Wells v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner is REVERSED, and the case is REMANDED to the Commissioner for further proceedings in accordance with this Opinion and Order. The Clerk is directed to enter a judgment in favor of Wells and against the Commissioner. Signed by Magistrate Judge Susan L Collins on 3/28/2017. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KURT A. WELLS,
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A.
Berryhill, Acting Commissioner of SSA,1
CAUSE NO. 1:16-cv-00022-SLC
OPINION AND ORDER
Plaintiff Kurt A. Wells appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application under the Social
Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).2 (DE 1). For the following reasons, the Commissioner’s decision will be
REVERSED, and the case will be REMANDED to the Commissioner for further proceedings in
accordance with this Opinion and Order.
I. PROCEDURAL HISTORY
Wells applied for DIB and SSI in August 2012, alleging disability as of April 13, 2012.
(DE 8 Administrative Record (“AR”) 193-202). Wells was last insured for DIB on
December 31, 2012 (AR 20, 220), and thus, with respect to his DIB claim, he must establish
Nancy A. Berryhill is now the Acting Commissioner of Social Security, see Casey v. Berryhill, — F.3d
—, 2017 WL 398309 (7th Cir. Jan. 30, 2017), and thus, she is automatically substituted for Carolyn W. Colvin in
this case, see Fed. R. Civ. P. 25(d).
All parties have consented to the Magistrate Judge. (DE 11); see 28 U.S.C. § 636(c).
that he was disabled as of that date. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir.
1997) (explaining that with respect to a DIB claim, a claimant must establish that he was
disabled as of his date last insured in order to recover DIB).
The Commissioner denied Wells’s application initially and upon reconsideration. (AR
137-52). After a timely request, a hearing was held on November 8, 2013, before Administrative
Law Judge Patricia Melvin (“the ALJ”), at which Wells, who appeared pro se; James Adams,
Wells’s case manager at the Bowen Center; and a vocational expert, Sharon Ringenberg (the
“VE”), testified. (AR 39-86). On May 14, 2014, the ALJ rendered an unfavorable decision to
Wells, concluding that he was not disabled because despite the limitations caused by his
impairments, he could perform a significant number of unskilled jobs at all exertional levels in
the economy. (AR 20-30).
After the hearing, Wells retained counsel to represent him. (AR 20; DE 17 at 1). The
Appeals Council denied Wells’s request for review (AR 1-15), at which point the ALJ’s decision
became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
Wells filed a complaint with this Court on January 21, 2016, seeking relief from the
Commissioner’s final decision. (DE 1). Wells advances three arguments in this appeal: (1) that
the ALJ improperly evaluated the opinion of Candace Lemke, a psychiatric nurse practitioner;
(2) that the ALJ improperly discounted his symptom testimony; and (3) that the ALJ improperly
weighed the opinions of Drs. Hill and Horton, the state agency psychologists. (DE 17 at 7-13).
II. FACTUAL BACKGROUND3
At the time of the ALJ’s decision, Wells was 57 years old (AR 30, 193); had a GED and
a real estate appraiser’s license (AR 225); and possessed past relevant work experience as a real
estate appraiser and an account manager (AR 225). He alleges disability due to generalized
anxiety disorder with agoraphobia, specific phobia of needles, degenerative changes in the right
knee, degenerative changes in the lumbar spine, degenerative disc disease mostly at L4-L5 level,
and a degree of central canal stenosis in the lower lumbar region. (DE 17 at 2).
A. Wells’s Testimony at the Hearing
At the hearing, Wells, who is six feet tall and weighed 275 pounds at the time, testified
that he is divorced and lives alone in a subsidized apartment. (AR 46). He was on Medicaid and
was receiving food stamps. (AR 48). He stated that he was a self-employed real estate appraiser
for eight years, which was a full-time job; however, he had never actually worked full time
because he always had jobs where he could go home if he had a panic attack. (AR 49). He is
independent with his self care and performs all of the household tasks, including shopping,
laundry, vacuuming, cleaning, and taking out the garbage. (AR 71-72). He has a driver’s
license and used to drive almost every day, but he no longer does so because he lost his car. (AR
71). In his spare time, he enjoys watching mysteries and documentaries on the computer. (AR
When asked why he thought he could not work, Wells indicated that his most severe
problem is his phobia of injections. (AR 52). He stated that this phobia causes him to have up to
a dozen panic attacks every day. (AR 52-54). Most of these attacks are minor, lasting just a few
In the interest of brevity, this Opinion recounts only the portions of the 803-page administrative record
necessary to the decision.
minutes, but some can last several hours. (AR 53). When he has an attack, he quickly becomes
very hot and sweaty and then loses his breath, so he quickly finds a way to cool down, such as
going to his car, which is his “safe zone,” and running the air conditioning. (AR 53). He also
has agoraphobia, stating that his “only safe place is at home.” (AR 57). He has panic attacks
when leaving home; however, since being involved in therapy, he has done “pretty well” with
riding the bus, as he has had to get off the bus only a few times due to panic attacks. (AR 57).
He has no problems getting along with people but tries to avoid them by staying home; the only
people he goes anywhere with are his sister, his mother, and his son. (AR 70-71).
Wells was taking two anti-anxiety medications and was participating in counseling, in
which he was learning coping skills. (AR 54-56). He indicated that this treatment is effective,
but that even with his medications, he still has four to five panic attacks a day. (AR 55-56, 58,
61). He had never been to a hospital for a panic attack because hospitals present his “biggest
fear”; he did, however, admit himself to St. Joe Behavioral Center for alcohol detoxification in
2002. (AR 56; see AR 378).
As to his physical problems, Wells complained of sharp pain in his low back that radiates
to his legs, which had started about six months earlier. (AR 62-63). The pain, which he rated as
an “eight or a nine” on a 10-point scale, occurs when he walks or stands “too long” and goes
away almost instantly when he sits down. (AR 63, 65-67). He estimated that he could walk up
to 400 feet and stand for 15 minutes before needing to sit down; he has no pain when sitting and
can sit indefinitely. (AR 67). He thought that he could lift 20 pounds, and he had no difficulty
with reaching, gripping, handling, pushing or pulling with his arms, or climbing stairs; his
balance, however, “has been bad” for the last 10 years, causing him to fall on a few occasions, so
he uses a shower chair. (AR 68-69). He takes Naproxen and Tylenol for his back pain and
denied any medication side effects. (AR 63-65). He stated that he has a “bad knee,” but it does
not keep him from working. (AR 67). He also complained of vision problems that affect his
reading, but he still is able to use a computer. (AR 69).
B. Testimony of Wells’s Case Manager
James Adams, Wells’s case manager at the Bowen Center, also testified at the hearing.
(AR 74-79). He had been treating Wells two to three times per week for the past seven months.
(AR 76). He stated that Wells has made amazing progress, but that his phobia is so severe that
on an outing to the Art Museum, he glanced at a picture of a flower that vaguely resembled a
needle and he had a full panic attack. (AR 75-78). Adams estimated that he had witnessed
Wells have a dozen severe panic attacks that lasted for several hours and caused him to shake;
sometimes Wells has to lie on a tile floor in a public place during a panic attack because he
needs to feel the cold. (AR 76-78). Adams stated that when they were working on
desensitization therapy, Wells was having 10 to 12 panic attacks a day. (AR 77). When they
first started therapy, Wells could not get on a bus by himself, but he has progressed enough to do
so. (AR 77). It takes Wells one to two hours of preparation to be able to leave his home. (AR
C. Summary of the Relevant Medical Evidence Pertaining to Wells’s Physical Health
In September 2012, Wells underwent a physical examination by Dr. Venkata Kancherla
at the request of the state agency. (AR 358-60). Wells claimed that his anxiety was so bad that
he could not function. (AR 359). On exam, his far vision was blurry in the right eye and 20/60
in his left eye, and his near vision was 20/20 with glasses. (AR 359). His muscle strength and
tone were normal, but he had some fine tremors in his hands. (AR 359). His gait was normal,
and he was able to squat and walk on his heels and toes. (AR 359). He became anxious and was
hyperventilating at times during the examination. (AR 359). Dr. Kancherla’s impression was
that it was a normal physical examination with normal gait and medication-controlled
hypertension, except that Wells needed a ophthalmology evaluation and a psychiatric evaluation.
That same month, Dr. J.V. Corcoran, a state agency physician, reviewed Wells’s record
and concluded that his physical impairments were not severe. (AR 91-92). Dr. M. Ruiz, another
state agency physician, affirmed Dr. Corcoran’s opinion in December 2012. (AR 116-17).
In March 2013, Wells visited Dr. Robert Wilkins, his family practitioner, due to back
pain. (AR 750-51). The pain occurred with motion and was relieved by medication and sitting,
and it caused some limitation of his normal activity. (AR 750). He appeared to be in pain during
the examination. (AR 751). Wells reported that his pain had worsened in the past few months
because he had been walking more and using the bus system. (AR 750). He weighed 268
pounds at the time. (AR 750). A chair test was positive, but a straight leg raise test was
negative; no muscle atrophy or tenderness was observed. (AR 751). Dr. Wilkins prescribed
Naproxen. (AR 751). An X-ray of Wells’s lumbar spine showed degenerative disc disease
mostly at L4-L5, and bony landmarks suggested a degree of central canal stenosis in the lower
lumbar region; there was no acute bone pathology. (AR 744-45).
In July 2013, Wells returned to Dr. Wilkins for his back pain. (AR 748-49). Wells
reported that his pain extended down both legs and that his thighs felt numb. (AR 748).
Although Naproxen had helped previously, it was not currently helping. (AR 748). He stated
that standing causes his back pain and that lifting and carrying his laundry increases his pain; Dr.
Wilkins observed that his gait was stiff upon getting up. (AR 748-49). He weighed 286 pounds
at the time. (AR 749). A chair test and a straight leg raise test were negative. (AR 749). Dr.
Wilkins’s impression was that Wells’s back pain was mostly from arthritis of the facet joints.
In September 2013, Wells returned to Dr. Wilkins for his back pain. (AR 746). He
described his low back pain as “burning,” stating that it caused some limitation of his activity.
(AR 746). He appeared to be in pain and demonstrated a limping gait; he had no associated leg
weakness. (AR 746-47). He weighed 291 pounds at the time. (AR 746). Dr. Wilkins
prescribed Tramadol. (AR 747). An MRI of Wells’s lumbar spine revealed a moderate bulge at
L4-L5, and a mild bulge, mild facet arthropathy, and moderate foraminal narrowing at L5-S1.
D. Summary of the Relevant Medical Evidence Pertaining to Wells’s Mental Health
In April 2012, Dr. Wilkins documented that Wells had a generalized anxiety disorder,
described as moderate. (AR 332). Dr. Wilkins indicated that Wells’s symptoms were worsening
and that he had a lot of anxiety, but he was no longer having panic attacks. (AR 332). Dr.
Wilkins stated that Wells’s condition interferes with his daily functioning and impedes his
concentration. (AR 332). Dr. Wilkins opined that Wells’s anxiety and depression render him
unable to work and not a good candidate for rehabilitation services. (AR 331).
In September 2012, Wells underwent a mental status examination by Wayne Von Bargen,
Ph.D., at the request of the state agency. (AR 362-64). Wells related his severe phobia of
needles, stating that he had self-medicated for years by drinking alcohol or stealing his wife’s
medication. (AR 362). He indicated that his phobia had contributed to his divorce and his
vocational difficulties. (AR 362). He had become increasingly anxious and reclusive over the
years, but was not housebound. (AR 364). His affect was moderately anxious, but his
verbalizations were logical, relevant, and coherent; his alertness and activity level were normal
overall. (AR 362). Dr. Von Bargen opined that Wells’s history and current presentation
revealed an anxiety disorder, manifested by a specific fear of needles, panic attacks, and
generalized anxiety, and likely a personality disorder with avoidant and obsessive-compulsive
features. (AR 363). Dr. Von Bargen’s diagnoses included an anxiety disorder, NOS; a specific
phobia; and a personality disorder NOS (provisional). (AR 364). He assigned a Global
Assessment of Functioning (“GAF”) score of 55.4 (AR 364).
Later in September 2012, Stacia Hill, Ph.D., a state agency psychologist, reviewed
Wells’s record and concluded that he had a mild restriction in activities of daily living and
moderate difficulties in maintaining social functioning and in maintaining concentration,
persistence, or pace. (AR 92-93). On a mental RFC assessment form, Dr. Hill opined that Wells
was moderately limited in understanding, remembering, and carrying out detailed instructions;
working in coordination with or in proximity to others without being distracted by them;
GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). A GAF score
of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF
score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).
“The American Psychiatric Association no longer uses the GAF as a metric.” Spencer v. Colvin, No. 13-cv1487, 2015 WL 684545, at *17 n.5 (C.D. Ill. Feb. 17, 2015) (citing Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 16 (5th ed. 2013)). However, several medical sources of record used GAF scores in
assessing Wells, so they are relevant to the ALJ’s decision. See id. (citing Bates v. Colvin, 736 F.3d 1093, 1099 (7th
interacting appropriately with the general public; accepting instructions and responding
appropriately to criticism from supervisors; and responding appropriately to changes in the work
setting. (AR 94-96). Wells was not significantly limited in the remaining mental categories.
(AR 94-96). In her narrative, Dr. Hill concluded that while Wells would likely have difficulty
with complex tasks, he could “complete simple tasks on a sustained basis without special
considerations preferably in an environment with limited social interaction.” (AR 96). In
December 2012, B. Randal Horton, Psy.D., reviewed Wells’s record and reached the same
conclusions as Dr. Hill. (AR 117-20).
In February 2013, Wells was evaluated by Ashley Radtke, a clinician at the Bowen
Center. (AR 596-99). He felt anxious and disoriented because he did not have his car as an
escape route. (AR 596). He reported that his anxiety began as a teenager, that his family has a
history of mental illness, and that he has tried to self-medicate with marijuana and abusing
prescription medication. (AR 596). He had participated in mental health treatment on and off
for a long time. (AR 596). He had financial concerns and was seeking disability, as he reported
not being able to work because of his anxiety. (AR 596, 598). Ms. Radtke observed that Wells’s
mood and affect were anxious, and his activity level was restless. (AR 596). His memory,
perception, and orientation were normal, and his attitude was cooperative. (AR 596). He had
coherent thinking, but racing thoughts; his speech was rapid and pressured, but normal. (AR
596). He was taking Alprazolam, Ambien, Ziac, Lisinopril, and Zoloft, which were all
prescribed by his family practitioner. (AR 597). He had suicidal ideation a year earlier and had
researched ways to commit suicide; he had no homicidal ideation. (AR 597). Ms. Radtke’s
diagnostic impression was panic disorder with agoraphobia; generalized anxiety disorder; and
specific phobia of blood, injection, injury type. (AR 598). She assigned him a fair prognosis.
In April 2013, Wells was evaluated by Candace Lemke, a psychiatric nurse practitioner
at the Bowen Center. (AR 378-82). She noted his past hospitalization for alcohol detoxification
and that he had been in and out of psychiatric care most of his adult life. (AR 378). He appeared
severely anxious throughout the interview, as he was clenching the chair with white knuckles
and his legs were jittering. (AR 379). His thought content and stream of thought were normal;
he had no delusions, paranoia, or suicidal or homicidal ideation. (AR 379). His affect and mood
were congruent. (AR 379). He had fair judgment and insight, average intellect, and adequate
concentration. (AR 380). She indicated the following diagnoses: generalized anxiety disorder;
panic disorder with agoraphobia; specific phobia of needles; alcohol dependence, full sustained
remission; cannabis dependence, full sustained remission; and opioid dependence, early
remission. (AR 381). She assigned him a current GAF of 50 and a highest-in-the-past-year
GAF of 50. (AR 381).
In September 2013, Ms. Lemke wrote a letter on Wells’s behalf. (AR 630). She stated
that he had been undergoing psychiatric care for several years, but that despite intensive
psychotherapy, hypnotherapy, and antidepressant, antipsychotic, and antianxiety treatment, he
had made “very little progress in the way of conquering his agoraphobia, social phobia and his
intense fear of needles.” (AR 630). She stated that Wells “truly cannot work outside of his
home.” (AR 630).
Wells participated in treatment at the Bowen Center from February 2013 through
December 2013. He was seen approximately four times by Ms. Lemke (AR 378-81, 398-99,
401-02, 754-57) and 16 times by Dr. Klinton Krouse (AR 383-88, 413-18, 477-84, 719-20, 75659) for medication management. He was seen more than 100 times by three mental health
clinicians or case managers at the Bowen Center for mental health counseling, desensitization
therapy, and coping skills for his agoraphobia and panic attacks. (See AR 421-803). In
September 2013, Wells’s anxiety and panic attacks were described as “Improved, Not
Controlled.” (AR 395).
III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “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 cause for a rehearing.” 42 U.S.C. § 405(g). The
Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000) (citation omitted).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence,
reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the
ALJ’s decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if he establishes 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), 423(d)(1)(A), 1382c(a)(3)(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), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is
currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment meets or equals one of the impairments listed by the Commissioner, see
20 C.F.R. § 404, Subpt. P, App’x 1; (4) whether the claimant is unable to perform his past work;
and (5) whether the claimant is incapable of performing work in the national economy.5 See
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 20 C.F.R. §§
404.1520, 416.920. An affirmative answer leads either to the next step or, on steps three and
five, to a finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir.
2001) (citation omitted). A negative answer at any point other than step three stops the inquiry
Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20
C.F.R. §§ 404.1520(e), 416.920(e).
and leads to a finding that the claimant is not disabled. Id. (citation omitted). The burden of
proof lies with the claimant at every step except the fifth, where it shifts to the Commissioner.
Clifford, 227 F.3d at 868 (citation omitted).
B. The Commissioner’s Final Decision
On May 14, 2014, the ALJ issued the decision that ultimately became the
Commissioner’s final decision. (AR 20-30). At step one of the five-step analysis, the ALJ found
that Wells had not engaged in substantial gainful activity since his alleged onset date. (AR 21).
At step two, the ALJ found that Wells’s anxiety disorder and depression were severe
impairments, but his mild degenerative changes of the right knee, degenerative disc disease of
the lumbar spine, hypertension, and obesity were non-severe impairments. (AR 21). At step
three, the ALJ concluded that Wells did not have an impairment or combination of impairments
severe enough to meet or equal a listing. (AR 23). Before proceeding to step four, the ALJ
determined that Wells’s symptom testimony was not entirely credible (AR 26), and the ALJ
assigned him the following RFC:
[T]he claimant has the [RFC] to perform a full range of work at all exertional
levels but with the following non-exertional limitations: he is limited to simple,
routine, and repetitive tasks, with simple defined as specific vocational
preparation levels one and two. In addition, the claimant is limited to low stress
jobs, defined as those that require only occasional decision-making, with only
occasional changes in the work setting and with no strict production quotas.
Instead, the emphasis would be on a per shift, rather than per hour, basis. Finally,
the claimant is limited to jobs that require only occasional interaction with the
general public, co-workers, and supervisors.
At step four, the ALJ found that Wells was unable to perform any of his past relevant
work. (AR 29). Based on the RFC and the VE’s testimony, the ALJ concluded at step five that
Wells could perform a significant number of unskilled jobs at all exertional levels in the
economy, including industrial cleaner, laundry worker, and dishwasher. (AR 30). Therefore,
Wells’s applications for DIB and SSI were denied. (AR 30).
C. The ALJ’s Consideration of Wells’s Symptom Testimony Will Be Remanded
Wells argues, among other things, that the ALJ improperly discounted his symptom
testimony concerning his physical and mental limitations. Wells’s arguments ultimately have
merit, necessitating a remand of the ALJ’s decision.
An ALJ’s credibility determination concerning a claimant’s symptom testimony is
entitled to special deference because the ALJ is in the best position to evaluate the credibility of
a witness. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). If an ALJ’s determination is
grounded in the record and she articulates her analysis of the evidence “at least at a minimum
level,” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988) (citation omitted), creating “an
accurate and logical bridge between the evidence and the result,” Ribaudo v. Barnhart, 458 F.3d
580, 584 (7th Cir. 2006) (citation omitted), her determination will be upheld unless it is “patently
wrong,” Powers, 207 F.3d at 435; see Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004)
(remanding an ALJ’s credibility determination because the ALJ’s decision was based on “serious
errors in reasoning rather than merely the demeanor of the witness”).
Here, the ALJ found Wells’s symptom testimony “not entirely credible” for essentially
two reasons. (AR 30). The ALJ stated that the alleged severity of Wells’s symptoms and his
degree of limitation with respect to his back pain and anxiety, panic, and phobia are not
supported by objective medical evidence. (AR 26-27). The ALJ also cited Wells’s performance
of a range of daily living activities as undermining his symptom testimony. (AR 23-24, 26).
As to the first reason, “[o]bjective medical evidence . . . is a useful indicator to assist [the
Commissioner] in making reasonable conclusions about the intensity and persistence of [the
claimant’s] symptoms and the effect those symptoms, such as pain, may have on [the claimant’s]
ability to work.” 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). “The discrepancy between the
degree of pain [and other symptoms] attested to by the witness and that suggested by the medical
evidence is probative that the witness may be exaggerating [his] condition.” Powers, 207 F.3d at
With respect to Wells’s back pain, the ALJ first cited Dr. Kancherla’s exam in September
2012 reflecting normal physical examination findings, including a normal gait, no deformity or
tenderness of the lumbosacral spine, and straight leg raising to 70 degrees bilaterally. (AR 27
(citing AR 358-60)). Wells’s symptom testimony is consistent with these objective findings, as
he stated that his back pain started about six months before the November 2013 hearing.6 (AR
In 2013, however, Wells saw Dr. Wilkins in March, July, and September due to back
pain. Wells complained of sharp, burning pain in his low back that extended down both legs and
caused numbness in his thighs. (AR 748). Standing, walking, lifting, and carrying all increased
his pain, and he exhibited a limping gait. (AR 746-49). A chair test was positive at one visit, but
straight leg raising tests were negative; there was no evidence of atrophy or leg weakness. (AR
749, 751). Dr. Wilkins prescribed several medications. (AR 747-48, 751). X-rays revealed
degenerative disc disease at L4-L5 and a degree of central canal stenosis in the lower lumbar
As such, Wells’s back pain is relevant only to his SSI claim, as he conceded that his back pain started in
early 2013—that is, after his DIB-eligibility expired on December 31, 2012.
spine, but no acute bony pathology. (AR 744-45). An MRI of Wells’s lumbar spine revealed a
moderate bulge at L4-L5, and a mild bulge, mild facet arthropathy, and moderate foraminal
narrowing at L5-S1. (AR 742-43).
When considering this objective medical evidence from 2013, the ALJ stated:
On March 27, 2013, inspection of the claimant’s lumbar spine showed no muscle
atrophy, tenderness, or swelling. Although a chair test was positive, straight leg
raising was negative. The same day, x-rays of his lumbar spine showed
degenerative disc disease, mostly the L4-L5 level, with the bony landmarks
suggesting a “degree of central canal stenosis in the lower lumbar region.”
However, there was no indication of acute bony pathology. Later, on July 22,
2013, both chair testing and straight leg raising were negative. On that occasion,
Dr. Wilkins stated that the claimant’s back pain seemed to be “mostly from
arthritis of the facet joints.”
(AR 28 (citations omitted)).
The ALJ’s rationale for finding the objective medical evidence from 2013 inconsistent
with Wells’s complaints of back pain is difficult to trace. It is unclear how the lack of “acute
bony pathology” negates Wells’s complaints of back pain where the X-rays revealed
degenerative disc disease in the lumbar spine and central canal stenosis in the lower lumbar
region, as Dr. Wilkins did not opine to that effect. Nor did the ALJ explain how Dr. Wilkins’s
opinion that Wells’s back pain seemed to be “mostly from arthritis of the facet joints”
undermines his complaints of back pain. Furthermore, the ALJ never mentioned the results of
Wells’s 2013 MRI that revealed a moderate bulge at L4-L5, and a mild bulge, mild facet
arthropathy, and moderate foraminal narrowing at L5-S1, much less explained how the MRI
results are inconsistent with Wells’s complaints of back pain. (AR 742-43).
In weighing the medical source opinion evidence, the ALJ assigned “great weight” to the
opinion of Dr. Corcoran, as affirmed by Dr. Ruiz, the reviewing state agency physicians who
found that Wells’s physical impairments were “non-severe.” (AR 28; see AR 91-92, 116-17).
These state agency doctors, however, never saw Dr. Wilkins’s treatment notes from 2013 or the
X-rays and MRI results, as Dr. Corcoran issued his opinion in September 2012, and Dr. Ruiz
affirmed it in December 2012. (AR 91-92, 116-70). The ALJ’s failure to submit the evidence
from 2013 to medical scrutiny is fatal in this particular instance, because this evidence “was new
and potentially decisive medical evidence.”7 Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014)
(collecting cases) (remanding case where the MRI results “undermined the reasoning of the
second consulting physician, whose ground for disregarding the plaintiff’s allegation that her
condition had worsened was the lack of new supporting medical evidence in the file).
To explain, the 2013 medical evidence pertaining to Wells’s back pain was potentially
decisive because the ALJ assigned Wells an RFC for “a full range of work at all exertional
levels,” which included medium work. (AR 24). Medium work requires lifting up to 50 pounds
occasionally and 25 pounds frequently, standing or walking six hours out of an eight-hour
workday, and frequent bending or stooping. SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983).
“[S]tooping” is a type of bending in which a person bends his or her body downward and
forward by bending the spine at the waist.” SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983).
“Flexibility of the . . . torso is important for this activity.” SSR 83-10, 1983 WL 31251, at *6
(Jan. 1, 1983). In contrast, light work requires lifting no more than 20 pounds occasionally and
10 pounds frequently; standing or walking six hours out of an eight-hour workday; and
occasional, rather than frequent, stooping. SSR 83-10, 1983 WL 31251, at *5-6 (Jan. 1, 1983).
The Court also observes that Wells weighed 268 pounds in March 2013 and 291 pounds in September
2013, evidencing an increase in his obesity. (AR 746, 750); see Gentle v. Barnhart, 430 F.3d 865, 868-69 (7th Cir.
2005) (noting the aggravating effect of obesity on degenerative disc disease and in combination with psychiatric
The distinction between medium and light work is “critical” in this case. Dimmett v.
Colvin, 816 F.3d 486, 488 (7th Cir. 2016). This is because Wells is of advanced age (55 to 59
years), and there is no evidence that he has any transferable skills, as there is no VE testimony to
that effect. (See AR 29, 298). “[A] person of [advanced age] who has no skills transferable to
light or sedentary work is presumptively disabled.” Dimmett, 816 F.3d at 488 (citations
omitted). Therefore, if the ALJ had limited Wells to light or sedentary work, instead of “all
exertional levels,” and he had no transferable skills, he would have been deemed disabled under
Grid Rule 202.06. See 20 C.F.R. § 404, Subpt. P, App’x 1; Table No. 2, Rule 202.06.
The ALJ was charged with building an accurate and logical bridge from Dr. Wilkins’s
2013 treatment notes, the X-rays, and the MRI results revealing degenerative disc disease and
back pain, to his conclusion that Wells could perform medium work. See, e.g., Pope v. Colvin,
No. 14 C 643, 2016 WL 1060280, at *3 (N.D. Ill. Mar. 11, 2016) (remanding case where the
ALJ “failed to draw a logical bridge from his discussion of the medical evidence to his ultimate
findings regarding [c]laimant’s RFC that she could perform medium work”). In doing so, “an
ALJ cannot play the role of doctor and interpret medical evidence [such as X-rays and MRI
results] when he or she is not qualified to do so.” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir.
2007) (citations omitted); see Goins, 764 F.3d at 680 (finding that the ALJ improperly played
doctor by summarizing the MRI results and failing to submit the MRI to medical scrutiny);
Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (“This mistaken reading of the evidence
illustrates why ALJs are required to rely on expert opinions instead of determining the
significance of particular medical findings.”); Hoyt v. Colvin, 553 F. App’x 625, 627-28 (7th Cir.
2014) (finding that the ALJ improperly substituted his own medical judgment in place of the
claimant’s treating physician by interpreting a lumbar MRI as inconsistent with the claimant’s
complaints of pain, observing that the state agency doctors did not review the test results and
their dated opinions could not account for how the claimant’s condition might have deteriorated).
Here, the ALJ failed to build the necessary bridge. See, e.g., Robinson v. Astrue, No. 10 C 2304,
2012 WL 1144821, at *15 (N.D. Ill. Apr. 5, 2012) (remanding case where the ALJ failed to
explain how he arrived at an RFC for medium work in light of the claimant’s degenerative disc
There are other problems, as well, with respect to the ALJ’s consideration of Wells’s
activities of daily living. The ALJ did not build a logical bridge between Wells’s performance of
rather minimal, light daily living tasks—such as watching television, spending time on the
computer, doing laundry, light cleaning, cooking, attending medical appointments, taking the
bus, and grocery shopping (AR 23-24, 26)—and an RFC for medium work. See, e.g., Castaneda
v. Colvin, No. 14 C 7023, 2016 WL 427511, at *2 (N.D. Ill. Feb. 4, 2016) (remanding case
where “[s]imply put, the ALJ did not build the bridge between the Plaintiff’s ability to perform
certain daily activities and its bearing on his ability to work a full-time medium exertional level
Similarly, with respect to his mental impairments, the ALJ suggested that Wells must
have overstated the effects of his panic attacks, anxiety disorder, and agoraphobia because he
lives alone, could drive a car, is independent with his self care and household tasks, grocery
shops, takes the bus, watches television, spends time on the computer, attends medical
appointments, and is involved in “a lot of activities” relating to his treatment at the Bowen
Center. (AR 23-24, 26). However, there are “critical differences between activities of daily
living and activities in a full-time job.” Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012).
“[A] person has more flexibility in scheduling the former than the latter, can get help from other
persons . . . , and is not held to a minimum standard of performance, as [he] would be by an
employer.” Id. Also, “[t]here is a significant difference between being able to [leave home and]
work a few hours a week and having the capacity to work full time.” Larson v. Astrue, 615 F.3d
744, 752 (7th Cir. 2010) (citations omitted) (finding that the claimant’s part-time work for a
friend did not undermine her testimony that she is afraid to go out in public); Bauer v. Astrue,
532 F.3d 606, 609 (7th Cir. 2008) (“Suppose that half the time [the claimant] is well enough that
she could work, and half the time she is not. Then she could not hold down a full-time job.”
In the past, Wells accommodated his panic attacks and agoraphobia by working in jobs,
such as a self-employed real estate appraiser, that afforded him flexibility of schedule and
Most of my working life I have been in positions that would allow me to leave
and go home to rest in the event of having a panic attack especially in the past ten
years where I was a Residential Real Estate Appraiser and only had to leave my
home a few times a week for about an hour and then return home to do the report
a little at a time over several days until it was finished. This is a major problem
with working at this time as I could and would have a panic attack at any time
that would require me to just have to drop what I’m doing and go home to
decompress. This decompression process could last anywhere from several hours
to a few days.
(AR 299; see also AR 53-54, 57, 61, 73, 75-78); see Larsen, 615 F.3d at 752 (“[T]he ALJ’s
conclusion that Larsen accommodated her fear of going out in public does not discredit her
testimony that she has a fear of going out in public and gives in to that fear regularly.”).
Although the ALJ limited Wells to jobs “with no strict production quotas” (AR 25), the ALJ
never addressed Wells’s likely need for unscheduled breaks or absences due to his panic attacks.
See Jelinek v. Astrue, 662 F.3d 805, 812-13 (7th Cir. 2011) (“The activities the ALJ mentioned
reflected only her willingness and ability to stay engaged in commendable but limited endeavors
part-time or at her own pace.”).
The Court’s above-stated concerns are heightened by the fact that Wells appeared
unrepresented at the administrative hearing. The ALJ’s duty to develop a full and fair record is
enhanced when a claimant appears without counsel at the hearing. See Nelms v. Astrue, 553 F.3d
1093, 1098-99 (7th Cir. 2009); Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997).
For these reasons, the ALJ’s decision will be remanded for the purpose of submitting the
medical evidence from 2013 to medical scrutiny and reassessing Wells’s symptom testimony.
D. Upon Remand, the ALJ Should Also Revisit the Weight
Applied to the Opinions of Drs. Hill and Horton
Upon remand, the ALJ should also revisit the “great weight” applied to the opinions of
Drs. Hill and Horton, the reviewing state agency psychologists. These doctors rendered their
opinions in 2012, and thus, they never saw the treatment records from 2013 documenting
Wells’s more than 100 mental health visits to the Bowen Center doctors and counselors,
including Ms. Lemke’s GAF score of 50 and Wells’s continued issues with panic attacks. See
Campbell v. Astrue, 627 F.3d 299, 309 (7th Cir. 2010) (remanding case where the ALJ relied on
the state agency psychologists’ opinions, but these doctors did not have the benefit of reviewing
a 15-month period of mental health treatment records that included GAF ratings never higher
than 50); see also Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir. 2016) (remanding case where
the ALJ had assigned significant weight to the opinions of the state agency psychologists, but
they had reviewed only a fraction of the claimant’s treatment records that were available before
the claimant submitted additional evidence). When concluding that Wells could perform simple
tasks on a sustained basis, Drs. Hill and Horton both relied upon, at least in part, an April 2012
note from Dr. Wilkins stating that Wells was “not having panic attacks anymore but still a lot of
anxiety.” (AR 93, 118, 332).
The Bowen Center’s treatment records, however, were “the most recent professional
word” on Wells’s mental impairments. Jelinek, 662 F.3d at 812 (remanding case where the ALJ
cast aside the recent treating doctor’s opinion on Jelinek’s mental impairments in favor of stateagency opinions that were two years old); Coppage v. Colvin, No. 2:13-CV-405-PRC, 2015 WL
1243321, at *12 (N.D. Ind. Mar. 17, 2015) (remanding the case and noting that “the significant
weight the ALJ gave to the consultative reviewers’ opinions is suspect in light of the time that
elapsed between their June and July 2011 opinions and the August 2012 hearing given the
intervening medical records, the subsequent treating physician opinions, and Plaintiff’s
testimony”). These 2013 records reveal that Wells was diligently participating in mental health
treatment and making progress in accommodating his symptoms, but that he was still
experiencing some panic attacks, which were described as “Improved, Not Controlled.” (See,
e.g., AR 394-95, 398, 401, 415, 423, 438, 450, 452, 456). These records could have affected the
opinions of the state agency psychologists.8 See Buechel v. Colvin, No. 11 C 4348, 2013 WL
1200611, at *12 (N.D. Ill. Mar. 25, 2013) (collecting cases that remanded because the ALJ relied
With respect to Wells’s DIB claim, “[a]s a simple matter of logic, even if medical evidence . . . did not
exist at the date last insured, that fact standing alone does not mean that such evidence lacks probative value as to a
plaintiff’s pre-date last insured impairments.” Freismuth v. Astrue, 920 F. Supp. 2d 943, 951 (E.D. Wis. 2013)
(citing Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998); Allord v. Barnhart, 455 F.3d 818, 822 (7th Cir. 2006)); see
also Phelps v. Colvin, No. 13-cv-1211-CJP, 2014 WL 7360196, at *5 (S.D. Ill. Dec. 23, 2014) (stating that medical
treatment rendered after the date last insured can be considered if it helps to illuminate the claimant’s condition
during the insured period).
upon state agency doctors’ opinions that were not based on a complete review or accurate
summary of all the relevant medical evidence); Ivey v. Astrue, No. 2:11-CV-83, 2012 WL
951481, at *13 (N.D. Ind. Mar. 20, 2012) (recognizing that an ALJ’s decision to give more
weight to a reviewing state agency doctor’s opinion “cannot stand where it lacks evidentiary
support and is based on an inadequate review of [the claimant’s] subsequent medical record”).
Therefore, upon remand, the ALJ should also submit the mental health evidence from
2013 to medical scrutiny for the purpose of reassessing Wells’s symptom testimony,
reconsidering the medical source opinion evidence, and reassessing the RFC.9
For the foregoing reasons, the decision of the Commissioner is REVERSED, and the case
is REMANDED to the Commissioner for further proceedings in accordance with this Opinion
and Order. The Clerk is directed to enter a judgment in favor of Wells and against the
Entered this 28th day of March 2017.
/s/ Susan Collins
United States Magistrate Judge
Because a remand is warranted on these grounds, the Court need not reach his remaining arguments.
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