Pyle v. Commissioner of Social Security
Filing
25
OPINION AND ORDER : the decision of the Commissioner is REMANDED. Signed by Magistrate Judge Andrew P Rodovich on 7/25/13. (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
Linda Pyle,
)
)
)
) CAUSE NO: 2:12-cv-266
)
)
)
)
)
)
Plaintiff,
vs.
Carolyn Colvin1 , Commissioner of
Social Security,
Defendant.
OPINION AND ORDER
This matter is before the court on the petition for judicial review of the decision of the
Commissioner of Social Security filed by the claimant, Linda Pyle, on July 11, 2012. For the
reasons set forth below, the decision of the Commissioner is REMANDED.
Background
The plaintiff, Linda Pyle, applied for Supplemental Security Income on April 27, 2009,
alleging a disability onset date of November 10, 2005. (Tr. 211-213, 278) Her claim initially
was denied on September 17, 2009, and again upon reconsideration. (Tr. 25, 115, 116) Pyle
requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 159) A hearing before
ALJ Patrick Rhoa was held on December 2, 2010, at which Pyle, Brian Simms, and Vocational
Expert Richard Fisher testified. (Tr. 45-112)
1
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin is automatically
substituted for Michael J. Astrue as the named Defendant.
1
On December 16, 2012, the ALJ issued a decision denying benefits. (Tr. 25-35) The
Appeals Council subsequently denied a request for review. (Tr. 8-10) Pyle filed her complaint
with this court on July 11, 2012.
Pyle was born on September 8, 1961, and was forty-nine years old at the time the ALJ
issued his decision. (Tr. 33, 51) She attended school through eighth grade and later obtained a
general equivalency diploma. (Tr. 54) She had past work experience as a warehouse stocker,
school bus driver, and school bus monitor. (Tr. 104) Pyle stopped working in November 2005
due to injuries she sustained in a car accident. (Tr. 61, 253)
Pyle complained of neck and back impairments, major depression, social phobia, and arm
and shoulder impairments. (Tr. 211, 243) Pyle began treatment for depression and social anxiety
in February 2009. (Tr. 468) She attended a partial hospitalization program and individual
therapy. (Tr. 487) She discontinued the partial hospitalization program after failing to
participate and expressing difficulty interacting with others in the group sessions. (Tr. 500, 507,
511, 515, 517) The medical records reveal that four months into treatment Pyle had improved in
some areas and regressed in others. (Tr. 955-956)
Pyle’s treatment records showed improvement in her feelings of fear, anxiety, and worry,
as well as her social functioning in October 2009 and February 2010. (Tr. 951, 952) She
continued to have improvement in her depression and anxiety in May 2010, and the following
November, Dr. Scott A. Siegall, Pyle’s treating psychiatrist, noted that Pyle had improved in her
social functioning and continued to make minimal improvement in maintaining a healthy amount
of sleep, eliminating or reducing suicidal ideation, learning cognitive change skills, decreasing
phobic symptoms, and increasing days free of worry. (Tr. 940-941)
2
Over the course of the first nineteen months of Pyle’s mental health treatment, Dr. Siegall
assigned Pyle a global assessment of functioning (GAF) score of 40. (Tr. 482, 974, 976, 978,
980, 982, 984, 986, 988, 990, 994, 996, 998, 999, 1001, 1003, 1005, 1009, 1011, 1013, 1015,
1017, 1019, 1021, 1023) In September 2010, Dr. Siegall raised Pyle’s GAF score to 50, where it
remained through the date of the ALJ’s decision. (Tr. 966, 968, 970, 972)
Dr. Siegall completed two assessments of Pyle’s psychiatric status. (Tr. 753-759)
Dr. Siegall reported that Pyle had fair grooming and clothing, depressed mood and affect,
and slow speech. (Tr. 754) She showed signs of distractibility and struggled with concentration
during her mental examination. (Tr. 756) Dr. Siegall reported that Pyle experienced little
improvement over her three years of treatment and would have “poor ability” to attend to a
simple work routine on a constant basis. (Tr. 757) In his second assessment, Dr. Siegall stated
that Pyle had poor to no ability to deal with the public, deal with work related stresses, function
independently, maintain attention and concentration, understand, remember, or carry out simple
instruction, behave in an emotionally stable manner, and relate predictably in social situations.
(Tr. 823) Dr. Siegall stated that his opinions were supported by Pyle’s depressive symptoms,
including “depressed mood, suicidal thoughts, isolation, avoidance, irritability, poor memory,
poor concentration, severe insomnia, anxiety, panic attacks, [and] poor coping skills”. (Tr. 823)
Pyle also saw a licensed clinical social worker, Ronda Wilson-Carr, who completed an
assessment of Pyle’s ability to perform work-related activities. Wilson-Carr indicated that Pyle
had poor to no ability to deal with the public, deal with work stresses, maintain attention or
concentration, understand, remember, and carry out complex job instructions, and relate
predictably in social situations. (Tr. 825-826)
3
Dr. Roger L. Parks, Pys.D. also evaluated Pyle’s mental functioning. He reported that
she appeared depressed throughout the interview with occasional tearfulness. (Tr. 731) Dr.
Parks diagnosed Pyle with major depressive disorder and panic disorder with agoraphobia. (Tr.
733) He noted that Pyle’s medication, Cymbalta, had not been very effective in alleviating
depression. (Tr. 733) Dr. Parks assigned Pyle a GAF score of 50. (Tr. 733)
Pyle also had a history of physical impairments, including bilateral carpal tunnel
syndrome. In September 2008, an EMG revealed mild bilateral carpal tunnel syndrome. (Tr.
648-649) Dr. Kanayo K. Odeluga noted positive Tinel’s and Phalen’s signs bilaterally in June
2009 and diagnosed Pyle with bilateral carpal tunnel syndrome. (Tr. 727) Dr. Odeluga also
noted that Pyle had decreased grip strength in both hands, but he found that her fine-motor
functionality was intact. (Tr. 727) Pyle had an EMG in September 2010, which revealed
moderate to severe bilateral carpal tunnel syndrome. (Tr. 889) Pyle complained of symptoms of
bilateral upper extremity numbness in 2009, but she continued to be assessed as having normal
sensation in her extremities. (Tr. 31)
Pyle also had a neck impairment, which she reported caused pain and numbness in her
hands and arms. Her cervical impairments were treated with medications and epidural steroid
injections. Pyle experienced temporary relief following most injections, but her pain quickly
returned to a level of seven out of ten. (Tr. 700, 785, 787, 789, 809)
At the hearing before the ALJ, Pyle and her friend, Simms, testified. Pyle stated, in
relevant part, that she had a hard time using her fingers long enough to type an email, used the
mouse, rather than the keyboard, to play games, used a pencil with a large eraser to dial or text
from her cell phone, and that her fingers went numb when she tried to write. Pyle also reported
4
that she lived independently, could drive short distances, but with significant anxiety, and
needed the assistance of a friend to go grocery shopping.
Simms testified that Pyle had difficulty using her hands for activities like buttoning
clothes and that she had panic attacks three or four out of every ten times she went shopping.
Pyle’s son, Tim Walker, sent a letter that similarly reported that Pyle had difficulty cooking and
dropped pots and pans often. Walker also wrote that Pyle only went to the store when she had to
and that it would take her hours to get small amounts.
On December 16, 2010, the ALJ entered his decision denying benefits. At step one, he
found that Pyle had not engaged in substantial gainful activity since March 28, 2007. (Tr. 27)
At step two, he concluded that Pyle had the following severe impairments: “the late effects of
right rotator cuff syndrome, bilateral carpal tunnel syndrome, osteoarthritis, degenerative disc
disease of the cervical and lumbar spine, a major depressive disorder, and a panic disorder with
agoraphobia”. (Tr. 27) At step three, the ALJ found that Pyle did not satisfy Listing 1.00 or
14.00 because there was no evidence that she could not ambulate effectively or perform fine and
gross movements. (Tr. 28) The ALJ also explained that she did not satisfy Listing 11.00 for
neurological impairments because the record was devoid of evidence of disorganization of motor
function of sufficient severity to meet the Listing. (Tr. 28) The ALJ also considered Pyle’s
mental impairments under Listings 12.04 and 12.06, but he explained that Pyle did not satisfy the
Paragraph B criteria because she did not have 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. 28)
5
In determining Pyle’s RFC, the ALJ thoroughly discussed all of Pyle’s symptoms which
could “reasonably be accepted as consistent with the objective medical evidence” and followed a
two-step process, first determining whether there could be a medically acceptable basis for her
complaints, and second evaluating the “intensity, persistence, and limiting effects of the
claimant's symptoms” to determine if they limited her work ability. (Tr. 30) The ALJ first
discussed Pyle’s right rotator-cuff syndrome. (Tr. 30) The ALJ explained that Pyle had a full
range of motion and full five out of five strength in her upper extremities at a June 2009
consultative examination. (Tr. 30) For this reason, he limited Pyle only to sedentary work that
did not require overhead lifting. (Tr. 30)
The ALJ next discussed Pyle’s carpal tunnel syndrome. (Tr. 31) He did not find that her
allegations of numbness and diminished fine-motor functionality were consistent with the
objective medical evidence. (Tr. 31) A nerve conduction study confirmed Pyle’s diagnosis of
bilateral mild or early carpal tunnel, but no discernable course of treatment was recorded. (Tr.
31) Pyle continued to complain of symptoms of bilateral upper extremity numbness in 2009 and
at her June 2009 medical consultative examination, she was noted to have diminished grip
strength, although her fine-motor functionality was intact. (Tr. 31) The ALJ acknowledged that
the record indicated worsening of Pyle’s carpal tunnel syndrome and that a September 2010
nerve conduction study revealed moderate to severe carpal tunnel syndrome, but he explained
that the record was devoid of a discernable course of treatment, Pyle continued to have normal
sensation in her extremities, and she retained fine-motor functionality to sew, operate an
automobile, and utilize a computer. (Tr. 31)
The ALJ discussed Pyle’s osteoarthritis and cervical and lumbar degenerative disc
6
disease before addressing her mental impairments. (Tr. 31-32) The ALJ first stated that Pyle’s
allegations of symptoms consistent with major depressive disorder and a panic disorder with
agoraphobia were not accepted as alleged because they were not consistent with the objective
medical evidence. (Tr. 32) The medical records did not reveal significant treatment for mental
health prior to February 2009, except for a prescription for Cymbalta in November 2008. (Tr.
32) Pyle began regular treatment in February 2009. (Tr. 32) In April 2009, Pyle’s case manager,
Belinda Stepnowski, noted that Pyle’s mood had improved drastically. (Tr. 32) She was also
reported to be “feeling great”. (Tr. 32) After notes of non-compliance with medication ceased,
the medical evidence revealed that Pyle was “not bad” and only “mildly depressed”. (Tr. 32)
The ALJ also pointed to Pyle’s daily activities as contrary to her allegations, noting that Pyle
lived independently, went shopping at the grocery store, drove her car, and was able to sustain
concentration throughout her July 2009 psychiatric consultative examination. (Tr. 32) Taking all
of this information into consideration, the ALJ concluded that Pyle could perform simple,
routine, repetitive tasks in a low-stress, stable work environment with little decision making,
only occasional changes in the work setting, no contract with the general public, and only
occasional contact with coworkers and supervisors. (Tr. 32)
The ALJ next discussed Pyle’s GAF scores. (Tr. 33) He noted that Pyle’s GAF score
never rose above 50 and consistently was assessed at a level of 40. (Tr. 33) A GAF score of 40
indicates a “major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood”. (Tr. 33) The ALJ stated that this score was not supported by the
record because Pyle lived independently, spent a lot of time with her adult son, was able to
behavior appropriately in the professional-social setting of a doctor’s office and commercial-
7
social setting of a grocery store, and attended a mass social gathering the preceding September.
(Tr. 33) The ALJ determined that the GAF scores did not reflect Pyle’s improvement and
assigned the GAF scores little weight. (Tr. 33)
The ALJ gave no weight to the functional capacity opinions prepared by Pyle’s treating
psychiatrist, Dr. Siegall, and her treating social worker, Wilson-Carr, which stated that Pyle was
incapable of dealing with stress, functioning independently, maintaining attention/concentration,
performing simple, routine, repetitive tasks, behaving in an emotionally stable manner, and
relating predictably to social situations. (Tr. 33) The ALJ stated that these limitations were not
supported by or consistent with the record as a whole. (Tr. 33)
At step four, the ALJ determined that Pyle could not perform past relevant work. (Tr. 33)
At step five, the ALJ found that given Pyle’s age, education, work experience, and RFC, there
were jobs that existed in significant numbers in the national economy that Pyle could perform,
including, cutter/paster of press clippings (41,000 jobs nationally), microfilm document preparer
(66,000 jobs nationally), and para-mutual ticket checker (69,000 jobs nationally). (Tr. 34)
Discussion
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) ("The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.");
Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005); Lopez ex rel Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003). Substantial evidence has been defined as "such relevant evidence
as a reasonable mind might accept to support such a conclusion." Richardson v. Perales, 402
8
U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d 852, (1972)(quoting Consolidated Edison
Company v. NRLB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L.Ed.2d 140 (1938)); See also
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th
Cir. 2002). An ALJ’s decision must be affirmed if the findings are supported by substantial
evidence and if there have been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013); Rice v. Barnhart, 384 F.3d 363, 368-369 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002). However, "the decision cannot stand if it lacks evidentiary support or
an adequate discussion of the issues." Lopez, 336 F.3d at 539.
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 which "significantly limits . . .
physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). 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
9
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. § 416.920(f).
Pyle first argues that the ALJ erred by failing to consider the opinions of consultative
psychologist Dr. Parks. The ALJ has a duty to consider all of the available evidence of the case
and to explain any inconsistencies between the evidence and his conclusion. SSR 96-8p explains
how an ALJ should assess a claimant's RFC at steps four and five of the sequential evaluation.
In a section entitled, "Narrative Discussion Requirements," SSR 96-8p specifically spells out
what is needed in the ALJ's RFC analysis. This section of the Ruling provides:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual's ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a
10
difference between what the ALJ must contemplate and what he must articulate in his written
decision. "The ALJ is not required to address every piece of evidence or testimony presented,
but he must provide a ‘logical bridge' between the evidence and his conclusions." Getch v.
Astrue, 539 F.3d 473, 480 (7th Cir. 2008)(quoting Clifford v. Apfel, 227 F.3d 863 (7th Cir.
2000)). A party seeking to overturn an agency’s administrative decision must show that her
impairment was of sufficient severity to preclude the type of work she previously performed.
McNeil v. Califano, 614 F.2d 142, 145 (7th Cir. 1980).
Pyle argues that the ALJ erred by failing to discuss Dr. Park’s report, pointing
specifically to Dr. Park’s notes reporting that Pyle did not have a GAF score above 50.
However, the ALJ cited to Dr. Park’s notes throughout his opinion and acknowledged that Pyle
never was assigned a GAF score greater than 50, indicating severe symptoms. Therefore, even
if the ALJ ignored Dr. Park’s assessment, the GAF score Pyle points to as contradictory to the
ALJ’s conclusion clearly was considered. See Keys v. Barnhart, 347 F.3d 990, 994-95 (7th Cir.
2003) (explaining that where it is clear that the ALJ's decision would not be overturned by
remanding the issue for further consideration, the doctrine of harmless error applies to prevent
remand). Because the ALJ considered the GAF score Dr. Park assigned, Pyle, who bears the
burden of proof, has failed to point to any evidence that was not considered, and consequently
has not identified any error committed by the ALJ.
Although the ALJ’s failure to mention Dr. Parks’ report and GAF score alone may have
been harmless error because the record reflects that he acknowledged that Pyle was not assigned
a GAF score over 50, Pyle argues that his summary dismissal of all of her GAF scores without
explanation is not. This is because the ALJ had a duty to explain his disregard of any
11
contradictory evidence, including GAF scores. See SSR 96-9p.
The GAF scale measures a “clinician's judgment of the individual's overall level of
functioning.” Am. Psychiatric Ass'n, Diagnosis and Statistical Manual of Mental Disorders,
Fourth Edition, Text Revision, 32, 34 (2000) (DSM IV–TR). The established procedures require
a mental health professional to assess an individual's current level of symptom severity and
current level of functioning and to adopt the lower of the two scores as the final score. Id. at
32–33. A GAF score ranging from 41–50 indicates serious symptoms; scores ranging from
51–60 indicate moderate symptoms; and scores ranging from 61–70 indicate mild symptoms. Id.
GAF scores are “useful for planning treatment” and are measures of both the severity of
symptoms and the functional level. Id. at 32–34. Because the “final GAF rating always reflects
the worse of the two,” the score does not reflect the clinician's opinion of functional capacity.
“[N]owhere do the Social Security regulations or case law require an ALJ to determine the
extent of an individual's disability based entirely on his GAF score.” Wilkins v. Barnhart, 69
Fed.Appx. 775, 780 (7th Cir. 2003) (citing Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241
(6th Cir. 2002)).
The court does not agree that the ALJ summarily dismissed Pyle’s GAF scores without
explanation. The ALJ devoted a paragraph to explaining Plye’s GAF scores, stating that the
assessment was not supported by the record because Pyle lived independently, spent a lot of time
with her son, and was able to function appropriately in the professional-social setting of a
doctor’s office as well as in the commercial-social setting of a grocery store. (Tr. 33) The GAF
score does not necessarily reflect a claimant’s ability to function, and the ALJ pointed to tasks he
found inconsistent with the limitations contemplated by the low GAF scores Pyle was assigned.
12
The ALJ explained that the tasks Pyle was able to perform revealed a higher level of functional
ability. By pointing to this contradictory evidence, the ALJ adequately explained his reason for
disregarding the GAF scores. It is not the court’s duty to reweigh the evidence. Rather, the court
must evaluate whether the ALJ provided sufficient support, and here the ALJ provided an
adequate explanation.
Pyle next complains that the ALJ erred because he did not give any weight to the
opinions of her treating psychiatrist and social worker. 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 also Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007); Gudgell v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). 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 also 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.”).
Internal inconsistencies in a treating physician's opinion may provide a good reason to
deny it controlling weight. 20 C.F.R. § 404.1527(c)(2); Clifford, 227 F.3d at 871. Furthermore,
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
13
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. Appx. 963, 970-71 (7th Cir. 2004); Jacoby v. Barnhart, 93 Fed. Appx. 939, 942 (7th Cir.
2004). 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).
To begin, a licensed clinical social worker such as Wilson-Carr is not an acceptable
medical source, and as such, her opinions are not entitled to controlling weight as Pyle suggests.
See, SSR 06-03p (“Medical sources who are not ‘acceptable medical sources,’ [include, for
example] licensed clinical medical workers...”). Regardless, the ALJ did not state that he
rejected Dr. Siegall and Wilson-Carr’s opinions in their entirety. Rather, the ALJ stated that he
gave no weight to their opinions that Pyle was incapable of dealing with stress, functioning
independently, maintaining attention and concentration, performing simple, routine, repetitive
tasks, behaving in an emotionally stable manner, and relating predictably to social situations. He
went on to explain that Pyle’s mental impairments were not as extensive as she alleged because
they were not supported by the record as a whole. The ALJ noted that there was no significant
mental health treatment prior to February 2009, and he pointed to many medical notes indicating
improvement in Pyle’s condition. The ALJ stated that from late 2009 through 2010, when Pyle
resumed taking her medication, the medical notes revealed that Pyle was “not bad” and only
14
“mildly depressed”. In 2009, Pyle’s case manager reported that Pyle’s mood had improved
drastically. The ALJ also relied on Pyle’s daily activities, including living independently and
engaging in activities such as shopping, driving, and sustaining concentration. (Tr. 32) Pyle
disputes that her conditions improved and contends that the ALJ overstated her abilities.
Although Pyle argues that the record reflects symptoms of depression prior to February
2009, the ALJ was not incorrect to state that Pyle did not receive treatment for depression prior
to this time. The ALJ’s statement was a correct recitation of the record. The ALJ went on to
point to other reasons that supported his opinion, including notes of improvement of her
condition. Although Pyle may be able to point to some notes that contradict the ALJ’s decision,
the ALJ has provided sufficient support for his conclusion, explaining that since Pyle began
taking her medication regularly, the notes reflected improvement overall and show that she was
meeting her treatment goals. In fact, Pyle acknowledges that she was meeting her goals in her
brief. (Pl.’s Br. p. 15) The recent medical records reflect that Pyle’s mood improved, and the
ALJ did not err in relying on this evidence. This is not a matter of the ALJ cherry-picking the
evidence.
Pyle also complains that the ALJ erred by exaggerating the daily activities she
performed. Pyle argues that she only was able to drive short distances, and with significant
anxiety, and that she needed the assistance of a friend to go grocery shopping. Pyle points to
both her testimony and that of Simms in addition to a note from her son. Both lay witnesses
explained that Pyle had limitations shopping. Walker stated that Pyle only went to the store
when she had to and that it would take her hours to get small amounts. Simms reported that Pyle
had panic attacks three or four out of every ten times she went shopping. The Commissioner
15
argues that the ALJ did not need to consider this testimony because it was consistent with Pyle’s
own, however, even if that was true, the record does not reveal that the ALJ took these reported
limitations into consideration. The ALJ made no mention of the anxiety attacks Pyle reportedly
experienced while driving and shopping and has not shown either that they were unreliable or
contradictory to the record. Because the ALJ relied on these activities in dismissing the opinions
of Pyle’s treating physicians, it is important that his decision was based on her actual abilities.
The court cannot discern whether the ALJ took the limitations she alleges to have experienced
while performing these activities into account, nor did the ALJ provide any explanation for
disregarding this testimony. Moreover, the ALJ specifically must conclude why the testimony of
a lay witness is not credible and provide a “minimal level of articulation” to support his
credibility determination. McGee v. Bowen, 647 F.Supp. 1238, 1246 (N.D. Ill. 1986) (citing
Orlando v. Heckler, 776 F.2d 209, 213 (7th Cir. 1985)). By ignoring the testimony of the lay
witnesses in its entirety and that of Pyle’s reported limitations, the ALJ failed to satisfy this
burden and must address this on remand.
Finally, Pyle argues that the ALJ erred in finding that she had no manipulative limitations
because this determination was inconsistent with his finding that she suffered from severe
bilateral carpal tunnel syndrome, he relied on exaggerated accounts of her abilities, and his
reliance on the medical evidence was misplaced. Carpal tunnel syndrome “produces
paresthesias in the radial-palmar aspect of the hand plus pain in the wrist, in the palm, or
sometimes proximal to the compression site in the forearm. Sensory deficit in the palmar aspect
of the first 3 digits and/or weakness of thumb opposition may follow.” The Merck Manual of
Diagnosis and Therapy, Fifteenth Edition, 1444 (1987). The Commissioner argues that the
16
medical evidence did not support any manipulative limitations and points to medical records
where Pyle was able to button, zip, pick up coins, and had normal sensation in her extremities. It
is not clear from the opinion what limitations the ALJ believed that Pyle suffered as a result of
her severe carpal tunnel syndrome. Carpal tunnel syndrome affects the manipulation of the
hands, yet the ALJ did not provide for any manipulation limitations or explain how the
limitations he found were consistent with his finding that Pyle suffered severe carpal tunnel
syndrome. The ALJ must address this direct conflict on remand.
Additionally, it is not clear that the ALJ took Pyle’s testimony of her limitations into
consideration. The ALJ stated that Pyle’s computer use and sewing were inconsistent with a
finding of manipulative limitations. However, Pyle testified that she had a hard time using her
fingers long enough to type an email, used the mouse, rather than the keyboard, to play games,
and used a pencil with a large eraser to dial or text from her cell phone, and that her fingers went
numb when she tried to write. Simms also testified that Pyle had difficulty using her hands for
activities like buttoning clothes, and Walker reported that Pyle had difficulty cooking and often
dropped pots and pans. The ALJ did not acknowledge any of these reported limitations, explain
why they were not reliable, or explain how they were inconsistent with the record. On remand,
the ALJ must address whether Pyle has any manipulative limitations in light of her testimony
and that of the lay witnesses, and, if so, what effect they have an the availability of jobs.
The medical evidence also revealed that Pyle’s carpal tunnel syndrome was worsening.
The tests first revealed that her carpal tunnel syndrom was mild, but later tests suggested that it
was severe. The ALJ acknowledged this, but summarily dismissed Pyle’s complaints without
considering her testimony because there was no recorded treatment. The ALJ did not cite to any
17
evidence which contradicted her complaints nor did he explain what impact her severe carpal
tunnel might have. The record also is devoid of any indication that the ALJ considered the
reasons Pyle may not have pursued additional treatment. See Craft v. Astrue, 539 F.3d 668, 679
(7th Cir. 2008)(failure to comply due to inability to pay for treatment, for example, may be an
acceptable reason for non-compliance). The ALJ’s reliance on the lack of treatment without
further inquiry was misplaced.
Finally, Pyle argues that the jobs named by the VE and adopted by the ALJ were not
consistent with her RFC. Two of the positions identified required frequent reaching, and the
third required constant reaching. Pyle argues that this is inconsistent with the ALJ’s restriction
to no overhead reaching to accommodate her cervical impairments. The ALJ is responsible for
investigating and resolving any apparent conflicts between the VE's testimony and the DOT.
SSR 00–49; Weatherbee v. Astrue, 649 F.3d 565, 570 (7th Cir. 2011). Provided there is no
apparent conflict between the VE's testimony and the DOT, the ALJ may rely on the VE's
confirmation that the testimony is consistent with the DOT. Weatherbee, 649 F.3d at 570. Under
some circumstances, the ALJ is free to accept the VE's testimony when it conflicts with or
exceeds the specifications provided in the DOT. See Eaglebarger v. Astrue, 2012 WL 602022 (
citing Overman v. Astrue, 546 F.3d 456, 464 (7th Cir.2008) (“An ALJ is free to accept
testimony from a VE that conflicts with the DOT when, for example, the VE's experience and
knowledge in a given situation exceeds that of the DOT's authors ....”)). Experience, knowledge,
education, and training are all sufficient basses on which the ALJ may adopt the VE's opinion
that conflicts with or exceeds the purviews of the DOT. Eaglebarger, 2012 WL 602022 at *8.
The ALJ satisfies his duty when he questions whether the VE's answer is consistent with the
18
DOT and receives an affirmative answer, even if the VE's response partially is based on his
experience, provided there are no apparent inconsistencies that the ALJ must further resolve.
The ALJ was permitted to rely on the VE’s testimony provided there were no apparent
conflicts. “A conflict is apparent if it is ‘so obvious that the ALJ should have picked up on [it]
without any assistance.’” Weatherbee v. Astrue, 649 F.3d 565, 570 (7th Cir. 2011) (citing
Overman, 546 F.3d at 463). Social Security Ruling 85-15 defines reaching as “extending the
hands and arms in any direction”. If the jobs identified by the VE demanded frequent reaching,
this would include frequent reaching overhead according to the Social Security Ruling’s
definition. This clearly is inconsistent with the ALJ’s limitation, and because Pyle’s claim is
remanded on other grounds, the ALJ is directed to reconsider this conflict on remand.
Based on the foregoing, the decision of the Commissioner is REMANDED.
ENTERED this 25th day of July, 2013
/s/ Andrew P. Rodovich
United States Magistrate Judge
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?