Green v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Andrew P Rodovich on 9/26/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
COREY TREUNAS GREEN,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, 1
Case No. 2:16-cv-127
OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Corey Treunas Green, on April 14, 2016. For the following
reasons, the decision of the Commissioner is AFFIRMED.
The plaintiff, Corey Treunas Green, filed an application for Supplemental Security
Income on November 19, 2014, alleging a disability onset date of November 23, 2013. (Tr. 14).
The Disability Determination Bureau denied Green’s application on January 27, 2015, and again
upon reconsideration on March 10, 2015. (Tr. 14). Green subsequently filed a timely request for
a hearing on March 16, 2015. (Tr. 14). A video hearing was held on October 16, 2015, before
Administrative Law Judge (ALJ) William E. Sampson, and the ALJ issued an unfavorable
decision on January 21, 2016. (Tr. 14-26). Vocational Expert (VE) Sarah Gibson, Medical
Expert (ME) Charles D. Auvenshine, and Green testified at the hearing. (Tr. 14). The Appeals
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Council denied review, making the ALJ’s decision the final decision of the Commissioner. (Tr.
At step one of the five step sequential analysis for determining whether an individual is
disabled, the ALJ found that Green had not engaged in substantial gainful activity since
November 19, 2014, the application date. (Tr. 16). At step two, the ALJ determined that Green
had the following severe impairments: schizoaffective disorder, depressive disorder, learning
disability, NOS, and history of substance abuse disorder in partial remission. (Tr. 16). At step
three, the ALJ concluded that Green did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments. (Tr. 16).
Specifically, the ALJ determined that Green did not meet Listing 12.05 C, Intellectual Disability,
because there was no evidence in the record to support that the onset of Green’s impairment
began before the age of 22, as required. (Tr. 17).
The ALJ found that Green’s mental impairments did not meet or medically equal listings
12.02, 12.03, and 12.04. (Tr. 17). In finding that Green did not meet the above listings, the ALJ
considered the paragraph B criteria for mental impairments, which required at least two of the
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration.
(Tr. 17). The ALJ defined a marked limitation as more than moderate but less than extreme and
repeated episodes of decompensation, each of extended duration, as three episodes within one
year or once every four months with each episode lasting at least two weeks. (Tr. 17).
The ALJ determined that Green had mild restrictions in activities of daily living. (Tr.
17). Green testified that he lived with his mother, sister, and his sister’s infant daughter. (Tr.
17). He indicated that he wore the same clothes daily and that he fed himself every other day.
(Tr. 17). However, Green reported that he could prepare sandwiches and simple meals for
himself. (Tr. 17). Green’s mother contradicted his report that he could not perform household
chores. (Tr. 17). She indicated that Green would start household chores but that he was unable
to finish the tasks. (Tr. 17). Also, she reported that Green would leave the house two to three
times a week. (Tr. 17). Green reported that his interests included talking to himself, while his
mother indicated that he could watch television all day. (Tr. 17). Green also testified that he
read headlines on Facebook and that he used Twitter. (Tr. 17).
The ALJ found that Green had mild difficulties in social functioning. (Tr. 18). Green
reported that he stayed home daily. (Tr. 18). However, the ALJ noted that Green’s self-report
and his mother’s report indicated that he went outside the home at least two to three times a
week. (Tr. 18). Green reported that he felt like people were trying to harm him when he was
around them and that he did not have any social skills. (Tr. 18). However, Green testified that
he had worked as a part-time cashier at Dollar General and as a package handler for FedEx. (Tr.
18). Further, Green reported at the psychological consultative examination that he drank and
smoked with friends during the day and that he would return home the next day or a few days
later. (Tr. 18).
The ALJ concluded that Green had moderate difficulties in concentration, persistence, or
pace. (Tr. 18). Green reported that he could not comprehend most things, which he indicated
affected his ability to talk, hear, see, understand, follow instructions, complete tasks, concentrate,
and remember things. (Tr. 18). However, the ALJ indicated that Green had obtained a GED.
(Tr. 18). Further, the ALJ indicated that Green had participated in psychiatric treatment in
November of 2014. (Tr. 18). Also, Green was able to pay attention to work-related tasks while
employed at Dollar General and FedEx. (Tr. 18). The ALJ indicated that Green was attentive
during the hearing and that he responded to questions without a need for redirection. (Tr. 18).
The ALJ found that Green had not experienced any extended episodes of
decompensation. (Tr. 18). Because Green did not have two marked limitations or one marked
limitation and repeated episodes of decompensation, the ALJ determined that Green did not
satisfy the paragraph B criteria. (Tr. 18). Additionally, the ALJ found that Green did not satisfy
the paragraph C criteria. (Tr. 18).
The ALJ then assessed Green’s residual functional capacity (RFC) as follows:
the claimant has the residual functional capacity to perform a full range of
work at all exertional levels but with the following nonexertional limitations
the claimant is limited to simple, routine, repetitive tasks; he can have
occasional interaction with coworkers, and supervisors, but no interaction
with the public; he can have no production pace work.
(Tr. 19). The ALJ explained that in considering Green’s symptoms he followed a two-step
process. (Tr. 19). First, he determined whether there was an underlying medically determinable
physical or mental impairment that was shown by a medically acceptable clinical or laboratory
diagnostic technique that reasonably could be expected to produce Green’s pain or other
symptoms. (Tr. 19). Then, he evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Green’s functioning. (Tr. 20).
Green has alleged symptoms that are consistent with schizoaffective disorder, depressive
disorder, learning disability, NOS, and history of a substance abuse disorder in partial remission.
(Tr. 20). He reported that he heard voices every day and that the voices told him to harm himself
and others. (Tr. 20). Green also reported that he was depressed to the point that he was unable
to do anything during the day. (Tr. 20). He indicated that he was unable to perform household
chores or personal care activities without the assistance of his mother and his sister. (Tr. 20).
The ALJ found that Green’s impairments could cause his alleged symptoms, but he did not find
Green credible regarding the intensity, persistence, and limiting effects of his symptoms. (Tr.
At Green’s psychological consultative examination in March of 2014, he reported that he
was filing for disability based upon a learning disorder, anger, bad hygiene, depression, and
hearing voices. (Tr. 20). He indicated that he had been depressed for a year since being fired
from his job. (Tr. 20). Later, Green claimed that he had been depressed since he dropped out of
high school his junior year. (Tr. 20). Green indicated that he heard voices when he drank
heavily and smoked marijuana. (Tr. 20). He reported that he began smoking marijuana in the 8th
grade. (Tr. 20). Green indicated that he had smoked marijuana prior to attending the
consultative examination. (Tr. 20). He also indicated that he began drinking heavily at the age
of 16. (Tr. 20). Green reported that when he partied he used Ecstasy, Mali, Xanax, and Codeine
mixed with beer. (Tr. 20).
The findings at the clinical interview indicated that Green had poor personal hygiene and
his cooperation was variable, but that he displayed fair social skills and etiquette. (Tr. 21).
Green also had good eye contact and his speech was intact. (Tr. 21). There were no delusions or
hallucinations observed. (Tr. 21). Green reported that he smoked marijuana daily. (Tr. 21).
Also, he reported that he smoked a large sum of marijuana the night before the examination and
that he had used Ecstasy, Xanax, and Codeine to the point that he passed out. (Tr. 21).
During his mental status examination, Green displayed poor immediate memory and poor
recent memory. (Tr. 21). He was unable to recall three words after five minutes and failed the
serial seven exercise. (Tr. 21). However, the ALJ noted that he was oriented to time, person,
and place, and that his speech was relevant, coherent, and goal-oriented. (Tr. 21). Green was
diagnosed with cannabis dependence, alcohol dependence, and a learning disability NOS. (Tr.
21). The examiners noted that Green arrived at the examination carrying a bag of marijuana and
shoes. (Tr. 21). The examiners concluded that his visual and auditory hallucinations were
induced by heavy drinking and substance abuse. (Tr. 21). Green was assessed to have a global
assessment of functioning (GAF) score of 59, which reflected moderate difficulties in social,
occupational, or school functioning. (Tr. 21).
In November of 2014, Green was admitted to the emergency room at Methodist Hospital
Northlake for feeling suicidal. (Tr. 21). He indicated that he heard voices that told him to kill
himself and to harm others. (Tr. 21). At the hospital, Green denied using alcohol or drugs, and
reported that he never had used alcohol or drugs. (Tr. 21). Green exhibited disordered thought
content, but he had normal new learning ability, recent memory, and remote memory. (Tr. 2122). Methodist Hospital Northlake admitted Green for further evaluation. (Tr. 22).
Green underwent a psychiatric evaluation and was diagnosed with chronic paranoid
schizophrenia with an acute exacerbation. (Tr. 22). At the evaluation, Green displayed fair
hygiene and grooming. (Tr. 22). The ALJ noted that he had a poor attention span, displayed
little eye contact, and his affect was guarded. (Tr. 22). Green was reported as having delusional
thinking with paranoid ideation, but suicidal or homicidal ideations were not present. (Tr. 22).
Green was assessed with a GAF of over 20, which reflected serious impairment in
communication and judgment. (Tr. 22).
A week after Green was admitted to the hospital, Dr. Mohammad Butt, M.D. diagnosed
Green with major depression with psychotic features and schizoaffective disorder, depressive
type. (Tr. 22). The ALJ noted that Green’s GAF score had risen to 50, reflecting someone with
serious difficulty in social, occupational, or school functioning. (Tr. 22). Green had benefited
from the group and unit activity while at the hospital, and it was determined that he was stable
enough to be discharged back to the community. (Tr. 22). At discharge, his prognosis was fair
to guarded. (Tr. 22).
In December of 2014, Green underwent counseling and was diagnosed with a
schizoaffective disorder. (Tr. 22). At the mental status examination, Green was reported as
having normal appearance, mood, and affect. (Tr. 22). Also, his cognition, memory, and
concentration were normal, and he did not display any hallucinations or delusions. (Tr. 22).
Green reported that he was compliant with his medications and that he was not experiencing side
effects. (Tr. 22). The ALJ noted that Green canceled his next two appointments. (Tr. 22).
In January of 2015, Green reported at the psychological consultative examination that he
had been stressed and depressed since his father’s death in October of 2014. (Tr. 22). He
indicated that he was seeing a counselor at Edgewater once a month and receiving medication
management from Dr. Butt. (Tr. 22). Green reported that he had daily suicidal thoughts and that
he heard voices on a daily basis. (Tr. 22). He claimed that his medications were not effective.
Dr. Roger Parks, PsyD, performed a mental status examination and found that Green was
capable of comprehending and remembering simple instructions, but that he had difficulty with
concentration. (Tr. 23). Dr. Parks diagnosed Green with major depressive disorder with
psychotic features. (Tr. 23). In October of 2015, Dr. Candice Anderson, M.D. completed a
physical assessment of Green and diagnosed him with depression. (Tr. 23). She found that
Green’s depression would cause him to have extreme functional limitations in a competitive
work environment. (Tr. 23). However, the ALJ indicated that he gave no weight to her opinion
because diagnosing Green with depression was outside her professional purview as a primary
care physician. (Tr. 23). Also, the ALJ indicated that Green had seen her only once prior to the
hearing and that those records were not submitted as medical evidence. (Tr. 23).
Dr. Auvenshine (ME) testified that Green’s impairments equaled listings 12.03,
Schizophrenia, and 12.04, Affective Disorders. (Tr. 23). The ALJ indicated that he gave no
weight to Dr. Auvenshine’s opinion. (Tr. 23). The ALJ discredited Dr. Auvenshine’s testimony
because when questioned about Green’s substantial history of substance abuse, Dr. Auvenshine
indicated that he believed Green’s testimony that he was sober from all substances. (Tr. 23).
Also, the ALJ indicated that he questioned the scrutiny of Dr. Auvenshine’s review of the entire
medical record based on his responses during the questioning at the hearing. (Tr. 23). The ALJ
concluded that Dr. Auvenshine had not thoroughly reviewed the consultative examination report
from March of 2014. (Tr. 23).
The ALJ found that Green was not fully credible. (Tr. 24). Green testified that he never
had engaged in nor had any problems with smoking, alcohol, or illicit drugs. (Tr. 24). However,
his testimony was contrary to what he reported at the consultative examination and his testimony
at the hearing that he had stopped using marijuana a year prior to the hearing. (Tr. 24). Also, the
ALJ found that his allegation of not being able to do anything during the day was not supported
by his statement that he would go out with his friends to party. (Tr. 24). The ALJ noted that at
the hearing Green repeatedly mentioned his disability but that he had an unwillingness to
describe his symptoms. (Tr. 24). Further, the ALJ noted that Green had canceled counseling
appointments. (Tr. 24). Therefore, the ALJ concluded that Green’s allegations were less than
fully credible. (Tr. 24).
The ALJ granted great weight to the opinions of the consultative examiners because their
opinions were based on standardized tests, personal observations, and face-to-face examinations.
(Tr. 24). The ALJ granted some weight to the State agency psychological consultants, Drs.
Benetta Johnson and Joelle Larson, who opined that Green could understand, remember, and
carry out simple tasks, could relate at least on a superficial basis, and could manage unskilled
tasks. (Tr. 24). Also, Drs. Johnson and Larson reviewed the medical evidence and determined
that Green did not satisfy the paragraph B and C criteria of the listings. (Tr. 24). The ALJ
granted some weight to Green’s mother’s opinion because she observed his daily living
activities. (Tr. 24).
At step four, the ALJ found that Green had no past relevant work. (Tr. 25). Considering
Green’s age, education, work experience, and RFC, the ALJ concluded that there were jobs in
the national economy that he could perform, including hand packer (4,000 jobs statewide and
5,000,000 nationwide), sorter (1,500 jobs statewide and 200,000 nationwide), and salvage
laborer (2,000 statewide and 90,000 nationwide). (Tr. 25).
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097
(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the
correct legal standards and supported his decision with substantial evidence.”). Courts have
defined substantial evidence as “such relevant evidence as a reasonable mind might accept to
support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28
L. Ed. 2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,
217, 83 L. Ed. 2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ’s
decision if the ALJ supported his findings with substantial evidence and if there have been no
errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However,
“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Supplemental insurance benefits are available only to those individuals who can establish
“disability” under the terms of the Social Security Act. The claimant must show that he is unable
“to engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Social Security regulations enumerate the five-step sequential evaluation to be followed
when determining whether a claimant has met the burden of establishing disability. 20 C.F.R. §
416.920. The ALJ first considers whether the claimant is presently employed or “engaged in
substantial gainful activity.” 20 C.F.R. § 416.920(b). If he is, the claimant is not disabled and
the evaluation process is over. If he is not, the ALJ next addresses whether the claimant has a
severe impairment or combination of impairments that “significantly limits . . . physical or
mental ability to do basic work activities.” 20 C.F.R. § 416.920(c); see Williams v. Colvin, 757
F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the
claimant’s impairments). Third, the ALJ determines whether that severe impairment meets any
of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it
does, then the impairment is acknowledged by the Commissioner to be conclusively disabling.
However, if the impairment does not so limit the claimant’s remaining capabilities, the ALJ
reviews the claimant’s “residual functional capacity” and the physical and mental demands of his
past work. If, at this fourth step, the claimant can perform his past relevant work, he will be
found not disabled. 20 C.F.R. § 416.920(e). However, if the claimant shows that his
impairment is so severe that he is unable to engage in his past relevant work, then the burden of
proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job
experience, and functional capacity to work, is capable of performing other work and that such
work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 416.920(f).
Green has argued that the ALJ failed at Step three to properly evaluate listings 12.03 and
12.04. At step three, “in considering whether a claimant's condition meets or equals a listed
impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis
of the listing.” Barnett v. Barnhart, 381 F.3d 664, 668–69 (7th Cir. 2004) (finding the ALJ's
“two sentence consideration of the Listing of Impairments was inadequate and warrants
remand”). For a claimant to show that he met a listed impairment, he is required to demonstrate
that his impairment met each required criterion. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir.
1999). A condition that met only some of the required medical criteria, “no matter how
severely,” cannot qualify as meeting a listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct.
885, 107 L. Ed. 2d 967 (1990).
In this case, the ALJ specifically considered 12.02 (neurocognitive disorders), 12.03
(schizophrenic, paranoid, and other psychotic disorders), and 12.04 (depressive, bipolar, and
related disorders). Listings 12.03 and 12.04 are part of the CFR's broader Listing for mental
disorders. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. Each of these listings consists of paragraph A
criteria (a set of medical findings), paragraph B criteria (a set of impairment-related functional
limitations), and paragraph C criteria (additional functional criteria). 20 C.F.R. § Pt. 404,
Subpt. P, App. 1. To satisfy any of these three listings, a claimant must show that his
impairment satisfies “the diagnostic description in the introductory paragraph and the criteria of
both paragraphs A and B (or A and C, when appropriate) of the listed impairment.”
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
Paragraph B sets forth the impairment-related functional limitations that are incompatible
with the ability to do any gainful activity. The claimant’s functional limitations are assessed by
using the four criteria set forth in paragraph B of the listings: activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3). Each functional limitation must be evaluated to determine the severity, taking
into consideration “all relevant and available clinical signs and laboratory findings, the effects of
the symptoms, and how the claimant’s functioning may be affected by factors including, but not
limited to, chronic mental disorders, structured settings, medication, and other treatment.” 20
C.F.R. § 404.1520a(c)(1). To satisfy the paragraph B criteria of Listing 12.03 or 12.04, the
claimant must establish “marked” limitations in two of the first three areas, or “marked”
limitations in one of these areas in addition to “repeated” episodes of decompensation of
extended duration. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ discussed Green’s functional areas and determined that he had mild restrictions
in daily living, mild difficulties in social functioning, and moderate difficulties in concentration,
persistence, or pace. (Tr. 18). Further, the ALJ found that Green had not experienced episodes
of decompensation, which had been of extended duration. (Tr. 18). The ALJ concluded that
because Green’s mental impairments did not cause at least two marked limitations or one marked
limitation and repeated episodes of decompensation, each of extended duration, paragraph B was
not satisfied. (Tr. 18). Also, the ALJ determined that Green did not satisfy paragraph C criteria
for listings 12.03 and 12.04. (Tr. 18-19).
The ALJ assigned some weight to the State agency psychological consultants who
concluded that Green had mild restrictions in activities of daily living, mild limitations in
maintaining social functioning, and moderate limitations in maintaining concentration,
persistence, or pace, and no episodes of decompensation, each of extended duration. (Tr. 24).
The consultants also did not find evidence that Green’s mental impairments satisfied the
paragraph C criteria. (Tr. 24). Therefore, the ALJ discussed listings 12.03 and 12.04 by name
and offered more than a perfunctory analysis, as required. Barnett, 381 F.3d at 668–69.
However, Green has argued that the ALJ’s analysis at Step three was inadequate because
the ALJ failed to properly evaluate Dr. Auvenshine’s (ME) testimony. 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. § 404.1527(b). 2 And, the
ALJ must evaluate every medical opinion received. 20 C.F.R. § 405.1527(c). This includes the
opinions of non-examining sources such as state agency medical and psychological consultants,
as well as outside medical experts consulted by the ALJ. 20 C.F.R. § 405.1527(e)(2). The Code
of Federal Regulations expressly permits an ALJ to employ a medical expert to review the
evidence and render an opinion as to the nature and severity of a claimant's impairments and
whether those impairments met or equaled any listings when making a disability determination.
20 C.F.R. § 404.1527.
The ALJ is responsible for deciding whether a listing is met or equaled. SSR 96–6p.
Whether a claimant's condition equals a listed impairment is “strictly a medical determination”
and “the focus must be on medical evidence.” Florence v. Colvin, 2013 WL 3724806, at *9
The Social Security Administration recently adopted regulations that change the standards applicable to the
review of medical opinion evidence for claims filed on or after March 27, 2017. See 20 C.F.R. §§ 404.1520c,
416.920c. Because the plaintiff’s claim was filed before that date, those regulations do not apply here.
(S.D. Ind. 2013) (citing Hickman v. Apfel, 187 F.3d 683, 688 (7th Cir. 1999)). “[L]ongstanding
policy requires that the judgment of a physician ... designated by the Commissioner on the issue
of equivalence ... must be received into the record as expert opinion evidence and given
appropriate weight.” SSR 96–6p. The ALJ may not ignore these opinions and must explain the
weight given to these opinions in his decision. SSR 96-6p. The better an explanation a source
provides for an opinion, the more weight the ALJ should give that opinion. 20 C.F.R. §
404.1527(d)(3). However, an ALJ may give less weight to the conclusions of medical sources to
the extent they are inconsistent with other evidence. 20 C.F.R. § 404.1527(c)(4). If an ALJ
does so, he must “provide a sound explanation for rejecting” the medical source's opinion.
Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
Dr. Auvenshine testified that Green met listings 12.03 and 12.04, singly and in
combination. The ALJ indicated that he granted no weight to Dr. Auvenshine’s opinion because
when questioned about the March 2014 consultative examination, which indicated that Green
had a substantial history of substance abuse, he testified that “he took Green at his word” that he
was sober from all substances. (Tr. 23). Dr. Auvenshine found that although the medical
evidence initially showed substance abuse, the abuse did not affect whether Green met or
equaled a listing because subsequent medical evidence showed sparse, if any, substance use or
full denial of substance abuse. (Tr. 50-51).
However, the Commissioner contends that Green’s evidence of treatment the year prior
to the hearing was limited. The treatment record included a hospitalization in November of 2014
and one therapy session. In November of 2014, the Methodist Hospital Northlake reported that
the possible causes of Green’s medical complaint included but were not limited to schizophrenia
v. major depression with psychiatric features v. borderline personality disorder v. drug abuse v.
metabolic disturbance v. infectious process v. neoplasm of the brain. (Tr. 252). The ALJ also
concluded that based on Dr. Auvenshine’s responses to questioning at the hearing it appeared
that he had not thoroughly reviewed the medical record, specifically the 2014 consultative
examination report. (Tr. 23).
The ALJ need only “minimally articulate his reasons for crediting or rejecting evidence
of disability.” Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1995). Under this standard,
the ALJ need not discuss every piece of evidence, but “the ALJ may not ignore an entire line of
evidence that is contrary to the ruling.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). If
the ALJ rejects relevant and uncontradicted evidence, he must explain his reasons for doing so.
Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). Remand is appropriate at Step 3 only
when “the Commissioner's decision lacks evidentiary support or is so poorly articulated as to
prevent meaningful review.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). The ALJ
considered Dr. Auvenshine’s testimony, and therefore he did not ignore any line of evidence.
Further, he articulated his reasoning for not assigning weight to Dr. Auvenshine’s opinion.
The Commissioner contends it was proper for the ALJ to question the medical expert’s
opinion on Green’s substance abuse given that Dr. Auvenshine’s justification was that he took
Green at his word that he was not using drugs. The bottom line is that an ALJ can reject a
medical opinion if it is inconsistent with other substantial evidence in the record so long as he
explains his reasons for doing so. Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). The
record contained objective medical evidence that Green had a history of substantial substance
abuse issues. Further, Dr. Auvenshine’s opinion was not consistent with other evidence in the
record, including the State agency psychological consultants’ opinions. Therefore, the ALJ’s
decision to reject Dr. Auvenshine’s finding that Green met listing 12.03 and 12.04 was supported
by substantial evidence.
Moreover, the Commissioner contends that Dr. Auvenshine’s testimony did not explain
how Green satisfied the requirements of the listings, specifically that Green satisfied paragraph B
of the listings. These are not reasons that appeared in the ALJ's opinion, and thus they cannot be
used here. SEC v. Chenery Corp., 318 U.S. 80, 87–88, 63 S. Ct. 454, 87 L. Ed. 626 (1943).
However, Green had the burden of proof at step 3 that he met the listing requirements. Ribaudo
v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006).
Next, Green has argued that the ALJ erred in discounting the opinion of treating
physician, Dr. Anderson. Thus, the RFC was unsupported by substantial evidence. A treating
source’s opinion is entitled to controlling weight if the “opinion on the issue(s) of the nature and
severity of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in
the record. 20 C.F.R. ' 404.1527(c)(2); see Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir.
2013); Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Schmidt v. Astrue, 496 F.3d 833,
842 (7th Cir. 2007). The ALJ must “minimally articulate his reasons for crediting or rejecting
evidence of disability.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (quoting Scivally v.
Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992)); see 20 C.F.R. ' 404.1527(c)(2) (“We will
always give good reasons in our notice of determination or decision for the weight we give your
treating source’s opinion.”).
However, Dr. Anderson did not qualify as a treating physician. At the hearing, Green
testified that he had just been assigned to Dr. Anderson and that he had seen her only once. (Tr.
39). A non-treating source means a physician, psychologist, or other acceptable medical source
who has examined the claimant but does not have, or did not have, an ongoing treatment
relationship with him. 20 C.F.R. § 404.1502. Given Green’s testimony, Dr. Anderson and
Green had not establish an ongoing treatment relationship. Therefore, as a non-treating source,
the ALJ was not required to assign controlling weight to Dr. Anderson’s opinion. See White v.
Barnhart, 415 F.3d 654, 658 (7th Cir. 2005) (finding that a doctor that examined claimant once
fits the definition of a non-treating source and the ALJ is not required to assign controlling to
weight to the opinion). A medical source's opinion is not entitled to controlling weight if it does
not provide a longitudinal view, “the very reasons the Social Security regulations set out for
giving substantial weight to a treating physician's opinion are absent.” Scheck v. Barnhart, 357
F.3d 697, 702–03 (7th Cir. 2004).
The ALJ indicated that he granted Dr. Anderson’s opinion no weight because her treating
records were not submitted as medical evidence. Further, the ALJ indicated that Dr. Anderson
was a primary care physician, therefore, her diagnosis of depression was outside her professional
purview. Green contends that both reasons are erroneous.
Green has argued that it was the ALJ’s duty to obtain Dr. Anderson’s treatment records.
However, the Commissioner contends that it was Green’s duty to bring to the ALJ's attention
everything that showed that he was disabled. 20 C.F.R. § 404.1512(a). This means that Green
needed to supply medical and other evidence that the ALJ may have used to reach conclusions
about his medical impairment and its effect on his ability to work on a sustained basis. Scheck v.
Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (citing 20 C.F.R. § 404.1512(c). ("You must
provide medical evidence showing that you have an impairment and how severe it is during the
time you say that you were disabled."); Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 96 L. Ed. 2d
119, 107 S. Ct. 2287 (1987) ("It is not unreasonable to require the claimant, who is in a better
position to provide information about his own medical condition, to do so.").
Although a claimant has the burden to prove disability, the ALJ has a duty to develop a
full and fair record. Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991). The Seventh
Circuit has held that the ALJ has not failed to adequately develop the record where the claimant
does not show he was prejudiced by a lack of development. Martin v. Astrue, 345 Fed. Appx.
197, 202 (7th Cir. 2009). “An omission is significant only if it is prejudicial” and the plaintiff
cites “specific, relevant facts—such as medical evidence—that the ALJ did not consider.”
Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009). Courts “generally respect the ALJ's
reasoned judgment” with respect to how much evidence to gather. Luna v. Shalala, 22 F.3d
687, 692 (7th Cir. 1994). Therefore, as long as the ALJ has enough evidence before him to make
a disability determination that is supported by substantial evidence, the record has been
adequately developed. Thomas v. Barnhart, 54 Fed. Appx. 873, 878 (7th Cir. 2003). An ALJ is
entitled to presume that a claimant represented by counsel in the administrative hearings has
made his best case. Sears v. Bowen, 840 F.2d 394, 402 (7th Cir. 1988) (citing Glenn v.
Secretary of Health and Human Services, 814 F.2d 387, 391 (7th Cir. 1987)).
Green has not shown that the ALJ’s failure to obtain Dr. Anderson’s treatment records
prejudiced him. To reiterate, under 20 C.F.R. § 404.1512(a) it was Green’s duty to bring to the
ALJ's attention everything that showed that he was disabled. The ALJ’s failure to obtain Dr.
Anderson’s treatment notes was not a significant omission that was prejudicial. Further, the ALJ
indicated that Dr. Anderson was a primary care physician, therefore her diagnosis of depression
was not within her professional purview. See 20 C.F.R. § 404.1527(d)(5) (“We generally give
more weight to the opinion of a specialist about medical issues related to her area of specialty
than to the opinion of a source who is not a specialist.”). The ALJ considered Dr. Anderson’s
medical specialty and her expertise, along with any supporting evidence in the record and
considered the consistency of the evidence with the record as a whole. Therefore, the ALJ
properly evaluated Dr. Anderson’s opinion.
Based on the foregoing reasons, the decision of the Commissioner is AFFIRMED.
ENTERED this 26th day of September, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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