Deboer Lapole v. Commissioner of Social Security

Filing 24

OPINION AND ORDER: The Court hereby GRANTS the relief sought in Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security, REVERSES the final decision of the Commissioner of Social Security and REMANDS this case for further proceedings. Signed by Magistrate Judge Paul R Cherry on 2/14/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAWN E. DEBOER LAPOLE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:17-CV-24-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Dawn E. Deboer
Lapole1 on January 20, 2017, and Plaintiff’s Brief in Support of Reversing the Decision of the
Commissioner of Social Security [DE 19], filed by Plaintiff on June 27, 2017. Plaintiff requests that
the August 17, 2016 decision of the Administrative Law Judge denying her claim for disability
insurance benefits and supplemental security income be reversed and remanded for further
proceedings. On August 7, 2017, the Commissioner filed a response, and Plaintiff filed a reply on
August 28, 2017. 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 April 25, 2013, and May 25, 2016, respectively, alleging disability since June 15, 2010. The
disability insurance benefits claim was denied initially and on reconsideration. Plaintiff filed a
written request for hearing, and on June 28, 2016, Administrative Law Judge Matthew Johnson
(“ALJ”) held a hearing. In attendance at the hearing were Plaintiff, Plaintiff’s attorney, and an
impartial vocational expert. After the hearing, Plaintiff’s supplemental security income claim was

1

This is how Plaintiff’s name appears on the Complaint. Elsewhere in the record, Plaintiff’s name is sometimes
written as “Dawn E. Debore Lapole.”

escalated to the hearing level. On August 17, 2016, the ALJ issued a written decision denying
benefits, making the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through March 31, 2014.
2.
The claimant has not engaged in substantial gainful activity since June 15,
2010, the alleged onset date.
3.
The claimant has the following severe impairments: major depressive
disorder, recurrent, severe; and cannabis abuse.
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 nonexertional limitations: the claimant is
able to understand, carry out, remember, and perform simple, routine, and repetitive
tasks but not at a production rate pace and that involve only simple, work-related
decision [sic] with the ability to adapt only to routine workplace changes. She can
occasionally interact with supervisors, coworkers, and the general public.
6.

The claimant is unable to perform any past relevant work.

7.
The claimant was born [in 1959] and was 50 years old, which is defined as
an individual closely approaching advanced age, 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.

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11.
The claimant has not been under a disability, as defined in the Social Security
Act, from June 15, 2010, through the date of this decision.
(AR 20-26).
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, 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

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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
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
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physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent 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. §§ 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
[her] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be
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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 argues that the ALJ erred in assessing Plaintiff’s subjective complaints and in
determining Plaintiff’s mental and physical RFC. The Court considers these arguments below.
A. Subjective Complaints
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. §§ 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 id. §§ 404.1529(c)(3); 416.929(c)(3). “An ALJ must adequately explain his credibility finding
by discussing specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th
Cir. 2013) (citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)); accord SSR 16-3p, 2017 WL
5180304, at *10 (Oct. 25, 2017) (“The determination or decision must contain specific reasons for
the weight given to the individual’s symptoms, be consistent with and supported by the evidence,

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and be clearly articulated so the individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual’s symptoms.”). A credibility determination will be overturned
only if it is patently wrong. Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006).
Plaintiff maintains that the ALJ improperly weighed Plaintiff’s complaints and the third party
report of Ms. Paquita Doyle. The Court will address Ms. Doyle’s report first.
Ms. Doyle completed a third party adult function report on September 10, 2014. Ms. Doyle
indicated that she is staff and spends almost every day with Plaintiff, who was living in an individual
living facility at the time the report was made. The ALJ determined that he “cannot assign [Ms.
Doyle’s report] more than little weight because it largely echoes the claimant’s own representations
of her limitations in similar statements and Ms. Doyle remains emotionally invested in the outcome
of this claim.” (AR 24).
The ALJ did not identify any of the purportedly similar statements. The Court conducted a
cursory view of Ms. Doyle’s function report and Plaintiff’s function report. While some statements
are similar, they are not identical. For example, Plaintiff reported going outside one or two times
daily, and Ms. Doyle reported Plaintiff going outside “almost everyday,” id. at 297, 306; Plaintiff
reported being able to pay attention for one minute, and Ms. Doyle reported that Plaintiff is able to
pay attention for “not very long,” id. at 299, 308. The Court finds that Ms. Doyle’s report
corroboates Plaintiff’s subjective complaints, and any “similarity” between the reports does not
provide a logical reason to discount Ms. Doyle’s report.
Next, the ALJ’s statement that Ms. Doyle is “emotionally invested” in Plaintiff’s claim is
not supported by any reasoning or citation to the record. Ms. Doyle’s relationship to Plaintiff is
described as “staff.” id. at 303. The ALJ has not created a logical bridge from the evidence to his
determination that Ms. Doyle is emotionally invested in Plaintiff’s claim. Further, the Seventh
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Circuit Court of Appeals has held that even a fiancée’s third party function report should not be
automatically discounted for potential bias. Garcia v. Colvin, 741 F.3d 758, 761 (7th Cir. 2013).
Here, the relationship between Ms. Doyle and Plaintiff is professional, not personal, and the
unsupported decision to discount Ms. Doyle’s report due to emotional investment is in error.
The Court now turns to the ALJ’s treatment of Plaintiff’s allegations of subjective symptoms,
which the ALJ found to be not entirely consistent with the evidence of record. In so finding, the
ALJ noted that Plaintiff did well when she received treatment. The ALJ states that Plaintiff
“obtained relief of her symptoms” after a trip to the emergency room in early 2014. (AR 23). The
medical record cited by the ALJ, however, reports that Plaintiff obtained “some relief.” Id. at 452
(emphasis added). The ALJ further noted that, later in 2014, Plaintiff had “improvement,” stable
behavior, no hallucinations or delusions, and “some anxiousness.” Id. at 23. The medical record
again reveals a different picture than the one painted by the ALJ: “Improvement is noted. [Plaintiff]
is partially improved. [Plaintiff’s] anxiety symptoms continue. The symptoms of this disorder have
increased in frequency or intensity. Trembling and shaking associated with anxiety has
worsened.”Id. at 525 (emphasis added). Further, the record reveals several occasions on which
Plaintiff reported that her medications did not help her impairments, id. at 48-49, 588, 604, and
times when Plaintiff was on medication and still experiencing symptoms, e.g., id. at 629 (reporting
to doctor for anxiety while on clonazepam for anxiety)).
The ALJ discounted all periods of higher symptoms as being due to medical noncompliance
or substance abuse, citing evidence in the record of times Plaintiff tested positive for drugs. The
evidence cited in support of medical noncompliance, specifically that Plaintiff ran out of her
medications in January 2014, is the April 2010 report of a consultative examination made by Dr.

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Joseph Youkhana. This evidence predates the period cited and does not discuss medical
noncompliance on the pages cited by the ALJ.
The record shows on several occasions that Plaintiff reported financial difficulty and lack
of treatment due to insurance coverage issues. Inability to pay for treatment can be an acceptable
reason for non-compliance. SSR 16-3p, at *10. But the ALJ concluded that the Plaintiff’s allegations
of the severity of her subjective symptoms were undercut by her failure to seek no-cost health care
or medication samples. This is problematic. There is nothing in the record indicating that Plaintiff
knew about these options or that they would have been available to her. The ALJ should not have
discounted Plaintiff’s reports of her symptoms on this basis.
Regarding Plaintiff’s use of controlled substances, records show that Plaintiff has been
prescribed Xanax and clonazepam, both of which are benzodiazepines. Plaintiff testified to having
prescriptions for benzodiazepines and amphetamines. (AR 53). Notably, one of the pages cited by
the ALJ in support of substance abuse during periods of higher symptoms, exhibit 7F page 26,
indicates a positive test result only for benzodiazepines. Id. at 468. The ALJ did not explain how this
evidence supports an inference of substance abuse and not an inference of medicine compliance.2
On the date in question, Plaintiff was transferred from the emergency department to a psychiatric
facility for inpatient admission for depression and suicidal ideation. She reported that her depression
had been worsening over the previous week. If Plaintiff had been complying with her medicine and
not abusing drugs during this time period, then it is probative evidence of Plaintiff’s mental abilities
without substance abuse. Further, after one week of inpatient mental health care, during which
Plaintiff was presumably compliant with her medication regimen and not using controlled

2
Plaintiff reported having consumed alcohol that day, but the ALJ identifies no evidence of the quantity
consumed or of Plaintiff appearing to be under the influence of alcohol when she reported to the emergency room.

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substances for which she did not have a prescription, Plaintiff was still complaining of depression,
anxiety, and suicidal ideation. Id. at 480.
The causal relationship—if any—between Plaintiff’s symptoms and drug use is not clear.
The ALJ’s inferences that the drug use causes increased symptoms could be correct. It is also
possible that when Plaintiff’s symptoms are at their most extreme Plaintiff turns to controlled
substances in attempt to mitigate the symptoms. That is, Plaintiff’s mental illness may cause
increased substance abuse, and not vice versa. See Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir.
2006). Additionally, if the ALJ is correct on causation, “the fact that substance abuse aggravated
[Plaintiff’s] mental illness does not prove that the mental illness itself is not disabling.” Id.; see also
SSR 13-2p, 2013 WL 621536, *9 (Feb. 20, 2013) (“We do not know of any research data that we
can use to predict reliably that any given claimant’s co-occurring mental disorder would improve,
or the extent to which it would improve, if the claimant were to stop using drugs or alcohol.”).
In sweeping fashion, the ALJ found that, but for medical noncompliance and substance
abuse, all of Plaintiff’s mental impairments would “consistently respond favorably to medication
and counseling.” (AR 24). The ALJ cited no evidence in support of this statement. The ALJ
elsewhere cites portions of the record where Plaintiff had lower or no symptoms, but “a person who
suffers from a mental illness will have better days and worse days, so a snapshot of any single
moment says little about her overall condition.” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
The ALJ has not provided a sufficient connection between the evidence and his conclusion on this
matter.
In June 2014 and again in May 2015, Plaintiff’s treating psychiatrist, Dr. Sadek, observed
that Plaintiff’s emotional disorder interfered with her day-to-day functioning and that Plaintiff
required assistance managing her medications. (AR 525, 548). This corroborates Plaintiff’s
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statement that she sometimes forgets to take her medications and that she sometimes takes a double
dose because she forgets that she has already taken her medications. Id. at 240. Earlier in the ALJ’s
decision—outside of the subjective symptom analysis—the ALJ acknowledged Plaintiff’s statements
that she needs reminders to take her medications. Id. at 22. If Plaintiff’s lack of compliance with her
medications is a result of her mental impairment, then to discount Plaintiff’s statement of the
severity of her symptoms due to the effects of those symptoms is problematic. See Kangail,454 F.3d
at 630 (“[M]ental illness in general . . . may prevent the sufferer from taking her prescribed
medicines or otherwise submitting to treatment.”) (citations omitted). The ALJ did not consider the
evidence indicating that Plaintiff needs assistance in managing her medications in finding Plaintiff
at fault for not being compliant with her medication regimen. The related issue of the ALJ not
considering Dr. Sadek’s opinion will be addressed later in this opinion.
The ALJ acknowledged Plaintiff’s allegations of crying spells, bad thoughts, poor sleep, poor
appetite, withdrawal, hallucinations, nervousness, and bad memory. The ALJ also found that the
evidence of record shows that Plaintiff has been diagnosed with mental illness. The ALJ failed to
discuss whether he accepted or rejected each of Plaintiff’s allegations and, to the extent he accepted
the allegations, how those symptoms were addressed by limitations in Plaintiff’s RFC. See Briscoe,
425 F.3d at 352 (“Contrary to SSR 96–8p, however, the ALJ did not explain how he arrived at these
[RFC] conclusions; this omission in itself is sufficient to warrant reversal of the ALJ's decision.”).
There is no explanation given for the specific limitations the ALJ found in Plaintiff’s RFC.
Further, despite being the first factor listed for consideration in evaluating symptoms in SSR
16-3p, the ALJ made no mention of Plaintiff’s daily activities in his analysis.
When looking at the subjective symptom analysis as a whole, the ALJ improperly discredited
one major source of evidence that supports Plaintiff’s statements regarding her subjective
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symptoms—Ms. Doyle’s third party report. The ALJ discredited Plaintiff’s symptoms as a result of
substance abuse and medication noncompliance despite evidence that Plaintiff has prescriptions for
some of the substances that she tested positive for and despite Plaintiff continuing to have symptoms
one week into an inpatient mental health stay. The ALJ disregarded the fluctuating nature of mental
illness and failed to discuss Plaintiff’s daily activities. As a whole, the ALJ did not support with
evidence his reasons for discounting Ms. Doyle’s report and for finding that Plaintiff’s mental
impairments would “consistently respond favorably to medication and counseling” if Plaintiff were
compliant with medications and not abusing controlled substances. The ALJ has not created a logical
bridge from the evidence to his conclusions.
B. Residual Functional Capacity
For both mental and physical impairments, the residual functional capacity (“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. §§ 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
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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. The “ALJ must also consider the combined effects of all the claimant’s
impairments, even those that would not be considered severe in isolation.” Terry, 580 F.3d at 477;
see also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
1.

Mental RFC
Plaintiff alleges that the ALJ improperly assessed Plaintiff’s mental RFC. In support,

Plaintiff presents many of the same arguments addressed above in looking at the ALJ’s evaluation
of Plaintiff’s subjective symptoms. As the Court found above, the ALJ did not support with evidence
of record the determination that all of Plaintiff’s symptoms would respond favorably to treatment
or to what extent Plaintiff would experience relief from these symptoms. The errors in the subjective
symptom evaluation transfer to the mental RFC determination.
Further, the ALJ erred in not discussing or assigning any weight to the opinion by Plaintiff’s
treating psychiatrist, Dr. Hisham Sadek, that, despite medication compliance, Plaintiff continued to
exhibit symptoms of an emotional disorder that interfere with day to day functioning and is in need
of medication management.
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), 416.927(b). The ALJ evaluates every medical opinion received. 20 C.F.R. §§
404,1527(c), 416.927(c). This includes the opinions of nonexamining sources such as state agency

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medical and psychological consultants as well as outside medical experts consulted by the ALJ. 20
C.F.R. §§ 404.1527(e)(2), 416.927(e)(2).
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); see also Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). In weighing all opinion
evidence, the ALJ considers several factors and “must explain in the decision the weight given” to
each opinion. 20 C.F.R. § 416.927(e)(2)(ii), (iii). Scrogham v. Colvin, 765 F.3d 685, 697-98 (7th Cir.
2014); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). When a treating physician’s opinion is
not given controlling weight, the ALJ must nevertheless consider certain factors to determine how
much weight to give the opinion, including the length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment relationship, supportability (such as medical
signs and laboratory findings), and specialization. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
The Commissioner argues that Dr. Sadek did not provide a medical opinion to which the ALJ
should have assigned weight. “Medical opinions are statements from acceptable medical sources that
reflect judgments about the nature and severity of [a claimant’s] impairment(s), including [his/her]
symptoms, diagnosis and prognosis, what [he/she] can still do despite impairment(s), and [his/her]
physical or mental restrictions.” Id. §§ 404.1527(a)(1), 416.927(a)(1). The Commissioner argues that
this definition is a list of elements required for a statement to be a medical opinion. However, the
items enumerated in the “including” phrase indicate types of judgments about the nature and severity
of a claimant’s impairment that qualify under the definition and do not state a list of elements that
must all be met to qualify as a medical opinion. Shelton v. Colvin, No. 1:14-cv-1920-SEB-TAB,
2016 WL 1253007, *4 (S.D. Ind. Mar. 31, 2016) (citing Schmidt v. Colvin, 545 F. App’x 552, 55414

556 (7th Cir. 2013); Collins v. Astrue, 324 F. App’x 516, 520 (7th Cir 2009)). Dr. Sadek’s opinion,
though short, indicates his judgment about the nature and severity of Plaintiff’s major depressive
order, including Plaintiff’s need for outpatient treatment, her symptoms which affect day to day
functioning, and her need for medication management. (See AR 525). The statement is a medical
opinion under the definition. The ALJ did not address or assign any weight to this opinion. This was
in error and mandates remand.
Plaintiff also argues that the ALJ did not consider Plaintiff’s episodes of decompensation.
The ALJ found at step 3 that Plaintiff did not have episodes of decompensation that were of
extended duration. Plaintiff does not challenge this finding but notes that she had episodes of
decompensation of shorter duration that should have been considered in determining her RFC. The
ALJ recognized that Plaintiff required emergency care and hospitalization on several occasions, but
the ALJ determined that “some of these visits were due to noncompliance with her medication
regimen” or induced by substance abuse. Id. at 24. This discussion is connected to the ALJ’s error
in determining that Plaintiff’s mental impairment would not be disabling if it were not for her use
of controlled substances or her failure to comply with her medication. On remand, the ALJ is
instructed to consider Plaintiff’s shorter episodes of decompensation in determining Plaintiff’s RFC.
2.

Physical RFC
Plaintiff also contends that the ALJ erred in not finding that Plaintiff’s degenerative disc

disease is a severe impairment and in not considering the limitations imposed by this impairment
in finding Plaintiff’s RFC. Failure to identify a severe impairment at step 2 is harmless, provided
that the ALJ identifies other severe impairments and continues on in the five-step evaluation
process. See Curvin v. Colvin, 778 F.3d 645, 649-50 (7th Cir. 2015) (quoting Arnett v. Astrue, 676
F.3d 586, 591 (7th Cir. 2012)) (noting that “even if there were a mistake at Step 2, it does not
15

matter” so long as the ALJ proceeds to consider all impairments in determining the RFC). On
remand, the ALJ is directed to consider the effects of all impairments, both severe and non-severe,
in determining Plaintiff’s RFC.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Brief in
Support of Reversing the Decision of the Commissioner of Social Security [DE 19], REVERSES
the final decision of the Commissioner of Social Security, and REMANDS the case for further
proceedings.
So ORDERED this 14th day of February, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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