Augustyniak v. Commissioner of Social Security
OPINION AND ORDER: GRANTING 17 SOCIAL SECURITY OPENING BRIEF Plaintiffs Brief in Support of Motion for Summary Judgment by Michelle M Augustyniak and REMANDING this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 9/1/2015. (lhc)(cc: All counsel)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MICHELLE M. AUGUSTYNIAK,
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
CAUSE NO.: 2:14-CV-229-JEM
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Michelle M. Augustyniak
on July 3, 2014, and Plaintiff’s Brief in Support of Motion for Summary Judgment [DE 17], filed
by Plaintiff on December 9, 2014. Plaintiff requests that the decision of the Administrative Law
Judge be reversed and remanded for further proceedings. On February 17, 2015, the Commissioner
filed a response, and on March 13, 2015, Plaintiff filed a reply. For the following reasons, the Court
grants Plaintiff’s request for remand.
On April 7, 2009, Plaintiff filed an application for Child’s Disability Benefits and
Supplemental Security Income with the U.S. Social Security Administration alleging that she
became disabled on April 7, 2006. Plaintiff’s application was denied initially and upon
reconsideration. On April 29, 2015, an Administrative Law Judge (“ALJ”), after a hearing at which
Plaintiff, with an attorney, and a Vocational Expert (“VE”) testified, issued a decision finding the
Plaintiff not disabled. The Appeals Council remanded the case due to deficiencies in the ALJ’s
decision. On June 13, 2012, ALJ Romona Scales held a hearing at which Plaintiff, with an attorney,
Plaintiff’s mother Marguerite Lieber, and a VE testified. On November 30, 2012, the ALJ issued a
decision finding Plaintiff not disabled. The ALJ’s decision became the Commissioner’s final
decision when the Appeals Council denied Plaintiff’s request for review on May 6, 2014. See 20
C.F.R. § 404.981.
The ALJ made the following findings under the required five-step analysis:
1. The claimant was born on November 1, 1986, making her not yet 22 as of April
7, 2006, the alleged onset date.
2. The claimant has not engaged in substantial gainful activity since April 7, 2006,
the alleged onset date.
3. The claimant has the following severe impairments: major depressive disorder,
generalized anxiety disorder, borderline intellectual functioning, and status post
fractures from a motor vehicle accident.
4. The claimant does not have an impairment or combination of impariments that
meets or medically equals the severity of one of the listed impairments.
5. After careful consideration of the entire record, the ALJ found that claimant has
the residual functional capacity to perform light work, which includes the ability to
lift and/or carry and push and/or pull up to 20 pounds occasionally and up to 10
pounds frequently, stand and/or walk six hours in an eight hour workday, and sit six
hours in an eight hour workday. She can understand, remember, and carry out
simple, routine, repetitive tasks, and the claimant is able to maintain adequate
attention and concentration for those tasks. She can interact on at least a superficial
and ongoing basis with coworkers and supervisors. The claimant can have no contact
with the general public. She requires work free of fast-paced production, and that can
be performed best independent of others. The claimant can manage changes in the
6. The claimant has no past relevant work.
7. The claimant was born on November 1, 1986, and was 19 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date.
8. The claimant has at least a high school education and is able to communicate in
9. Transferability of job skills is not an issue because the claimant does not have past
10. Consider the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security
Act, from April 7, 2006, through the date of the ALJ decision.
Under 42 U.S.C. § 405(g), Plaintiff initiated this civil action for judicial review of the
Commissioner’s final decision. 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).
Plaintiff was 19 years old on April 7, 2006, when she was hit by an automobile in a hit-andrun. Plaintiff suffered multiple broken bones and required multiple surgeries. Plaintiff has severe
impairments of major depressive disorder, generalized anxiety disorder, borderline intellectual
functioning, and status post fractures from the motor vehicle accident. Plaintiff also has non-severe
impairments of cognitive disorder secondary to traumatic brain injury, sinus problems, chronic
headaches, history of cervical cancer, and jaw pain. Plaintiff also has a history of self-cutting and
in October 2006 was admitted to the hospital for a suicide attempt after cutting her neck during an
argument with her boyfriend. As well as seeking treatment for her physical impairments, Plaintiff
started treatment with Dr. Kahn, a psychiatrist, in October 2009. In March 2011 and May 2012, Dr.
Kahn opined that Plaintiff was unable to work due to her mental illnesses. Plaintiff was examined
by two state psychologists, Dr. Clark and Dr. Rozenfeld. Both state psychologists found a variety
of mild and moderate limitations, including moderate limitations in concentration, persistence, and
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 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)). “A reversal and remand may be required, however, if the ALJ
committed an error of law or if the ALJ based the decision on serious factual mistakes or omissions.”
Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citations omitted).
At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the
reviewing court to trace the path of his 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
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 his 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.”).
To be eligible for disability benefits, the claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations that began before she became
twenty-two years old. 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). 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, 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
residual functioning capacity (“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
At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The RFC
“is an administrative assessment of what work-related activities an individual can perform despite
[claimant’s] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR
96-8p, 1996 WL 374184 (Jul. 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). 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).
Plaintiff argues that the ALJ’s credibility analysis was deficient. The Commissioner argues
that the ALJ’s credibility analysis was not patently wrong.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of  pain or other
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
(v) Treatment . . . for relief of  pain or other symptoms;
(vi) Any measures . . . used to relieve pain or other symptoms . . . ;
(vii) Other factors concerning  functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3). In making a credibility determination, Social Security Ruling 96–7p
require the ALJ to consider the record as a whole, including objective medical evidence, the
claimant’s statement about symptoms, any statements or other information provided by treating or
examining physicians and other persons about the conditions and how they affect the claimant, and
any other relevant evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996). An ALJ is not required
to give full credit to every statement of pain made by the claimant or to find a disability each time
a claimant states he or she is unable to work. See Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996).
However, Ruling 96-7p provides that a claimant’s statements regarding symptoms or the effect of
symptoms on her ability to work “may not be disregarded solely because they are not substantiated
by objective evidence.” SSR 96-7p at *6. An ALJ’s credibility determination is entitled to substantial
deference by a reviewing court and will not be overturned unless the claimant can show that the
finding is “patently wrong.” Prochaska, 454 F.3d at 738.
The ALJ found Plaintiff’s statements not credible with respect to the intensity, persistence
and limiting effects of her claims. The ALJ mentions twice that she discounted Plaintiff’s testimony
based on failure to seek care for a period of time. AR 20, 21. The ALJ did not, however, inquire into
the Plaintiff’s reasons for failure to seek care. This is especially problematic with regard to her mental
health treatment, where Plaintiff went three years without mental health treatment and her
psychiatrist’s notes reflect that the gap was because of a loss of medical insurance. Rather than make
an inquiry with Plaintiff as required, the ALJ speculates,
[w]hile the undersigned is sympathetic to the fact the claimant may
have lacked the funds to pay for treatment and/or medication, if her
mental impairments were truly as limiting as she suggests, the
undersigned would have expected her to seek out alternative, less
expensive treatment methods, or any free medical services, that may
have been available in her community.
The ALJ “must not draw any inferences about an individual’s symptoms and their functional
effects from a failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide” and “may need to recontact the individual or question
the individual at the administrative proceeding in order to determine whether there are good reasons
the individual does not seek medical treatment or does not pursue treatment in a consistent manner.”
SSR 96-7p, at *7; see also Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“[A]n ALJ must
first explore the claimant’s reasons for the lack of medical care before drawing a negative inference
. . . The claimant’s ‘good reason’ may include an inability to afford treatment, ineffectiveness of
further treatment, or intolerable side effects ); Craft, 539 F.3d at 679 (“[T]he ALJ ‘must not draw any
inferences’ about a claimant’s condition from this failure [to follow a treatment plan] unless the ALJ
has explored the claimant’s explanations as to the lack of medical care.”) (quoting SSR 96-7p). In
this case, the ALJ did not inquire into Plaintiff’s reasons for discontinuing treatment despite drawing
inferences about Plaintiff’s credibility, while speculating even though the inability to pay is
considered a good reason for not seeking medical care. Accordingly, the Court remands the case for
a new credibility analysis that fully considers Plaintiff’s testimony and the entirety of the record in
compliance with the applicable directives.
Residual Functional Capacity
“The RFC is an assessment of what work-related activities the claimant can perform despite
her limitations.” Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §§
404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into
consideration all of the relevant evidence, including both medical and non-medical evidence. See 20
C.F.R. §§ 404.1545(a)(3); 416.945(a)(3). According to SSA regulations:
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 at *7. Although an ALJ is not required to discuss every piece of evidence, she must
consider all of the evidence that is relevant to the disability determination and provide enough
analysis in her decision to permit meaningful judicial review. Clifford, 227 F.3d at 870; Young, 362
F.3d at 1002. In other words, the ALJ must build an “accurate and logical bridge from the evidence
to [her] conclusion.” Scott, 297 F.3d at 595 (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.
Basis of Residual Functional Capacity
Plaintiff argues that the ALJ did not provide a proper basis for the RFC determination. The
Commissioner argues that the ALJ supported his RFC finding with substantial evidence.
In this case, no physician opined about Plaintiff’s physical limitations. Although the ALJ went
through a litany of medical findings in Plaintiff’s medical history, she did not explain how she arrived
at the RFC restrictions. The Court is not persuaded by the Commissioner’s argument that the “ALJ’s
RFC finding was not only based on the medical evidence, but was very favorable to Plaintiff.”
Rather, the Court is concerned that by simply listing a litany of medical findings, none of which
directly address what limitations Plaintiff may have from them, the ALJ is making medical
determination as to what she believes the physical limitations would be from such medical evidence.
The Seventh Circuit has repeatedly held that ALJs are not to make their own independent medical
findings. See, e.g., Myles v. Astrue, 582 F.3d 672, 677-78 (7th Cir. 2009); Blakes v. Barnhart, 331
F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). ALJs have been
warned not to “succumb to the temptation to play doctor” because “lay intuitions about medical
phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (citing cases).
The ALJ failed to build a logical bridge between the medical evidence and her determination that
Plaintiff could sit, stand, and lift, to the degree she described in the RFC. See Suide v. Astrue, 371 F.
App’x 684, 690 (7th Cir. 2010) (“The rest of the record simply does not support the parameters
included in the ALJ’s residual functional capacity determination, such as an ability to ‘stand or walk
for six hours’ in a typical work day . . .”); Briscoe v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005)
(“[T]he ALJ did not explain how he arrived at these conclusions; this omission in itself is sufficient
to warrant reversal of the ALJ’s decision.”); Barrett v. Barnhart , 355 F.3d 1065 (7th Cir. 2004)
(finding reversible error when ALJ determined that claimant could stand for two hours when there
was no medical evidence to support such a conclusion).
The Court is also concerned about the apparent inconsistent consideration of the state
consultants. Twice the ALJ stated she gave “substantial weight” to the state consultants based on the
record as a whole. AR 17, 23. Despite this, she gave little weight to Dr. Rozenfeld’s opinion with
respect to the finding that Plaintiff had moderate difficulty in activities of daily living based on the
“record as a whole, including the testimony evidence,” without specifically explaining the evidence
that lead to this conclusion. The Court questions the piecemeal approach to this, especially where the
ALJ has stated multiple times that the opinion received great weight and does not specify exactly
what evidence contradicts the statement. It is not apparent to the Court how the record as a whole
warrants giving the opinion little weight and substantial weight, at the same time.
The ALJ “must provide a ‘logical bridge’ between the evidence and [her] conclusions.”
O’Connor-Spinner, 627 F.3d at 618. The ALJ does not explain the basis of the physical limitations
in the RFC and “[s]he may not ‘play doctor’ by using [her] own lay opinions to fill evidentiary gaps
in the record.” Chase v. Astrue, 458 F. App’x 553, 557 (7th Cir. 2012). The ALJ also does not explain
her inconsistent treatment of the state reports. Accordingly, the Court remands the case for a new
Plaintiff argues that the ALJ failed to properly weight the medical opinion of Plaintiff’s
treating doctor. The Commissioner argues that the ALJ considered the opinion and reasonably gave
it little evidentiary weight based on the totality of the evidence.
“A treating physician’s opinion regarding the nature and severity of a medical condition is
entitled to controlling weight if it is well supported by medical findings and not inconsistent with
other substantial evidence in the record.” Gudgel, 345 F.3d at 470 (citing 20 C.F.R. §
404.1527(d)(2)); see also Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). Being “not
inconsistent” does not require that opinion be supported directly by all of the other evidence “as long
as there is no other substantial evidence in the case record that contradicts or conflicts with the
opinion.” SSR 96-2p, 1996 WL 374188 at *3. To be “substantial,” conflicting evidence “need only
be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (citing Richardson v. Perales, 402 U.S. 389 (1971)); see also Schmidt, 395 F.3d at 744.
If the ALJ declines to give a treating source’s opinion controlling weight, she must still
determine what weight to give it according to the following factors: the length, nature, and extent of
the physician’s treatment relationship with the claimant; whether the physician’s opinions were
sufficiently supported; how consistent the opinion is with the record as a whole; whether the
physician specializes in the medical conditions at issue; and other factors, such as the amount of
understanding of the disability programs and their evidentiary requirements or the extent to which
an acceptable medical source is familiar with other information in the claimant’s case. 20 C.F.R. §§
404.1527(c)(2)(i)-(ii), (c)(3)-(6); see also Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). “If the
ALJ discounts the [treating] physician’s opinion after considering these factors, [the Court] must
allow that decision to stand so long as the ALJ ‘minimally articulated’ [her] reasons.” Elder, 529
F.3d at 415 (quoting Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)); see also Punzio v. Astrue,
630 F.3d 704, 710 (7th Cir. 2011) (“[W]henever an ALJ does reject a treating source’s opinion, a
sound explanation must be given for that decision.”); Schmidt, 496 F.3d at 842 (“An ALJ thus may
discount a treating physician’s medical opinion if it . . . ‘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.’”) (quoting
Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004)).
Dr. Khan, Plaintiff’s treating psychiatrist since 2009, indicated in March 2011 and May 2012
that Plaintiff was unable to work due to her chronic mental illnesses. AR 1027, 1043. The ALJ stated
that she gave little weight to Dr. Kahn’s assessment based on the “totality of the evidence,” but only
references back to Dr. Kahn’s reports in support of this finding, which contain information appearing
to support the conclusion, including the mental illnesses, the length of mental illnesses, the
symptoms, the medications prescribed, and other information. The ALJ also appears to discount Dr.
Kahn’s opinion due to gaps in Plaintiff’s treatments, which is addressed above. The ALJ further cites
Dr. Kahn’s notes that there is no evidence of “persecutory delusions” or “formal thought disorder”
and “her judgment and insight have also been noted to be fair” apparently in support of the ALJ’s
determination. AR 24. These particular findings, however, do not conflict with Dr. Kahn’s other
findings, which include generalized anxiety disorder with panic attacks, bipolar disorder, and
depression, for which delusions were not alleged. Along with the language quoted by the ALJ, Dr.
Kahn’s report also states that Plaintiff’s “affect [was] sad”and Plaintiff “was crying in the session and
was anxious” and “was anxious and restless during the session,” AR 1042, which appears to be the
kind of “cherry-picking” of mental health evidence the Seventh Circuit warns against. See, e.g.,
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) (“[A] person who suffers from a mental illness
will have better days and worse days, so a snapshot of any single moment says little about her overall
condition.”); Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (“[S]ymptoms that ‘wax and wane’
are not inconsistent with a diagnosis of recurrent, major depression. ‘A person who has a chronic
disease, whether physical or psychiatric, and is under continuous treatment for it with heavy drugs,
is likely to have better days and worse days.’”) (quoting Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.
The ALJ did not address the factors enumerated in 20 C.F.R. § 404.1527(c) as they applied
to the treating physician and did not fully explain the reasons she discounted Dr. Kahn’s opinion.
This case is being remanded for a new RFC and it is suggested that the ALJ conduct a thorough
analysis of the treating physician’s opinion.
The Court is also concerned by the ALJ’s consideration of the mental limitations in the RFC.
The ALJ gave substantial weight to both of the state psychological consultants, Dr. Clark and Dr.
Rozenfeld. AR 17, 23. Both consultants found moderate difficulties in maintaining concentration
persistence or pace; limitations the ALJ found were accurate. AR 915, 1065. The ALJ did not include
these limits into the RFC.
When an ALJ relies on testimony from a VE to make a disability determination, the ALJ must
incorporate all of the claimant’s limitations supported by medical evidence in the record. See
Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); see also Young v. Barnhart, 362 F.3d 995,
1003 (7th Cir. 2004) (“a hypothetical question to the vocational expert must include all limitations
supported by medical evidence in the record”); Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir.
2003) (“Furthermore, to the extent the ALJ relies on testimony from a vocational expert, the question
posed to the expert must incorporate all relevant limitations from which the claimant suffers.”). If the
VE is unaware of all of the Plaintiff’s limitations, he may refer to jobs the Plaintiff cannot perform,
resulting in an incorrect disability determination. Kasarsky, 335 F.3d at 543.
Where there are limitations in concentration, persistence, and pace, these limitations must be
incorporated into the hypothetical posed to the VE, although there is not “a per se requirement that
this specific terminology (‘concentration, persistence, and pace’) be used in the hypothetical in all
cases.” O’Connor-Spinner, 627 F.3d at 619. A hypothetical that does not include these terms may
still be sufficient if it is “manifest that the ALJ’s alternative phrasing specifically excluded those
tasks that someone with the claimant’s limitations would be unable to perform.” Id.
The ALJ limited Plaintiff to “understand, remember, and carry out simple, routine, repetitive
tasks” and required “work free of fast-paced production, and that can be performed best
independently of others,” which does not address the moderate limitations on concentration,
persistence, and pace. See Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (rejecting the
contention “that the ALJ accounted for [the plaintiff]’s limitations of concentration, persistence, and
pace by restricting the inquiry to simple, routine tasks that do not require constant interactions with
coworkers or the general public”); Young, 362 F.3d at 1004 (concluding that a limitation of “simple,
routine, repetitive, low stress work with limited contact with coworkers and limited contact with the
public” was inadequate to take into account the claimant’s limitations). The Court suggests that on
remand the ALJ fully explain how she accounted for Plaintiff’s moderate limitations in concentration,
persistence, and pace.
For the foregoing reasons, the Court hereby GRANTS the relief requested in the Plaintiff’s
Brief in Support of Motion for Summary Judgment [DE 17], and REMANDS this matter for further
proceedings consistent with this opinion.
SO ORDERED this 1st day of September, 2015.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc: All counsel of record
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