Martin v. Commissioner of Social Security
Filing
23
OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. The Clerk is directed to enter a judgment in favor of the Commissioner and against Martin. Signed by Magistrate Judge Susan L Collins on 3/22/19. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
GAIL A. MARTIN,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL
)
SECURITY, sued as Nancy A. Berryhill, )
Acting Commissioner of Social Security, )
)
Defendant.
)
CAUSE NO. 1:18-cv-00033-SLC
OPINION AND ORDER
Plaintiff Gail A. Martin appeals to the district court from a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her application under the Social
Security Act (the “Act”) for disability insurance benefits (“DIB”).1 For the following reasons,
the Commissioner’s decision will be AFFIRMED.
I. BACKGROUND
Martin applied for DIB in August 2011, alleging disability as of September 25, 2009.
(DE 8 Administrative Record (“AR”) 214-18). In October 2012, administrative law judge
Melinda W. Kirkpatrick (“ALJ Kirkpatrick”) conducted a hearing. (AR 32-116, 604-75). On
November 27, 2012, ALJ Kirkpatrick rendered an unfavorable decision, which Martin appealed
to the district court. (AR 14-25, 724-745); see Martin v. Colvin, No. 1:14-CV-00078-SLC, 2015
WL 3617834 (N.D. Ind. June 9, 2015).
In February 2014, Martin file a new application for DIB, alleging disability as of
November 2012. (AR 938-39). Martin was last insured for DIB purposes on December 31,
1
All parties have consented to the Magistrate Judge. (DE 13); see 28 U.S.C. § 636(c).
2014 (AR 519), and therefore, she must establish that she 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 she was disabled as of her date last insured in order to
recover DIB). On June 9, 2015, the district court remanded Martin’s case to the Commissioner
to reassess Martin’s residual functional capacity (“RFC”). Martin, 2015 WL 3617834, at *7. On
October 23, 2015, the Appeals Council vacated and remanded ALJ Kirkpatrick’s decision,
combining Martin’s initial application for DIB with her February 2014 application “for further
proceedings consistent with the order of the [district] court.” (AR 746-50).
On February 18, 2016, administrative law judge William Pierson (“ALJ Pierson”) held a
hearing at which Martin, who was represented by counsel; Martin’s boyfriend, Beecher Hines;
and vocational expert Richard Oestreich (the “VE”) testified. (AR 561-603). On March 29,
2016, ALJ Pierson rendered an unfavorable decision, finding that Martin was not disabled. (AR
514-53). Martin requested that the Appeals Council review ALJ Pierson’s decision, but the
Appeals Council denied her request, making ALJ Pierson’s decision the final, appealable
decision of the Commissioner. (AR 508-13).
On February 8, 2018, Martin filed the complaint in this action, seeking relief from the
Commissioner’s final decision. (DE 1). In her appeal, Martin alleges that ALJ Pierson: (1)
failed to adhere to the instructions of the district court’s previous remand of Martin’s case; (2)
inappropriately discredited the opinions of two state agency physicians in crafting the RFC; (3)
failed to provide adequate reasoning for rejecting an assessment by Jeremy Lewis LMFT; and (4)
did not account for her moderate limitations in maintaining concentration, persistence, or pace in
the RFC or the hypothetical to the VE. (DE 16 at 7-25).
2
II. ALJ PIERSON’S FINDINGS
Under the Act, a claimant is entitled to DIB if she 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). 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).
In determining whether Martin is disabled as defined by the Act, ALJ Pierson conducted
the familiar five-step analytical process, which required him to consider 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 her past work; and (5) whether the claimant is incapable of
performing work in the national economy.2 See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001); 20 C.F.R. § 404.1520. 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). A negative answer at any point other than step three stops the inquiry and
leads to a finding that the claimant is not disabled. Id. The burden of proof lies with the
claimant at every step except the fifth, where it shifts to the Commissioner. Id. at 885-86.
At step one, ALJ Pierson found that Martin had not engaged in substantial gainful
2
Before performing steps four and five, an ALJ must determine the claimant’s RFC, or what tasks the
claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(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),
404.1545(a)(5).
3
activity from March 9, 2010, through her date last insured, December 31, 2014. (AR 520). At
step two, ALJ Pierson found that Martin had the following severe impairments: generalized
anxiety disorder/panic disorder, mood disorder/depression, and post-traumatic stress disorder.
(AR 520-28).
At step three, ALJ Pierson concluded that Martin did not have an impairment or
combination of impairments severe enough to meet or equal a listing. (AR 528-31). Before
proceeding to step four, ALJ Pierson assigned Martin the following RFC:
[She] had the physical [RFC] to perform a full range of work at all
exertional levels. [Martin] retained the mental [RFC] to perform
simple, routine, and repetitive tasks that could be learned through
short demonstration and/or over a period of up to thirty days. She
could maintain the concentration required to perform simple tasks,
remember simple work-like procedures, and make simple workrelated decisions. [Martin] was limited to a low-stress job defined
as requiring only occasional decision making and only occasional
changes in the work setting. She could tolerate predictable
changes in the work environment and meet production
requirements in an environment that allowed her to sustain a
flexible and goal[-]oriented pace. As to social interactions,
[Martin] was limited to superficial interactions with co-workers,
supervisors, and the public, with superficial defined as occasional
and casual contact not involving prolonged conversation with
contact with supervisors still involving necessary instruction.
(AR 531). Based on this RFC, ALJ Pierson found at step four that Martin could not perform her
past relevant work. (AR 542-43). ALJ Pierson considered the testimony of the VE and other
evidence in the record and determined at step five that Martin could perform other jobs in the
national economy that exist in significant numbers, and therefore, her application for DIB was
denied. (AR 543-44).
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
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Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g). The Court’s task is limited to determining whether an 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 an ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh 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. Id. Nonetheless, “substantial
evidence” review should not be a simple rubber-stamp of the Commissioner’s decision. Id.
(citing Ehrhart v. Sec’y of Health & Human Servs., 969 F.2d 534, 538 (7th Cir. 1992)).
IV. ANALYSIS
A. The Law of the Case Doctrine
Martin contends that ALJ Pierson violated “the law of the case doctrine” by failing to
implement the district court’s findings—that is, from Martin’s first appeal of the Commissioner’s
decision—regarding the severity of Martin’s limitations.
“The law of the case doctrine requires that ‘once an appellate court either expressly or by
necessary implication decides an issue, the decision will be binding upon all subsequent
proceedings in the same case.’” Middleton v. Berryhill, No. 16 CV 11136, 2018 WL 4384566, at
*6 (N.D. Ill. Sept. 14, 2018) (emphasis in original) (quoting Key v. Sullivan, 925 F.2d 1056,
1060 (7th Cir. 1991)). “The law of the case doctrine is equally applicable to judicial review of
5
administrative decisions.” Alesia v. Berryhill, No. 16 CV 9806, 2018 WL 3920534, at *6 (N.D.
Ill. Aug. 16, 2018) (citation omitted). “It requires the administrative agency, on remand from a
court, to conform its further proceedings in the case to the principles set forth in the judicial
decision, unless there is a compelling reason to depart.” Wilder v. Apfel, 153 F.3d 799, 803 (7th
Cir. 1998). A court or administrative body involved in a later phase of a lawsuit may not re-open
questions decided by a higher court or in an earlier phase of the lawsuit. Larsen v. U.S. Navy,
887 F. Supp. 2d 247, 251 (D.D.C. 2012) (citing Crocker v. Piedmont Aviation, Inc., 49 F.3d 735,
739 (D.C.Cir.1995)). “A ruling that evidence was insufficient to support some finding is the
type of ruling that establishes the law of the case.” Wilder, 153 F.3d at 803.
In Martin’s previous case, ALJ Kirkpatrick found at step three that Martin had moderate
limitations in maintaining concentration, persistence, or pace. (AR 21). The district court
determined that ALJ Kirkpatrick failed to expressly account for these limitations in crafting the
RFC and the hypothetical to the vocational expert. See Martin, 2015 WL 3617834, at *7. The
district court rejected the Commissioner’s assertion that ALJ Kirkpatrick accommodated
Martin’s moderate limitations by limiting her to only occasional social interactions. Id. Thus,
the district court ordered a remand of the Commissioner’s decision “for the purpose of
reassessing Martin’s RFC.” Id. at *8.
The district court’s holding, which became the law of the case, was that the assigned RFC
and the hypothetical to the vocational expert were not supported by substantial evidence because
they did not adequately take into account ALJ Kirkpatrick’s conclusion that Martin had moderate
deficits in maintaining concentration, persistence, or pace.
Martin argues that ALJ Pierson failed to adhere to the law of the case doctrine by
departing from the district court’s supposed finding that Martin is limited to performing light
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work. But the district court’s holding establishes that it did not conclude that Martin is limited to
light work. In fact, the district court did not make any findings regarding Martin’s limitations
that constitute “law of the case.” At most, the district court affirmed ALJ Kirkpatrick’s finding
that Martin has moderate difficulties in maintaining concentration, persistence, or pace. But
even if such a finding did become “law of the case,” ALJ Pierson still did not violate the law of
the case doctrine because he found that Martin has moderate difficulties in maintaining
concentration, persistence, or pace. (See AR 528-31). Therefore, ALJ Pierson’s decision will
not be remanded based on Martin’s argument regarding the law of the case doctrine.
B. The RFC Assigned by Dr. Sands and
Confirmed by Dr. Ruiz
The RFC is “the individual’s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis,” meaning eight hours a day, for
five days a week. SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996); see Young v. Barnhart,
362 F.3d 995, 1000-02 (7th Cir. 2004) (citations omitted); 20 C.F.R. § 404.1545(a)(1) (“Your
[RFC] is the most you can still do despite your limitations.”). The RFC assessment “is based
upon consideration of all relevant evidence in the case record, including medical evidence . . . .”
SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996); see 20 C.F.R. § 404.1545.
The Seventh Circuit Court of Appeals has stated that “more weight is generally given to
the opinion of a treating physician because of his greater familiarity with the claimant’s
conditions and circumstances.” Clifford, 227 F.3d at 870 (citations omitted); see 20 C.F.R. §
404.1527(c)(2). Each medical opinion, other than a treating physician’s opinion, must be
evaluated pursuant to factors articulated in 20 C.F.R. § 404.1527(c) to determine the proper
weight to apply to it. See White v. Barnhart, 415 F.3d 654, 658-60 (7th Cir. 2005). One factor
an ALJ may consider is the extent to which an opinion is supported by the record. Long v.
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Comm’r Soc. Sec., No. 2:15-CV-408-JEM, 2017 WL 1161012, at *3 (N.D. Ind. Mar. 28, 2017)
(quoting SSR 96-5p, 1996 WL 374183, at *3, 5). Finally, although an ALJ may decide to adopt
the opinions in a medical source statement concerning the ability of a claimant to perform workrelated activities, the RFC assessment is an issue reserved to an ALJ. SSR 96-5p, 1996 WL
374183, at *4.
On October 10, 2011, state agency physician J. Sands, M.D., reviewed Martin’s record.
(AR 119-25). Dr. Sands relied on x-rays taken of Martin on October 3, 2011; Park Center
records; submissions of Martin and her representative; the report of Revathi Bingi, Ph.D.; the
functional report of Mr. Hines; state agency consultant David Ringel, D.O.’s report of September
21, 2011; reports from the Family Chiropractic Associates, PC; and reports from Parkview First
Care. (AR 119-21). Dr. Sands concluded that Martin could occasionally lift or carry 20 pounds;
frequently lift or carry 10 pounds; stand or work with breaks for a total of about six hours in an
eight-hour workday; sit with normal breaks for six hours in an eight-hour workday; climb
ladders, ropes, or scaffolds occasionally; and perform other postural positions frequently. (AR
124-25). Dr. Sands opined that Martin had reduced range of motion in her cervical lumbar spine
and mild cervical disc degeneration. (AR 125).
Dr. Sands assessed Martin with the following medically determinable impairments:
discogenic and degenerative disorders of the back, anxiety disorders, drug and substance
addiction disorders, and personality disorders. (AR 122). On October 26, 2011, M. Ruiz, M.D.,
another state agency physician, reviewed and affirmed Dr. Sands’s report. (AR 460).
With respect to Martin’s physical limitations in her neck or spine, Dr. Sands’s and Dr.
Ruiz’s assessments relied on Dr. Ringel’s report, the chiropractor’s report, and x-rays. None of
the other sources discussed limitations or symptoms concerning Martin’s spine or neck.
8
Martin was treated by Family Chiropractic Associates in July 2011. (AR 440-42). She
reported being unable to sit or stand over long periods of time, together with pain in her lower
back and sides. (AR 442).
Dr. Ringel examined Martin in September 2011. (AR 443-45). Dr. Ringel assigned
Martin a 20-pound weight-lifting restriction. (AR 443). With respect to functional limitations,
Dr. Ringel opined that Martin could stand for 15 minutes at a time and two-and-a-half hours out
of an eight-hour workday; walk a half block on level ground; sit for 20 minutes without
difficulty; lift up to five pounds on a regular basis; and drive up to two hours at a time. (AR
443).
Dr. Ringel found that Martin’s reflexes were 2/4 bilaterally. (AR 445). Her gait was
“completely normal,” and she did not need an assistive device. (AR 445). Her grip strength was
5/5 bilaterally. (AR 445). No abnormality was noted in either hand, though she did have a small
ganglion cyst on the left dorsal wrist. (AR 445). She had pain at the right sacral iliac joint and
some mild spasms bilaterally in the lumbar area. (AR 445). Shoulders, elbows, wrists, knees,
and ankles had full range of motion. (AR 445). Straight leg raise tests were 40 degrees
bilaterally, with normal 90 degrees bilaterally when seated. (AR 445).
Martin could lay straight back on the examination table and get on and off of it without
assistance. (AR 445). Martin could walk on her heels and toes without difficulty but refused to
squat due to back discomfort. (AR 445). Dr. Ringel assessed that Martin had decreased range of
motion of her cervical and lumbar spinal segments and hips bilaterally. (AR 445). Martin
“relate[d]” that compressed discs in her back caused “a permanent 20[-]pound weight[-]lifting
restriction.” (AR 445).
In October 2011, x-rays showed that Martin’s hips and lumber spine were normal. (AR
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457-58). The reviewing physician noted “[m]inimal disc space narrowing seen at C5-C6 with
minimal degenerative osteophytes.” (AR 458).
On March 27, 2014, state agency physician Joshua Eskonen, D.O., reviewed Martin’s
record. (AR 713-22). Dr. Eskonen determined that Martin had “[n]o physical impairments [as]
alleged,” and that her physical exam was “unremarkable.” (AR 716). Dr. Eskonen noted that
“[t]he evidence as a whole, both medical and non-medical, is not sufficient to support a decision
on the claim.” (AR 715).
ALJ Pierson assigned “very little weight” to Dr. Sands’s and Dr. Ruiz’s reports. (AR
527). ALJ Pierson concluded that Dr. Sands and Dr. Ruiz based their opinions largely on Dr.
Ringel’s notation that Martin “relates” symptoms and limitations of function. (AR 527). ALJ
Pierson provided a number of other reasons why Dr. Ringel’s report was entitled to little weight,
which Martin does not contest. (See AR 527).
On the other hand, ALJ Pierson found that the lack of evidentiary support for Martin’s
alleged physical impairments was consistent with the opinion of Dr. Eskonen. (527-28). ALJ
Pierson stated that “it appears the possibility of physical limitations of function was considered
by Dr. Eskonen but was also rejected. Dr. Eskonen . . . considered the physical examination
results and also considered the fact that the claimant did not allege physical limitations of
function in the subsequent claim.” (AR 528). Thus, ALJ Pierson assigned Dr. Eskonen’s report
“significant weight.” (AR 527).
First, Martin argues that ALJ Pierson inappropriately “played doctor” by determining that
the x-rays did not support the reports of Dr. Sands and Dr. Ruiz. (DE 16 at 14 (citing Whitney v.
Schweiker, 695 F.2d 784, 788 (7th Cir. 1982))). Dr. Sands’s report merely stated “[x-rays]:
normal hips and lumbar, mild cerv[ical] [discogenic and degenerative disorders].” (AR 125).
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While ALJ Pierson stated that diagnostic tests did not support the RFC assigned by Dr. Sands, he
never mentioned or analyzed the x-rays or Dr. Sands’s interpretation of the x-rays. (AR 526-27).
Therefore, ALJ Pierson did not “comment[] on the meaning of a test or clinical x-ray” or
otherwise “play doctor.” Whitney, 695 F.2d at 788. Accordingly, Martin’s argument lacks merit.
Second, Martin claims that ALJ Pierson erred in determining that Dr. Sands and Dr. Ruiz
relied on Dr. Ringel’s report in reaching their conclusions regarding Martin’s physical
limitations. Martin contends that neither Dr. Sands nor Dr. Ruiz “referenced . . . Martin’s report
of symptoms and limitations to Dr. Ringel.” (DE 16 at 15). Martin is correct that Dr. Sands and
Dr. Ruiz did not explicitly mention Dr. Ringel’s report in their assessments, but as noted supra,
Dr. Ringel’s report was the only opinion from an acceptable medical source regarding Martin’s
physical limitations. Furthermore, Martin has not pointed to any evidence that ALJ Pierson
failed to consider. Therefore, Martin’s second argument also lacks merit.
Third, Martin contends that ALJ Pierson erred in reaching the following conclusion: Dr.
Sands’s opinion (confirmed by Dr. Ruiz) that Martin has severe physical impairments lacks
credibility because Dr. Sands relied on Dr. Ringel’s report but Dr. Ringel did not provide a
diagnosis. Martin argues that Dr. Sands assessed discogenic and degenerative disorders of the
back and that ALJ Pierson did not provide adequate reasoning for rejecting this finding. (AR
122). However, Martin misstates ALJ Pierson’s conclusion: ALJ Pierson assigned greater
weight to Dr. Eskonen’s opinion—finding that Martin has no physical impairments—than to Dr.
Sands’s and Dr. Ruiz’s opinions because Dr. Eskonen’s opinion was more consistent with
evidence of record. See White, 415 F.3d at 658-60 (citing 20 C.F.R. § 404.1527(c)); Clifford,
227 F.3d at 871 (explaining that medical evidence may be discounted if it is inconsistent with
evidence of record). ALJ Pierson did not err in resolving the conflict between Dr. Eskonen’s
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report and Dr. Sands’s and Dr. Ruiz’s reports; rather, it was his job to do so. See Simila v.
Astrue, 573 F.3d 503, 515 (7th Cir. 2009); Hampton v. Berryhill, No. 2:17-CV-62-PRC, 2018
WL 1101985, at *6 (N.D. Ind. Mar. 1, 2018) (“[T]he more consistent an opinion is with the
record as a whole, the more weight [is given] to that opinion.” (second alteration in original)
(citation and internal quotation marks omitted)). Therefore, Martin’s third argument fails.
In Martin’s fourth and fifth arguments, she asserts that ALJ Pierson erred in finding that
she did not seek treatment “for her alleged neck and back pain,” apart from Dr. Ringel’s report
and the chiropractic report. This argument is not supported by the record because ALJ Pierson
reviewed several medical reports in which Martin did not exhibit or complain of back or neck
pain. (AR 523-24). Martin merely argues that these medical reports are “not inconsistent” with
her supposed physical limitations, but she fails to point out any evidence supporting her claim of
disability that ALJ Pierson did not consider.3 To that extent, Martin’s arguments amount to a
plea to reweigh the evidence—a task which the Court cannot do. See Clifford, 227 F.3d at 869
(recalling that courts “do not reweigh the evidence, resolve conflicts, decide questions of
credibility, or substitute our own judgment for that of the Commissioner” (citations omitted)).
Sixth, Martin claims ALJ Pierson erred in discounting Dr. Sands’s and Dr. Ruiz’s
opinions because Martin worked after 2004. Martin claims that the RFC assigned by Dr. Sands
and confirmed by Dr. Ruiz relates back to the alleged onset date of September 25, 2009,
rendering it irrelevant that Martin worked after 2004 (she did not work after the alleged onset
date). Martin argues that Dr. Sands indicated that his assessment of Martin’s RFC was a
3
Martin argues that ALJ Pierson mischaracterized the record when discussing Dr. Braun’s treatment notes.
ALJ Pierson stated that Dr. Braun noted Martin had a “supple and non-tender neck,” but Dr. Braun’s treatment notes
do not contain this description. (Compare AR 382-87, with AR 523). Thus, ALJ Pierson erred in describing Dr.
Braun’s treatment notes. However, because this error is harmless, see Shramek v. Apfel, 226 F.3d 809, 814 (7th Cir.
2000) (citing Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996)), the Court will not order a remand to reconsider
Dr. Braun’s treatment notes.
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“Current Assessment,” which Martin argues means that the RFC relates back to the alleged onset
date. (DE 16 at 17-18). Martin claims that the Social Security Administration provides that, in
completing a physical RFC assessment form, the term “Current Evaluation” relates back to the
alleged onset date to the present. (DE 16 at 17-18 (citing Social Security Administration,
Program Operations Manual System (POMS) (last updated August 27, 2015)
https://secure.ssa.gov/poms.nsf/lnx/0424510050)). Martin does not cite any cases in which a
court has applied her interpretation of “Current Assessment.” In any event, the Court does not
need to reach this argument because even if Martin’s interpretation of “Current Assessment” is
correct, Martin’s argument would still fail to show that ALJ Pierson committed error. Dr.
Eskonen also gave a “Current Evaluation” of Martin’s RFC, and ALJ Pierson articulated why Dr.
Eskonen’s opinion was entitled to more weight than the opinions of Dr. Sands and Dr. Ruiz.
See, e.g., Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016). Therefore, Martin’s sixth
argument fails.
In Martin’s final argument, she claims ALJ Pierson erred in discrediting Dr. Sands’s and
Dr. Ruiz’s reports because there was no evidence that Martin ceased working due to a physical
impairment. In this argument, Martin claims that, in response to the hypothetical posed by ALJ
Pierson, the VE did not state the exertional level of Martin’s past work as she performed it.
However, it is not clear how the VE’s failure to identify the exertional level of Martin’s past
work as she performed it relates to the credibility of Dr. Sands’s and Dr. Ruiz’s assessments. In
any event, ALJ Pierson found that Martin was not able to perform her past relevant work, and
thus, any error in identifying the exertional level of her past work as performed was harmless.
(See AR 542-43); see Shramek, 226 F.3d at 814 (explaining that harmless errors are those that do
not ultimately impact the outcome of the determination (citation omitted)).
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C. Mr. Lewis’s February 2016 Assessment
Martin also argues that ALJ Pierson improperly evaluated the assessment of her mental
health counselor, Mr. Lewis, dated February 17, 2016.
Mr. Lewis saw Martin approximately 14 times between March 2014 and June 2015. (AR
1035, 1039, 1043-44, 1056, 1060-61, 1088-91, 1098-1101, 1110-11, 1118-21, 1125). Six
months after her June 2015 appointment, that is, on January 13, 2016, Martin saw Mr. Lewis
again. (AR 1067-68). Notably, Mr. Lewis never conducted a mental status exam; described
Martin’s affect, appearance, ability to communicate, or thought process; or assessed Martin’s
mood, concentration, or memory.
Then, in February 2016, Mr. Lewis completed an assessment of Martin’s mental
functioning. (1135-39). Mr. Lewis opined that Martin’s mental symptoms would worsen if she
returned to competitive work, causing her to be absent from work more than three days a month
or to be tardy more than three times a week. (AR 1137). Mr. Lewis stated that Martin would
stay on task for less than 70% of a workday. (AR 1138). Mr. Lewis estimated that Martin could
function with others for a third of an eight-hour workday. (AR 1138).
In November 2013, Martin saw Mitchell Stucky, M.D., who assessed her as having rapid
or pressured speech; an angry and blunt affect; but normal cognition and memory. (E.g., AR
1117-22). Dr. Stucky examined Martin again in February 2015 and assessed mood and
personality disorders, but he did not identify deficiencies in mental functioning. (AR 1065).
Martin also saw Susan Charow Sherman, M.D., several times in 2014 for mental health
purposes. (AR 1023-31, 1036-38, 1040-42, 1045-52, 1122-24). In August 2014, Dr. Sherman
noted that Martin’s affect and mood were congruent; she was oriented as to person, place, time,
and situation; and her recent, remote and immediate memory were intact. (AR 1123-24).
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In March 2014, Martin began seeing Amy K. Scheeringa, MSN, APRN-CNS, PMH-BC.
(AR 1058-59). Between November 2014 and December 2015, Ms. Scheeringa assessed Martin
with post-traumatic stress disorder, bipolar disorder not otherwise specified, and alcohol abuse;
and assigned a Global Assessment of Functioning (“GAF”) scores of 55, 58, and 594 (the score
of 59 being assigned in August 2015). (AR 1078-87, 1092-97, 1102-07, 1112-17). Ms.
Scheeringa also performed several mental status exams (e.g., AR 1085-87) noting congruent
affect; appropriate behavior; logical, coherent, and goal directed thought process; normal thought
content; no memory deficits; normal attention/concentration; and orientation to person, place,
time, and situation (e.g., AR 1072-73).
In March 2015, Ajay Gupta, M.D., conducted a neurological examination of Martin. (AR
1128-35). Dr. Gupta assessed that Martin did not have depression, panic or anxiety attacks,
compulsion, suicide attempts, addictions, or hallucinations. (AR 1129). Regarding mental
status, Dr. Gupta found that Martin was alert and oriented to person, place, and time; her
cognition was intact; and she was pleasant and cooperative. (AR 1130).
ALJ Pierson provided several reasons why Mr. Lewis’s February 2016 assessment was
entitled to little weight: (1) he is not an acceptable medical source; (2) his treatment notes do not
support the February 2016 assessment; (3) there was a six month gap in Martin’s treatment with
Mr. Lewis leading up to the February 2016 assessment; (4) Mr. Lewis did not cite objective tests
4
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 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). Id.
“The American Psychiatric Association no longer uses the GAF as a metric.” Spencer v. Colvin, No. 13cv-1487, 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, various medical providers of record used GAF
scores in assessing Martin, so the GAF is relevant to the ALJ’s decision. See id. (citing Bates v. Colvin, 736 F.3d
1093, 1099 (7th Cir. 2013)).
15
in support of the limitations in the February 2016 assessment; (5) Mr. Lewis completed the
February 2016 assessment to help Martin obtain social security benefits; and (6) the February
2016 assessment was inconsistent with other medical evidence of record. (AR 534-38).
ALJ Pierson also found that records from Dr. Sherman, Ms. Scheeringa, and another
psychiatrist failed to establish “significant functional limitations with respect to performing the
mental demands of work.” (AR 539-40). ALJ Pierson assigned significant weight to Ms.
Scheeringa’s treatment records because of her “longitudinal relationship with [Martin],” the
consistency of her GAF scores with her records and Dr. Sherman’s records. (AR 541).
Martin’s first argument—that ALJ Pierson did not explain the relevance of the six-month
gap in treatment—fails. An ALJ may consider the frequency and nature of treatment in
evaluating the weight to lend to a source’s opinion. See Wyatt v. Astrue, No. 1:11-CV-00874MJD, 2012 WL 2358149, at *4 (S.D. Ind. June 20, 2012) (finding that the ALJ may consider
“the treatment relationship including the length, nature, and extent of the relationship and the
frequency of examinations” (citing 20 C.F.R. § 404.1527(c)); see also Stevenson, 105 F.3d at
1155 (“The ALJ was entitled to make reasonable inferences from the evidence before him . . .”
(citation omitted)).
Here, while ALJ Pierson did not specifically state that the gap in treatment indicates that
Mr. Lewis lacked the necessary familiarity with Martin’s condition to render the opinions in the
February 2016 assessment, such an explanation was not necessary. “The ALJ’s explanation
should be given a ‘commonsensical reading’ and should not be needlessly or pedantically
nitpicked.” Busking v. Colvin, No. 11 C 1598, 2013 WL 4401380, at *18 (N.D. Ill. Aug. 14,
2013) (quoting Shramek, 226 F.3d at 811). ALJ Pierson sufficiently connected the evidence to
his conclusion on this point. See, e.g., Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988)
16
(finding that an ALJ must articulate his analysis “at least at a minimum level” (citation omitted)).
Furthermore, Martin does not offer an alternative explanation for the six-month gap in treatment.
Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (citing 20 C.F.R. § 404.1512(c); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987)). Therefore, Martin’s first argument fails.
Second, Martin takes issue with ALJ Pierson’s conclusion that Mr. Lewis did not provide
support for his conclusions that Martin would be absent from work or unable to stay on task. An
ALJ may assign greater weight to the opinion of a source who is not an acceptable medical
source, if the opinion “provide[s] better supporting evidence and a better explanation for the
opinion . . . .” 20 C.F.R. § 404.1527(f)(1). Here, ALJ Pierson correctly observed that the
conclusions in Mr. Lewis’s February 2016 assessment lacked clinical or diagnostic support. For
example, Mr. Lewis stated that he “would expect [Martin’s] symptoms to worsen due to the
intensity of anxiety she experiences in public situations,” but he did not support his expectation
with evidence. (AR 1136). Similarly, Mr. Lewis concluded that if Martin worked eight hours a
day, five days a week, she would “likely . . . find the anxiety she experiences overwhelming,”
resulting in more than three absences per month. (AR 1136). But, again, Mr. Lewis did not
explain what findings or supporting evidence made this outcome “likely.” Martin does not point
to any supporting evidence that ALJ Pierson ignored. Therefore, the Court will not disturb ALJ
Pierson’s conclusion that Mr. Lewis’s February 2016 assessment lacked evidentiary support.
Third, Martin claims ALJ Pierson erred in determining that Mr. Lewis’s treatment notes
did not support his February 2016 assessment. It is well established that an ALJ may “discount
medical opinions based solely on the patient’s subjective complaints.” Filus v. Astrue, 694 F.3d
863, 868 (7th Cir. 2012) (citing Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008)); see
also Diaz v. Chater 55 F.3d 300, 308 (7th Cir. 1995). ALJ Pierson found that Mr. Lewis’s
17
treatment notes merely documented Martin’s subjective complaints and “his efforts to help
[Martin] see how her perception of others affected her social anxiety,” deal with family conflict,
and respond to grief. (AR 534). In fact, Martin concedes this point because in listing the
symptoms that she argues ALJ Pierson should have interpreted as signs, Martin states that she
“reported” each one. (See DE 16 at 19-20). Conversely, ALJ Pierson determined that the
February 2016 assessment provided opinions about Martin’s condition “outside the realm of
subjective complaints.” (AR 534-35). Thus, ALJ Pierson correctly determined that Mr. Lewis’s
treatment notes were entitled to little weight, Filus, 694 F.3d at 868, and consequently, ALJ
Pierson did not err in deciding that Mr. Lewis’s treatment notes did not support the February
2016 assessment.
Fourth, Martin contends that ALJ Pierson did not give good reasons for assigning little
weight to certain aspects of Mr. Lewis’s February 2016 assessment. The problem with Martin’s
argument is that ALJ Pierson found that no evidence of record supported limitations assigned in
the February 2016 assessment, and therefore, ALJ Pierson provided sound reasons for
discounting all the assigned limitations. Furthermore, ALJ Pierson did not reject Mr. Lewis’s
opinion; rather, he assigned the February 2016 assessment “little weight.” (AR 539); see
Busking, 2013 WL 4401380, at *19 (“[T]o begin with, contrary to the plaintiff’s assertion, the
ALJ did not reject the relevant portion of Dr. Jilhewar’s testimony; instead, she merely gave it
‘little weight.’”). The burden was on Martin to demonstrate that the February 2016 assessment
was supported by evidence, Scheck, 357 F.3d at 702 (citing 20 C.F.R. § 404.1512(c); Bowen, 482
U.S. at 146 n.5), and she has failed to carry that burden.
Finally, Martin argues that ALJ Pierson should not have discounted the February 2016
assessment because it was obtained to receive benefits. This argument ignores that ALJ Pierson
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was entitled to consider the nature of the treatment relationship in determining the weight to
assign to it. 20 C.F.R. § 404.1527(f)(1). The fact that Martin saw Mr. Lewis in February 2016
to obtain social security benefits was just one factor in ALJ Pierson’s analysis that “call[ed] into
question [the] reliability of [Mr. Lewis’s] assessment.” (AR 538). Martin has failed to persuade
the Court that ALJ Pierson erred in assigning little weight to the February 2016 assessment, and
therefore, ALJ Pierson’s conclusion on this issue will not be disturbed.
D. The Hypothetical to the VE
In her last argument, Martin asserts that ALJ Pierson failed to incorporate findings of a
moderate degree of limitations in concentration, persistence, or pace into her RFC or the
hypothetical to the VE.
At steps two and three of the sequential evaluation, an ALJ determines the severity of a
claimant’s mental impairment by assessing her degree of functional limitation in categories
identified in the “paragraph B” and “paragraph C” criteria of the adult mental disorders listings.
SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). Relevant to this appeal, the “paragraph B”
criteria consist of four “broad functional areas”: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3); see, e.g., Jones v. Massanari, No. 01-C-0024-C, 2001 WL 34382025, at *13
(W.D. Wis. Oct. 18, 2001).
ALJ Pierson assessed the paragraph B criteria at step three, and concluded that Martin
had “moderate difficulties” in maintaining concentration, persistence, or pace; moderate
difficulties with social functioning; and mild limitations in her ability to engage in daily
activities. (AR 529-30). ALJ Pierson emphasized that the paragraph B assessment did not
constitute an RFC determination, and stated that he would give a more detailed account of
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Martin’s mental limitations in the RFC. In turn, ALJ Pierson assigned the following mental
limitations in Martin’s RFC:
She retained the mental [RFC] to perform simple, routine, and
repetitive tasks that could be learned through short demonstration
and/or over a period of up to thirty days. [Martin] could maintain
the concentration required to perform simple tasks, remember
simple work-like procedures, and make simple work-related
decisions. [Martin] was limited to a low-stress job defined as
requiring only occasional decision making and only occasional
changes in the work setting. She could tolerate predictable
changes in the work environment and meet production
requirements in an environment that allowed her to sustain a
flexible and goal[-]oriented pace. As to social interactions,
[Martin] was limited to superficial interactions with co-workers,
supervisors, and the public, with superficial defined as occasional
and casual contact not involving prolonged conversation with
contact with supervisors still involving necessary instruction.
(AR 531). ALJ Pierson’s hypothetical to the VE included the following relevant exchange:
Q. Please assume a hypothetical individual. This is Hypothetical
One. The hypothetical individual [is] without limitations of
exertion. However, the individual is limited to work that involves
simple, routine and repetitive tasks that can be learned through
short demonstration [in] up to 30 days.
The individual can maintain the concentration required to
perform simple tasks. The individual can remember simple work[]like procedures. The individual can make simple work-related
decisions.
The individual is limited to work in a low stress job defined
as requiring only occasional decision making, only occasional
changes in the work setting. The individual can tolerate
predictable changes in the work environment.
The individual can meet production requirements in an
environment that would allow him or her to sustain goal[-]oriented
pace. The individual is limited to superficial interaction with
coworkers, supervisors, and the public with superficial interaction
defined as occasional and casual contact not involving prolonged
conversations.
However, contact with supervisors would still involve
necessary instruction. Could such an individual perform any of the
claimant’s past work?
A. No, your honor. It’s all semi-skilled. Your profile is lower
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than semi-skilled.
Q. Would there be other work activity, other representative
occupation such a person could perform?
A. Yes, your honor. I’ll give you several light [exertional]
examples.
(AR 599-602). Martin asserts that the hypothetical to the VE failed to incorporate her moderate
difficulties in maintaining concentration, persistence, or pace that ALJ Pierson discussed at step
three because the hypothetical limited Martin to “simple, repetitive tasks” or “unskilled work.”
The Seventh Circuit has instructed that “for most cases, the ALJ should refer expressly to
limitations on concentration, persistence, and pace in the hypothetical in order to focus the VE’s
attention on these limitations and assure reviewing courts that the VE’s testimony constitutes
substantial evidence of the jobs a claimant can do.” O’Connor-Spinner v. Astrue, 627 F.3d 614,
620-21 (7th Cir. 2010). This is because, in most cases, “employing terms like ‘simple, repetitive
tasks’ on their own will not necessarily exclude from the VE’s consideration those positions that
present significant problems of concentration, persistence and pace.” Id. at 620 (finding that a
restriction to repetitive tasks with simple instructions did not necessarily account for the
claimant’s depression-related problems in concentration, persistence, and pace (collecting
cases)); see also Warren v. Colvin, 565 F. App’x 540, 544 (7th Cir. 2014) (finding that a
limitation to “simple, repetitive tasks” did not adequately account for the claimant’s
concentration problems arising from depression and borderline intellectual functioning); Yurt v.
Colvin, 758 F.3d 850, 859 (7th Cir. 2014) (concluding that a limitation to unskilled work did not
sufficiently account for the claimant’s concentration problems stemming from depression and a
psychotic disorder). Having said that, the Seventh Circuit has not insisted “on a per se
requirement that this specific terminology (‘concentration, persistence and pace’) be used in the
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hypothetical in all cases.” O’Connor-Spinner, 627 F.3d at 619.
“Because response to the demands of work is highly individualized, the skill level of a
position is not necessarily related to the difficulty an individual will have in meeting the
demands of the job. A claimant’s [mental] condition may make performance of an unskilled job
as difficult as an objectively more demanding job.” SSR 85-15, 1985 WL 56857, at *6 (Jan. 1,
1985). Accordingly, the RFC and hypotheticals “must account for both the complexity of the
tasks and the claimant’s ability to stick with a task over a sustained period.” Warren, 565 F.
App’x at 544 (emphasis added) (citations omitted); see Yurt, 758 F.3d at 858 (articulating that an
RFC for unskilled work “by itself does not provide any information about [the claimant’s]
mental condition or abilities”).
In addressing complexity in the hypothetical to the VE, ALJ Pierson stated that Martin
could perform work “that can be learned through short demonstration [in] up to 30 days,”
requiring her to recall “simple work[-]like procedures” and make “simple work-related
decisions.” (AR 600). This characterization of Martin’s ability is consistent with the RFC. (See
AR 531 (limiting Martin to “tasks that could be learned through short demonstration and/or over
a period of up to thirty days,” and “simple work-like procedures, and . . . simple work-related
decisions”)). In relating Martin’s ability to stick with a task in the hypothetical to the VE, ALJ
Pierson stated that Martin “could maintain the concentration” to “perform simple tasks,” and that
she “can meet production requirements in an environment that would allow him or her to sustain
goal[-]oriented pace.” (AR 600). This limitation is reflected in the RFC: Martin could perform
“simple tasks,” and “remember simple work-like procedures” in an environment that allows her
“sustain a flexible and goal[-]oriented pace.” (AR 531).
Therefore, ALJ Pierson did not violate the Seventh Circuit’s instruction in O’Connor-
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Spinner to address both the complexity of the tasks the claimant can perform and the claimant’s
ability to stick with the tasks over a sustained period. 627 F.3d at 620. ALJ Pierson supported
his determination of Martin’s ability to maintain concentration, persistence, or pace with the
opinions of Dr. Eskonen, Dr. Bingi, Ms. Scheeringa, and Dr. Sherman. (AR 447, 716-22, 102331, 1036-38, 1040-42, 1045-52, 1058-59, 1078-87, 1092-97, 1102-07, 1112-24). Thus, Martin’s
argument that ALJ Pierson did not account for her limitations in the hypothetical to the VE or in
the RFC lacks merit.
In conclusion, contrary to Martin’s assertions, the Court need not order a remand based
on ALJ Pierson’s account of Martin’s mental limitations in the RFC and in the hypotheticals
posed to the VE at step five. See O’Connor-Spinner, 627 F.3d at 620-21.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk
is directed to enter a judgment in favor of the Commissioner and against Martin.
SO ORDERED.
Entered this 22nd day of March 2019.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge
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