Buitron v. Commissioner of Social Security

Filing 31

OPINION AND ORDER: GRANTING 20 Social Security Opening Brief of Plaintiff, REVERSING the final decision of the Commissioner of Social Security, and REMANDING this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 3/17/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANTHONY BUITRON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:14-CV-445-PRC

OPINION AND ORDER
This matter is before the Court on an Amended Complaint [DE 3], filed by Plaintiff Anthony
Buitron on December 15, 2014, and a Plaintiff’s Brief in Support of Reversing the Decision of the
Commissioner of Social Security [DE 20], filed on June 19, 2015. Plaintiff requests that the
November 21, 2013 decision of the Administrative Law Judge denying his claim for supplemental
security income be reversed and remanded for further proceedings. On October 16, 2015, the
Commissioner filed a response, and Plaintiff filed a reply on November 20, 2015. For the following
reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
Plaintiff, through his mother, as he was a minor at the time, filed an application for
supplemental security income on November 10, 2011, alleging an onset date of August 1, 2001. His
claim was denied initially and upon reconsideration. Plaintiff timely requested a hearing, which was
held on April 15, 2011. On April 29, 2011, Administrative Law Judge (“ALJ”) Curt Marceille issued
a written decision denying benefits. Plaintiff filed suit in this Court, and on December 20, 2012, the
Court remanded the case to the Commissioner. A second hearing was held on September 11, 2013,
which was attended by Plaintiff, his mother, an impartial vocational expert, and Plaintiff’s attorney.

ALJ Henry Kramzyk issued an unfavorable decision on November 21, 2013. The ALJ
assessed Plaintiff’s function as a child under the age of 18 from September 22, 2009, until his
birthday in 2013, and assessed Plaintiff under the adult disability standard from the date of his
birthday in 2013 through the date of the decision. The ALJ made the following findings:
1.

The claimant was born [in 1995] and was therefore in the “Adolescents (age
12 to attainment of age 18)” age group on September 22, 2009, the date the
application was filed (e.g., 20 CFR 416.926a(g)(2)(v)). The claimant attained
age 18 [in 2013 but before the decision was issued].

2.

The claimant has not engaged in substantial gainful activity since the date the
application was filed.

3.

Before attaining age 18, the claimant had the following severe impairments:
attention deficit and hyperactivity disorder (ADHD), oppositional defiant
disorder (ODD), and a bipolar disorder.

4.

Before attaining age 18, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1, Part A or B.

5.

Before attaining age 18, the claimant did not have an impairment or
combination of impairments that functionally equaled the listings.
Before attaining age 18, the claimant had less than marked limitation in
acquiring and using information.
Before attaining age 18, the claimant had less than marked limitation in
attending and completing tasks.
Before attaining age 18, the claimant had marked limitation in interacting and
relating with others.
Before attaining age 18, the claimant had no limitation in moving about and
manipulating objects.
Before attaining age 18, the claimant had less than marked limitation in the
ability to care for himself.
Before attaining age 18, the claimant had no limitation in health and physical
well-being.
2

6.

Because the claimant did not have an impairment or combination of
impairments that met, medically equaled any listing or functionally equaled
the listings, the claimant was not disabled prior to attaining age 18.

7.

The claimant has not developed any new impairment or impairments since
attaining age 18.

8.

Since attaining age 18, the claimant has continued to have a severe
impairment or combination of impairments.

9.

Since attaining age 18, the claimant has not had an impairment or
combination of impairments that meets or medically equals a listed
impairment.

10.

After careful consideration of the entire record, the undersigned finds that,
since attaining age 18, the claimant has had the residual functional capacity
to perform work at all exertional levels. He is able to understand, remember,
and carry out short, simple, and repetitive instructions and sustain attention
and concentration for 2 hour periods of time for 8 hours in a workday and use
judgment in making work decisions as it relates to said instructions. He
requires an occupation with only occasional co-worker contact and
supervision; set routine and procedures and few changes during the workday;
no contact with the public; no fast paced production work; and can maintain
regular attendance and be punctual within customary tolerances and perform
activities within a schedule.

11.

The claimant has no past relevant work.

12.

The claimant is currently a “younger individual age 18-44”.

13.

The claimant has at least a high school education and is able to communicate
in English.

14.

Transferability of job skills is not an issue because the claimant does not
have past relevant work.

15.

Since attaining age 18, considering the claimant’s age, education, work
experience, and residual functional capacity, jobs have existed in significant
numbers in the national economy that the claimant has been able to perform.

16.

The claimant has not been under a disability, as defined in the Social Security
Act, since [his birthday in] 2013, the day the claimant attained age 18,
through the date of this decision.

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(AR 376-388).
The Appeals Council denied Plaintiff’s request for review on October 10, 2014, leaving the
ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 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

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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 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.”).
ANALYSIS
In seeking reversal of the ALJ’s decision, Plaintiff first argues that the ALJ erred in finding
him not disabled as a child by improperly evaluating the medical opinions of record and improperly

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analyzing Plaintiff’s claim under the domain of “caring for yourself.” Plaintiff next argues that, in
finding Plaintiff not disabled as an adult, the ALJ made errors in formulating Plaintiff’s RFC after
he attained age 18. Finally, Plaintiff contends that the credibility determinations for both child and
adult disability benefits are flawed. The Commissioner did not respond to several arguments. The
Court considers each of Plaintiff’s arguments in turn.
A. Child Disability Benefits
1.

Child Disability Standard
For an individual under the age of 18 years, the Social Security Act and regulations apply

a sequential three-step inquiry to determine whether the claimant is disabled and entitled to benefits.
The steps are: (1) Is the child engaged in substantial gainful activity? If yes, the child is not disabled,
and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the child have a severe
impairment, that is, one that causes more than minimal functional limitations? If no, the child is not
disabled, and the claim is denied; if yes, the inquiry proceeds to step three; (3) Does the impairment
meet, equal, or functionally equal an impairment listed in the social security regulations? If no, the
child is not disabled, and the claim is denied; if yes, the child is considered disabled. 20 C.F.R. §
416.924.
At step three, if the child does not meet or equal a Listing, eligibility for benefits may
nevertheless be found based on “functional equivalence.” 20 C.F.R. § 416.926a (“Functional
equivalence for children”). To determine functional equivalence, the ALJ rates the child’s degree
of limitation as either “no limitation,” “less than marked,” “marked,” or “extreme” in the following
six “domains”: (1) acquiring and using information; (2) attending and completing tasks; (3)
interacting and relating with others; (4) moving about and manipulating objects; (5) caring for

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oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A finding of “marked”
limitation in two domains or an “extreme” limitation in one domain results in a finding of disability.
20 C.F.R. § 416.926a(a), (d). A “marked” limitation is found when the child’s “impairment(s)
interferes seriously with [his] ability to independently initiate, sustain, or complete activities.” 20
C.F.R. § 416.926a(e)(2)(i). A “marked” limitation also means a limitation that is “more than
moderate” but “less than extreme.” Id.
In making the findings, the ALJ considers the child’s functioning in his activities, which
includes everything he does at home, at school, and in the community. 20 C.F.R. § 416.926a(b)(1).
For functional equivalence, the child’s functioning is not compared to the requirements of any
specific Listing. 20 C.F.R. § 416.926(a)(d).
2.

Relevant Factual Background
The following chart sets out the three medical opinions that rated Plaintiff in the six domains

as well as the ALJ’s own findings. First, Dr. Roush and Dr. Hill gave a joint opinion on “Functional
Equivalence” within the “Childhood Disability Evaluation Form.” A month later, Dr. Gaddy and Dr.
Horton issued a joint opinion on the same form, replacing the opinion of Dr. Roush and Dr Hill. Like
the ALJ, these consultative reviewers rated Plaintiff in the six domains on a scale of “no limitation,”
“less than marked,” “marked,” and “extreme.” Plaintiff’s ninth grade English teacher completed a
“Teacher Questionnaire” that required consideration of the same six domains but asked for a rating
in several subcategories within each domain on a scale of “1 - no problem,” “2 - a slight problem,”
“3 - obvious problem,” “4 - a serious problem,” and “5 - a very serious problem.”

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Steven E.
Roush, M.D.
& Stacia Hill,
Ph.D.

9th grade
English
teacher

Joseph N.
Gaddy, M.D.
& Randal
Horton,
Psy.D.

Dr. Biscardi

ALJ’s
decision

11/25/2009 &
12/18/2009

12/11/2009

1/18/2010 &
2/1/2010

6/24/2010

11/21/2013

Acquiring and
using information

no limitation

1, 2

no limitation

less than
marked

less than
marked

Attending and
completing tasks

less than
marked

1, 2, 3, 4

less than
marked

marked

less than
marked

Interacting and
relating with others

less than
marked

1, 2, 3

marked

less than
marked

marked

Moving about and
manipulating
objects

no limitation

no problems

no limitation

(blank)

no limitation

Caring for yourself

no limitation

1, 2, 3

less than
marked

marked

less than
marked

Health and
physical well-being

no limitation

better on
meds

no limitation

(blank)

no limitation

(AR 277-78)

(AR 153-60)

(AR 292-93)

(AR 316-17)

“controlling
weight”

“no weight”

Plaintiff’s teacher provided comments immediately following each domain rating in her
December 11, 2009 assessment. In assigning ratings of “1 - no problem” and “2- a slight problem”
in “acquiring and using information,” the teacher wrote that Plaintiff is able to complete his work
with minimal support and guidance in English. (AR 154). In giving ratings of “1 - no problem”
through “4 - a serious problem” in “attending and completing tasks,” the teacher wrote that Plaintiff
needs almost continuous redirection in class to stay focused and on task. (AR 155). In assigning

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ratings of mostly “1- no problem” and “2 - a slight problem” with two ratings of “3 - an obvious
problem” in “interacting and relating with others, the teacher indicated that it was necessary to
implement behavior modification strategies and wrote that, “on occasion, [Plaintiff] ‘takes a lap.’
He walks around the loop of our area to burn off steam and settle down.” (AR 156). In the category
of “caring for yourself,” the teacher assigned ratings of “1 - no problem,” “2 - a slight problem,” and
“3 - an obvious problem” and explained that Plaintiff “has poor impulse control and often acts on
his emotions without thinking about consequences.” (AR 158). Under “medical conditions,” the
teacher wrote that Plaintiff performs much better on the days he takes his medication.
The joint form completed by Dr. Gaddy and Dr. Horton allows the doctors to provide a
narrative explanation of the supporting evidence following the rating in each domain. In finding “no
limitation” in “acquiring and using information,” Dr. Gaddy and Dr. Horton noted that Plaintiff was
a regular education student, that on December 17, 2009, he was noted as having average intelligence
at Porter Starke, and that he was noted that same date as doing well in school and getting 4 grades
of “B.” (AR 292). In finding “less than marked” limitation in “attending and completing tasks,” the
doctors wrote that at the initial level, the teacher reported some issues in this domain but less than
marked, that Plaintiff was diagnosed and treated with medication for attention deficit hyperactivity
disorder, that the November 30, 2009 notes from his mother reported good concentration and
bringing homework home and completing work in class or at home. The doctors also noted that one
medicine was discontinued. Id. In finding “marked” limitations in“interacting and relating with
others,” the doctors noted that Plaintiff has occasional issues in this domain and has friends and that
the behavior log from school indicates problems in unstructured areas. Id. In finding “no limitation”
in “moving about and manipulating objects,” the doctors noted only an issue with Plaintiff’s vision

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that was not severe. (AR 293). In finding “less than marked limitation” in “caring for yourself,” the
doctors noted that Plaintiff had irritability and sleep issues, had no suicidal or homicidal ideation,
and was on medication at night. Id. Finally, the doctors made no notation in finding “no limitation”
in “health and physical well-being.” Id.
David Biscardi, Ph.D., a nonexamining consultant, completed a “Medical Interrogatory Child” at the request of the first ALJ. Dr. Biscardi wrote a narrative summary at the conclusion of
the form to explain the evidentiary support for his findings. (AR 319). Therein, he recounted the
November 12, 2009 consultative psychological examination that diagnosed ADHD and ODD, noting
the GAF of 65 while on medication and 53 without. He also noted the normal findings of the
physical examination, including Plaintiff’s report that he gets along well with peers but “can
backtalk teachers.” (AR 319). Dr. Biscardi noted that Plaintiff reported that he is independent in self
care, makes simple meals, uses the computer after school, enjoys basketball and the computer, and
does household tasks with reminders. Dr. Biscardi also noted that the examiner opined that
medication was effective. Dr. Biscardi then noted the December 2009 comment from treating source
Dr. Abigail Malone at Porter Starke that Plaintiff was doing well in school, had trouble at home, gets
irritable with friends easily, reported sleep disturbance, and “blows up” in the afternoon with
anything stressful and that a medication was added. Id.; see also (AR 272) (Dr. Malone’s record).
Dr. Biscardi further discussed an updated note by Dr. Malone from March 26, 2010 that showed
Plaintiff with a GAF of 60 for ADHD, hyperactive and impulsive type, and ODD, with disturbance
of conduct. (AR 319).
Dr. Biscardi then described the teacher report of December 2009 as showing Plaintiff
functioning academically at grade level with multiple suspensions and as having slight limitations

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in “acquiring and using information,” slight to serious limitations in “attending and completing
tasks” daily because he needed almost continuous redirection in class to stay focused and on task,
slight to obvious weekly to daily limitations in “interacting and relating to others,” and slight to
obvious weekly/daily limitations in “caring for self.” Dr. Biscardi cited the teacher’s notation that
Plaintiff had poor impulse control and often acted on emotions without regard for consequences and
that Plaintiff performed much better when taking medication.
Dr. Biscardi concluded that Listing 112.11 for ADHD and 112.08 for ODD were met by the
medical evidence of record. He found that the “marked” limitations in “attending and completing
tasks” and in “caring for self” were both reported by the teacher and “suggested” in the medical
evidence of record.” (AR 319). Dr. Biscardi gave “great weight” to the teacher’s assessment of
functional capacities. Id.
Assessing all of the opinions, the ALJ gave “controlling weight” to the joint opinion of Dr.
Gaddy and Dr. Horton and gave no weight to the opinion of Dr. Biscardi. Because the ALJ found
that Plaintiff did not have at least two marked limitations or one extreme limitation, a finding of not
disabled resulted.
3.

Analysis
Plaintiff contends that the ALJ erred in finding that he was not disabled as a child, arguing

that the ALJ did not properly evaluate the medical opinions of record and that the ALJ inadequately
analyzed Plaintiff’s functioning under the domain of “caring for yourself.”
1.

Weighing medical opinion evidence

Plaintiff first argues that the ALJ made several errors in weighing the opinion evidence when
he gave “controlling weight” to the opinion of Dr. Gaddy and Dr. Horton and no weight to the

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opinion of Dr. Biscardi. In determining whether a claimant is disabled, the ALJ “will always
consider the medical opinions in [the] case record together with the rest of the relevant evidence .
. . received.” 20 C.F.R. § 416.927(b). And, the ALJ evaluates every medical opinion received. 20
C.F.R. § 416.927(c). This includes the opinions of nonexamining sources such as state agency
medical and psychological consultants as well as outside medical experts consulted by the ALJ. Id.
§ 416.927(e)(2). In her response brief, the Commissioner does not directly address, much less refute,
any of Plaintiff’s arguments regarding the weight given to the medical opinions.1
a.

“Controlling Weight”

Plaintiff argues that the ALJ erred by giving “controlling weight” to the opinion of Dr.
Gaddy and Dr. Horton, who were nonexamining, state agency reviewing doctors, in violation of
Social Security Ruling 96-2p. Indeed, the Ruling provides: “Although opinions from other
acceptable medical sources may be entitled to great weight, and may even be entitled to more weight
than a treating source’s opinion in appropriate circumstances, opinions from sources other than
treating sources can never be entitled to ‘controlling weight.’” Social Security Ruling 96-2p, 1996
WL 374188, at *2 (July 2, 1996). The Commissioner does not respond to this argument. In this
instance, the error is harmless because there is no treating source opinion to which the ALJ could
have given greater weight. However, because remand is ordered on other grounds, the ALJ will have
an opportunity to properly name the weight given to this opinion.

1
Although heading II of the Commissioner’s response brief purports to address the “Weight He Gave to the
Medical Source Opinions,” the section does not contain any discussion of the medical source opinions.

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b.

Weight given to the joint opinion of Dr. Gaddy and Dr. Horton

Plaintiff next argues that the ALJ erred in giving the most weight to the joint opinion of Dr.
Gaddy and Dr. Horton. In assessing the opinion, the ALJ first noted that the opinion superseded that
of Dr. Roush and Dr. Hill “[apparently] based upon subsequent evidence which showed the claimant
to be more limited than initially thought.” (AR 384). The ALJ then explained, “The
evidence—including school records and psychological records—supports the limitations found upon
reconsideration; therefore, they are afforded controlling weight.” Id. No further analysis or
explanation was given.
Unless a treating source opinion is giving “controlling weight,” which is not at issue in this
case, the ALJ considers several factors for weighing all opinion evidence, including the opinions of
state agency physicians and psychiatrists as well as medical experts sought by the ALJ and “must
explain in the decision the weight given” to each. 20 C.F.R. § 416.927(e)(2)(ii), (iii). First, more
weight is given to a source that has examined the claimant than one who has not. 20 C.F.R. §
416.927(c)(1). Second, treating sources are given more weight than other sources, and a number of
subfactors are considered. 20 C.F.R. § 416.927(c)(2). Third, the ALJ considers supportability, which
gives more weight to opinions that present relevant evidence, particularly medical signs and
laboratory findings, in support of the opinion. 20 C.F.R. § 416.927(c)(3) (“The better an explanation
a source provides for an opinion, the more weight we will give that opinion. . . . We will evaluate
the degree to which these opinions consider all of the pertinent evidence in your claim, including
opinions of treating and other examining sources.”). Fourth, “the more consistent an opinion is with
the record as a whole, the more weight [is given] to that opinion.” 20 C.F.R. § 416.927(c)(4). Fifth,
more weight is given to a specialist about medical issues related to the area of speciality than to the

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opinion of a source who is not a specialist. 20 C.F.R. § 416.927(c)(5). Finally, other factors are
considered as brought to the attention of the ALJ or of which the ALJ is aware, such as the doctor’s
understanding of the disability programs and their evidentiary requirements as well as familiarity
with information in the claimant’s case record. 20 C.F.R. § 416.927(c)(6).
More specifically, in considering the findings of state agency consulting doctors, such as Dr.
Gaddy and Dr. Horton, the ALJ “will evaluate” the findings using the factors set out above, such “as
the consultant’s medical specialty and expertise in our rules, the supporting evidence in the case
record, supporting explanations the medical or psychological consultant provides, and any other
factors relevant to the weighing of the opinions.” 20 C.F.R. § 416.927(e)(2)(i).
Plaintiff argues that in giving the most weight to the opinion of Dr. Gaddy and Dr. Horton,
the ALJ failed to cite specific evidence in support of the opinion, arguing that the one-sentence
general statement that the school records and psychological records support the limitations in the
opinion does not constitute an explanation as required by 20 C.F.R. § 416.927(e)(2)(i). The
Commissioner does not respond to this argument. Although the Commissioner notes broadly that
state agency psychologists are “highly qualified psychologists . . . Who are also experts in Social
Security disability evaluations,” (Def. Resp. 8 (citing 20 C.F.R. § 416.927(e)(2)(i))), the
Commissioner does not argue that the ALJ properly weighed those opinions or refute Plaintiff’s
arguments.
In support, Plaintiff cites McKinzey v. Astrue, 641 F.3d 884 (7th Cir. 2011), and Roddy v.
Astrue, 705 F.3d 631 (7th Cir. 2013). The ruling in McKinzey is distinguishable because in that case,
the ALJ did not even mention the state agency opinions, whereas the ALJ in this case evaluated the
opinion, weighed it, and gave a reason, albeit short, for that weight. See McKinzey, 641 F.3d at 891;

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20 C.F.R. § 416.927(e)(2); SSR 96-6p. The cited ruling in Roddy is inapposite because it did not
deal with the analysis of medical opinions but rather with a finding of inconsistent claimant
statements in the context of a credibility determination—statements that the court of appeals did not
deem inconsistent. Roddy, 705 F.3d at 639.
The brevity of the ALJ’s explanation does not itself require remand. The ALJ weighed all
of the opinion evidence at the end of his decision on child benefits, following a detailed examination
of the medical records at the outset of his decision followed by his findings in each domain that were
supported by descriptions of and citations to the evidence of record, including the school records and
psychological reports he later references. For example, in his initial recitation of the evidence, the
ALJ noted Plaintiff’s improved performance at school with medication, dramatically improved
functioning at the second evaluation, the GAF score of 60 in March 2010 with continued
improvement but labile and reactive behaviors, medication adjustments, choosing not to fight at
school despite provocation, continued violence at home reported by his mother but denied by
Plaintiff, crisis treatment’s finding that Plaintiff was not a danger, the notation of the treating
psychiatrist in April 2010 that Plaintiff continued to improve with medication adjustments, generally
normal mental status examinations, notations in March 2011 that Plaintiff refused to take his
medications, Plaintiff’s report of good focus at school, Plaintiff’s report of disrespecting teachers
with 90% of the incidents involving one teacher, Plaintiff’s failure to be compliant with medication,
and the failure of Plaintiff and his family to engage in family therapy despite conflicts within the
family. (AR 377-79). The ALJ’s explanation is further supported by the citation to the school and
psychological records by Dr. Gaddy and Dr. Horton in their written discussion of the evidence
following the rating in each domain.

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However, as discussed in the following section regarding the weight given to the opinion of
Dr. Biscardi, the ALJ’s failure to discuss negative findings throughout the record that are favorable
to Plaintiff’s application for benefits requires remand.
c.

Weight given to the opinion of Dr. Biscardi

Dr. Biscardi, whose opinion was solicited by the first ALJ, found that Plaintiff met two
Listings as a child and found that he had “marked” limitations in the domains of “attending and
completing tasks” and “caring for yourself.” In contrast with the brevity of the explanation given
to the opinion of Dr. Gaddy and Dr. Horton, the ALJ analyzed Dr. Biscardi’s opinion over most of
a page.
The ALJ first found Dr. Biscardi’s opinion inconsistent with the opinions of Plaintiff’s
treating mental health professionals. The ALJ noted that Dr. Biscardi recognized the treating
examination from November 2009 that gave a GAF of 65 on medication, and 53 when not on
medication, and the favorable mental status examination that found Plaintiff to be attentive,
cooperative, diligent, and presenting with good attention and concentration. The ALJ added that the
November 2009 report found that medication was effective in controlling Plaintiff’s symptoms. The
ALJ noted that Dr. Biscardi also recognized the findings of the treating clinicians at Porter Starke
for the period of December 2009 and March 2010, which showed Plaintiff doing well in school with
a GAF of 60. The ALJ then remarked that the two GAFs provided by a treating clinician and an
examining psychologist ranged from 60-65, indicating that Plaintiff was experiencing mild
symptoms. (AR 385). On this basis, the ALJ found Dr. Biscardi’s opinion inconsistent with the
treating evidence of record.

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Next, the ALJ found that Dr. Biscardi improperly ignored the assessments of the treating
clinician and examining psychologist in favor of the opinion of Plaintiff’s ninth grade English
teacher. The ALJ noted that the teacher had known Plaintiff for five months and taught him one
subject. The ALJ also commented that the teacher’s assessment was given after Plaintiff had only
been receiving treatment for one month (since November 2009). The ALJ found that neither the
teacher’s assessment nor Dr. Biscardi’s opinion considered the improvement in Plaintiff’s symptoms
when taking his medication as prescribed. The ALJ criticized Dr. Biscardi’s reliance on the teacher
because the teacher’s ratings did not correlate with “marked” findings in any domain. (AR 385).
Thus, the ALJ found that Dr. Biscardi improperly relied on the teacher’s assessment, noting that it
is the ALJ’s responsibility to weigh the opinion evidence.
Regarding the ALJ’s finding that the teacher did not rate Plaintiff with any “marked”
limitations, the Court notes that the teacher rated Plaintiff as having “4 - a serious problem” in two
of thirteen categories in “attending and completing tasks.” In his analysis of this domain, the ALJ
commented that the two categories with that score were “working without distracting self or others”
and “changing from one activity to another without being disruptive.” (AR 381). The ALJ then noted
that the teacher otherwise gave ratings of “1 - no problem” or a “2 - a slight problem” in eight of the
thirteen categories, and an “3 - an obvious problem” in three categories. Considering several other
facts, the ALJ concluded that Plaintiff was “less than markedly limited” in that domain. Plaintiff
does not dispute the ALJ’s rating in this domain, arguing only, as addressed below, that the ALJ
improperly evaluated the domain of “care for oneself.” In the category of “care for oneself,” the
teacher gave ratings through “3 - an obvious problem.”

17

Finally, the ALJ noted that Dr. Biscardi did not have the benefit of reviewing records from
April 2010 that indicated Plaintiff was doing well at school and that his behaviors had significantly
improved with medication management and adjustments. (AR 385 (citing (AR 302-07) (AR 32833))).
Plaintiff criticizes the ALJ for giving no weight to the opinion of Dr. Biscardi, making
several detailed arguments. Rather than respond to any of the arguments, the Commissioner
summarizes, over an entire page, the ALJ’s weighing of Dr. Biscardi’s opinion and concludes that
the ALJ “provided an adequate explanation for giving less weight to Dr. Biscardi’s opinion.” (Def.
Br.10). However, the Commissioner’s summary provides no legal analysis or responsive argument.
The Court finds that, despite the detail in the ALJ’s discussion, the weight given to Dr. Biscardi’s
opinion is not supported by substantial evidence because the ALJ cited only evidence of
improvement without addressing evidence that supports Plaintiff’s claim of disability.
As an initial matter, Plaintiff contends that Dr. Biscardi’s opinion is substantially similar to
the opinion of Dr. Gaddy and Dr. Horton with the exception of the rating in the domain for “caring
for self,” with Dr. Biscardi finding “marked” limitation and Dr. Gaddy and Dr. Horton finding “less
than marked” limitation. Plaintiff is incorrect. Dr. Biscardi also found “marked” limitation in
“attending and completing tasks” whereas Dr. Gaddy and Dr. Horton found “less than marked”
limitation, and, Dr. Biscardi found “less than marked” limitation in “interacting and relating with
others” whereas Drs. Gaddy and Horton found “marked” limitation in this category. However,
Plaintiff makes no argument as to the categories of “attending and completing tasks” and
“interacting and relating with others” and, thus, any objection is waived. The Court addresses the
argument regarding “caring for self” below.

18

Plaintiff next disputes the ALJ’s finding that Dr. Biscardi’s opinion was “inconsistent with
the other mental health professionals who have treated and/or examined” Plaintiff. Plaintiff argues
that, in noting that Plaintiff was cooperative and displayed good attention and concentration during
the 2009 consultative examination with Dr. Nordstrom, (AR 238-40), the ALJ selectively discussed
only the evidence showing improvement in symptoms or performance in school and should have
discussed other findings from Dr. Malone’s treatment records at Porter Starke. On this point,
Plaintiff misstates the ALJ’s discussion. The ALJ is not providing his own summary of Dr.
Nordstrom or Dr. Malone’s records; rather, the ALJ is summarizing Dr. Biscardi’s recitation of the
evidence.
However, Plaintiff is correct in that the ALJ looks only at positive statements that tend to
show Plaintiff is not disabled, both in his own recitation of the evidence throughout his decision and
in summarizing Dr. Biscardi’s opinion. For example, Dr. Biscardi’s narrative lists negative findings
from Dr. Malone’s records in December 2009, namely that Plaintiff “had some trouble at home, gets
irritable with friends easily, reports sleep disturbance, [and] blows up in afternoons with anything
stressful.” (AR 319). But the ALJ does not include Dr. Biscardi’s reliance on those findings when
criticizing Dr. Biscardi for relying on only the teacher’s assessment.
In addition, the ALJ did not himself raise negative findings that are favorable to Plaintiff.
Plaintiff notes that, prior to Dr. Biscardi’s June 2010 opinion, Dr. Malone reported poor eye contact
(AR 256) (11/15/2009), irritable affect (AR 256) (11/15/2009), easy agitation (AR 259)
(11/20/2009), poor impulse control (AR 253, 259) (11/6/2009, 11/20/2009), poor insight (AR 253)
(11/6/2009), frustrated mood (AR 303) (4/15/2010), and behavioral problems in school and at home,
including incidents of punching holes in the door (AR 265) (12/17/2009). The ALJ does not discuss

19

these findings either in his initial recitation of the medical evidence at the outset of his decision or
in weighing Dr. Biscardi’s opinion. These findings continued after Dr. Biscardi gave his opinion,
with reports of irritable affect (AR 256) (2/18/2011, 10/8/2010), poor impulse control (AR 303)
(4/15/2010), frustrated mood (AR 303) (4/15/2010), out of control anger during mental status exams
(AR 322) (11/29/2010), and behavior problems in school and at home, including incidents of
punching holes in doors and walls. (AR 265, 321, 676, 669, 694) (12/17/2009, 1/8/2011, 6/27/2012,
1/17/2013, 7/23/2011). Again, the ALJ failed to acknowledge or discuss these findings. Even though
these findings came after, they tend to support Dr. Biscardi’s opinion.
Perhaps the ALJ considered this evidence and found that it did not outweigh the other
conclusions of the treating doctors, such as a GAF score of 60 in 2010. But because the ALJ did not
explain his treatment of the evidence, the Court cannot assess whether the ALJ properly weighed
Dr. Biscardi’s opinion. See Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014); Blakes ex. rel.
Wolfe v. Barnhart, 331 F.3d 565, 568 (7th Cir. 2003) (“Both the evidence favoring the claimant as
well as the evidence favoring the claim’s rejection must be examined . . . .”). Nor is it the Court’s
place to weigh this evidence or guess at the ALJ’s reasoning.
Plaintiff also argues that Dr. Biscardi did not err by relying on the teacher questionnaire.
Plaintiff is correct that the teacher questionnaire is a proper “other source.” See 20 C.F.R. §
416.913(d)(2); Social Security Administration Public Policy Site: POMS Section DI 25205.030,
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425205030 POMS (last visited Mar. 17,
2016). But Plaintiff misunderstands the ALJ. The ALJ is not stating that a teacher is not a proper
source. Rather the ALJ reasoned that Dr. Biscardi improperly gave more weight to the teacher’s
assessment than the treating physicians. Nevertheless, as discussed above, it is unclear whether the

20

ALJ properly did so given that the ALJ did not discuss Dr. Biscardi’s notation of Dr. Malone’s
negative findings and did not himself address the negative findings. Moreover, as discussed in the
next section, the ALJ made inconsistent findings regarding the weight afforded the teacher’s
assessment— on the one hand, the ALJ gave no weight to Dr. Biscardi’s opinion in large part
because of Dr. Biscardi’s reliance on the teacher’s assessment, while on the other hand, the ALJ
relied himself almost exclusively on the teacher’s assessment to find that Plaintiff had “less than
marked” limitation in the domain of “caring for yourself.” (AR 383).
Plaintiff next argues that the ALJ erred in rejecting Dr. Biscardi’s opinion on the basis that
the records showing improvement in Plaintiff’s symptoms were not available to him at the time he
rendered his opinion. The ALJ specifically pointed to the April 2010 records indicating that Plaintiff
was doing well at school and that his behaviors had significantly improved with medication
management and adjustments. (AR 385). The ALJ again selectively discussed the evidence.
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This ‘sound-bite’ approach to record
evaluation is an impermissible methodology for evaluating the evidence.”). Although Dr. Malone
noted in April 2010 that Plaintiff was “doing really well in school,” she also noted at that same visit
that Plaintiff and his mother “are in intense conflict” and his mother “came in saying she was fearing
for her life, because he kept saying that he was going to kill someone when he was upset with them.”
(AR 302). Dr. Malone further noted during the mental status examination that Plaintiff’s affect was
“weary and angry” and that his insight was “fair to poor.” (AR 303). The ALJ does not discuss these
aspects of the record.
Finally, Plaintiff argues that the ALJ should have called a medical expert to advise him of
Plaintiff’s limitations after rejecting the opinion of Dr. Biscardi, especially since more than three

21

years elapsed between Dr. Biscardi’s opinion and the ALJ’s 2013 hearing. The Commissioner did
not respond to this argument. Plaintiff suggests that, by rejecting Dr. Biscardi’s opinion, ALJ
Kramzyk was faced with the same set of opinions that led ALJ Marceille to request the opinion of
Dr. Biscardi. The Court disagrees. ALJ Kramzyk also had the benefit of Dr. Biscardi’s opinion, even
if he ultimately gave it little weight.
The cases cited by Plaintiff to contend that the ALJ should have solicited an additional
medical opinion are not persuasive. In contrast with the ALJ in Green v. Apfel, 204 F.3d 780, 782
(7th Cir. 2000), ALJ Kramzyk did not draw medical conclusions but rather assessed functional
equivalence based on the evidence of record. In Scott v. Astrue, 647 F.3d 734, 741 (7th Cir. 2011),
the court opined that, if the ALJ found the evidence of record, which was comprised of the
claimant’s testimony and medical evidence, to be insufficient, the ALJ had a responsibility to
recognize the need for additional medical evaluations; in this case, the ALJ did not give any
indication that the evidence of record was insufficient. Clayborne v. Astrue is distinguishable; the
court held that the ALJ should have further developed the record with a second consultative
examiantion because the original consultative examination did not provide the medical evidence
necessary to resolve the question of whether the claimant’s diabetes mellitus constituted a disability.
No. 06 C 6380, 2007 WL 6123191, at *4 (N.D. Ill. Nov. 9, 2007). In this case, there is no absence
of evidence nor is there an opinion or treatment note that did not address an impairment of record.
Finally, in contrast with Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014), there are no new
medical tests, such as an MRI, that require a new medical opinion. Perhaps a second medical opinion
would have been helpful, and the ALJ may wish to obtain one on remand; however, that the ALJ
did not obtain a second medical opinion was not reversible error.

22

2.

Domain of “Caring for Yourself”

A “marked” limitation in a domain is found when the child’s impairment seriously interferes
with his activities. 20 C.F.R. § 416.926a(e)(3). The domain of “caring for yourself” considers how
well a child maintains a healthy emotional and physical state and how he copes with stress and
changes in his environment. 20 C.F.R. § 416.926a(k). An adolescent should “begin to discover
appropriate ways to express [his] feelings, both good and bad.” 20 C.F.R. § 416.926a(k)(2)(v). Some
examples of limited functioning in this domain include self-injurious behavior, ignoring safety rules,
and disturbances in eating and sleeping patterns. 20 C.F.R. § 416.926a(k)(3). Plaintiff argues that
the ALJ inadequately analyzed the domain of “caring for yourself,” in which the ALJ found that
Plaintiff had a “less than marked” limitation. (AR 383). The Court agrees.
In his reasoning, the ALJ noted that, at the hearing, Plaintiff’s counsel argued that Plaintiff
had a “marked” limitation. The ALJ then explained that, although Plaintiff had stopped taking his
medications, Plaintiff reported that he does not feel that he needs them. The ALJ noted that Plaintiff
had gotten into verbal altercations, but not physical altercations, although the ALJ also noted that,
according to counsel, Plaintiff purportedly vandalizes, punches holes in walls and windows, and
pulled a knife on his family. The ALJ commented that there was no indication of any criminal
charges. The ALJ then turned to the teacher’s assessment, noting that, although she noted “3 - an
obvious” problem in one subcategory, “2 - a slight problem” to “3 - an obvious problem” in three
subcategories, and “1 - no problem” to “2 - a slight problem” in the remaining six subcategories, the
teacher did not find that Plaintiff had either “4- a serious problem” or “5 - a very serious problem”
in any area, which would have correlated to a “marked” or “extreme” functional limitation in the
domain. (AR 384).

23

First, the ALJ again selectively discussed the evidence, overlooking evidence that could
establish a “marked” or “extreme” limitation in this domain. The ALJ may not ignore contrary
evidence. See, e.g., Moore, 743 F.3d at 1123; Scrogham, 765 F.3d at 698 (“sound-bite” approach).
For example, the ALJ found that while Plaintiff had gotten into verbal altercations, he had
not engaged in physical altercations. Plaintiff points out that Dr. Malone noted that Plaintiff “hit kids
in school,” (AR 251), and put his friend in a choke hold, (AR 265). The first example was noted on
November 6, 2009, which was Plaintiff’s intake interview and when Plaintiff had not yet begun
treatment. Yet, the second example was from December 17, 2009, after which Plaintiff had been
receiving treatment, and is from a record that the ALJ relies on heavily to find Plaintiff less limited
than he asserts and to discredit Dr. Biscardi’s opinion.
On March 18, 2010, Plaintiff reported to Dr. Malone that he was “being violent with his
brother.” (AR 299). At the same visit, his mother stated that Plaintiff had been pushing and punching
her, which Plaintiff denied. Id. At the same visit, Plaintiff also noted that he got attacked by five kids
at school after he told them he did not want to fight. Id. At the April 15, 2010 visit, the same fight
was reported. (AR 302). In August 2010, it was reported that Plaintiff broke into his brother’s room,
breaking the door. (AR 334). Even as late as April 2013, treatment records show that Plaintiff was
“having more issues with anger,” would get “uncontrolled,” and was putting holes in the walls of
their home. (AR 657). In July 2013, just before he turned 18, Plaintiff’s therapist assessed Plaintiff’s
violence risk as moderate. (AR 651).
In October 2010, it was reported to Dr. Malone that Plaintiff was suspended twice for a fight.
(AR 336). Records from Portage High School detail 80 incidents of poor behavior between
September 2008 and December 2012. (AR 627-29). On November 10, 2010, an entry provides that

24

Plaintiff got into a physical altercation with another student and that Plaintiff had been hitting and
kicking students on a daily basis as they walked into the room. (AR 6289).
The ALJ correctly noted that criminal charges were not brought against Plaintiff, but the ALJ
failed to discuss Plaintiff’s mother’s testimony that she called the police several times, the police
came to the house and talked to Plaintiff, but Plaintiff’s behavior continued. (AR 53).
The Commissioner does not address this factual issue. All of this evidence of record not
discussed by the ALJ supports Plaintiff’s contention that he cannot express his feelings appropriately
and has difficulties coping with stress.
Second, the ALJ relied largely on the subcategory ratings in the assessment by Plaintiff’s
teacher to find that Plaintiff had a “less than marked” limitation in this domain. The ALJ’s reliance
on the teacher’s assessment to make a finding adverse to Plaintiff is in direct contrast to his criticism
of Dr. Biscardi’s reliance on the teacher’s assessment to make findings favorable to Plaintiff. In the
context of rejecting the opinion of Dr. Biscardi, the ALJ discounted the teacher’s assessment on the
basis that she only knew Plaintiff for five months and taught him one subject. Yet, other than
Plaintiff’s and his mother’s testimony, the ALJ now relies exclusively on the teacher’s subcategory
ratings and the lack of a rating equivalent to “marked” or “extreme” to rate Plaintiff as having “less
than marked” limitation in the domain of “caring for yourself.” These findings are inconsistent. The
Commissioner offers no response to this argument. Given the record, the Court cannot find that the
inconsistency is harmless. The ALJ improperly rejected the teacher’s assessment for one purpose
and relied on it for another, inconsistent purpose. Compare Mazzuca v. Colvin, No. 12 C 2907, 2013
WL 1343344, at *9 (N.D. Ill. Apr. 2, 2013) (“An ALJ cannot logically reject a treating physician’s
report and then rely on it to support the RFC finding.”).

25

In support of the ALJ’s finding of “less than marked” limitation in this domain, the
Commissioner contends generally that the ALJ based his findings on the record as a whole,
including the opinions of the treating, examining, and reviewing medical sources, school
evaluations, and the testimony of Plaintiff and his mother. (Def. Resp. 6-7). This is incorrect. The
ALJ’s findings are based only on Plaintiff’s statements, those of his mother (indirectly), and the
teacher’s assessment; there is no reference to any medical source in the analysis of this domain. See
(AR 383). The Commissioner also responds that the ALJ properly relied on the opinion of Dr.
Gaddy and Dr. Horton, who concluded that Plaintiff had a “less than marked” limitation in this
domain. However, as discussed in the previous section, the ALJ did not properly weigh the opinion
evidence, an argument to which the Commissioner did not provide a response.
Remand is required because substantial evidence does not support the ALJ’s assessment of
Plaintiff’s functioning in the domain of “caring for yourself.”
B. Adult Disability Benefits
1.

Adult Disability Standard
To be eligible for disability benefits, a claimant age 18 years and over 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. §
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

26

prevent him from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 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. § 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. § 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).

27

2.

RFC Analysis
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. § 416.945(a). The
determination of a claimant’s RFC is a legal decision rather than a medical one. 20 C.F.R. §
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.
Finding that Plaintiff has no exertional or postural limitations, the ALJ found that Plaintiff
has the mental residual functional capacity to “understand, remember, and carry out short, simple,
and repetitive instructions and sustain attention and concentration for 2 hour periods of time for 8
hours in a workday” and “use judgment in making work decisions as it relates to [the] instructions”

28

and that Plaintiff “requires an occupation with only occasional co-worker contact and supervision;
set routine and procedures and few changes during the workday; no contact with the public; no fast
paced production work; and can maintain regular attendance and be punctual within customary
tolerances and perform activities within a schedule.” (AR 386).
Plaintiff argues that, because the ALJ found that Plaintiff has moderate limitations in
concentration, persistence, or pace, see (AR 386), the ALJ erred by limiting him to work involving
short, simple, and repetitive instructions. As the Seventh Circuit Court of Appeals has repeatedly
noted, a limitation to work involving short, simple, and repetitive instructions does not adequately
account for moderate limitations in concentration, persistence, or pace because the “ability to stick
with a given task over a sustained period is not the same as the ability to learn how to do tasks of
a given complexity.” O’Connor-Spinner, 627 F.3d at 620 (citing Kasarsky v. Barnhart, 335 F.3d
539, 544 (7th Cir. 2002); SSR 85-15, 1985 WL 56857 (1985)); see also Yurt v. Colvin, 758 F.3d
850, 858-59 (7th Cir. 2014) (“We have repeatedly rejected the notion that a hypothetical . . .
confining the claimant to simple, routine tasks and limited interactions with others adequately
captures temperamental deficiencies and limitations in concentration, persistence, or pace.”); Ingle
v. Colvin, 14-CV-413, 2016 WL 270006, at * 7-8 (S.D. Ind. Jan. 22, 2016) (“[A] limitation to
simple, routine and repetitive tasks does not adequately account for a moderate limitation in
maintaining concentration, persistence, or pace.”).
Although the ALJ precluded Plaintiff from performing “fast paced production work,” the
Seventh Circuit Court of Appeals has found that this limitation also does not adequately capture
difficulties in maintaining concentration, persistence, or pace. See Varga v. Colvin, 794 F.3d 809,
815 (7th Cir. 2015) (criticizing the ALJ for not defining “fast paced production”); see also Ingle,

29

2016 WL 270006, at *8 (citing Varga, 794 F.3d at 815); Bainter v. Colvin, 13 C 9105, 2015 WL
5177754, at *11 (N.D. Ill. Sept. 2, 2015) (citing Varga, 794 F.3d at 815; Browning v. Colvin, 766
F.3d 702, 705-06 (7th Cir. 2014)). Because the ALJ did not properly account for Plaintiff’s moderate
limitations in concentration, persistence, or pace, remand for further proceedings is required.
Plaintiff also argues that the ALJ failed to explain how he assessed Plaintiff’s mental RFC
because the ALJ discussed no evidence that he relied on to formulate the RFC. Plaintiff argues that,
because no medical expert testified at the hearing and the medical opinions were given in 2010, the
ALJ was left with an evidentiary deficit that he could not fill with his lay opinion.
The ALJ provided two grounds for the mental RFC. First, the ALJ noted that, despite an
initial intake assessment at Regional Mental Health Center in July 11, 2013, just before Plaintiff
turned 18, it did not appear that Plaintiff had participated in recommended therapy.(AR 387).
However, the ALJ also recognized Plaintiff testified that he had not seen a psychiatrist in several
months because he had moved and because he no longer needed medication since he graduated from
high school. And, Plaintiff’s mother testified that Plaintiff was not receiving mental health treatment
because they had moved from one town to another and Plaintiff was on a waiting list at Regional
Mental Health Center. (AR 420). It is unclear how Plaintiff’s inability to be seen for psychiatric
treatment impacts the RFC. Second, the ALJ also stated generally that he considered the opinion
evidence of record as required by the regulations and applicable Social Security Rulings, noting that
there is no opinion evidence after age 18.
Plaintiff is correct that the ALJ does not connect the evidence of record to his RFC findings.
For example, the ALJ did not explain how he determined that Plaintiff could interact appropriately
with co-workers and supervisors on an occasional basis. Plaintiff testified that he did not get along

30

with adult figures because he did not like to be told what to do, (AR 45), and that he was prone to
“fits and rages,” knocking holes in door and walls, (AR 48). While that testimony came from the
first hearing in April 2011, more than two years before he turned 18, one of the treatment records
with similar comments is from about six months before he turned 18. See (AR 669).
The ALJ also did not reconcile his RFC finding with Plaintiff’s testimony from September
2013, after he turned 18 years old, that he had worked for Oil Experts in the last three months but
that he was fired for not getting along with coworkers, tardiness, and an inability to listen to details
and understand instructions. (AR 416). The ALJ found that Plaintiff had “marked” limitation in the
domain of “interacting and relating with others” prior to the age of 18 and moderate functional
restrictions in social functioning as an adult. (AR 386). This is particularly significant given that an
individual employed in unskilled work must be able to “respond appropriately to supervision,
coworkers, and usual work situations” on a sustained basis. SSR 85-15. In addition, the vocational
expert testified at the hearing that an individual could not engage in competitive employment if he
had regular fights with coworkers. (AR 734). Young v. Barnhart, 362 F.3d 995, 1002-03 (7th Cir.
2004) (reversing when the ALJ’s RFC finding failed to account for evidence regarding the
claimant’s problems accepting instruction, responding appropriately to criticism from supervisors,
thinking independently, and setting realistic goals).
The ALJ did not build the requisite logical bridge but will have an opportunity to do so on
remand. See Scott, 647 F.3d at 740 (holding that an ALJ must ground his assessment of an
individual’s RFC in evidence, either subjective or objective); Suide v. Astrue, 371 F. App’x 684, 690
(7th Cir. 2010) (finding the RFC not supported by substantial evidence when the record did not
support the parameters included in the RFC once the ALJ had rejected the medical opinion of record

31

but did not discuss the weight given to the remaining evidence of record); Myles v. Astrue, 582 F.3d
672, 677-78 (7th Cir. 2009) (finding that the ALJ impermissibly played doctor when he decided,
absent any medical evidence, that the claimant’s condition was less serious because it was treated
only with oral medication and not with insulin therapy when no doctor explained why insulin was
not prescribed and that the “inference that it was not prescribed because [the claimant] was not
experiencing significant problems appears to be the ALJ’s own inference, and is wholly unsupported
by the record.”); Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009); Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (“Contrary to SSR 96-8p, however, the ALJ did not
explain how he arrived at these conclusions; this omission is sufficient to warrant reversal of the
ALJ’s decision.”); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“Common sense can
mislead; lay intuitions about medical phenomena are often wrong.”).
C. Credibility Determination
Finally, Plaintiff contends that the ALJ erred in the credibility determination both in the
context of child disability benefits as well as adult disability benefits. The Commissioner does not
respond to these arguments.
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. § 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:
(1)
(2)
(3)
(4)

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;
32

(5)
(6)
(7)

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
symptoms.

See 20 C.F.R. § 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, the ALJ made a credibility assessment in the context of analyzing the claim for child
benefits using the oft-criticized boilerplate language, which references the residual functional
capacity assessment. (AR 379). Notwithstanding the Seventh Circuit Court of Appeals’ repeated
criticism of this “boilerplate language,” see, e.g., Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014);
Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012), the RFC has no place in the credibility
determination for child disability benefits because there is no RFC assessment. Thus, it appears that
the ALJ did not properly assess Plaintiff’s credibility as a child. See SSR 96-7p, at *2 n. 2 (“For an
individual under age 18 claiming benefits under title XVI who is unable to adequately describe his
or her symptom(s), the adjudicator will accept as a statement of this symptom(s) the description
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given by the person most familiar with the individual, such as a parent, other relative or guardian.
20 CFR 416.928(a).”). Remand is required for a proper determination of Plaintiff’s credibility before
the age of 18.
As for the period after Plaintiff turned 18 years old, the ALJ stated that, in making the RFC
determination, “the undersigned has considered the claimant’s statements concerning the intensity,
persistence and limiting effects of his symptoms and found them not entirely credible for the reasons
set forth above.” (AR 386). One of the findings was that Plaintiff’s “[a]llegations of an inability to
focus are not credible when the claimant is making no effort to participate in therapies which were
previously proven to abate his symptoms successfully.” (AR 386). Again, the ALJ discredited
Plaintiff because he was no longer seeing a psychiatrist or a therapist after July 2013, at the same
time noting Plaintiff’s testimony that Plaintiff was unable to see a therapist because his family had
moved. The ALJ did not mention Plaintiff’s mother’s testimony in September 2013 that, because
they had moved to a new city, Plaintiff had to change mental health providers and that Plaintiff was
on a waiting list at Regional Mental Health Center for treatment. (AR 420). On remand, the ALJ will
have an opportunity to reconsider his treatment of this issue as well as obtain new records to
determine if Plaintiff did in fact continue treatment with Regional Mental Health Center.
D. Request for an Award of Benefits
An award of benefits is appropriate “only if all factual issues involved in the entitlement
determination have been resolved and the resulting record supports only one conclusion—that the
applicant qualifies for disability benefits.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). Based
on the discussion above, remand, not an immediate award of benefits, is required.

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CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Brief in
Support of Reversing the Decision of the Commissioner of Social Security [DE 20], 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 17th day of March, 2016.

s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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