Knight v. Commissioner of Social Security

Filing 28

OPINION AND ORDER. The relief sought in the Opening Brief is GRANTED. The decision of the Commissioner of Social Security is REVERSED and this case is REMANDED for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 3/30/16. (cer)

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

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CAUSE NO.: 2:14-CV-465-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Timothy R. Knight
on December 22, 2014, and an Opening Brief [DE 19], filed by Plaintiff on June 4, 2015. Plaintiff
requests that the July 9, 2013 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 September 10, 2015, the Commissioner filed a response, and Plaintiff filed a reply
on October 1, 2015. For the following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
Plaintiff filed applications for disability insurance benefits and supplemental security income
on June 24, 2011, alleging an onset date of April 24, 2011. His claims were denied initially and upon
reconsideration. Plaintiff timely requested a hearing, which was held on June 3, 2013. In attendance
at the hearing were Plaintiff and an impartial vocational expert by telephone. On July 9, 2013,
Administrative Law Judge (“ALJ”) Harry Kramzyk issued a written decision denying benefits,
making the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2016.

2.

The claimant has not engaged in substantial gainful activity since April 24,
2011, the alleged onset date.

3.

The claimant has the following severe impairments: a major depressive
disorder, an anxiety-related disorder including a panic-attack disorder with
agoraphobia, and polysubstance use disorders.

4.

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.

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work
at all exertional levels but with the following non-exertional limitations: the
claimant is able to understand, remember and carry out short, simple,
repetitive instructions; can sustain attention/concentration for 2-hour periods
at a time and for 8 hours in the workday on short, simple, repetitive
instructions; can use judgment in making work decisions related to short,
simple, repetitive instructions; requires an occupation with set routine and
procedures, and few changes during the workday; requires an occupation
with only superficial contact with the public on routine matters; and no fast
paced production work; can maintain regular attendance and be punctual
within customary tolerances; and can perform activities within a schedule.

6.

The claimant is unable to perform any past relevant work.

7.

The claimant was born [in 1965] and was 46 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date.

8.

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

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills.

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.

11.

The claimant has not been under a disability, as defined in the Social Security
Act, from April 24, 2011, through the date of this decision.

(AR 14-24).

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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,
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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.”).
DISABILITY STANDARD
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),
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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),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If no, 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 no, 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
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burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater, 55 F.3d 309,
313 (7th Cir. 1995).
ANALYSIS
Plaintiff seeks reversal and remand for further proceedings, arguing that (1) the ALJ should
have found him disabled under Listings 12.04 and 12.06, (2) the RFC is not supported by substantial
evidence, and (3) the credibility determination is deficient. The Court considers each in turn.
A. Listings 12.04 and 12.06
At step three of the sequential analysis, the ALJ considered whether Plaintiff met or equaled
Listings 12.04 (Affective Disorders) and 12.06 (Anxiety Related Disorders), finding that, under the
paragraph B criteria, Plaintiff had (1) mild restrictions in activities of daily living, (2) moderate
difficulties in social functioning, (3) moderate difficulties with concentration, persistence, or pace,
and (4) no episodes of decompensation. The ALJ found that Plaintiff did not meet either Listing
because he did not have a combination of either two ratings of “marked” in the first three categories
or a rating of “marked” in at least one of the first three categories as well as “repeated episodes of
decompensation, each of extended duration.” See 20 C.F.R. § Pt. 404, Subpart P Appx. 1, §§ 12.04,
12.06. Plaintiff argues that the ALJ erred in finding that he had no episodes of decompensation and
in finding only moderate difficulties in social functioning; if he had been found to have marked
difficulties in social functioning and repeated episodes of decompensation, each of extended
duration, he would have met a Listing.
1.

Episodes of Decompensation
“Episodes of decompensation” is defined in the regulations as “exacerbations or temporary

increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by
difficulties in performing activities of daily living, maintaining social relationships, or maintaining
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concentration, persistence, or pace.” 20 C.F.R. § Pt. 404, Subpart P Appx. 1, § 12.00.C.4. These
episodes can be “demonstrated by an exacerbation in symptoms or signs that would ordinarily
require increased treatment or a less stressful situation (or a combintation of the two). Id. “Repeated
episodes of decompensation, each of extended duration” as that term is used in the Listings for
mental impairments “means three episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks.” Id. The Listing further explains that, if the claimant experiences
more frequent episodes of shorter duration or less frequent episodes of longer duration, the ALJ
must use “judgment to determine if the duration and functional effects of the episodes are of equal
severity and may be used to substitute for the listed finding in a determination of equivalence.” Id.
These episodes may also be inferred from medical records that show “significant alteration in
medication,” from documentation of the need for a more structured psychological support system,
or from other relevant information in the record about the existence, severity, and duration of the
episode. Id.
In finding no episodes of decompensation, the ALJ noted that Plaintiff was hospitalized
twice as a result of his severe mental impairments but found that neither was of sufficient duration.
(AR 19). The ALJ also found that, in both instances, Plaintiff “rapidly improved with appropriate
treatment such that the severity of the decompensatory event does not meet the level of severity
required under Listing 12.00.” Id. (citing Ex. 1F, 2F (AR 223-48, 249-82)). The Court finds that
substantial evidence supports the ALJ’s determination that Plaintiff did not experience “repeated
episodes of decompensation, each of extended duration.”
Although Plaintiff is quick to note his two hospitalizations, he fails to explain that the first
lasted just one day, from March 9 to March 10, 2011, and the second lasted three days, from July
5 to July 8, 2011. See (AR 251-72, 273-82). Neither hospitalization lasted the requisite two weeks.
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Plaintiff also makes much of his treating psychologist’s statement that the harassment
Plaintiff experienced at his work resulted in psychological decompensation to the level that he was
psychiatrically hospitalized.” (AR 375). That hospitalization was the first hospitalization from
March 9 to March 10, 2011, and was not a separate, third event.
Plaintiff suggests that the ALJ did not properly exercise his judgment regarding other events
that could be considered as functionally equaling the episodes of decompensation necessary to meet
a Listing. Plaintiff notes the events surrounding the harassment at work that lead him to quit his job
and be hospitalized, suggesting that together the events constitute an episode of decompensation of
longer duration. Plaintiff also notes that he continued to have self-inflicted burns in 2011, that his
medications were occasionally changed, and that he continued to experience distress in both social
and public settings. Plaintiff’s treating therapist, Brian Dieckmann, Psy.D., opined on January 12,
2012, that “[a] return to work at this time may set [Plaintiff] up for job related failure directly related
to returning to a setting associated with traumatic experiences and the associated psychological
decline.” (AR 375). During each hospitalization, Plaintiff reported having injured himself and both
hospitalizations resulted in a change of medication.
However, none of these events alone or in combination are significant enough to challenge
the ALJ’s judgment as to episodes of decompensation. For example, Plaintiff notes changes in his
medications Abilify and Celexa but offers no evidence or argument that they were anything other
than changes from an initial to a recommended dosage or a routine adjustment in the course of
treatment; in other words, he has not demonstrated that the increase was “significant.” In his reply
brief, Plaintiff points to medication changes on March 9, 2011, but that is the day that Plaintiff was
admitted for his first hospitalization. (AR 235-36, 237). Even if the month period in which Plaintiff
was adjusting to medication constituted an episode, Plaintiff did not suffer repeated episodes. The
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two hospitalizations occurred at the outset of his mental health treatment and were not repeated over
the course of two years before the ALJ’s decision. Also, as correctly recounted by the ALJ, several
of Plaintiff’s behaviors improved, including incidents of self-harm, and he showed clinical
improvement with using several techniques. Although, as discussed in more detail below, Plaintiff
continued to suffer severe symptoms regarding social functioning, there were no exacerbations or
temporary changes that would rise to the level of an episode.
Plaintiff argues that the ALJ improperly relied on the September 20, 2011 opinion of Dr.
Kladder, the state agency doctor, that there were no episodes of decompensation because it is not
clear whether Dr. Kladder had access to the hospitalization records. See (AR 314). However,
Plaintiff’s speculation is belied by the content of the records Dr. Kladder specifically discusses,
namely (1) the Mental Status Examination of Dr. McKian, dated September 6, 2011, which details
the hospitalizations (describing them each as “one week” in duration), and (2) the June and July
2011 records from treating psychiatrist Dr. Hess and treating psychologist Dr. Dieckmann, which
note the July hospitalization. See (AR 291, 293, 295, 298). Dr. Kladder also discussed the content
of the treatment notes from June 2011, including Plaintiff’s daily activities as recounted to Dr.
Dieckmann during therapy. (AR 314). Although Dr. Kladder did not mention the hospitalizations
in his report, given that the hospitalizations were reported as being of only a week in duration, the
evidence supports his finding that there were no episodes of decompensation.
Unlike in Larson v. Astrue, 615 F.3d 744, 750 (7th Cir. 2010), cited by Plaintiff, no medical
source, treating or otherwise, opined that Plaintiff had “repeated episodes” of decompensation that
equal a Listing. Thus, this is not a case in which a medical source found sufficient episodes of
decompensation and the ALJ found otherwise.

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Finally, Plaintiff argues that he did not experience the vast “improvement” suggested by the
ALJ. Although he was not relieved of all symptoms following the two hospitalizations, such as the
amount of time he spent in bed, burning himself for several months afterwards, or his ongoing
difficulties with social functioning, the records show that Plaintiff significantly improved following
each hospitalization, and the ALJ accurately discussed the hospitalization records in the decision.
For example, the ALJ noted the improvement of Plaintiff’s GAF scores from 20 upon admission to
50 upon discharge for both hospitalizations. See (AR 21, 256, 274-75). The ALJ also noted that, as
Plaintiff “became more compliant with treatment and abstinence from substances, his GAF scores
improved such that they have consistently ranged in the mid-fifties.” (AR 21 (citing Exs. 9F, 15F));
(AR 330-71, 388-475). The ALJ then noted that Plaintiff’s “trend towards improvement continued
in 2012.” (AR 22 (citing Ex. 15F)); (AR 388-475). The ALJ noted, as is supported by the record,
that Plaintiff had “continued success at using coping techniques and relaxation exercises to avoid
engaging in self-harming behavior as he had done in the past, even in spite of decreased frequency
of treatment sessions.” (AR 22 (citing Ex. 15F)). The ALJ did not ignore the fact that Plaintiff
continued to have difficulties, despite improvement since hospitalization, noting that Plaintiff
continued to have physical shakiness, difficulty quieting his mind before sleeping, and difficulty
tolerating the social interaction involved with a garage sale.
The Court will not re-weigh the evidence that was properly considered by the ALJ. See
Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012) (“We do not reweigh the evidence or substitute
our own judgment for that of the ALJ; if reasonable minds can differ over whether the applicant is
disabled, we must uphold the decision under review.”). Substantial evidence supports the ALJ’s
finding that Plaintiff did not suffer repeated episodes of decompensation, each of extended duration.

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2.

Social Functioning
Under the Listings, “social functioning” describes a claimant’s capacity to interact

independently, appropriately, effectively, and on a sustained basis with other individuals. 20 C.F.R.
§ Pt. 404, Subpart P. Appx. 1, § 12.00. Impaired social functioning may be demonstrated by “a
history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships,
or social isolation.” Id. In contrast, strength in social functioning may be demonstrated by the
“ability to initiate social contacts with others, communicate clearly with others, or interact and
actively participate in group activities.” Id. A “marked” limitation in social functioning is not
defined by a specific number of different behaviors but rather “the nature and overall degree of
interference with function.” Id.
The ALJ found that Plaintiff has moderate difficulties in social functioning; Plaintiff argues
that the evidence supports a finding of marked difficulties in this category. In his decision, the ALJ
acknowledged the record evidence that Plaintiff avoids crowds, is socially isolative on a daily basis,
lacks motivation to get out of bed, and exhibits some shaking and crying behavior in the presence
of treating professionals. (AR 18). However, the ALJ also found that, in the presence of appropriate
treatment, Plaintiff “attends social get-togethers with family and friends, communicates with people
via Facebook, attends public events such as the circus, and goes to Wal-Mart and grocery stores to
shop for needed items.” (AR 18) (citing Ex. 4E, 4F, 5R, 9F, 15F).
When scrutinized, the evidence of record does not support the ALJ’s characterization of
Plaintiff’s social functioning. The ALJ discounts the severity of Plaintiff’s agoraphobia and social
isolation by cherry picking the only social events in the record and paints them as illustrative of a
much richer social life.

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First, the reference to a social get-together and Facebook is from Dr. Dieckmann’s June 22,
2011 treatment record that Plaintiff went to a barbeque with some friends he reconnected with on
Facebook. However, the same treatment record explains that he “was encouraged to process[] . . .
his anxiety around going to the bar-b-q.” (AR 290). Two weeks later was his second hospitalization.
In August 2011, Plaintiff reported to Dr. Dieckmann that he had to leave a wake after 20 minutes
because “he had to get out.” (AR 337). Plaintiff attended the circus with friends in approximately
November or December 2011, but he went to an early performance that was less well attended and
reported that “he could not have done it without Xanax.” (AR 361). In May 2012, Plaintiff reported
to Dr. Dieckmann that he had recently been at his friend’s house helping with yard work when he
realized a garage sale with over thirty people was going on at the house; he had a panic attack and
had to leave. (AR 391). At the same visit, Plaintiff reported that he did not plan to go to a Memorial
Day party in Chicago because it would have required taking the South Shore train and the “L,” to
which he commented: “not like that won’t turn out bad.” (AR 391). Plaintiff reported on December
15, 2011, that he was going to be picked up by his brother for Christmas to spend time with his
family, (AR 354), and in January 2013, Plaintiff reported that he spent the holidays with his
brother’s family, (AR 441). However, in his testimony, he stated that he only sees his family on
holidays, indicating that these were uncommon events. In the January 2013 note, Plaintiff reported
that his only outing was to visit a friend. (AR 441). The only reference to Wal-Mart is in the May
26, 2013 treatment note by Kimberly Meyer, M.D. (who replaced Dr. Hess as Plaintiff’s treating
psychiatrist in Spring 2012) that Plaintiff’s last outing was to visit a friend, being to Wal-Mart. (AR
445). In his testimony, Plaintiff explained that he usually does his grocery shopping at midnight so
that he can avoid crowds of people. (AR 53, 55).

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When the events cited by the ALJ are examined, the evidence depicts an individual who
leaves social situations immediately when he encounters a crowd, attends family functions only at
the holidays, and shops late at night to avoid crowds, all of which appears to constitute fear of
strangers, fear of crowds, avoidance of interpersonal relationships, and social isolation. The ALJ’s
downplay of the facts to support a finding of only moderate limitations suggests that Plaintiff in fact
has marked limitations in social functioning. In addition, as discussed in the next section below, the
ALJ interpreted the treatment records regarding social functioning in a manner inconsistent with the
treating physicians’ medical source statements, which also support marked limitations in social
functioning. See Mason v. Barnhart, 325 F. Supp. 2d 885, 900, 904 (E.D. Wis. 2004). This is not
a matter of the ALJ not discussing every piece of evidence, as suggested by the Commissioner, see
(Def. Br. 5 (citing Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009)), but rather the ALJ implying
that the evidence discussed means something other than what appears on its face to support a finding
of moderate rather than marked limitations. Thus, because the ALJ did not provide a complete
picture of these limited events, the ALJ did not built an accurate and logical bridge between the
evidence and his conclusion. See Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000).
However, to the extent the step three determination is concerned, the error regarding the
degree of limitation in social functioning is harmless. Because there is not another marked limitation
in a functional area or sufficient episodes of decompensation, even if the ALJ had found that
Plaintiff had a marked limitation in social functioning, Plaintiff would not have met a Listing.
Therefore, the ALJ did not err in finding that Plaintiff’s impairments do not meet Listings 12.04 and
12.06. But, as discussed in the next section, a marked limitation in social functioning does impact
the RFC.

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B. Residual Functional Capacity
Plaintiff argues that the ALJ erred in formulating his RFC by improperly weighing the
opinions of his treating doctors, arguing that the ALJ inflated Plaintiff’s social capabilities,
erroneously suggested Plaintiff’s condition improved, and relied on unsupported state agency
opinions.
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.

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As for Plaintiff’s mental RFC, the first ALJ gave “partial weight” to the state agency
psychological consultant’s mental assessment, finding that it was not sufficiently restrictive on the
basis that the evidence supported not only limitations in social interaction but also in the ability to
concentrate and persist in work activity. Plaintiff does not dispute this determination.
However, Plaintiff argues that the ALJ then erred by giving only “little weight” to the
January 1, 2012 medical source statement of his therapist Dr. Dieckmann, and the January 17, 2012
medical source statement of his psychiatrist Dr. Meyer, both of whom treated Plaintiff at Regional
Mental Health and both of whom opined that Plaintiff had, at best, fair, poor, or no ability to
consistently engage in work activity. (AR 22-23). Both doctors checked the box for “poor/none” for
Plaintiff’s ability to relate to co-workers, deal with the public, deal with work stresses, and relate
predictably in social situations. (AR 373-74; 377-78). Dr. Meyer additionally checked “poor/none”
for the ability to interact with supervisors; function independently; understand, remember, and carry
out complex job instructions; understand, remember, and carry out detailed, but not complex, job
instructions; and behave in an emotionally stable manner. (AR 377-78). In his “basis for
assessment,” Dr. Dieckmann explained that Plaintiff’s symptoms increased in early 2011 as a result
of a hostile work environment that “resulted in psychological decompensation to the level that he
was psychiatrically hospitalized.” (AR 375). Dr. Dieckmann commented that Plaintiff “experiences
significant distress in social and public settings. A return to work at this time may set [Plaintiff] up
for job related failure directly related to a setting associated with traumatic experiences and the
associated psychological decline.” Id. Dr. Meyer based her assessment on the diagnoses of major
depressive disorder and panic disorder and on the stressors of being unemployed, having difficulty
accessing health care, and financial difficulties. Dr. Meyer completed a second medical source
statement over a year later on April 24, 2013, giving the same opinion.
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An ALJ must give the opinion of a treating doctor controlling weight if (1) the opinion is
supported by “medically acceptable clinical and laboratory diagnostic techniques” and (2) it is “not
inconsistent” with substantial evidence of record. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.
2010). “An ALJ must offer ‘good reasons’ for discounting the opinion of a treating physician.” Scott
v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). If an ALJ determines that controlling weight is not
appropriate, the ALJ must then decide what weight to assign to the opinion. 20 C.F.R. §§
404.152(c), 416.927(c);SSR 96-2p, 1996 WL 374188 (Jul. 2, 1996); Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir. 2007).
The reason given by the ALJ for assessing “little weight” to the medical source statements
of Dr. Dieckmann and Dr. Meyer was that the opinions “are not consistent with the [doctors’] own
notations of progress made by the claimant in psychotherapeutic treatment both as regards his ability
to socially interact and his ability to concentrate upon and persist in activity.” (AR 23). The ALJ
supported this reasoning by citing Exhibits 10F, 11F, and 16F. However, those exhibits are not
treatment records but rather are the three medical source statements themselves. More importantly,
the ALJ provided no explanation of how or which portions of the doctors’ treatment records are
inconsistent with their opinions.
The ALJ is correct that Plaintiff was stabilized after his hospitalizations and showed
improvement in his ability to use certain techniques to improve his attitude and avoid self harm. For
example, Plaintiff’s thoughts of self-harm or infliction of self-harm continued for several months
in 2011 but then stabilized. See (AR 337) (8/25/2011) (self-harm); (AR 339) (9/8/2011) (self-harm);
(AR 346, 350) (10/20/2011) (self harm); (AR 354) (12/15/2011) (no self-harm); (AR 396)
(8/9/2012) (same); (AR 401) (10/4/2012) (same); (AR 403) (10/18/2012) (same); (AR 404)
(11/15/2012) (same). In June 2012, Dr. Dieckmann noted that interventions appeared effective
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because Plaintiff took the lead in making comments about his progress and was more accurately able
to appraise his growth. (AR 393).
However, the records do not suggest significant improvement in his ability to function
socially. The more recent records continue to note that Plaintiff spent the majority of his day at
home, watching television, and playing with his cat, in isolation. See (AR 403, 405-06, 439). In the
paragraphs leading up to the weighing of the opinion evidence, the ALJ discussed the treatment
records and noted, as he did at step 3, that Plaintiff shopped at Wal-mart and visited with his one
friend to show improvement in his symptomology, “particularly as regards his ability to persist in
activity and engage in social interaction.” (AR 22). However, as discussed in the previous section,
the ALJ misstated the record by stating that Plaintiff “tolerat[ed] the social interaction involved with
a garage sale,” when in fact he left the friend’s house with a panic attack when he observed the
crowd of people in May 2012. (AR 22); (AR 391) (5/17/2012). Although the ALJ represents that
there were “repeat” outings with a friend, there is only one record of going to Wal-mart, and the
reports to Dr. Dieckmann of seeing his one friend are sporadic. Although Plaintiff saw his family
at the Christmas holiday both years, the ALJ’s finding that Plaintiff engaged in “family social
gatherings” implies more than the limited nature of the two events. (AR 22). There are only a few
other references to socialization in the record—an outing to the circus that required Plaintiff to
medicate with Xanax to make it through the show, a barbeque that Plaintiff described as a stressor
to Dr. Dieckmann, and a wake that Plaintiff had to leave after 20 minutes. There was also one time
when Plaintiff socialized with neighbors, but he first purchased vodka to be able to engage in the
social interaction. (AR 396). The ALJ also suggested that Plaintiff reinstating his drivers license
somehow demonstrates social interaction; but the record does not indicate whether Plaintiff
reinstated his license online or in person. These sporadic events, which took place over two years,
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are not inconsistent with the treating medical source statements of Dr. Dieckmann and Dr. Meyer,
nor do they suggest progress in social functioning.
As noted by the ALJ, Plaintiff continued to display shaking or nervous affect with Dr.
Dieckmann. See (AR 345) (9/22/2011); (AR 361) (12/15/2011); (AR 363) (1/12/2016); (AR 388)
(4/5/2012); (AR 395) (7/12/2012); (AR 396) (8/9/2012); (AR 397) (8/23/2012); (AR 404)
(11/15/2012). And, Plaintiff remained isolated. On May 31, 2012, Dr. Dieckmann noted that
Plaintiff reported continued experiences of anxiety and panic. (AR 392). On June 14, 2012, Plaintiff
reported more isolation and that his anxiety had not improved.(AR 393). On August 23, 2012,
Plaintiff reported increased feelings of anxiety and poor sleep and that he “has not felt right in at
least two weeks.” (AR 397). On October 4, 2012, Plaintiff reported that he remained isolated and
nervous of others. (AR 401). On October 18, 2012, Plaintiff reported remaining isolated although
feeling less depressed over the previous week. (AR 403).
On both November 29, 2012, and December 13, 2012, Plaintiff presented as appearing within
normal limits within most areas, and his affect was normal with some restricted affect. (AR 405,
406). However, Plaintiff reported that he continued to isolate himself in his apartment. Id. Although
Plaintiff’s therapy sessions with Dr. Dieckmann ended because he had reached the maximum
number of visits permitted under Medicaid, he continued to see Dr. Meyer for medication. And, in
April 2013, Dr. Meyer gave Plaintiff the same ratings in an updated medical source statement,
indicating that Plaintiff could not work. (AR 477). Dr. Meyer’s treatment notes for January 29, 2013,
and February 26, 2013, show reports of feeling better, keeping busy around the house, feeling sad
on his mother’s birthday, no crying spells, sleeping better, and a good appetite. But, Plaintiff’s only
outing was the trip to Wal-Mart. (AR 443, 445).

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The Commissioner’s response brief wholly fails to address Plaintiff’s criticism of the ALJ’s
assessment of Plaintiff’s social functioning. See (Def. Br. 6). Instead, the Commissioner quotes the
ALJ’s reasoning at step three regarding the other functional areas of “activities of daily living” and
“concentration, persistence or pace,” neither of which Plaintiff is challenging. See (Def. Br. 6
(quoting AR 18, 19)).
In this case, the only reason given by the ALJ for discounting the opinions of Dr. Meyer and
Dr. Dieckmann is that the opinions are inconsistent with their own treatment records. An ALJ is
entitled to discount the medical opinion of a treating physician if it is inconsistent with the opinion
of a consulting physician or when the treating physician’s opinion is internally inconsistent, as long
as the ALJ gives good reasons. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); Schaaf, 602
F.3d at 875; Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). The ALJ in this case did not
give good reasons because he did not explain how the opinions are inconsistent with the treatment
records, and, the ALJ’s conclusions about improvement in social functioning are not supported by
substantial evidence. Nor is there other substantial evidence in the record that contradicts or conflicts
with the opinions. SSR 96-2p. Thus, substantial evidence does not support the weight given by the
ALJ to the treating mental health opinions.
When a treating source’s opinion is not given controlling weight, the ALJ must apply several
factors to determine the weight to give the opinion and must give good reasons for the weight given
to the treating source’s opinion. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Schaaf,
602 F.3d at 875. The factors are the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability, consistency,
specialization, and other factors such as the familiarity of a medical source with the case. 20 C.F.R.
§§ 404.1527(c), 416.927(c). Plaintiff argues that the ALJ erred by not explaining how these factors
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were applied. In this case, because the reason given by the ALJ is not supported by the evidence,
the absence of any discussion of how the ALJ weighed these factors is palpable. Compare Henke
v. Astrue, 498 F. App’x 636, 640 n.3 (7th Cir. 2012) (“The ALJ did not explicitly weigh every factor
while discussing her decision to reject Dr. Preciado’s reports, but she did note the lack of medical
evidence supporting Dr. Preciado’s opinion, and its inconsistency with the rest of the record. This
is enough.”). Dr. Dieckmann treated Plaintiff biweekly for 18 months, and Dr. Meyer treated him
for over a year. Both were knowledgeable about Plaintiff’s repeated self-inflicted wounds,
hospitalizations, and social phobia. Moreover, the doctors’ medical source statements are
remarkably similar and, thus, are consistent with each other. Compare Herrmann v. Colvin, 772 F.3d
1110, 1111 (7th Cir. 2014). Generally, the more consistent an opinion is with the record as a whole,
the more weight it is given. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Thus, the ALJ’s failure to
discuss any of the other factors leaves the Court with no basis on which to find that the assigned
weight is supported by substantial evidence. Remand is required for a proper consideration of the
opinions of treaters Dr. Meyer and Dr. Dieckmann.
Plaintiff also argues that his social limitations impact the availability of jobs. He reasons that
the job of kitchen helper identified by the vocational expert “seems pretty similar” to his prior
employment with the exception of some of the job responsibilities. Similarly, Plaintiff notes that a
hospital cleaner works in a hospital where there are large numbers of people, and that the position
of janitor may also require being near large groups of people. Thus, Plaintiff argues that, because
his difficulties with crowds of people were not properly factored into the RFC, these jobs may not
be appropriate in light of his social limitations. Because this case is being remanded, the ALJ will
have an opportunity to clarify with the vocational expert, if necessary, whether the available jobs
sufficiently account for Plaintiff’s social limitations.
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As for his physical RFC, Plaintiff contends that gout should have been considered severe at
step two or incorporated in the RFC. On September 16, 2011, state agency consultant Dr. Sands
opined that Plaintiff did not have a severe physical impairment. (AR 311). The ALJ gave his
physical assessment “great weight” on the basis that it was consistent with the record as a whole.
(AR 22). At step two, the ALJ concluded that Plaintiff’s gout was not “severe,” noting that there was
no imaging of the joints, “treatment has been exceedingly conservative, consisting essentially of
nothing other than an ongoing regimen of Meloxicam which predates both the claimant’s alleged
onset date and cessation of substantial gainful activity,” and that assessments of Plaintiff’s gait and
peripheral joint function consistently indicate that his gait is normal, his joint range-of-motion is
within functional limits, and his fine-motor function is intact. (AR 17-18). These statements are
supported by the evidence of record.
Plaintiff remarks that “gout” is noted many times in the record, citing pages 48, 59-60, 30810, 479-81, and 492 of the administrative record. While these citations reference gout, none requires
reversing the ALJ’s determination. The first page cited is Plaintiff’s testimony that he takes
medication for his gout. (AR 48). However, there is no testimony or evidence that his gout is not
controlled with medication and diet, and, in fact, he testified that it is controlled. (AR 59-60). The
reference to gout at page 308 of the record is Plaintiff’s recitation of his medical history to
consultative examiner Dr. A. Perez; Dr. Perez’s physical examination findings of Plaintiff’s
extremities were all normal. (AR 308-10). On a July 6, 2012 treatment record, there is a notation of
“Gout NOS” under “current problems,” and the same record lists the Meloxicam prescription to treat
gout. (AR 479-80). Another citation is to the February 23, 2011 treatment note from his regular
treating nurse practitioner for his hypertension that he had a “past history” of “gouty arthritis”;
however, there is no record of treatment at that time for gout. (AR 492). The last citation is to
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Plaintiff’s testimony about his ability to stand, but Plaintiff fails to note his testimony that his gout
is controlled as long as he eats a proper diet. (AR 59-60). Plaintiff also notes that his former
employer reported that he called off of work four to five times a year because of gout. (AR 196).
But, he nevertheless maintained his employment for 15 years.
The ALJ did not err in the physical RFC with regard to Plaintiff’s gout as it appeared to be
under control with medication. Nor did the ALJ err in giving great weight to the state agency
medical consultant’s physical assessment.
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:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

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
symptoms.

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 . . . a court will not overturn an ALJ’s
credibility determination unless it is ‘patently wrong.’” Shideler, 688 F.3d at 310-11 (quotation
marks omitted) (quoting Skarbek, 390 F.3d at 504-05); see also Prochaska, 454 F.3d at 738.
Nevertheless, “an ALJ must adequately explain his credibility finding by discussing specific reasons

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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 used the impermissible boilerplate language. The ALJ did
not as there is no reference to the RFC in the ALJ’s introduction to the credibility determination.
Rather, the ALJ found that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the reasons stated in this decision.”
(AR 20) (emphasis added). This is precisely the type of analysis the Seventh Circuit Court of
Appeals requires. See Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012); Bjornson v. Astrue, 671
F.3d 640, 645-46 (7th Cir. 2012).
Next, Plaintiff argues that the ALJ did not specify which parts of his testimony were not
credible. However, the ALJ discussed Plaintiff’s improvement following his hospitalization and that
as Plaintiff “became more compliant with treatment and abstinence from substances,” his condition
improved. (AR 21). As discussed above, the ALJ correctly noted that with “the benefit of ongoing
psychotherapeutic counseling and his medication regimen of BuSpar, Xanax, and Abilify,
[Plaintiff’s] abilities towards social interaction and maintaining concentration did improve, albeit
with some slowing secondary to the claimant’s lack of between session compliance.” (AR 21). The
ALJ then detailed the treatment records in 2012 to show that Plaintiff continued to improve despite
the evidence of physical shaking and difficulty quieting his mind. (AR 22). The ALJ noted Dr.

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Dieckmann’s treatment notations that Plaintiff continued to succeed in using coping techniques and
relaxation exercises to avoid engaging in self-harming behavior. Id.
However, the details cited by the ALJ go to Plaintiff’s ability to perform activities of daily
living and maintain concentration, persistence, or pace, but, as discussed above, do not show
resolution of his difficulties in social functioning. In contrast, Plaintiff made statements in the
Function Report - Adult that he could not go out in public, did indoor household necessities only,
avoided going out due to agoraphobia, and shopped monthly for necessities. He also reported
difficulty completing tasks, with concentration, and in getting along with others. (AR 187-191).
These are statements consistent with his hearing testimony two years later as well as the treatment
records and opinions of Dr. Dieckmann and Dr. Meyer. On remand, the ALJ is directed to re-weigh
Plaintiff’s testimony regarding his social functioning once he has re-weighed the treating physician
opinion evidence.
Plaintiff also argues that the ALJ discounted his credibility solely because of objective
evidence. This is incorrect as the ALJ relied mostly on Plaintiff’s own reports to his treating doctors,
which is not objective evidence. See 20 C.F.R. §§ 404.1529(a), 416.929(a).
As for the ALJ’s reference to the decreased frequency in therapy sessions, Plaintiff argues
that he had reached the maximum number of treatment sessions under his Medicaid coverage.
However, the ALJ did not hold the decreased sessions against Plaintiff. In addition, Plaintiff
continued to be seen regularly by Dr. Meyer for medication, and Dr. Meyer kept detailed records
regarding Plaintiff’s progress. As noted above, although Dr. Meyer noted improvement in areas, she
nevertheless gave a medical source statement in April 2013 that did not support improvement.

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CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief sought in the Opening Brief
[DE 19], 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 30th day of March, 2016.

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

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