Wartak v. Commissioner of Social Security
OPINION AND ORDER: Court GRANTS the relief sought in the 17 Brief in Support of Plaintiff's Motion for Summary Judgment, REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 3/8/2016. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
PAUL ANTHONY WARTAK,
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
CAUSE NO.: 2:14-CV-401-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Paul Anthony
Wartak on November 4, 2014, and a Brief in Support of Plaintiff’s Motion for Summary Judgment
[DE 17], filed on March 13, 2015. Plaintiff requests that the September 13, 2014 decision of the
Administrative Law Judge denying his claim for disability insurance benefits and supplemental
security income be reversed and remanded for further proceedings. On May 26, 2015, the
Commissioner filed a response, and Plaintiff filed a reply on June 9, 2015. For the following reasons,
the Court grants Plaintiff’s request for remand.
Plaintiff filed applications for disability insurance benefits and supplemental security income
on November 10, 2011, alleging an onset date of January 1, 2010. His initial claim was denied on
December 20, 2011, and upon reconsideration on May 30, 2012. Plaintiff timely requested a hearing,
which was held on August 9, 2013. In attendance at the hearing were Plaintiff and an impartial
vocational expert. Plaintiff was not represented by counsel. On September 13, 2013, Administrative
Law Judge (“ALJ”) Harry Kramzyk issued a written decision denying benefits, making the
The claimant meets the insured status requirements of the Social Security Act
through September 30, 2014.
The claimant has not engaged in substantial gainful activity since January 1,
2010, the alleged onset date.
The claimant has the following severe impairments: blindness of the left eye;
hypertension; diabetes mellitus; obesity; depression; and schizoid personality
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.
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 404.1567(b) and 416.967(b) in that the claimant can lift and/or
carry up to twenty (20) pounds occasionally and up to ten (10) pounds
frequently, can stand and/or walk for about six (6) hours and can sit for about
six (6) hours during an eight-hour workday, except: the claimant can
occasionally balance, stoop, kneel, crouch, or crawl, but he must never climb
ladders, ropes, or scaffolds; the claimant is limited to work that allows for
monocular vision with the right eye; the claimant requires an occupation with
only occasional co-worker contact and supervision; the claimant requires an
occupation with only superficial contact with the public on routine matters;
and the claimant must avoid concentrated exposure to hazards such as
unprotected heights and dangerous machinery.
The claimant is capable of performing past relevant work as a lab clerk [DOT
#222.587-026]. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity.
The claimant has not been under a disability, as defined in the Social Security
Act, from November 30, 2009, through the date of this decision.
The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the
final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed this civil
action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency’s 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).
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)). “[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.
At a minimum, an ALJ must articulate his 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 [a reviewing
court] 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, a claimant must establish that he 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). To be found disabled, the claimant’s impairment must not only prevent him from
doing his previous work, but considering his age, education, and work experience, it must also
prevent him 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),
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 functional 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 Cir. 2004).
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
[his] 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).
Plaintiff seeks reversal and remand for further proceedings, arguing that (1) Plaintiff’s waiver
of his right to counsel at the administrative hearing was not valid; (2) the RFC is not supported by
substantial evidence; (3) the ALJ erred in the credibility determination; and (4) the ALJ erred in not
calling a medical expert to supplement the record. The Court considers each in turn.
A. Attorney Representation
A claimant has a right to counsel at an administrative hearing on disability benefits.
Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991) (citing 42 U.S.C. § 406; 20 C.F.R. §
404.1700). To secure a valid waiver of counsel, an ALJ must explain to an unrepresented claimant:
(1) the manner in which an attorney can aid in the proceedings; (2) the possibility of free counsel
or a contingency arrangement; and (3) the limitation of attorney fees to 25% of past due benefits and
required court approval of the fees. Id. at 584-85; see also Binion v. Shalala, 13 F.3d 243, 245 (7th
Cir. 1994). If the claimant’s waiver of counsel is invalid, the burden of proof shifts to the
Commissioner to show that the ALJ adequately developed the record. Binion, 13 F.3d at 245.
At the first scheduled hearing on May 20, 2013, Plaintiff did not have an attorney, and the
hearing was continued in order to allow Plaintiff time to obtain counsel. There is no transcript of that
hearing in the record. Prior to that first hearing, Plaintiff was mailed a document titled “Your Right
to Representation” with the Notice of Hearing. (AR 106-07). The document explains how an
attorney can assist Plaintiff, how Plaintiff can receive free counsel, and the limit on attorney fees,
including the cap of 25% of past due benefits.
The hearing was reset for August 9, 2013, and Plaintiff was again mailed a copy of the
document “Your Right to Representation” with the Notice of Hearing. (AR 124-25). At the hearing
on August 9, 2013, the ALJ noted the continuation of the prior hearing to allow Plaintiff to obtain
counsel and confirmed with Plaintiff that he was again unrepresented. The ALJ then asked, “[D]o
you remember your rights to representation?” and “Do you want to proceed now today?” to both of
which Plaintiff answered in the affirmative. (AR 32). The ALJ then asked, “Do you waive your–you
want to proceed with [sic] an attorney or a non-attorney. Is that correct?” to which Plaintiff
answered “yes.” Id. Finally, the ALJ asked, “Do you waive your right to have a representative with
you at this hearing . . . ?” to which Plaintiff answered “yes.” Id.
After the questioning, the ALJ gave Plaintiff time to read and sign a “Waiver of
Representation,” encouraging Plaintiff to ask any questions. The Waiver of Representation
acknowledges that Plaintiff received a referral list of legal service providers and that Plaintiff
understands the manner in which an attorney can aid in the proceedings. The Waiver of
Representation does not explain the possibility of free counsel or the 25% contingency fee structure.
See (AR 134). Plaintiff explained to the ALJ that he did not have representation because no attorney
would take his case and that was the reason he was waiving his right to an attorney.
The Seventh Circuit Court of Appeals has not directly addressed whether a claimant’s receipt
of written materials setting forth the information required by Thompson can replace the oral
admonishment. See Davis ex rel. J.E.C. v. Colvin, No. 14-C-104, 2014 WL 4954470, at *7 (E.D.
Wis. Oct. 2, 2014); Gatewood ex rel. D.P. v. Astrue, NO. 10 C 283, 2011 WL 904864, at *9 (N.D.
Ill. Mar. 14, 2011). Some district courts within the Seventh Circuit Court of Appeals have found that
written waivers are sufficient. See Abdul Rahim N. Al-Ramadi v. Colvin, 1:14-CV-327, 2015 WL
7761617, at *5 (N.D. Ind. Dec. 2, 2015) (finding that the “Your Right to Representation” notice as
well as the waiver communicated the necessary information); Delong v. Barnhart, No. 00-222, 2001
WL 34379614, at *2 (W.D. Wis. Dec. 12, 2001) (holding that “Your Right to Representation”
mailing appeared to provide claimant’s mother “all the information she should have had when she
made her decision to waive her right to representation at the hearing”). Other courts have found that
a written waiver was sufficient when the ALJ “establishe[d] at the hearing that the claimant
received, read and understood the notices.” Seamon v. Barnhart, 05 C 13 C, 2005 WL 1801406, at
*10 (W.D. Wis. July 29, 2005); see also Moore v. Astrue, 851 F. Supp. 2d 1131, 1141 (N.D. Ill.
2012). And yet another court found the pre-hearing letter did not relieve the ALJ of the obligation
to properly notify the claimant of the right to counsel at the hearing. Dillard v. Barnhart, No.
02C6251, 2003 WL 22478775, at *2 (N.D. Ind. Oct. 31, 2003).
Under the facts of this case, it appears that Plaintiff received and understood the information
required by Thompson notwithstanding the ALJ’s failure to provide the oral notification at the
hearing. Both of the two-page “Your Right to Representation” notices included all of the requisite
information in great detail. In addition, Plaintiff signed a waiver that included the statement that he
has a right to representation and an explanation of the benefits of counsel. Plaintiff testified that he
understood his rights and waived them. Finally, Plaintiff explained to the ALJ at the hearing that the
reason he was willing to waive counsel was because he had tried to get counsel but that no one
would not take the case on the merits. (AR 33); compare Thompson, at 585 (finding that the
plaintiff’s agreement to proceed without counsel after unsuccessfully attempting to obtain counsel
was because the plaintiff believed that he would have to furnish money to get counsel).
However, the Court need not decide whether Thompson allows an ALJ to discharge his
obligations through pre-hearing notices and waivers because, as set forth below, this matter is being
remanded on other grounds. On remand, should another hearing be held, the ALJ is directed to
explain orally to Plaintiff the manner in which an attorney can aid in the proceedings; the possibility
of free counsel or a contingency arrangement; and the limitation of attorney fees to 25% of past due
benefits and required court approval of the fees.
B. Residual Functional Capacity
The RFC is a measure of what an individual can do despite the limitations imposed by his
impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. §§ 404.1545(a),
416.945(a). The determination of a claimant’s RFC is a legal decision rather than a medical one. 20
C.F.R. §§ 404.1527(e)(1), 416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four
and five of the sequential evaluation process and must be supported by substantial evidence. SSR
96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.
“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.
“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence
includes medical history; medical signs and laboratory findings; the effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts
to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In
arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.” Id.
Plaintiff offers several challenges to the ALJ’s RFC determination. The Court considers them
Contact with Supervisors and Coworkers
First, Plaintiff argues that the ALJ erred by not including in the RFC moderate limitations
in handling instruction and criticism from supervisors, getting along with co-workers or peers
without distracting them or exhibiting behavioral extremes, maintaining socially appropriate
behavior, and adhering to basic standards of neatness and cleanliness. Both state agency reviewing
physicians, Ann Lovko, Ph.D., and Kari Kennedy, Psy.D., to whose opinions the ALJ gave great
weight, found these moderate limitations. (AR 320, 337). On December 16, 2011, Dr. Lovko
completed a Mental Residual Functional Capacity Assessment Form and checked the boxes for each
of these moderate limitations in the “Summary Conclusions” (Section I) of the form under the
heading for “Social Interaction.” (AR 320). Then, in the ““Functional Capacity Assessment”
(Section III), Dr. Lovko typed out the narrative functional capacity assessment in which she opined
that Plaintiff “can relate on at least a superficial basis on an ongoing basis with co-workers and
supervisors.” (AR 321). Dr. Lovko also checked the box for moderate limitations in social
functioning on the Psychiatric Review Technique form, with a reference to the mental RFC
assessment for further explanation. (AR 333, 335). Dr. Kennedy then affirmed these findings on
May 23, 2012.
The RFC provides for “only occasional co-worker contact and supervision,” (AR 15), and
does not include any of the specific moderate limitations opined by Dr. Lovko and Dr. Kennedy in
Section I of the form. In his analysis, the ALJ does not explain why these moderate limitations were
not included in the RFC, nor does he discuss them. Plaintiff argues that this is error. The
Commissioner responds that the ALJ was not required to do so because the moderate limitations are
contained in Section I of the form and the Agency’s Program Operational Manual System, POMS
DI 24510.060, explains that Section I of the form is a worksheet and “does not constitute the RFC
assessment.” https://secure.ssa.gov/poms.nsf/lnx/0424510060 (last visited Mar. 7, 2016). Rather,
the POMS directs that the “Functional Capacity Assessment” (Section III) is where a medical
consultant records what a claimant can still do despite his or her impairments. Id. Thus, it appears
that the ALJ complied with the Social Security Administration’s own rules and regulations in
relation to his treatment of the Mental Residual Functional Capacity Assessment form completed
by Dr. Lovko and affirmed by Dr. Kennedy. See Pingel v. Colvin, No. 14C1476, 2016 WL 235936,
at *9-10, — F. Supp. 3d — , — (E.D. Wis. Jan. 20, 2016) (finding that the ALJ followed POMS DI
24510.060 by following the functional capacity assessment in Section III rather than the limitations
identified in Section I, but ultimately reversing based on Seventh Circuit Court of Appeals precedent
that moderate limitations in Section I must be explicitly considered).
Nevertheless, the Seventh Circuit Court of Appeals has rejected the argument that the ALJ
may ignore the moderate limitations a state consulting psychologist checks in Section I of the form,
explaining that the Section I moderate limitations are medical evidence that cannot be ignored and
must be considered by the ALJ and incorporated in hypotheticals to the vocational expert. See Varga
v. Colvin, 794 F.3d 809, 815-16 (7th Cir. 2015); Yurt v. Colvin, 758 F.3d 850, 857-58 (7th Cir.
2014). In Yurt, the court distinguishes Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002), in which
a hypothetical was allowed to stand because the Section III residual functional assessment fully
accommodated the Section I moderate limitations. Yurt, 758 F.3d at 858; see also Capman v. Colvin,
617 F. App’x 575, 579 (7th Cir. 2015) (rejecting a claim that the failure to include moderate
limitations from Section I was an error because “the ALJ may reasonably rely on the examiner’s
narrative in Section III, at least where it is not inconsistent with the findings in the Section I
In Pingel, the district court explores the development of this line of cases and raises concerns
over the conflict between the Agency’s internal rule that Section I is only a worksheet and the
expectation of the Seventh Circuit Court of Appeals that moderate limitations from Section I be
considered by the ALJ. 2016 WL 235936, at *9 (recognizing the holdings in Varga and Yurt but
questioning their viability in light of the agency’s own rules and unpublished rulings of the Sixth,
Ninth, and Eleventh Circuits). The court goes so far as to suggest that the Commissioner may wish
to seek further clarification before the Court of Appeals. Id.
Like the court in Pingel, given the mandatory authority of Yurt and Varga, this Court finds
that the ALJ erred in failing to include in the RFC discussion, and possibly the RFC itself, Plaintiff’s
moderate limitations in the areas of social interactions checked in Section I of the form. However,
also like in Pingel, it appears that Dr. Lovko may have thought that explaining in Section III that
Plaintiff “can relate on at least a superficial basis on an ongoing basis with co-workers and
supervisors,” (AR 321), sufficiently accommodated the Section I moderate limitations in handling
instruction and criticism from supervisors, getting along with co-workers or peers without
distracting them or exhibiting behavioral extremes, maintaining socially appropriate behavior, and
adhering to basic standards of neatness and cleanliness in the RFC. Although, Dr. Lovko’s Section
III assessment most clearly accommodates the first two as opposed to the latter two. Regardless,
because the ALJ did not discuss the moderate limitations from Section I in formulating the RFC, the
Court cannot determine if the ALJ considered whether all four of the moderate limitations were
accommodated in Dr. Lovko’s Step III assessment. Remand is thus required on this issue.
More importantly, however, and the primary basis for reversal and remand by this Court, is
that there is no analysis of how the limitation in the RFC to “occasional” contact with coworkers and
supervisors accommodates Dr. Lovko’s limitation in the narrative assessment in Section III to
“superficial contact.” “Occasional contact” goes to the quantity of time spent with the individuals,
whereas “superficial contact” goes to the quality of the interactions. In this sense, the checked boxes
for moderate limitations in Section I are consistent with Dr. Lovko’s assessment of superficial
contact because all go to the quality of the contact, namely handling instruction and criticism from
supervisors, getting along with co-workers or peers without distracting them or exhibiting behavioral
extremes, maintaining socially appropriate behavior, and adhering to basic standards of neatness and
cleanliness. It is also curious that the ALJ limited Plaintiff to “occasional” contact with coworkers
and supervisors when Dr. Lovko opined that Plaintiff could engage in “superficial contact” on an
“ongoing basis.” Perhaps the ALJ determined that a shift in the frequency of contact would
compensate for the depth of contact; but the ALJ does not say so, and there is no support for such
a finding in the record. The error is further compounded because the hypotheticals to the vocational
expert did not include any limitations on the quality or extent of the contact. In other words, the ALJ
did not ask the vocational expert what the impact of a limitation to “superficial contact” with a
supervisor would be on available jobs.
Nor does Dr. Lovko’s opinion that Plaintiff could handle “at least” superficial contact change
the analysis, as suggested by the Commissioner. When read in context, the use of “at least” does not
seem to suggest that Dr. Lovko was opining that Plaintiff has the minimum ability to relate on
superficial contact but could also relate on a deeper basis. Rather, the use of the expression suggests
the opposite—that Plaintiff should not be precluded from all contact but could interact on a
superficial level. Nowhere does Dr. Lovko opine that Plaintiff could relate on more than a superficial
level with coworkers and supervisors. This is especially true in light of the moderate limitations in
Section I. In any event, the ALJ did not address the meaning of “at least” proffered by the
Commissioner and, thus, cannot be a basis for reviewing the ALJ’s decision. See Parker v. Astrue,
597 F.3d 920, 922 (7th Cir. 2010); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
Accordingly, the ALJ did not build a logical bridge between the evidence and the RFC, and
remand is required. See also Gidley v. Colvin, No. 2:12-CV-374, 2013 WL 6909170, at *12 (N.D.
Ind. Dec. 30, 2013) (“Here, [the ALJ] made no attempt to explain the basis for his decision to limit
Gidley to occasional interaction rather than superficial interaction, nor is it apparent from the record.
The medical opinion to which he assigned great weight included a more restrictive limitation on
Gidley’s social interaction.”).
Plaintiff also argues that the RFC is not supported by substantial evidence. First, Plaintiff
argues that the ALJ failed to base the physical RFC for light work with additional nonexertional
limitations on the evidence of record. Plaintiff reasons that, once the ALJ rejected the opinion of Dr.
Neal, who was the only physician to provide a physical RFC, the remaining medical evidence was
insufficient to support the ALJ’s determination. While Dr. Neal imposed nonexertional limitations
on climbing ladders, ropes, or scaffolds and avoiding concentrated hazards due to Plaintiff’s
complaints of dizziness, he did not impose any exertional limitations. As a result, the ALJ rejected
Dr. Neal’s opinion as not sufficiently restrictive, explaining that the “evidence at the hearing level
shows [Plaintiff] is more limited than determined” by Dr. Neal and Dr. Sands. (AR 19). Neither of
the consultative examiners—Dr. Odeluga and Dr. Smejkal—nor treating doctor Dr. Spotwood
assessed any physical limitations. Thus, Plaintiff contends that, once the ALJ eliminated Dr. Neal’s
opinion, the only evidence of physical limitations in the record was Plaintiff’s own testimony that
he can stand ten to fifteen minutes at a time before needing to sit and is able to lift a gallon of milk,
all of which would support limitations greater than allowed for by light work. (AR 49).
A doctor’s opinion regarding what a claimant can do is distinct from an ALJ’s responsibility
to assess a claimant’s RFC. 20 C.F.R. §§ 404.1513(b), (c), 404.1545, 404.1546(c), 416.913(b), (c),
416.945, 416.946(c); SSR 96-5p, 1996 WL 374183, at *4 (July 2, 1996) (“Even though the
adjudicator’s RFC assessment may adopt the opinions in a medical source statement, they are not
the same thing). However, the ALJ must explain the basis for the limitations in the RFC, and the
ALJ did not do so for Plaintiff’s physical limitations. In his RFC analysis, the ALJ proceeded
through each category of evidence for each of Plaintiff’s alleged impairments. The ALJ began with
the objective evidence and medical records relating to Plaintiff’s eye impairment, high blood
pressure, diabetes, and obesity, noting generally the lack of evidence to support a finding of
disability. Next, the ALJ discussed the opinion evidence, including the rejection of Dr. Neal’s
finding of no exertional limitations. The ALJ then discussed and rejected the opinion of Plaintiff’s
However, nowhere in the summary of the medical evidence did the ALJ explain how the
evidence, or the lack thereof, supports only limitations to light work and not greater limitations
consistent with Plaintiff’s testimony. See SSR 96-8p, at *7 (“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).”). Nor
did the ALJ directly discuss the examination findings from the November 5, 2010 consultative
examination by Kanayo K. Odeluga, M.D., or the November 28, 2011 consultative physical exam
by J. Smejkal, M.D. Although neither doctor completed a physical residual functional capacity form,
each detailed his clinical findings, all of which were relatively normal, with the exception of
dizziness noted by Dr. Smejkal. See (AR 290-93) (Dr. Odeluga); (AR 296-300) (Dr. Smejkal). The
absence of abnormal physical findings in these reports appears to support the ALJ’s RFC, but the
ALJ did not say so. Thus, while there appears to be substantial evidence in the record to support the
RFC, the ALJ did not create a logical bridge between the evidence and his decision. On remand, the
ALJ is directed to provide the requisite findings for the RFC assessment.
Next, Plaintiff contends that the ALJ was selective in discussing the psychiatric evidence by
focusing on favorable findings and ignoring notations regarding inadequate hygiene, pressure of
speech, and a tendency to go into detail by Raymond Bucur, Ph.D. and lack of eye contact, poor
hygiene, and slow response to questioning by Irena Walters, Psy.D. (AR 303-05) (Dr. Bucur); (AR
286-87) (Dr. Walters). However, it is not necessary for the ALJ to discuss every piece of evidence
such as whether Plaintiff had good eye contact or hygiene on a particular day. Simila v. Astrue, 573
F.3d 503, 516 (7th Cir. 2009) (“[T]he ALJ is not required to discuss every piece of evidence but is
instead required to build a logical bridge from the evidence to her conclusions.”). The ALJ
thoroughly discussed both opinions and explained how each supported the mental RFC
determination. Notably, the ALJ gave great weight to the opinions of state agency psychologists Drs.
Lovko and Kennedy, which is undisputed by Plaintiff, and incorporated their limitations into the
Third, Plaintiff argues that the ALJ did not analyze how obesity affects Plaintiff’s ability to
work, other than to say that he considered “the exacerbatory impact” of Plaintiff’s obesity on the
other impairments in formulating the RFC. (AR 18). Under Social Security Ruling 02-1p, an ALJ
must specifically address the effect of obesity on a claimant’s limitations. See SSR 02-1p, 2002 WL
34686281, at *2 (Sept. 12, 2002). The consideration of obesity should be an integral factor
underlying the construction of the RFC. Id. at *6. The ALJ must consider whether obesity causes
any functional limitations and explain that conclusion: “As with any other impairment, we will
explain how we reached our conclusions on whether obesity caused any physical or mental
limitations.” Id. at *6-7. The Ruling provides some guidance on how obesity is factored into the
Obesity can cause limitation of function. The functions likely to be limited depend
on many factors, including where the excess weight is carried. An individual may
have limitations in any of the exertional functions such as sitting, standing, walking,
lifting, carrying, pushing, and pulling. It may also affect ability to do postural
functions, such as climbing, balance, stooping, and crouching. The ability to
manipulate may be affected by the presence of adipose (fatty) tissue in the hands and
fingers. The ability to tolerate extreme heat, humidity, or hazards may also be
The effects of obesity may not be obvious. For example, some people with obesity
also have sleep apnea. This can lead to drowsiness and lack of mental clarity during
the day. Obesity may also affect an individual’s social functioning.
Id. at *6.
Although the ALJ noted Plaintiff’s Body Mass Index of 37, which is considered “obese”
under the guidelines, he did not provide any specific analysis of how Plaintiff’s obesity impacts the
RFC. Again, perhaps Plaintiff’s obesity was a factor the ALJ relied upon in limiting Plaintiff to light
work but not more than light work; yet, the ALJ did not say so or how he made that determination.
The ALJ did not provide the requisite discussion. See SSR 96-8p, at *7; SSR 02-1p; Briscoe, 425
F.3d at 352; Milad v. Colvin, No.14 CV 4627, 2016 WL 374138, at *6 (N.D. Ill. Feb. 1, 2016)
(citing Schmidt, 395 F.3d at 744).
Fourth, Plaintiff argues that the ALJ erred in not considering his headaches and dizziness.
On November 5, 2010, Dr. Odeluga noted Plaintiff’s complaint of headaches. (AR 291). On
November 28, 2011, Dr. Smejkal noted Plaintiff’s report that he “suffers with dizziness and feels
like he is going to fall over. During the exam he was seen catching himself on the wall.” (AR 296).
On January 22, 2013, Plaintiff’s treating physician, Bayne Spotwood, M.D., noted Plaintiff’s
complaints of “sinus headache and dizziness.” (AR 349). In the physical RFC, dated December 5,
2011, Dr. Neal gave a primary diagnosis of left eye blindness and a secondary diagnosis of
“hypertension/dizziness/headaches.” (AR 311). As a result, Dr. Neal limited Plaintiff to never
climbing ladders, ropes, or scaffolds, (AR 313), and to avoiding concentrated exposure to noise and
hazards such as machinery and heights because of his dizziness. (AR 315).
In his decision, the ALJ noted that at an initial exam on January 15, 2013, Plaintiff denied
seizures or neurological problems suggestive of end-organ damage as well as the report from Dr.
Spotwood of sinus headaches and dizziness. (AR 17). However, the ALJ did not question Plaintiff
about his headaches at the hearing and did not discuss Dr. Smejkal’s report. While the ALJ’s
discussion of these symptoms could have been more complete, the ALJ nevertheless incorporated
in the RFC the limitations imposed by Dr. Neal as a result of the dizziness, namely never climbing
ladders, ropes, or scaffolds and avoiding concentrated exposure to hazards such as unprotected
heights and dangerous machinery. Notably, Plaintiff did not pursue this argument in his reply brief.
The ALJ did not err in his treatment of these symptoms. However, on remand, the ALJ will have an
opportunity to be more thorough in his discussion of both headaches and dizziness.
Finally, Plaintiff objects, without discussion, that the ALJ did not consider his impairments
in combination. Plaintiff does not suggest how his impairments in combination would create greater
limitations than individually. Nevertheless, the ALJ is required to explain how he considered the
claimant’s impairments in combination, and the ALJ did not explicitly do so here. See Thomas v.
Colvin, 745 F.3d 802, 807 (7th Cir. 2014); Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009) (“[W]e
have frequently reminded the agency that an ALJ must consider the combined effects of all of the
claimant’s impairments, even those that would not be considered severe in isolation.”); Villano v.
Astrue, 556 F.3d 558, 563 (7th Cir. 2009) (“The ALJ’s cursory analysis does not give us confidence
that he had appropriate reasons for rejecting the limitations Villano alleged,” in part because the ALJ
did not analyze the claimant’s impairments in combination). This, too, can be remedied on remand.
C. Credibility Determination
In making a disability determination, the ALJ must consider a claimant’s statements about
his symptoms, such as pain, and how the symptoms affect his daily life and ability to work. See 20
C.F.R. §§ 404.1529(a), 416.929(a). Subjective allegations of disabling symptoms alone cannot
support a finding of disability. Id. The ALJ must weigh the claimant’s subjective complaints, the
relevant objective medical evidence, and any other evidence of the following factors:
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other
See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). “Because the ALJ is ‘in the best position to
determine a witness’s truthfulness and forthrightness . . . this court will not overturn an ALJ’s
credibility determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310-11 (7th
Cir. 2012) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004)); see also Prochaska,
454 F.3d at 738. Nevertheless, “an ALJ must adequately explain his credibility finding by discussing
specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013)
(citing Terry, 580 F.3d at 477); SSR 96-7p, 1996 WL 374186, at *2 (Jul. 2, 1996) (“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
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.”).
First, Plaintiff argues that the ALJ failed to mention the statements of state agency examiners
Dr. Walters and Dr. Neal regarding Plaintiff’s credibility. Dr. Walters wrote that Plaintiff “appeared
to be a reliable self-informant.” (AR 286). Dr. Neal found Plaintiff credible. (AR 316). When a state
agency medical consultant provides a finding regarding “the credibility of the individual’s
statements about limitations or restrictions due to symptoms,” the ALJ is required to “consider and
weigh this opinion” and “must explain the weight given to the opinion in the decision.” SSR 96-7p,
at *8; 20 C.F.R. §§ 404.1527(f), 416.927(f); Strysik v. Colvin, No. 13 CV 7723, 2015 WL 8481953,
at *6 (N.D. Ill. Dec. 10, 2015). Although this omission alone does not render the credibility decision
patently wrong, on remand, the ALJ will have an opportunity to explain the weight given to these
Plaintiff also argues that the ALJ ignored evidence of his good work record. See SSR 96-7p,
at *5. The Seventh Circuit Court of Appeals has recently held that an “ALJ is not statutorily required
to consider a claimant’s work history, but a claimant with a good work record is entitled to
substantial credibility when claiming an inability to work because of a disability.” Stark v. Colvin,
No. 15-2352, 2016 WL 698255, at *4, — F.3d —, — (7th Cir. Feb. 22, 2016) (internal quotation
marks omitted) (quoting Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015) (internal citations
omitted)). In this case, the ALJ explicitly considered Plaintiff’s work history in noting that Plaintiff
was able to work for many years at substantial gainful activity despite his vision and psychological
symptoms; however, the ALJ did not discuss work history in the context of credibility. Again, while
this omission in the context of the overall credibility determination does not itself require remand,
because the case is being remanded on other grounds, the ALJ will have an opportunity to discuss
work history in assessing Plaintiff’s credibility.
D. Medical Expert
In his opening brief, Plaintiff argues that the ALJ erred by not calling a medical expert to
supplement the limited medical record because of what Plaintiff characterizes as “new, potentially
decisive medical evidence.” (Pl. Br. 20). Plaintiff notes that he began treatment in 2013, which was
after the consultative examinations of record. He also criticizes the ALJ for finding that new mental
health records did not show significant clinical findings because the ALJ did not explain what he
meant by “significant clinical findings.” (AR 18-19). However, Plaintiff does not distinguish the
new treatment findings from the prior consultative examinations to show how they provide
information not already known from the existing consultative examinations.
Plaintiff comments that the ALJ noted Dr. Spotwood’s description of Plaintiff’s diabetes as
uncontrolled with complications but then criticizes the ALJ for not further describing the condition
or its effects on Plaintiff; if the doctor opined that there are no complications from the diabetes, it
is unclear what further description or analysis the ALJ could provide. Plaintiff also takes issue with
the ALJ’s characterization of Plaintiff’s hypertension as “benign” when Dr. Spotwood described it
as both benign (AR 348) and malignant (AR 340-41). Yet Plaintiff does not identify any records
showing limitations stemming from his hypertension.
The ALJ had four consultative opinions before him for consideration. Plaintiff has not
distinguished any of the new medical evidence from the evidence considered in the four opinions
that would require a fifth medical expert opinion. Therefore, the ALJ did not abuse his discretion
by not calling another medical expert.
Based on the foregoing, the Court hereby GRANTS the relief sought in the Brief in Support
of Plaintiff’s Motion for Summary Judgment [DE 17], REVERSES the final decision of the
Commissioner of Social Security, and REMANDS this matter for further proceedings consistent
with this Opinion and Order.
So ORDERED this 8th day of March, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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