment at Bowen she indicated that she was interested in establishing
friendships. (Tr. 15). In the January 2013 function report, Tucker and her mother confirmed that
she did not have difficulty getting along with authority figures. (Tr. 15). The ALJ indicated that
Tucker had appropriate interaction with treating and examining sources. (Tr. 15). Therefore, the
ALJ concluded that the evidence in the record failed to establish that Tucker was unable to
maintain appropriate interactions and that she had marked limitations in social functioning. (Tr.
The ALJ determined that Tucker had moderate difficulties in concentration, persistence,
or pace. (Tr. 15). The ALJ noted that the treatment records indicated that Tucker wrote scripts
and had a copyrighted piece of fiction, which the ALJ concluded required a high level of
concentration and persistence. (Tr. 15). Also, Tucker testified that she was able to play
computer games for approximately an hour. (Tr. 15). Dr. Maharjan indicated that Tucker’s
attention and concentration were either “fair” or “good” and noted an average
knowledge/intellect. (Tr. 15). Therefore, the ALJ concluded that the objective evidence failed to
establish marked limitations in concentration, persistence, or pace. (Tr. 15).
The ALJ concluded that Tucker did not satisfy the paragraph B criteria because her
mental impairments did not cause at least two marked limitations or one marked limitation and
repeated episodes of decompensation of extended duration. (Tr. 16). He also found that Tucker
did not satisfy the paragraph C criteria because Tucker’s mental impairments would not be
expected to cause decompensation if she were placed in a typical work setting and that she could
function outside a highly-supportive living arrangement and outside her own home. (Tr. 16).
The ALJ then assessed Tucker’s residual functional capacity (RFC) as follows:
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b), reduced as follows: only occasional
climbing of ramps and stairs, balancing, stooping, kneeling, crouching,
and crawling; never climbing ladders, ropes, or scaffolds; and, needs to
avoid concentrated exposure to loud noise and bright/flashing lights.
Mentally the claimant cannot tolerate sudden or unpredictable workplace
changes; cannot perform tasks requiring intense/focused attention for
prolonged periods; can have only occasional work in close proximity to
others to minimize distractions; can tolerate only casual/superficial/brief
interactions with others, including supervisors, coworkers, and the
general public; only occasional interactions with the general public; no
exposure to intense or critical supervision; and, is best suited to working
alone, in semi-isolations from others, or as part of a small group.
(Tr. 16). The ALJ explained that in considering Tucker’s symptoms he followed a two-step
process. (Tr. 16). First, he determined whether there was an underlying medically determinable
physical or mental impairment that was shown by a medically acceptable clinical and laboratory
diagnostic technique that reasonably could be expected to produce Tucker’s pain or other
symptoms. (Tr. 17). Then, he evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Tucker’s functioning. (Tr. 17).
Tucker reported that her back pain had developed over time. (Tr. 17). She indicated that
her daily pain was at the 7-8/10 level. (Tr. 17). However, the ALJ noted that there were no xrays of her back. (Tr. 17). Tucker testified that after walking or standing for 10 to 15 minutes
she would have to sit. (Tr. 17). Also, she reported that her back pain occurred when lifting more
than 10 pounds. (Tr. 17). However, she claimed that she had no problems climbing stairs with
the use of a handrail and that she could pick something up from the floor as long as it was not
heavy. (Tr. 17). She also testified that she had reoccurring migraines for about two years
following a concussion. (Tr. 17). Tucker reported that the migraines occurred three to four days
per week and that they lasted about one hour after taking over-the-counter Excedrin. (Tr. 17).
Tucker claimed that she had diagnoses of anxiety, depression, and social anxiety. (Tr.
17). She testified that she cried often and that she either did not sleep or slept too much. (Tr.
17). Also, she reported that her appetite fluctuated. (Tr. 17). She stated that she frequently
woke up angry and that her moods changed from happy to angry, but she denied ever being
diagnosed with bipolar disorder. (Tr. 17). Tucker reported that when she last worked at
McDonalds her manager held a knife to her neck. (Tr. 17). After this incident, she testified that
she began cutting herself. (Tr. 17). Tucker stated that she had not had a job since the incident.
(Tr. 17). Tucker indicated that she had difficulty being in groups of people, but she agreed that
she was open to attending group sessions at Bowen. (Tr. 18). She reported nightmares and
flashbacks, yet she indicated that those had reduced with therapy and that her medications were
helpful. (Tr. 18).
Tucker reported that she got along well with her mother and brother. (Tr. 18). She
denied having friends over in the last few years and claimed that she preferred being alone most
of the time. (Tr. 18). She indicated that her reading skills were poor, yet she testified that she
wrote fiction and that she had a story copyrighted. (Tr. 18). Tucker’s mother testified that
Tucker had difficulty with change and criticism, and that she was distractible. (Tr. 18). Also,
Tucker’s mother indicated that Tucker struggled with daily living. (Tr. 18). She reported that
Tucker had struggled her entire life due to abuse. (Tr. 18).
The ALJ found that Tucker’s impairments could cause her alleged symptoms, but that she
was not entirely credible regarding the intensity, persistence, and limiting effects of her
symptoms. (Tr. 18). The ALJ noted that Dr. Yu-Mendador’s records showed various physical
complaints, yet Tucker had received minimal treatment and there were no recommendations for
diagnostic imaging or referrals. (Tr. 18). The State agency determined that Tucker had the
capacity to work at a medium exertional level with minimal postural limitations. (Tr. 18). The
ALJ indicated that the RFC granted great deference to Tucker to account for the effects of her
back pain, obesity, and migraine headaches. (Tr. 18).
On January 9, 2013, Tucker went to the Bowen Center for her initial medication
management visit with Dr. Maharjan. (Tr. 19). Tucker complained of back pain, however, the
ALJ indicated that Tucker’s pain level decreased at subsequent visits. (Tr. 19). The ALJ noted
that at the most recent visit with Dr. Maharjan on June 20, 2014, Tucker reported a pain level of
2/10. (Tr. 19). Dr. Maharjan reported that no pain problems were present. (Tr. 19).
On April 21, 2013, B.T. Onamusi, M.D., performed a comprehensive consultative
examination. (Tr. 19). Dr. Onamusi’s results were negative other than obesity, therefore, Dr.
Onamusi concluded that Tucker could perform light to moderate activities. (Tr. 19). In addition
to back pain, Tucker complained of multiple daily headaches. (Tr. 19). She reported that her
headaches had been reoccurring for approximately one year and that the pain level was at 11/10
at least two times per week. (Tr. 19). She indicated that the headaches began after she hit her
head on a beam and was incapacitated for 45 minutes to one hour. (Tr. 19).
On June 17, 2012, Tucker went to the emergency room with a headache. (Tr. 19). She
reported hitting her head and that she had two to three headaches per week with some nausea, but
no vomiting. (Tr. 19). The head CT was normal and post concussive syndrome was diagnosed.
(Tr. 19). The ALJ noted that Tucker reported to Dr. Yu-Mendador’s office on August 28, 2012
that she had hit her head on a cabinet, rather than the beam as previously mentioned. (Tr. 20).
The ALJ reported that Tucker’s examination showed intact recent and remote memory. (Tr. 20).
The ALJ noted that at Tucker’s January 17, 2013 and April 21, 2013 visits she did not
complain about headaches. (Tr. 20). Also, the ALJ indicated that at the most recent primary
care visit on May 19, 2014, a review of systems was positive for headaches, but no specific
complaints were made and no diagnosis was listed. (Tr. 20). The ALJ concluded that Tucker’s
allegations regarding the severity and frequency of her headaches were not well-supported and
contributed to credibility concerns. (Tr. 20). The ALJ determined that there was no evidence
that supported Tucker’s reports of extreme headaches and that Dr. Yu-Mendador’s records
contradicted her complaints. (Tr. 20). However, the ALJ stated that he gave deference to
Tucker’s testimony that her headaches were triggered by loud noises and bright lights. (Tr. 20).
The ALJ indicated that the RFC limited Tucker to light work activity, precluding extreme
climbing, and limiting other postural maneuvers to occasional performance to account for
Tucker’s back complaints. (Tr. 21). The ALJ noted that Tucker’s obesity likely affected both
her exertional and postural capacities and supported the restriction of light work. (Tr. 21).
However, the ALJ found that Tucker’s subjective complaints were not well-supported and that
Tucker failed to establish physical limitations beyond the RFC. (Tr. 21). Also, the ALJ
concluded that Tucker’s allegations of mental impairments were not fully supported. (Tr. 21).
The ALJ indicated that the diagnoses of PTSD and bipolar disorder were not considered severe
impairments because they were made only during the consultative psychological examination.
(Tr. 21). Therefore, the ALJ indicated that he assigned greater weight to diagnoses made during
actual treatment. (Tr. 21).
The ALJ noted that Tucker failed to report at her consultative psychological examination
on October 2, 2009, in connection with a prior application, the incident that occurred with her
employer at McDonalds. (Tr. 22). The ALJ stated that Tucker first reported the incident during
her intake at Bowen one month before this application was filed. (Tr. 22). Therefore, the ALJ
concluded that Tucker’s failure to report the incident earlier and her vague responses regarding
the handling of the complaint brought her reports into question. (Tr. 22).
Dr. Maharjan completed the initial psychiatric evaluation on December 19, 2012. (Tr.
22). Tucker was able to perform serial 7’s correctly during the evaluation, despite being unable
to during the October 2009 and March 2013 examination. (Tr. 22). Dr. Maharjan diagnosed
Tucker with depressive disorder and anxiety disorder. (Tr. 22). Tucker began individual therapy
in November of 2012. (Tr. 22). In June of 2013, she reported emotional abuse from her
stepfather. (Tr. 22-23). Tucker and her mother acknowledged that they needed to move out due
to the stepfather’s abusive behavior, and by May of 2014, Tucker’s mother had filed for divorce.
At the final therapy session, Tucker admitted that she often forgot to take her medications
as also reflected in Dr. Maharjan’s records. (Tr. 23). Even though Tucker was less than fully
compliant with her medication, Dr. Maharjan’s records showed improvement by March 2013
while on Abilify. (Tr. 23). In July, Tucker’s symptoms increased, but she reported that she had
been out of Abilify for one week. (Tr. 23). Her mood and anxiety improved by August 2013,
but her insomnia worsened. (Tr. 23). The ALJ noted that by December of 2013 Tucker’s mood,
anxiety, and insomnia were all stable. (Tr. 23).
At Tucker’s next appointment on May 21, 2014, she denied taking any medications and
reported having mood swings, crying, and problems sleeping. (Tr. 23). Her mental status exam
showed an irritable mood and restricted affect. (Tr. 23). The ALJ noted that at Dr. Maharjan’s
final recorded visit on June 20, 2014, he found Tucker’s mood to be euthymic, but not
controlled. (Tr. 23). He noted that her anxiety was stable and that she had good response to
medication. (Tr. 23-24). However, he indicated that her symptoms would increase when she
was noncompliant. (Tr. 24).
Tucker offered a medical source statement from Dr. Maharjan into evidence. (Tr. 24).
The ALJ found that the opinion did not accurately represent Tucker’s functioning throughout the
period in issue. (Tr. 24). The ALJ stated that the definitions in the questionnaire indicated that a
moderate limitation was a disabling distraction. (Tr. 24). The ALJ concluded that the definition
represented more than moderate limitations and that there was no way to know that Dr. Maharjan
had read and applied the definitions. (Tr. 24). The ALJ noted that the questionnaire was
completed on August 4, 2013, after Dr. Maharjan had seen Tucker on July 24, 2013. (Tr. 24). A
review of the record established that the medical source statement was completed on August 14,
2013. (Tr. 489-490). The record indicated that at the July 24, 2013, visit Tucker was
noncompliant with her medication and that her symptoms were increased. (Tr. 24).
The ALJ found that the Bowen records reflected improvement with therapy and
medication. (Tr. 24). Also, Tucker indicated that treatment was helpful at the hearing. (Tr. 24).
The ALJ determined that Dr. Maharjan’s GAF score of 65 was inconsistent with the disabling
symptoms and limitations that he imposed in the questionnaire. (Tr. 24). Also, the ALJ
concluded that Dr. Maharjan’s findings that Tucker had moderate and moderately severe
limitations were inconsistent with the overall treatment records. (Tr. 24). Therefore, the ALJ
determined that the medical source statement was entitled to little weight. (Tr. 24).
At step four, the ALJ found that Tucker had no past relevant work. (Tr. 25). Considering
Tucker’s age, education, work experience, and RFC, the ALJ concluded that there were jobs in
the national economy that she could perform, including housekeeper/cleaner (2,000 jobs
statewide and 130,000 nationwide), routing clerk (1,100 jobs statewide and 50,000 nationwide),
and package sorter (1,000 jobs statewide and 43,000 nationwide). (Tr. 26).
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,
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).
Supplemental 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. § 416.920. The ALJ first considers whether the claimant is presently employed or
“engaged in substantial gainful activity.” 20 C.F.R. § 416.920(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. § 416.920(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
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. § 416.920(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. §
Tucker has argued that the ALJ improperly evaluated the opinion of Dr. Santosh
Maharjan. A treating source’s opinion is entitled to controlling weight if the “opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence” in the record. 20 C.F.R. ' 404.1527(d)(2); see Bates v. Colvin,
736 F.3d 1093, 1099 (7th Cir. 2013); Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011);
Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). The ALJ must “minimally articulate his
reasons for crediting or rejecting evidence of disability.” Clifford v. Apfel, 227 F.3d 863, 870
(7th Cir. 2000) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992)); see 20
C.F.R. ' 404.1527(d)(2) (“We will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion.”).
“‘[O]nce well-supported contradicting evidence is introduced, the treating physician’s
evidence is no longer entitled to controlling weight’ and becomes just one more piece of
evidence for the ALJ to consider.” Bates, 736 F.3d at 1100. Controlling weight need not be
given when a physician’s opinions are inconsistent with his treatment notes or are contradicted
by substantial evidence in the record, including the claimant’s own testimony. Schmidt, 496
F.3d at 842 (“An ALJ thus may discount a treating physician’s medical opinion if the opinion is
inconsistent with the opinion of a consulting physician or when the treating physician’s opinion
is internally inconsistent, as long as he minimally articulates his reasons for crediting or rejecting
evidence of disability.”); see, e.g., Latkowski v. Barnhart, 93 Fed. App’x 963, 970-71 (7th Cir.
2004); Jacoby v. Barnhart, 93 Fed. App’x 939, 942 (7th Cir. 2004). If the ALJ was unable to
discern the basis for the treating physician’s determination, the ALJ must solicit additional
information. Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014) (citing Similia v. Astrue,
573 F.3d 503, 514 (7th Cir. 2009)). Ultimately, the weight accorded a treating physician’s
opinion must balance all the circumstances, with recognition that, while a treating physician “has
spent more time with the claimant,” the treating physician may also “bend over backwards to
assist a patient in obtaining benefits . . . [and] is often not a specialist in the patient’s ailments, as
the other physicians who give evidence in a disability case usually are.” Hofslien v. Barnhart,
439 F.3d 375, 377 (7th Cir. 2006) (internal citations omitted); see Punzio, 630 F.3d at 713.
Tucker has argued that the ALJ made an incorrect statement regarding the medical source
statement that was completed by Dr. Maharjan. Tucker contends that the ALJ confused the
definition of moderate on the questionnaire. The ALJ stated that the definitions provided in the
questionnaire indicated that even “moderate” limitations in any area of functioning would result
in disabling distraction. (Tr. 24). The definition of moderate on the questionnaire was that an
individual would be distracted from the job 11% to 20% of a workday or work week. (Tr. 489).
The VE testified that an individual must be on task 80% to 85% of a workday to perform
competitive work. (Tr. 90). Thus, if Tucker was distracted from the job for 15% to 20% of the
workday it may preclude some competitive work.
The Commissioner indicated that Dr. Maharjan found that Tucker had moderate-severe
limitations in making simple work-related decisions, performing at a consistent pace without an
unreasonable number and length of rest periods, and completing a normal workday or workweek
without interruptions from psychologically-based symptoms. The Commissioner contends that
that the State agency psychologist assessed Tucker with only moderate limitations in any area of
functioning. However, the circuit court has made clear that what matters are the reasons
articulated by the ALJ. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010); Larson v. Astrue,
615 F.3d 744, 749 (7th Cir. 2010). Although the ALJ cited the opinions the agency
psychologists, he did not use their opinions to support his decision to give little weight to Dr.
Maharjan's opinion. See 20 C.F.R. § 404.1527(d)(2); Larson, 615 F.3d at 751; Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009).
Tucker has argued that it was improper for the ALJ to fault her for her noncompliance
with medications. She indicated that she had problems affording medications. Tucker contends
that under SSR 96-7 the ALJ needed to question her further when there was evidence in the file
of noncompliance. The Commissioner indicated that the ALJ did not find that her
noncompliance cut against her credibility. Rather the ALJ concluded that Dr. Maharjan’s
opinion was completed shortly after a visit with Tucker while she was noncompliant with her
medications, therefore, her symptoms were increased.
The ALJ’s decision indicated that the medical source statement was entitled to little
weight because it was answered by Dr. Maharjan shortly after he had seen Tucker while she was
noncompliant with her medications on July 24, 2013. The ALJ noted that the record stated that
on July 24, 2013, Tucker had increased symptoms due to noncompliance with her medication.
(Tr. 24). Dr. Maharjan’s records reflected that Tucker had periods of noncompliance. (Tr. 23).
Tucker reported that she had been out of Abilfy for one week because she forgot to get the
medication from patient assistance. (Tr. 23). The ALJ indicated that by August 23, 2013,
Tucker’s mood and anxiety already had improved while on Abilfy. Her symptoms increased
again in May 2014, however, she reported that she was noncompliant. Dr. Maharjan indicated
that Tucker showed good response to medication with increased symptoms usually occurring
during periods of noncompliance. (Tr. 23-24). Also, he indicated that throughout his visits
Tucker had no memory problems and her attention and concentration were fair or good. (Tr. 24).
The ALJ concluded that the questionnaire had been completed 16 months prior to the
decision and while Tucker was noncompliant. Therefore, it did not accurately reflect her
functioning throughout the period in issue. The ALJ did not rely on Tucker’s noncompliance as
a ground for denying disability, rather as a factor in discrediting Dr. Maharjan’s opinion. In
addition, the ALJ indicated that Tucker’s records at Bowen reflected improvement with therapy
and medication and that Tucker had reported that treatment had been helpful.
The ALJ also found that Dr. Maharjan’s initial GAF score of 65 was inconsistent with his
finding that Tucker had moderate and moderately severe limitations. Tucker has argued that it
was improper for the ALJ to find that Dr. Maharjan’s GAF score was inconsistent with his
opinion. She contends that her mental illness is an episodic one, therefore, she can be
functioning on one day and significantly different on another. However, the Seventh Circuit has
upheld the ALJ’s decision to consider GAF scores to some degree. Walters v. Astrue¸ 444 F.
App’x 913, 919 (7th Cir. 2011). A GAF score of 61–70 indicated “some mild symptoms” or
“some difficulty in social, occupational, or school functioning, but generally functioning pretty
well.” Am. Psychiatric Ass'n, Diagnosis and Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision, 32, 34 (2000) (DSM IV–TR). The court finds that Tucker’s December
2012 GAF score of 65 was wholly inconsistent with Dr. Marharjan’s finding that she had
moderate and moderately severe limitations.
The ALJ minimally articulated his reasoning to give little weight to Dr. Maharjan, and his
decision was supported by substantial evidence. The medical source statement shed little light
on Tucker’s overall abilities because it was completed shortly after she reported that she was
noncompliant with her medications. Also, the ALJ found that Dr. Maharjan’s opinion was
inconsistent with his GAF score and the overall record. The record indicated that Tucker’s
condition improved with medications, as reflected in appointments with Dr. Maharjan in late
2013 and the Bowen treatment records. Thus, the ALJ determined that the medical source
statement was reflective of only a brief window of time. Therefore, the ALJ has presented good
reasons to assign little weight to Dr. Maharjan.
Based on the foregoing reasons, the decision of the Commissioner is AFFIRMED.
ENTERED this 29th day of March, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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