Kinsey-McHenry v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: Court GRANTS the relief requested in Plaintiff's 18 Brief in Support of Complaint and REMANDS this matter for consideration consistent with this Opinion. Signed by Magistrate Judge Paul R Cherry on 9/30/2013. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DESIREE L. KINSEY-MCHENRY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:12-CV-332-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Desiree L. KinseyMcHenry on August 15, 2012, and Plaintiff’s Brief in Support of Reversal of Commissioner’s Final
Decision [DE 18], filed January 22, 2013. Plaintiff requests that the Court remand the
Administrative Law Judge’s decision denying her supplemental security income (“SSI”) for further
administrative proceedings. On February 26, 2013, the Commissioner filed a response, and Plaintiff
filed a reply on March 14, 2013. For the reasons set forth below, Ms. Kinsey-McHenry’s request is
granted.
PROCEDURAL BACKGROUND
Plaintiff Desiree Kinsey-McHenry filed an application for SSI October 14, 2009. This
application was denied initially on March 18, 2010, and on reconsideration on August 30, 2010. Ms.
Kinsey-McHenry was granted her request for a hearing before an Administrative Law Judge
(“ALJ”), which took place on January 4, 2011, before ALJ Ramona Scales. Ms. Kinsey-McHenry
was represented by an attorney. Ms. Kinsey-McHenry and a vocational expert (“VE”) testified at
the hearing. The ALJ made the following findings:
1.

The claimant has not engaged in substantial gainful activity since October 14, 2009,
the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: history of carotid artery
aneurism with surgery, vision loss of the right eye and palsy of the third nerve (20
CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except: the claimant is unable to climb ladders, ropes or scaffolds,
is limited to occasional climbing of ramps and stairs, balancing, kneeling, crouching
and crawling, and frequent stooping. The claimant must also avoid even moderate
exposure to hazards in the workplace such as dangerous machinery and unprotected
heights, and is unable to perform jobs which require a full range of vision.

5.

The claimant is capable of performing past relevant work as a receptionist. This work
does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 416.965).

6.

The claimant has not been under a disability, as defined in the Social Security Act,
since October 14, 2009, the date the application was filed (20 CFR 416.920(f)).

(AR 16-21).
The ALJ issued her decision on March 18, 2011, and the Appeals Council declined review
on March 22, 2012, establishing the ALJ’s decision as the final determination of the Commissioner
of Social Security (“Commissioner”). See 20 C.F.R. § 416.1481. Following denial of review, Ms.
Kinsey-McHenry was referred to new counsel, and, after the Appeals Counsel granted her request
for an extension of time, Ms. Kinsey-McHenry timely filed her Complaint. 20 C.F.R. § 416.1482.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).

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FACTUAL BACKGROUND
A. Background
Plaintiff Desiree Kinsey-McHenry was born in 1975. Ms. Kinsey-McHenry was 34 years old
at the time she filed her application and 36 years old at the time the ALJ issued her decision. Ms.
Kinsey-McHenry worked as a receptionist, but she has not worked since 2001. From 1990 to 2001
she earned $24,623.93. At the time of the hearing, Ms. Kinsey-McHenry lived with her two children
and friend, Kia Olive.
B. Medical History
Ms. Kinsey-McHenry has a medical history of headaches, depression, carotid artery
aneurism, vision loss, and palsy of the right eye. However, the disputes in this action relate only to
Ms. Kinsey-McHenry’s headaches, depression, and her medication, each of which are discussed in
turn.
1.

Headaches
Ms. Kinsey-McHenry first reported migraines to Dr. Paul Okolocha in November 2008. Dr.

Okolocha’s records indicate that Ms. Kinsey-McHenry reported headaches on two occasions.
On November 18, 2008, Dr. Okolocha referred Ms. Kinsey-McHenry to Dr. Neil Watkins
at 20/20 Eye Specialists. Dr. Watkins noted that Ms. Kinsey-McHenry’s chief complaints were
blurred vision, light sensitivity, headaches, double vision, and pain when opening her right eye. Dr.
Watkins diagnosed third nerve palsy and prescribed medication for the eye pain.
Nearly one year later, on October 16, 2009, Dr. George Abu-Aita ordered a CT scan of Ms.
Kinsey-McHenry, revealing an elongated aneurysm in the right distal internal carotid artery. On
October 30, 2009, Ms. Kinsey-McHenry was referred to Dr. Hytham Rifai who noted that Ms.

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Kinsey-McHenry had a history of headaches. After reviewing the CT scan he recommended surgery
to remove the aneurysm. Dr. Rifai performed the surgery on November 2, 2009.
After the surgery, under the care of Dr. Choong Yoon at Methodist Hospital, Ms. KinseyMcHenry began a rehabilitation program for gait training and daily-living training. Dr. Yoon’s
initial review of Ms. Kinsey-McHenry shows she complained of headaches.
On January 4, 2011, at the hearing, Ms. Kinsey-McHenry testified that she was having
headaches since her surgery. She claims her headaches are severe enough to render her functionless.
In 2010, Ms. Kinsey-McHenry had three CT scans of her head. A February 2, 2010 CT scan showed
no abnormalities. A repeat CT scan on May 18, 2010 also showed no abnormalities. A third CT scan
on December 17, 2010 also showed no abnormalities.
On March 18, 2010, Dr. M. Ruiz, the state agency medical consultant, completed a Physical
Residual Functional Capacity Assessment. Dr. Ruiz made no finding regarding headaches, except
to report that Ms. Kinsey-McHenry had reported headaches to other doctors in the past.
On July 29, 2010, Ms. Kinsey-McHenry was referred to Irene M. Walters, Ph.D, by the State
of Indiana Disability Determination Bureau. During this meeting, Ms. Kinsey-McHenry rated her
headache pain at the highest level, a ten out of ten. Dr. Walters diagnosed Ms. Kinsey-McHenry
with chronic headaches.
On August 25, 2010, Kari Kennedy, Ph.D, completed a psychiatric review of Ms. KinseyMcHenry and made no mention of headaches.
On February 21, 2011, Dr. John Kincaid performed a Medical Source State of Ability to Do
Work-Related Activities and concluded that Ms. Kinsey-McHenry was capable of performing
activities such as shopping, meal preparation, personal hygiene, and climbing of stairs.

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2.

Depression
On July 29, 2010, Dr. Walters examined Ms. Kinsey-McHenry and noted that she was taking

a number of medications, including Cymbalta and paroxetine. Dr. Walters diagnosed Ms. KinseyMcHenry with depressive disorder.
On August 25, 2010, Dr. Kennedy completed a Psychiatric Review Technique form and
reported that Ms. Kinsey-McHenry suffers from depressive disorder, but that the impairment is not
severe. Restrictions in activities of daily living, difficulties in maintaining social functioning, and
difficulties in maintaining concentration, persistence, or pace were all rated mild. There were no
episodes of decompensation.
There was no discussion of depression at the hearing.
3.

Medications
On January 5, 2011, Dr. Abu-Aita’s record of his interaction with Ms. Kinsey-McHenry

notes the words Abilify and Cymbalta in a list of seven other medications. The phrase, “Depression
by Dr. Okolocha,” appears to be written adjacent to this list. (AR 534).
In her report of the July 29, 2010 examination, Dr. Walters noted that Ms. Kinsey-McHenry
reported that she was taking Hydrocodone, Lisinopril, Cymbalta, paroxetine, oxybutynin chloride,
gabapentin, and Rybix.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous

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legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “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) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ “uses
the correct legal standards and the decision is supported by substantial evidence.” Roddy v. Astrue,
705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.
2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse
the decision “without regard to the volume of evidence in support of the factual findings.” White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997)).
At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the
reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing

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court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and h[er] conclusions.”);
Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some
glimpse into the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A) (2012). To be found disabled, the claimant’s impairment must not only prevent her
from doing her previous work, but considering her age, education, and work experience, it must also
prevent her from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,

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and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
RFC, age, education, and experience? If yes, then the claimant is not disabled, and the claim is
denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see
also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s residual
functional capacity (“RFC”). The RFC “is an administrative assessment of what work-related
activities an individual can perform despite [her] limitations.” Dixon v. Massanari, 270 F.3d 1171,
1178 (7th Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d
668, 676 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of
proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d
at 886; see also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
Ms. Kinsey-McHenry presents five arguments for remand of the ALJ’s decision: (1) the ALJ
failed to properly analyze her headaches; (2) the ALJ failed to use the “special technique” of 20
C.F.R. § 416.920a to evaluate her depression; (3) the ALJ failed to analyze her “Paragraph B” mild
functional limitations; (4) the ALJ made a mistake of fact by stating that Ms. Kinsey-McHenry was
never prescribed psychiatric medications; and (5) the ALJ did not properly analyze the side effects
of her medications. The Court considers each argument in turn, with the exception of Ms. Kinsey-

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McHenry’s second argument, which Ms. Kinsey-McHenry conceded in her Reply Brief, recognizing
that the ALJ did, in fact, utilize the special technique.1
A. Headaches
Ms. Kinsey-McHenry argues that the ALJ erred when she failed to properly analyze Ms.
Kinsey-McHenry’s claims of headaches in formulating the RFC. Ms. Kinsey-McHenry particularly
points out that Social Security Ruling 96-8p and other relevant case law were ignored. The
Commissioner contends that the ALJ’s RFC analysis is proper because its credibility determination
is supported by substantial evidence.
Social Security Rulings (SSRs) are binding on all proceedings within the administrative
process and are precedential in adjudication. 20 C.F.R. § 402.35(b)(1). SSR 96-8p was drafted to
aid ALJs in assessing initial claim RFCs and requires that the RFC assessment be based on all of the
relevant evidence in the record. See SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996). This
evidence includes medical history; medical signs and laboratory findings; the effects of treatment,
including limitations on restrictions imposed by the mechanics of treatment (e.g., frequency of
treatment, duration, disruption to routine, side effects of medication); reports of daily activities; lay
evidence; recorded observations; medical source statements; effects of symptoms, including pain
that are reasonably attributed to a medically determinable impairment; evidence from attempts to
work; need for structured living environment; and work evaluations (if available). See id.
SSR 96-8p also provides, “The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory

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Ms. Kinsey-McHenry withdrew the argument, writing: “Hence, the ALJ minimally complied with the special technique
requirements of 20 C.F.R. § 416.920a. ALJs most often provide this analysis at step 3 of the sequential process, but here
the ALJ used the ‘special technique’ in the middle of [her] RFC findings, and Plaintiff did not notice this when drafting
her opening merits brief.” Pl. Reply 4.

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findings) and nonmedical evidence (e.g., daily activities, observations).” Id. at *7. Finally,
specifically with regard to symptoms, the SSR requires that the RFC assessment:
*Contain a thorough discussion and analysis of the objective medical and other
evidence, including the individual’s complaints of pain and other symptoms and the
adjudicator’s personal observations, if appropriate;
*Include a resolution of any inconsistencies in the evidence as a whole; and
*Set forth a logical explanation of the affects of the symptoms, including pain, on the
individual’s ability to work.
Id.
The Court finds that the three instances in which the ALJ mentions Ms. Kinsey-McHenry’s
headaches are void of any attempt to thoroughly discuss or analyze the evidence as required by SSR
96-8p. First, the ALJ began the RFC analysis by listing Ms. Kinsey-McHenry’ alleged impairments
of loss of vision in her right eye, third nerve palsy, history of aneurism, and headaches. Id. Second,
the ALJ then summarized Ms. Kinsey-McHenry’s allegations, acknowledging Ms. KinseyMcHenry’s testimony that she experiences severe headaches five times a week. Without specifically
mentioning headaches or any other impairment, the ALJ concluded by setting forth the nowcommon “boilerplate” paragraph, finding generally that Ms. Kinsey-McHenry’s “medically
determinable impairments could reasonably be expected to cause the alleged symptoms” but that she
was not fully credible.
Over the next two and a half pages, the ALJ conducted the credibility determination and
analyzed the evidence of record relied upon in formulating the RFC in the format routinely followed
by ALJs. The only mention of headaches in this analysis section is the third instance in which the
ALJ uses the word “headache” and it is within the context of analyzing Ms. Kinsey-McHenry’s
aneurism surgery. The ALJ noted that Ms. Kinsey-McHenry was discharged in November 2009 in
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stable condition and returned to one of her doctors to obtain treatment for headaches, which included
being prescribed Darvocet and Vicodin for her alleged symptoms. The ALJ then concluded,
“Despite these allegations, the claimant has not received any treatment related to her aneurism since
November of 2010.” (AR 19). The ALJ also noted that a CT scan of Ms. Kinsey-McHenry’s brain
indicated normal brain functions. Id. There is no discussion of this evidence in relation to Ms.
Kinsey-McHenry’s testimony and ongoing complaints of headaches.
Thus, the ALJ failed to engaged in a narrative of why or why not Ms. Kinsey-McHenry’s
headache pain was discounted in the overall RFC finding. Notably, the administrative record
contains evidence of headaches. Dr. Walters diagnosed Ms. Kinsey-McHenry with chronic
headaches, and Dr. Okolocha’s records indicate that on two occasions Ms. Kinsey-McHenry
reported headaches. The mention of Ms. Kinsey-McHenry’s allegations and the fact of treatment for
headaches in relation to the aneurism do not satisfy the requirements of SSR 96-8p.
As in Indoranto v. Barnhart, in which the claimant also alleged headaches at the hearing and
complained of headaches to her doctors, the ALJ is not required to discuss every piece of evidence
in the record, but she must confront the evidence that does not support her conclusion and explain
why it was rejected. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004). The ALJ did not do
so with regard to Ms. Kinsey-McHenry’s headaches. The Commissioner counters that substantial
evidence exists to support the ALJ’s decision and that the record lacks any objective evidence to
corroborate Ms. Kinsey-McHenry’s complaints, pointing to inconsistencies in Ms. KinseyMcHenry’s testimony and medical reports and the lack of corroborative evidence to support her
claims. However, the ALJ did not make these points in her decision, and the Commissioner may not
provide this analysis for her.

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Ms. Kinsey-McHenry also argues that the ALJ failed to comply with SSR 96-7p because the
Seventh Circuit Court of Appeals has regularly recognized that “an ALJ may not disregard a
claimant’s testimony about the severity of her symptoms without providing careful analysis.” Pl. Br.
10 (citing Phillips v. Astrue, 601 F. Supp. 2d 1020, 1030 (N.D. Ill. 2009) (discussing Briscoe, 425
F.3d at 353-55; Golembiewski v. Barnhart, 322 F.3d 912, 915-06 (7th Cir. 2003); Giles, 483 F.3d
at 489). The Commissioner counters that, based on the evidence in the case as a whole, the ALJ was
justified in concluding that Ms. Kinsey-McHenry was not credible.
SSR 96-7p provides that the ALJ is to make a decision on the credibility of the claimant and
use it to determine the veracity of the reported symptoms. However, SSR 96-7p also plainly states:
It is not sufficient for the adjudicator to make a single, conclusory statement that “the
individual’s allegations have been considered” or that “the allegations are (or are
not) credible.” It is also not enough for the adjudicator simply to recite the factors
that are described in the regulations for evaluating symptoms. The determination or
decision must contain specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the
individual and any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.
SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). In sum, the ALJ is to make a credibility
determination, but not without explaining the reasons for her conclusion. As set forth above, the ALJ
only referred to “headaches” three times in the RFC/credibility section, and not one of them was
substantive or analytical. In this case, the ALJ conducted no credibility analysis as to Ms. KinseyMcHenry’s headaches.
It may be that the ALJ found Ms. Kinsey-McHenry not fully credible as to her headaches and
that the ALJ fully considered all the evidence of record and the testimony to find that Ms. KinseyMcHenry does not suffer any limitations from her headaches; however, this is not discernible from

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the ALJ’s decision.2 On remand, should the ALJ come to the same conclusions, she shall include
the analysis and discussions required by SSR 96-7p and SSR 96-8p.
B. Depression–“Paragraph B” Analysis
Ms. Kinsey-McHenry argues that the ALJ failed to properly analyze her functional
limitations regarding her depression when forming the RFC. Specifically, Ms. Kinsey-McHenry
argues that, despite having only mild limitation in her daily living, social functioning, and in
maintaining concentration, persistence or pace, and no episodes of decompensation, the ALJ must
provide an analysis to show that these mild limitations were considered in formulating her RFC. In
addition, she argues that, in her case, additional limitations based on her depression should have
been factored into the RFC.
The regulations provide that, if the ALJ rates the degree of limitation in the first three
categories as “none” or “mild” and “none” in the fourth area, the impairment is “not severe.” 20
C.F.R. § 416.920a(d)(1). A “non-severe” impairment is one that “does not significantly limit [a
claimant’s] physical or mental ability to do basic work activities,” which include physical functions;
capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple
instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting. 20 C.F.R. § 416.921(a), (b).
Nevertheless, an ALJ must include limitations from non-severe impairments in the RFC
determination. SSR 96-8p, 1996 WL 374184, at *5 (Jul. 2, 1996) (“In assessing RFC, the adjudicator
must consider limitations and restrictions imposed by all of an individual’s impairments, even those

2

The Court notes that many of the page references cited by Ms. Kinsey-McHenry in her brief support of her allegations
of headaches contain no reference to headaches. See (AR 430, 429, 428, 426).

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that are not ‘severe.’”); see also Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 2003);
Golembiewski, 322 F.3d at 917; Paar v. Astrue, No. 09 C 5169, 2012 WL 123596, *13 (N.D. Ill.
2013); Koswenda v. Astrue, 08 C 4732, 2009 WL 958542 (N.D. Ill. 2012); Alesia v. Astrue, 789 F.
Supp. 2d 921, 933 (N.D. Ill. 2011). The failure to consider the impact of severe and non-severe
impairments warrants reversal. Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010).
In her decision, the ALJ found at step two that Ms. Kinsey-McHenry did not suffer from
severe depression. The ALJ noted that Ms. Kinsey-McHenry was diagnosed with depressive
disorder and that Ms. Kinsey-McHenry claims some depression. Nevertheless, the ALJ found that
the “bulk of her functional limitations appear to relate to her physical problems.” Id. The ALJ further
stated:
[T]the claimant has neither undergone psychiatric treatment with a mental health
professional nor has even been prescribed psychiatric medications from her treating
physician. The undersigned finds the claimant’s depression has no more than a
minimal impact on her ability to perform work-related activities and is a non-severe
impairment.
(AR 17).
At the third step of the sequential evaluation process, the ALJ stated that she considered Ms.
Kinsey-McHenry’s mental impairments, both individually and in combination, and found that they
do not meet or medically equal the criteria listing. The ALJ also stated that she considered the
“Paragraph B” criteria in making this finding. The ALJ recognized that a claimant may only satisfy
the “Paragraph B” criteria if at least two of her functional limitations are at least rated “marked”
and/or the claimant has repeated episodes of decompensation.
At step four of the sequential evaluation process, the ALJ noted that Dr. Kennedy indicated
that Ms. Kinsey-McHenry’s depressive disorder was not severe because it only caused mild

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restrictions in her functional limitations and no episodes of decompensation. The ALJ gave this
opinion great weight because it was consistent with the record as a whole. The ALJ also gave Dr.
Walters’s opinion “little” weight because her findings of moderate psychiatric symptoms were
inconsistent with the medical record as a whole. The ALJ concluded that the record indicates that
Ms. Kinsey-McHenry has no mental impairment because Ms. Kinsey-McHenry told Dr. Walters that
she was disabled due to her physical impairments, not due to any mental impairment, and because
Ms. Kinsey-McHenry was neither seeking treatment with a mental health professional nor had ever
been prescribed psychiatric medications.
The ALJ’s decision shows that she did consider Ms. Kinsey-McHenry’s mental impairment.
The ALJ specifically reviewed the functional limitations and discussed the mental medical findings
of Dr. Watkins and Dr. Kennedy. While the ALJ credited these medical opinions with little and great
weight respectively, she went on to analyze why she found that Ms. Kinsey-McHenry had no mental
impairment and gave specific reasons to conclude that the record suggests Ms. Kinsey-McHenry
does not have any mental impairment. The Court finds that the ALJ’s discussion satisfies the
analysis requirements of the case law and social security rulings on the issue of whether any
limitations should be included in the RFC based on her depression.
Finally, the Court notes that Ms. Kinsey-McHenry cites Golembiewski v. Barnhart for its
statement that “[i]t is not reasonable for the ALJ to find that a condition does not exist at all where
the evidence establishes that is does exist even if it is ‘small’.” Pl. Br. 15 (citing Golembiewski, 382
F.3d at 725). The regulations provide that the ALJ is to “always consider the medical evidence in
your case record together with the rest of the relevant evidence we receive.” 20 C.F.R. § 416.927(b).
The regulations also state that the ALJ will “make findings about what the evidence shows.” 20

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C.F.R. § 416.920; SSR 96-5p, 1996 WL 374183, at *5 (1996) (reserving administrative findings
such as development of the RFC for the ALJ and prohibiting controlling weight on medical source
opinions in RFC development because it would be an abdication of the Commissioner’s statutory
responsibilities).
In this case, the ALJ considered the evidence of both mental health opinions and concluded
that the evidence still showed that Ms. Kinsey-McHenry did not have a mental impairment. Based
on this conclusion (supported by the specific reasons stated above), and as authorized by the
regulations, it was then appropriate for the ALJ not to incorporate any limitations in the RFC based
on her mild mental limitations. Accordingly, the Court denies the request to remand on this basis.
C. Psychiatric Medications
The ALJ’s decision states twice that Ms. Kinsey-McHenry was not prescribed psychiatric
medications from her treating physician. Ms. Kinsey-McHenry points out that this record “reveals
that she was prescribed psychiatric medications” and argues that this mistake warrants remand. Pl.
Br. 18, (citing (AR 534)). The Commissioner argues Dr. Abu-Aita’s treatment notation is largely
illegible and inconclusive and the ALJ’s general observation that there was no prescription for
psychiatric medications should be overlooked because it is consistent with the record as a whole.
Both parties fail to point out that the administrative record mentions depression related drugs on
another occasion. Within her Consultative Examination Report, Dr. Walters recorded that Ms.
Kinsey-McHenry claimed to be taking numerous drugs, including Cymbalta and paroxetine, an
antidepressant. See (AR 338).
Thus, the ALJ erred in stating categorically that Ms. Kinsey-McHenry was not taking
medication for her mental impairments. However, the Court nevertheless finds that substantial

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evidence supports the ALJ’s determination as to limitations flowing from Ms. Kinsey-McHenry’s
non-severe mental impairments. The Court notes that the hearing record includes no discussion of
mental health conditions. Further, Ms. Kinsey-McHenry’s attorney’s opening statement does not
include mental health conditions as a reason for her claim of disability. Nevertheless, because the
Court is remanding this case on other issues and in the interest of a complete analysis, the ALJ shall
address the evidence in the record related to depression medications on remand in the discussion of
Ms. Kinsey-McHenry’s mental impairments.
D. Medication Side Effects
Finally, Ms. Kinsey-McHenry argues that the ALJ failed to consider the side effects of her
medication in determining her RFC. She argues that there was no analysis of the side effects as
required by SSR 96-8p. The Commissioner responds that the ALJ did not find Ms. Kinsey-McHenry
credible and that the failure to discuss a single credibility factor is not fatal when the substantial
evidence supports a finding that Ms. Kinsey-McHenry is not credible. Ms. Kinsey-McHenry
responds that SSR 96-7p requires the ALJ to include side effects of medication in any credibility
discussion.
The regulations and SSR 96-7p both require the ALJ to consider the “types, dosage,
effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain
or other symptoms” when evaluating the symptoms and credibility of the claimant. 20 C.F.R. §
416.929(3)(iv); SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). The ALJ failed to discuss the
medication and its side effects in her credibility analysis of Ms. Kinsey-McHenry despite having
asked Ms. Kinsey-McHenry about her medications, Ms. Kinsey-McHenry’s testimony regarding the
side effects of her medications, and notations in the treatment records regarding medication side

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effects. Because this matter is being remanded on other grounds, the ALJ shall discuss the side
effects of Ms. Kinsey-McHenry’s medications in the credibility analysis.
CONCLUSION
For the foregoing reasons, the Court GRANTS the relief requested in Plaintiff’s Brief in
Support of Complaint [DE 18] REMANDS this matter for consideration consistent with this
Opinion.
So ORDERED this 30th day of September, 2013.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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