Roach v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner is REMANDED. Signed by Magistrate Judge Andrew P Rodovich on 11/22/2013. (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
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 plaintiff, Kenneth Roach, on July 25, 2012. For
the reasons set forth below, the decision of the Commissioner is REMANDED.
The plaintiff, Kenneth Roach, applied for Disability Insurance Benefits and Supplemental
Security Income on July 13, 2009, alleging a disability onset date of July 13, 2009. (Tr. 166) His
claim initially was denied on January 11, 2010, and again denied upon reconsideration. (Tr. 90,
104) Roach requested a hearing before an Administrative Law Judge (“ALJ”). A hearing before
ALJ Karen Sayon was held on March 28, 2011, at which Roach and Vocational Expert Pamela
Tucker testified. (Tr. 53-85)
On April 8, 2011, the ALJ issued a decision denying benefits. (Tr. 11-28) The ALJ’s
decision was upheld by the Appeals Council. (Tr. 1) Roach filed his complaint with this court
on July 25, 2012. Roach has alleged that the ALJ erred by failing to accommodate his social
functioning limitation and in finding that his mental condition was not of listing level severity.
Roach further has alleged that the ALJ’s physical listing evaluation mandates reversal, the
residual functional capacity lacks a supported basis, and that the ALJ failed to weigh properly
the opinion of Roach’s treating physician and to analyze his absenteeism appropriately.
At step one of the five-step sequential evaluation process for determining whether an
individual is disabled, the ALJ determined that Roach had not engaged in substantial gainful
activity since July 13, 2009, his alleged onset date. (Tr. 16) At step two, the ALJ determined that
Roach had the following severe impairments: degenerative disc disease, gastritis, pancreatitis,
gastroparesis, depressive disorder, antisocial personality disorder, substance addiction, and
learning disorder. (Tr. 16).
At step three, the ALJ found that Roach did not satisfy listing 12.04 because he did not
meet the “Paragraph B” criteria. (Tr. 17). The ALJ explained that to satisfy the Paragraph B
criteria, the mental impairments must result in at least two of the following: marked restriction of
activities of daily living; marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. (Tr. 17). In activities of daily living, the ALJ
determined that Roach had a mild restriction. (Tr. 17). Roach had no problems with personal
care, prepared meals, left his home on a daily basis, used public transportation, and was able to
go out alone. (Tr. 17).
The ALJ noted that on November 19, 2009, Dr. Gary Durak conducted a mental
consultative examination of Roach at the request of the Bureau of Disability Determination. (Tr.
24) During this exam, Dr. Durak administered intelligence testing on Roach and determined that
Roach had a performance IQ of 72, a verbal IQ of 69, a full scale IQ of 67, and a global
assessment of functioning score of 50. (Tr. 24) Dr. Durak diagnosed Roach with major
depressive disorder, alcohol abuse, learning disabilities, mild mental retardation, and antisocial
personality disorder. (Tr. 24)
With regard to social functioning, the ALJ determined that Roach had moderate
difficulties. (Tr. 17). Roach reported that he did not engage in social activities and did not like
interacting with others. (Tr. 17). B. Randall Horton, Psy.D. found that Roach had no significant
limitations and only a few moderate limitations in social interaction and that Roach had
moderate limitations regarding social functioning. (Tr. 17) Based on these findings, the ALJ
found that Roach had moderate limitations. (Tr. 17)
The ALJ next found that Roach had moderate difficulties with concentration, persistence,
or pace. (Tr. 17) Roach reported that he did not handle stress or changes in routine well but that
he did not have difficulty following either written or verbal instructions. (Tr. 17). Dr. Horton
found that Roach had no significant limitations and only a few moderate limitations in the
categories of understanding and memory, sustained concentration and persistence, and
adaptation. (Tr. 17) Based on Roach’s written statements and Dr. Horton’s determinations, the
ALJ found that Roach’s impairments placed moderate limitations upon his social functioning.
The ALJ found that Roach experienced no episodes of decompensation of extended
duration. (Tr. 18) Because he did not have marked difficulties in two of the categories or marked
difficulties in one category with episodes of decompensation, the ALJ concluded that Roach did
not satisfy the Paragraph B criteria.
In determining Roach’s RFC, the ALJ thoroughly discussed all of Roach’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 his complaints, and second evaluating the “intensity, persistence, and limiting effects of
the claimant’s symptoms” to determine if they limited his work ability. (Tr. 18-19) The ALJ
found that Roach had “a significant history of both alcohol and narcotic abuse” but that medical
evidence supported a finding that Roach’s substance abuse was in remission and did not prevent
him from performing work on a sustained basis. (Tr. 23) The ALJ determined that Roach had
the Residual Functional Capacity (RFC) to do the following: “perform a range of sedentary work
involving no exposure to heights or hazards; only simple instructions; only routine tasks; no fast
paced production requirements; and no public interaction.” (Tr. 26)
In her RFC analysis, the ALJ summarized Roach’s medical history before addressing a
third party function report regarding Roach’s mental and physical capabilities that was
completed by Roach’s sister, Alice Mercer. (Tr. 24) Mercer indicated that Roach had sleep
disturbances as well as difficulty lifting, squatting, bending, standing, reaching, walking,
kneeling, climbing stairs, concentrating, completing tasks, and getting along with others. (Tr. 24)
However, Mercer stated that Roach lived alone, had no problems with personal care, did not
need reminders regarding grooming or medications, was capable of preparing simple meals, did
laundry, could go out alone, and was capable of using public transportation. (Tr. 24-25) The
ALJ indicated that she did not give significant weight to this statement based on its
inconsistencies with the objective medical evidence and Roach’s drug seeking behavior. (Tr. 25)
The ALJ stated that she did not give controlling weight to the opinions of Dr. Asrar
Sheikh and nurse Debby Kark because they only saw Roach once, on the day before their letter
was written, and thus had no longitudinal basis for their opinions. (Tr. 25) The ALJ found that
although the placement of a feeding tube is a somewhat extreme measure, the medical records
indicated that Roach had not been compliant in its use, only used the hospital for treatment
without seeking follow-up care, and was dishonest with doctors. (Tr. 25) Significantly, the
medical records did not indicate that Roach was unable to work and did not impose any
significant work-related limitations on him, even with the feeding tube. (Tr. 25) Furthermore,
the ALJ reasoned that even though Roach had many emergency room visits and hospitalizations,
it did not appear that the visits were medically necessary, but rather were drug seeking attempts.
(Tr. 25) As such, the ALJ found that the frequency of these unnecessary visits did not preclude
Roach from working on a full-time, sustained basis. (Tr. 25)
Ultimately, the ALJ concluded that this was a credibility case and she did not find
Roach’s allegations credible. (Tr. 25) This finding was based on Roach’s testimony that he had
not been able to eat by mouth since his feeding tube was placed in March 2009, yet the medical
records contained numerous admissions and indications of oral feeding in addition to a report of
a nurse watching Roach force himself to throw up. (Tr. 25) Furthermore, medical reports
repeatedly described Roach as drug seeking and manipulating, he frequently tested positive for
cannabis and sometimes cocaine, and the doctors often felt his symptoms were due to acute
narcotic withdrawal. (Tr. 25) The ALJ questioned the claim in Roach’s brief that he was “self
medicating” and indicated that the doctors suspected the drugs and alcohol were the actual cause
of Roach’s symptoms. (Tr. 25) The ALJ also noted that although Roach had lost weight, his
weight loss could have been due to a variety of factors and that he was still at an appropriate
weight. (Tr. 26)
At step four, the ALJ concluded that Roach was unable to perform any past relevant
work. Finally, at step five, the ALJ determined that there were jobs that existed in significant
numbers in the national economy which Roach could perform, including electronics worker
(1,000 jobs in Indiana), assembler (450 jobs in Indiana), and grinding machine operator (500
jobs in Indiana). (Tr. 27)
The standard of 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
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.
Disability and 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 he is unable " to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. §423(d)(1)(A). The Social Security regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. § § 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or "engaged in substantial gainful activity." 20 C.F.R.§§
404.1520(b), 416.920(b). If he is, the claimant is not disabled and the evaluation process is
over. If he 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. §§ 404.1520(c), 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 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 his past work. If, at this fourth step, the claimant can perform
his past relevant work, he will be found not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e).
However, if the claimant shows that his impairment is so severe that he is unable to engage in his
past relevant work, then the burden of proof shifts to the Commissioner to establish that the
claimant, in light of his age, education, job experience and functional capacity to work, is
capable of performing other work and that such work exists in the national economy. 42 U.S.C.
§ 423(d)(2); 20 C.F.R. §§ 404.1520(f), 416.920(f).
Roach raises six challenges to the ALJ’s decision. First, he argues that the ALJ failed to
accommodate his moderate social functioning limitation. Second, he argues that the ALJ erred in
finding that his mental condition was not of listing level severity. Third, he alleges that the
ALJ’s physical listing evaluation mandates reversal. Fourth, he claims that the ALJ’s residual
functional capacity lacks a supported basis. Fifth, he argues that the ALJ failed to weigh properly
the opinion of his treating physician. Finally, Roach states that the ALJ failed to analyze
properly his absenteeism.
Roach first contends that the ALJ did not evaluate his social functioning limitations as
diagnosed by Dr. Horton correctly because she failed to include limitations on interacting with
supervisors and coworkers when calculating the RFC and posing the hypothetical question to the
vocational expert. The Commissioner argues that it was not necessary for the ALJ to impose
those limitations because they were not assessed by Dr. Horton when making his final functional
capacity assessment in Section III.
An RFC assessment must be “based on all of the relevant evidence in the case record,”
including medical source statements. Social Security Ruling 96-8p. The ALJ also is required
to “explain how any material inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.” Social Security Ruling 96-8p. If the RFC assessment conflicts
with an opinion from a medical source, the ALJ must explain why that opinion was not adopted.
Social Security Ruling 96-8p.
Here, the ALJ gave great weight to Dr. Horton’s opinion but made no reference to the
doctor’s findings that Roach was moderately limited in his ability to accept instructions and
respond appropriately to criticism from supervisors and his ability to get along with coworkers
or peers without distracting them or exhibiting behavioral extremes. (Tr. 531) The
Commissioner argues that Dr. Horton did not impose a restriction against contact with
supervisors and co-workers. However, in the Summary Conclusion section of the Mental
Residual Functional Capacity Assessment, Dr. Horton did indicate that Roach was moderately
limited in his interactions with supervisors and coworkers. (TR 531). The ALJ did not articulate
a reason for omitting such restrictions. On remand, the ALJ should provide an explanation for
Second, Roach claims that the ALJ erred in finding that he did not have a mental
condition of listing level severity. He argues that his IQ score combined with the ALJ’s findings
of his other severe impairments fulfilled the requirement of “a physical or other mental
impairment imposing an additional and significant work-related limitation of function” in
For a claimant to show that he has met a listed impairment, he must show his impairment
met each required criterion, and he bears the burden of proof in showing that his condition
qualified. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999). A condition that meets only
some of the required medical criteria, “no matter how severely,” will not qualify as meeting a
listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1990).
Section 12.00(A) of the social security regulations describes the structure of Listing
§12.05. Specifically, the regulations state that if an “impairment satisfies the diagnostic
description in the introductory paragraph and any one of the four sets of criteria,” an impairment
will successfully meet the listing. 20 C.F.R. § 401 pt. 404, subpt. P, app. 1 § 12.00(A). Listing
§ 12.05(C) provides in relevant part:
12.05 Mental retardation: Mental retardation refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e, the evidence demonstrates or supports onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
* * *
C. A valid verbal, performance, or full scale IQ score of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related limitation
20 C.F.R. §401 pt. 404, subpt. P, app. 1 § 12.05(C). Thus, the structure of Listing § 12.05
indicates that a claimant must show both that he has met the listing’s definition of mental
retardation, and that he has met the required severity level by satisfying the requirements in
either A, B, C, or D. Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006).
In order to meet Listing § 12.05(C), there must first be evidence that “subaverage
intellectual functioning” manifested prior to age twenty-two. If a claimant meets the definition
of mental retardation, then the analysis shifts to whether the claimant’s mental retardation is
sufficiently severe to qualify as a disability, which is met when the requirements in either A, B,
C, or D are proven. 20 C.F.R. §401 pt. 404, subpt. P, app. 1 § 12.05. If the individual is
mentally retarded as defined by the regulations and has an IQ of less than 60, the claimant is
considered disabled under Listing § 12.05 without further inquiry. 20 C.F.R. § 401 pt. 404,
subpt. P, app. 1 § 12.05(B). However, an IQ over 60 is insufficient to establish disability under
Listing § 12.05 alone, since people with low IQ’s may be able to perform gainful employment.
Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007). Thus, a claimant with an IQ between 60 and
70 must also show a “physical or other mental impairment” that creates an additional, and
significant, limitation on his ability to work. 20 C.F.R. §401 pt. 404, subpt. P, app. 1 § 12.05(C).
See Maggard, 167 F.3d at 380 (same).
The circuit courts presume that a person’s IQ remains stable, absent evidence of a change
in intellectual function. Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001). See, e.g., Guzman v.
Bowman, 801 F.2d 273, 275 (7th Cir. 1986)(absent evidence to the contrary, IQ test taken
subsequently “should be assumed” to reflect IQ during the insured period); Branham v. Heckler,
775 F.2d 1271, 1274 (4th Cir. 1985)(fact that no IQ test was taken earlier in life “does not
preclude a finding of retardation”). However, a stable IQ, albeit low, does not necessarily equate
to a showing of mental retardation as defined by Listing 12.05(C) before age twenty-two. The
Seventh Circuit has indicated that people with low IQs nevertheless may be able to perform
work. Novy, 497 F.3d at 709.
Pursuant to regulations, the ALJ is allowed in determining qualification under Listing
§12.05 to consider evidence concerning past work history in assessing “ability or inability to
function in a work setting.” 20 C.F.R. § 401 pt. 404, subpt. P, app. 1 § 12.00(A). See Adkins v.
Astrue, 226 Fed.Appx 600, 605 (7th Cir. 2007)(while low IQ scores might be an indicator of
retardation, other items, “including… employment history, must be considered and weighed;”
claimant failed to prove deficits prior to age twenty-two even though school records were
submitted showing only eight grade was completed, due in part to his long work history);
Maggard, 167 F.3d at 380 (no mental retardation, even though a low IQ score existed, in part
due to claimant’s ability to withstand the stress and pleasures associated with a day-to-day work
The record indicates that upon a mental consultative examination of Roach by Dr. Durak
at the request of the Bureau of Disability Determination, Roach was found to have a performance
IQ of 72, a verbal IQ of 69, and a full scale IQ of 67. While these scores are within the range
specified as one element of Listing 12.05(C), what is not clear is whether the “subaverage
intellectual functioning” manifested prior to age 22. Roach claims that the fact that he only
completed the eighth grade and was in special education classes was evidence that it had. The
Commissioner argues that Roach’s semi-skilled work history indicates that he did not have the
necessary deficits in adaptive functioning to meet the diagnostic description of the listing.
However, Roach testified that the longest he had held a job was six to eight months and that he
had not obtained his GED because it was too difficult.
Furthermore, the record of Roach’s exam by Dr. Durak reveals that Roach was diagnosed
with mild mental retardation on Axis II of the Diagnostic Statistical Manual of Mental Disorders
(DSM) classification. This condition is defined as “significantly sub average general intellectual
functioning that is accompanied by significant limitations in adaptive functioning . . . . The
onset must occur before age 18.” DSM-IV-TR at 41. This diagnosis by the Agency expert
supports Roach’s claim that he satisfied the criteria to be considered mentally retarded under the
listings because it evidenced significant sub average generally intellectual functioning with
deficits in adaptive functioning prior to age 22.
The ALJ is not required to engage in a meaningful discussion of every piece of evidence,
but she must consider the important evidence contradicting her opinion and explain her reason
for discounting it. Crenshaw v. Barnhart, 2003 WL 360102 at *10 (N.D. Ill. Feb. 18, 2003).
Here, the ALJ acknowledged the diagnosis by Dr. Durak yet noted that Roach did not satisfy the
diagnostic description of Listing 12.05 with no further explanation. The ALJ must address the
evidence that contradicted her opinion, in this case, Dr. Durak’s diagnosis. Furthermore, there
was no medical expert opinion in the record that contradicted Dr. Durak’s diagnosis. The court
cannot simply accept the ALJ’s conclusion with no explanation of how she made that
determination. The court must engage in an analysis of the evidence the ALJ relied on in her
opinion in order to determine whether there was sufficient evidence to support her decision.
Here, the ALJ has not provided an explanation, and the court will not speculate on the basis of
her opinion. As such, Roach’s claim must be remanded for further proceedings on this issue.
Third, Roach claims that the ALJ erred in her decision that his condition did not satisfy a
Listing. He contends that although gastroparesis does not have its own Listing, it should be
considered under Listing 5.06 for inflammatory bowel disease. Roach further alleges that the
ALJ gave no indication as to whether she considered this Listing before concluding that Roach’s
condition did not satisfy a listing. In the ALJ’s opinion, she found that Roach did not meet or
medically equal a listed impairment, and specifically stated “In reaching this conclusion, I
considered all of the listed impairments, but specifically Listings 1.04 and 5.01.” (TR 17).
Listing 5.06 is defined as:
Inflammatory bowel disease (IBD) documented by endoscopy, biopsy,
appropriate medically acceptable imaging, or operative findings with:
Obstruction of stenotic areas (not adhesions) in the small intestine or
colon with proximal dilatation, confirmed by appropriate medically acceptable
imaging or in surgery, requiring hospitalization for intestinal decompression or
for surgery, and occurring on at least two occasions at least 60 days apart within a
consecutive 6-month period;
Two of the following despite continuing treatment as prescribed and
occurring within the same consecutive 6-month period:
Anemia with hemoglobin of less than 10.0 g/dL, present on at least two
evaluations at least 60 days apart; or
Serum albumin of 3.0 g/dL or less, present on at least two evaluations at
least 60 days apart; or
Clinically documented tender abdominal mass palpable on physical
examination with abdominal pain or cramping that is not completely controlled
by prescribed narcotic medication, present on at least two evaluations at least 60
days apart; or
Perineal disease with a draining abscess or fistula, with pain that is not
completely controlled by prescribed narcotic medication, present on at least two
evaluations 60 days apart; or
Involuntary weight loss of at least 10 percent from baseline, as computed
in pounds, kilograms, or BMI, present on at least two evaluations at least 60 days
Need for supplemental daily enteral nutrition via a gastrostomy or daily
parenteral nutrition via a central venous catheter.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 5.06.
Roach specifically asserts that he met criteria 5 and 6 and that his gastroparesis is
medically equivalent to Listing 5.06. The ALJ’s opinion viewed Roach’s weight loss in a
different light. During the time period from December 2009 to July 2010, Roach lost a total of
45 pounds. However, at his 2009 weight, Roach was considered obese according to BMI
calculations. At Roach’s July 2010 weight, which remained consistent through the March 2011
hearing, “he is right on the cusp of the high end of normal weight vs. the low end of overweight.
Thus, even with weight loss (which could be due to a variety of factors), the claimant is still at
an appropriate weight.” (TR 26). The Listing criteria do not qualify the weight loss requirement
with any conditions such as obesity or acceptable weight ranges, so the ALJ’s reasoning on this
issue is flawed.
The Commissioner contends that the ALJ relied on forms SSA-831 completed by Dr.
Bond and Dr. Sands, the state agency reviewing physicians, in finding that Roach’s medical
conditions did not satisfy a Listing. Roach argues that these forms were completed prior to the
placement of his feeding tube and his subsequent weight loss. Roach is correct that the Disability
Determination and Transmittal forms were completed by Dr. Bond on January 11, 2010 and by
Dr. Sands on March 16, 2010. (Tr. 86-89) Roach’s feeding tube was placed on April 6, 2010
(Tr. 1399). Therefore, it is plausible that the circumstances surrounding his weight loss, and
whether he met the requirements of a Listing, could have changed after Dr. Bond and Dr. Sands
completed their reviews. As such, the ALJ should consider a more current medical opinion in
determining whether Roach’s impairments met or medically equaled a listing. On remand, the
ALJ should consider whether Roach’s gastroparesis or irritable bowel syndrome combined with
his weight loss establish a medical equivalency under Listing 5.06.
Roach next argues that the ALJ’s RFC determination was insufficient in that she failed to
identify medical evidence that Roach was capable of a range of sedentary work because she did
not rely on any physician opinion to support her finding. The Commissioner argues that the ALJ
considered normal objective physical findings to support her assessment that Roach retained the
capacity to work the minimal demands of sedentary exertion despite his impairments.
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 968p specifically spells out what is needed in the ALJ’s RFC analysis. This section of the Ruling
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
difference between what the ALJ must contemplate and what she must articulate in her 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)).
To support his contention that he is not capable of performing sedentary work, Roach has
pointed to the letter from Dr. Asrar Sheikh and nurse Debby Kark, dated October 7, 2010, which
outlined Roach’s daily care related to his feeding tubes and which specifically stated that his
healthcare needs made it impossible for him to work. Despite this letter, the ALJ found that
Roach had the residual functional capacity to perform sedentary work, excluding exposure to
unprotected heights or hazards and involving only simple instructions, routine tasks, no fast
paced production requirements, and no interaction with the public. (TR 18) The ALJ went on to
explain that she did not give controlling or great weight to Dr. Sheikh’s opinion because he only
saw Roach once, on the day before the letter was written. (TR 25) The ALJ appears to have
misconstrued two sentences in the letter: “Mr. Roach is a new patient in this practice. He was
last seen in the office on October 6, 2010.” (TR 1094) Although Dr. Sheikh considered Roach a
new patient, Roach was not seen by Dr. Sheikh for the first time on the day before the letter. On
the contrary, the record indicates that Dr. Sheikh treated Roach during his hospitalizations in
August 2010 and that nurse practitioner Kark had treated Roach in Dr. Sheikh’s office prior to
the hospitalization. (AR 993) The record does not contain any contradicting physician opinion
that indicated that Dr. Sheikh’s opinion was inaccurate. The ALJ must resolve this discrepancy
Roach further claims that the ALJ failed to weigh properly the opinion of his treating
physician, Dr. Sheikh, and that she used improper independent medical determinations in
rejecting Dr. Sheikh’s opinion. The Commissioner points to the ALJ’s finding that Roach was
not fully compliant in his use of the feeding tube and therefore questioned whether the
limitations provided by Dr. Sheikh would be accurate.
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
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).
Here, the ALJ’s order states that she did not give controlling weight to the opinions of
Dr. Sheikh and nurse Kark based on a lack of longitudinal basis for their opinions because they
only saw Roach on one occasion, the day before their letter was written. The Commissioner
argues that Roach was treated by Dr. Parvez and Dr. Favor rather than Dr. Sheikh during his
August 2010 hospitalization. As explained above, although other doctors were consulted during
Roach’s hospital stay, treatment notes from Roach’s August 20, 2010 hospital admission
indicate both that Dr. Sheikh treated him during this hospitalization and that nurse practitioner
Kark had treated Roach in Dr. Sheikh’s office prior to the hospitalization. (Tr. 993-94) Although
the ALJ provided some discussion of the evidence that contradicted Dr. Sheikh’s opinion that
Roach was not capable of performing even sedentary work, including his non-compliance with
the feeding tube and her opinion that the tube could be cleaned on normal breaks, it is not clear
that the ALJ gave Dr. Sheik’s opinion sufficient weight because she mistakenly believed that Dr.
Sheik saw Roach on only one occasion. Moreover, there is no medical evidence which
contradicted Dr. Sheik’s opinion. In light of this oversight, the ALJ must clarify her decision on
With regard to the Commissioner’s argument that Dr. Sheik’s limitations may not be
accurate because Roach was not fully compliant with the feeding tube, SSR 82-59 is instructive:
Identifying “Failure” as an Issue
SSA may make a determination that an individual has failed to follow prescribed
treatment only where all of the following conditions exist:
1. The evidence establishes that the individual’s impairment precludes engaging
in any substantial gainful activity (SGA) or, in the case of a disabled widow(er)
that the impairment meets or equals the Listing of Impairments in Appendix 1 of
Regulations No. 4, Subpart P; and
2. The impairment has lasted or is expected to last for 12 continuous months from
onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any SGA
(or gainful activity, as appropriate) has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow
Where SSA makes a determination of “failure,” a determination must also be
made as to whether or not failure to follow prescribed treatment is justifiable
Where the treating source has prescribed treatment clearly expected to restore ability to
engage in any SGA (or gainful activity, as appropriate), but the disabled individual is not
undergoing such treatment, appropriate development must be made to resolve whether
the claimant or beneficiary is justifiably failing to undergo the treatment prescribed.
Development With the Claimant or Beneficiary – The claimant or beneficiary should be
given an opportunity to fully express the specific reason(s) for not following the
prescribed treatment. Detailed questioning may be needed to identify and clarify the
essential factors of refusal.
In the present case, it is unclear whether Roach’s compliance with the feeding tube was
expected to restore capacity to engage in any substantially gainful activity. Dr. Sheikh indicated
that Roach would require a feeding tube for the rest of his life, and the presence of the feeding
tube appears to be the basis for Dr. Sheikh’s conclusion that Roach cannot work. (TR 1094)
However, even if compliance would restore Roach’s ability to engage in a substantially gainful
activity, there is no indication in the record that he ever was given an opportunity to express his
reason(s) for not complying with the prescribed treatment. This issue should be addressed by the
ALJ on remand.
Finally, Roach alleges that the ALJ failed to analyze properly his absenteeism when
posing the hypothetical question to the vocational expert. The ALJ acknowledged that “the
argument could be made that he could not sustain work on a full-time, sustained basis due to the
frequency of these visits.” (Tr. 25) The ALJ went on to explain why she believed this argument
was not valid in light of indications in the record that many of these visits were drug-seeking
attempts rather than medically necessary treatments. (Tr. 25) Roach does not suggest that any
medical opinion in the record specifically indicated that his absenteeism would be a factor which
would preclude him from working. The ALJ further explained that “[o]verall, this is a credibility
case, and the claimant’s allegations are not credible.” (Tr. 25) She then pointed to specific
instances in the record where medical providers described Roach as drug seeking, manipulative,
and inconsistent in his claims of pain during the emergency room visits he claims would be the
cause of his ongoing absenteeism. (Tr. 25) Because she pointed to specific medical evidence to
support her finding that Roach’s absenteeism in the past was not medically necessary, the ALJ
created “an accurate and logical bridge between the evidence and the result.” Vincent v. Astrue,
752 F. Supp. 2d 914, 925 (N.D. Ind. 2010). As such, the ALJ’s opinion as to this issue is
On remand, the ALJ must take the additional evidence into consideration when assessing
whether Roach met the Listing 12.05C criteria. The ALJ also should provide additional
explanation for discounting any medical opinions.
Based on the foregoing the decision of the Commissioner is REMANDED.
ENTERED this 22nd day of November, 2013.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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?