Crawford v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: : The final decision of the Commissioner of Social Security is REVERSED and this matter is REMANDED for further proceedings consistent with the Opinion and Order ***Civil Case Terminated. Signed by Magistrate Judge Paul R Cherry on 2/27/2017. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANGELA M. CRAWFORD,
Plaintiff,

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v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Cause No.: 2:16-CV-50-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Angela M. Crawford
on February 9, 2016, and Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner
of Social Security [DE 14], filed on June 15, 2016. The Commissioner filed a response on
September 20, 2016, and Plaintiff filed a reply on October 5, 2016.
BACKGROUND
Plaintiff first filed for supplemental security income on June 22, 2012. Her claim was denied
initially and on reconsideration. Plaintiff then asked for a hearing before one of the Agency’s
administrative law judges (ALJs), which took place on August 7, 2014, before ALJ Mario G. Silva.
The ALJ held a supplemental video hearing on September 5, 2014. Plaintiff’s main representative
was attorney Thomas J. Scully, but she was represented by Scully’s associate Veda P. Dasari at the
hearings.
The ALJ issued a written decision on September 11, 2014, concluding that Plaintiff was not
disabled based on the following findings.
1.

The claimant has not engaged in substantial gainful activity since June 22,
2012, the application date.

2.

The claimant has the following severe impairments: status post fracture of the
pelvis, right ankle, and coccyx, degenerative joint disease of the right hip,
degenerative disc disease of the lumbar spine, and depression.

3.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.

4.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform less than sedentary
work as defined in 20 CFR 416.967(a). Specifically, the claimant can
frequently lift up to twenty pounds, frequently carry ten pounds, and
occasionally carry twenty [pounds]. The claimant is able to sit, stand, or walk
for one hour [at a] time. The claimant is able to sit for six hours, stand for one
hour, and walk for one hour in [an] eight-hour workday. The claimant is able
to reach in all directions, including overhead, as well [as] handle and finger
on a frequent basis bilaterally. The claimant can occasionally push and pull.
The claimant can never operate foot controls with her right foot but can
occasionally operate foot control[s] with her left foot. The claimant never
[sic] climb ladders, ramps, or scaffolds and never crawl, but can occasionally
climb ramps and stairs as well as balance, stoop, kneel or crouch. The
claimant must avoid all exposure to unprotected height to unprotected heights
[sic] and dangerous moving machinery. The claimant is limited to occasional
exposure to fumes and pulmonary irritants. The claimant is limited to no
more than occasional exposure to heat or cold. The claimant must avoid all
exposure to vibrations. The claimant is limited to occasional exposure to
wetness and humidity. The claimant is limited to unskilled work and is able
to understand or remember simple instructions and make judgment on simple
work related decisions and is able to interact appropriately with coworkers
and supervisors on routine work stetting [sic]. The claimant is able to
respond to usual situations and to changes in routine work setting. The
claimant must be allowed to work at a flexible pace, free of fast paced
production requirements. The claimant’s work must not require tandem tasks
or teamwork, where one production step is dependent upon a prior step.

5.

The claimant is unable to perform any past relevant work.

6.

The claimant was born [in 1966] and was 45 years old, which is defined as
a younger individual age 18-44, on the date the application was filed [sic].
The claimant subsequently changed age category to a younger individual age
45-49.

7.

The claimant has a limited education and is able to communicate in English.

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8.

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 disabiled,” whether or not the claimant has
transferable job skills.

9.

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.

10.

The claimant has not been under a disability, as defined in the Social Security
Act, since June 22, 2012, the date the application was filed.

(AR 46-55). Plaintiff then sought review before the Agency’s Appeals Council, which denied her
request on December 16, 2015, leaving the ALJ’s decision as the final decision of the
Commissioner. See 20 C.F.R. § 416.1481. On February 9, 2016, 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. This
Court thus 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)).

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A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000);
Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an
ALJ’s finding that a claimant is not disabled within the meaning of the Social Security Act is not
whether the claimant is, in fact, disabled, but whether the ALJ “uses the correct legal standards and
the decision is supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v.
Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse the decision
“without regard to the volume of evidence in support of the factual findings.” White v. Apfel, 167
F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate 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

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v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A).
To be found disabled, the claimant’s impairment must not only prevent her from doing her previous
work, but considering her age, education, and work experience, it must also prevent her from
engaging in any other type of substantial gainful activity that exists in significant numbers in the
economy. 42 U.S.C. § 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 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

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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
her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be
based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R.
§ 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the
burden at step five is on the ALJ. Zurawski, 245 F.3d at 885-86; see also Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
ANALYSIS
Plaintiff contends that the ALJ erred in assigning weight to agency examining expert Dr.
Smejkal, in evaluating Plaintiff’s subjective symptoms, and in determining Plaintiff’s mental and
physical RFC. The Court will address each argument in turn.
A. Weight to Dr. Smejkal’s Opinions
An ALJ is required to evaluate every medical opinion received, regardless of its source. See
20 C.F.R. § 416.927(c). Factors the ALJ considers in weighing medical opinion evidence include
the examining relationship, the treatment relationship, 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 brought to the ALJ’s attention. Id. § 416.927(c)(1)-(6).
“[R]ejecting or discounting the opinion of the agency’s own examining physician that the
claimant is disabled . . . can be expected to cause a reviewing court to take notice and await a good
explanation for this unusual step.” Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). Further,
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“[a]n ALJ can reject an examining physician’s opinion only for reasons supported by substantial
evidence in the record; a contradictory opinion of a non-examining physician does not, by itself
suffice.” Gudgel, 345 F.3d at 470.
In assigning the opinion of Dr. Smejkal “some weight,” the ALJ gave two reasons: (1)
“portions of his opinion are grossly inconsistent with the record” and (2) “there are numerous
discrepancies between the two examinations Dr. Smejkal performed.”
The “gross inconsistencies” are not named in full, but the ALJ provides one example. The
ALJ reports that Dr. Smejkal opined that Plaintiff can never balance, stoop, kneel, or crouch. To
show that this is inconsistent with the record, the ALJ points to Dr. Brahms, who testified that these
limitations are not consistent with the record. Though Dr. Brahms testified that Plaintiff could
occasionally balance, stoop, kneel, and crouch, (AR 75), the ALJ later found that Dr. Brahms
“somewhat overstates the claimant’s abilities,” (AR 53). The ALJ did not identify any specific
medical evidence that he finds inconsistent with Dr. Smejkal’s opinion. Thus, the ALJ’s statement
that Dr. Smejkal’s opinion is “grossly inconsistent” with the record is not properly supported. For
example, no reason, other than testimony by non-examining physician Dr. Brahms, is provided for
not accepting Dr. Smejkal’s opinion that Plaintiff must be able to have constant interruptions in
sitting, standing, and walking. The ALJ has not provided a logical bridge from the evidence to his
conclusion that the entire opinion is entitled to only some weight.
Further, the ALJ finds “discrepancies” between Dr. Smejkal’s two examinations of Plaintiff.
The later examination, performed in August 2014, suggested more severe limitations than the earlier
examination, performed in August 2012. Two of the severe impairments that the ALJ found Plaintiff
to have are degenerative conditions: degenerative joint disease of the right hip and degenerative disc

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disease of the lumbar spine. Degenerative diseases, by nature, grow worse over time, so a decrease
in ability over two years is not unexpected. See Roddy, 705 F.3d at 637 (“The term ‘degenerative’
implies that [the plaintiff] suffers from a condition that will get worse over time . . . ; it is not one
that will remain stable or improve.”); see also Scrogham v. Colvin, 765 F.3d 685, 696 (7th Cir.
2014) (finding the ALJ used “faulty logic” in interpreting evidence as inconsistent without
considering that the differences in the evidence may be due to the progressive nature of the
claimant’s disease).
The ALJ stated that Dr. Smejkal examined the Plaintiff, which is a factor in favor of giving
the opinion more weight than to a non-examining physician, such as Dr. Brahms. See 20 C.F.R. §
416.927(c)(1) (“Generally, we give more weight to the opinion of a source who has examined you
than to the opinion of a source who has not examined you.”). Further, Dr. Smejkal, as an agency
physician, is unlikely to exaggerate Plaintiff’s impairments and limitations. See Garcia v. Colvin,
741 F.3d 758, 761 (7th Cir. 2013) (citing Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)).
In light of these factors weighing in favor of giving more weight to Dr. Smejkal’s opinion
and because of the issues with the ALJ’s stated reasons for giving less weight to the opinion, this
matter must be remanded for a new assignation of weight to Dr. Smejkal’s opinion.
B. Subjective Symptom Evaluation
In making a disability determination, the ALJ must consider a claimant’s statements about
her symptoms, such as pain, and how the symptoms affect her 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:

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(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. § 416.929(c)(3). An ALJ’s evaluation of subjective symptoms will be upheld unless
it is patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). Nevertheless, an ALJ
must support his evaluation with specific reasons that are supported by the record. Pepper v. Colvin,
712 F.3d 351, 367 (7th Cir. 2013).
Last year, the Social Security Administration issued Social Security Ruling (“SSR”) 16-3p,
which supersedes SSR 96-7p. SSR 16-3p, 2016 WL 1119029 (March 16, 2016). SSR 96-7p referred
to a claimant’s “credibility,” but SSR 16-3p removed that term in order to “clarify that subjective
symptom evaluation is not an examination of the individual’s character.” SSR 16-3p, 2016 WL
1119029, at *1. Though the new Ruling was issued after the ALJ’s decision in this matter, the new
Ruling is a clarification of the law and not a change in the law, so use of the new Ruling on appeal
is appropriate. See Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (using 16-3p).
Plaintiff argues that the ALJ erred in not fully accepting her statements regarding her
subjective symptoms. Plaintiff finds error in the ALJ (1) considering Plaintiff’s improvement after
the automobile accident that caused several of her impairments, (2) finding Plaintiff’s reports of pain
to show the pain to be well-managed with medication, (3) stating that electrodiagnostic testing was
normal, (4) using conservative treatment as a reason to discount Plaintiff’s statements, and (5)
considering Plaintiff’s ability to perform basic daily activities.

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Plaintiff first argues that the ALJ erred in considering Plaintiff’s improvement following her
automobile accident. Plaintiff’s argument is well taken. That Plaintiff’s fractures may have healed
or that she may have improved since the accident is not dispositive of disability, nor does it provide
a reason to discount her subjective pain symptoms. “The key is not whether one has improved
(although that is important),but whether [one has] improved enough to meet the legal criteria of not
being classified as disabled.” Murphy v. Colvin, 759 F.3d 811, 819 (7th Cir. 2010). The ALJ points
to no evidence suggesting that Plaintiff’s pain would only be as severe as she states it to be if her
injuries had not improved following the accident. Improvement from the initial trauma does not
meaningfully inform the current level of Plaintiff’s pain.
Next, the ALJ acknowledged that Plaintiff one time told her doctor that her medication was
just taking the edge off, but the ALJ also notes that, another time, she indicated that her pain, with
medication, was at 4 out of 10 and, without medication, was at 10 out of 10. The ALJ further states
that “[a]lthough the claimant has reported ten out of ten pain on several occasions and the claimant
was reportedly in tears secondary to pain at least once, the overwhelming majority of the record
indicates the claimant does not appear to be in acute distress.” (AR 51). Plaintiff testified that she
has a lot of pain and has burning and stinging sensations in her feet. Plaintiff estimated that she can
stand or sit for twenty minutes before needing a change of position due to pain and swelling.
Plaintiff also testified that she needs to lie down throughout the day due to her tailbone. Notably,
Plaintiff did not testify to being in acute distress due to pain. As the ALJ acknowledges, Plaintiff has
repeatedly—though not without exception—rated her pain at 10 out of 10. This evidence supports
her statement of her subjective symptoms, and the lack of appearance of acute distress does nothing
to undercut that support.

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Plaintiff also takes issue with the ALJ’s statement that electrodiagnostic testing indicated
Plaintiff’s nervous system to be normal. The ALJ cited a CT scan performed on October 29, 2012
in support of this finding. Earlier in the decision, the ALJ cited to electrodiagnostic testing
performed on November 27, 2012, which provides “Impression: Normal peripheral nerve integrity.”
(AR 468). However, the ALJ did not cite to electrodiagnosic testing performed on October 30,
2012—one day after the CT scan he cites in support of his statement of normalcy. The paperwork
from the October 30, 2012 testing provides a summary that lists loss of axons in the peroneal system
worse on left and acute and chronic denervation in left leg and includes an impression of acute and
chronic left lumbar radiculopathy. The ALJ is not at liberty to ignore evidence that does not support
his conclusions. See Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (“An ALJ need not
mention every piece of medical evidence in [his] opinion, but [he] cannot ignore a line of evidence
contrary to [his] conclusion.”).
The Commissioner argues that the ALJ was only referring to upper extremity
electrodiagnostic testing as normal. The beginning of the paragraph that contains this statement
refers to upper extremity issues, but the end of the same paragraph discusses postural limitations.
This statement is in the middle. While the ALJ may have meant to refer only to upper extremity
electrodiagnostic testing, he did not expressly state so. In context, the statement does not appear to
be restricted as only referring to Plaintiff’s upper extremities. It may have been unknowingly done,
but this statement mischaracterizes the evidence.
Additionally, Plaintiff asserts and that ALJ improperly drew a negative inference from her
medical treatment, which he deemed to be conservative. Before an ALJ may draw a negative
inference regarding subjective symptoms from conservative medical treatment, the ALJ must look

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into the reasons for conservative treatment, such as inability to pay. SSR 96-7p, 1996 WL 374186,
at *7-8. Further, While the ALJ may consider conservative treatment in assessing the severity of a
condition, he should cite medical evidence regarding what kind of treatment would be appropriate.
Brown v. Barnhart, 298 F. Supp. 2d 773, 797 (E.D. Wis. 2004) (citing Dominguese v. Massanari,
172 F. Supp. 2d 1087, 1096 (E.D. Wis. 2001)).
Here, the ALJ stated that, after the initial hospitalization following Plaintiff’s accident, most
of her treatment had been conservative. The ALJ gave no indication of what treatment he would
expect to see if Plaintiff’s pain was as bad as she stated it to be. Further, the ALJ did not investigate
reasons for conservative treatment. Though the ALJ notes that a doctor declined to intervene, (see
AR 50 (citing AR 408)), there is no indication that the intervention was declined because the doctor
did not believe Plaintiff’s pain to be severe. Also, the ALJ does not state, and it is not clear to the
Court, that the intervention sought was related to Plaintiff’s pain. The ALJ impermissibly drew a
negative inference regarding the level of Plaintiff’s treatment.
The ALJ also noted that Plaintiff can manage her personal needs, prepare simple meals, do
laundry and light cleaning, and drive. Plaintiff argues that this constitutes an improper basis for
rejecting her statements of subjective symptoms. The Seventh Circuit Court of Appeals has noted
that there are “critical differences between activities of daily living and activities in a full-time job,”
including “that a person has more flexibility in scheduling the former than the latter,” and, in
performing activities of daily living, a person “is not held to a minimum standard of performance,
as she would be by an employer.” Bjornson, 671 F.3d at 647. Further, the ALJ does not connect
these daily activities to the conclusion that Plaintiff’s pain cannot be as severe as she states it to be.

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Considered together, the ALJ’s stated reasons, which were discussed above, for his
evaluation of Plaintiff’s subjective symptoms are not supported by the record. This matter must be
remanded for a new evaluation of these subjective symptoms.
C. Residual Functional Capacity
Plaintiff argues that the ALJ did not properly support his finding of Plaintiff’s mental and
physical RFC. Plaintiff also argues that the ALJ failed to build a logical bridge between Plaintiff’s
restrictions and her mental RFC.
The RFC is a measure of what an individual can do despite the limitations imposed by her
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. “The RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion.” S.S.R. 96-8p, 1996 WL 374184
at *7.
“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

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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.
1. Mental RFC
In determining Plaintiff’s mental RFC, the ALJ found that Plaintiff must be allowed to work
at a flexible pace without tandem tasks. The ALJ did not tie this limitation to evidence in the record
or to a medical opinion. Consequently, the ALJ did not provide enough analysis by which this Court
can provide meaningful review of the appropriateness of this limitation. Moreover, the ALJ found
that Plaintiff must not have “fast paced production requirements.” The ALJ did not clarify at how
fast of a pace Plaintiff is able to perform. The Seventh Circuit Court of Appeals has found that this
undefined limitation 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”). The ALJ failed to connect his mental RFC findings to the
medical evidence and to Plaintiff’s restrictions.
There are additional issues that cast further doubt on the mental RFC finding. Usually, a state
agency medical or psychological consultant documents the application of the special technique used
in evaluating mental impairments. See 20 C.F.R. § 416.920a(e)(1). Here, Plaintiff sought treatment
for mental health problems after the state agency consultants had reviewed Plaintiff’s file, and, as
a result, there is no consultant’s application of the special technique in the record. Nonetheless, there
is no requirement that a state agency consultant document the application of the special technique

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in every case alleging a mental impairment. See Burke v. Astrue, 306 F. App’x 312, 315; 20 C.F.R.
§ 416.920a(e)(3).
However, the Seventh Circuit Court of Appeals has found troubling an ALJ’s determination
of a claimant’s mental functional limitations when made without the benefit of any medical
professional’s assessment of the claimant’s mental RFC. Richards v. Astrue, 370 F. App'x 727, 730
(7th Cir. 2010). In the instant matter, the Court likewise finds the ALJ’s determination of Plaintiff’s
mental RFC troubling.
Here, the ALJ did not dismiss the state agency consultants’ opinions—he gave them some
weight. These opinions, however, did not document the special technique, and noted that—as of the
date of the opinions—Plaintiff did not have any mental health treatment. (AR 152, 159). In assigning
“some weight” to the state agency psychological experts, the ALJ found that the opinions are
consistent with the record and are made by experts who have had the opportunity to review
Plaintiff’s medical record and are familiar with the regulations of the Social Security Administration.
The ALJ also noted, however, that subsequent medical records indicate that Plaintiff has received
treatment and reported depressive symptoms. The state agency consultants’ opinions did not make
any specific findings regarding Plaintiff’s mental RFC.
Plaintiff’s mental health records from treatment, which Plaintiff underwent after the agency
consultants gave their opinions, include Plaintiff’s reports of the following: feeling down and
depressed; crying episodes; mood swings with easy irritability; feelings of hopelessness,
helplessness, worthlessness, and low self esteem; decreased energy and motivation; trouble falling
and staying asleep; feeling anxious around people; and passive suicidal thoughts (though no current
active suicidal ideations). The ALJ did not discuss these reported symptoms in evaluating Plaintiff’s

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mental RFC. In light of the mental health treatment history that occurred after the agency consultants
gave their opinions, the need for additional evidence about how these reported symptoms affect
Plaintiff’s mental RFC is apparent. On remand, the ALJ should obtain a medical professional’s
assessment of Plaintiff’s mental RFC after evidence of Plaintiff’s mental health treatment came into
the record.
2.

Physical RFC
Plaintiff also asserts that the ALJ erred in determining her physical RFC because the ALJ

did not accept the limitations suggested in any medical opinion. Plaintiff argues that the rejection
of all of the suggested limitations left an evidentiary deficit regarding her RFC. However, an ALJ
need not rely on a medical opinion in determining the RFC. Schmidt v. Astrue, 496 F.3d 833, 845
(7th Cir. 2007) (citing Diaz, 55 F.3d at 306 n.2). Still, the ALJ must identify the evidence that he
relied upon and explain how the evidence led the ALJ to the RFC finding. See Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011) (finding error in the ALJ’s failure to cite evidence that supports
specific limitations in the plaintiff’s RFC).
Plaintiff specifically contends that the ALJ provided no explanation regarding his findings
that (1) Plaintiff did not need to be able to change her postural position throughout the work day in
light of Plaintiff’s status post fracture of the pelvis and coccyx and degenerative disc disease of the
lumbar spine, (2) Plaintiff did not need to be able to lie down during the work day, and (3) Plaintiff
could reach, hand, and finger frequently.
This case is already being remanded for new assignment of weight to a medical opinion and
for new evaluation of subjective symptoms. As a result, the ALJ’s findings regarding Plaintiff’s

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physical RFC may change dramatically when revisited. In the interest of judicial economy, the Court
will not determine whether any error requiring remand exists in the above-noted findings.
CONCLUSION
For these reasons, the Court GRANTS the relief sought in the Plaintiff’s Brief in Support
of Reversing the Decision of the Commissioner of Social Security [DE 14], 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 27th day of February, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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