Lear v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner is REMANDED for further proceedings consistent with this order, and the request for an award of benefits is DENIED. Signed by Magistrate Judge Andrew P Rodovich on 3/9/2018. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Case No. 2:17-cv-64
OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Nathan Lear, on February 10, 2017. For the following
reasons, the decision of the Commissioner is REMANDED.
The plaintiff, Nathan Lear, filed an application for Disability Insurance Benefits on
January 5, 2011, alleging a disability onset date of April 5, 2005. (Tr. 22). The Disability
Determination Bureau denied Lear’s application and again on reconsideration. (Tr. 33). After a
hearing, Administrative Law Judge (ALJ) Edward P. Studzinski issued an unfavorable decision
on August 16, 2012. (Tr. 33). The Appeals Council denied review on November 13, 2013,
making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-5). Lear filed a
complaint in the United States District Court on September 2, 2014. (Tr. 477). On March 24,
2016, District Judge Philip Simon remanded the ALJ’s decision. (Tr. 513-25). Pursuant to the
District Court’s order, the Appeals Council vacated the previous decision and directed further
proceedings consistent with the District Court’s order. (Tr. 406). Lear filed a claim for
Supplemental Security Income on January 7, 2015. The Appeals Counsel rendered the SSI claim
duplicative and directed the ALJ to consolidate the claim files. The ALJ held a hearing on
October 26, 2016, and issued an unfavorable decision on November 25, 2016. (Tr. 369-94).
Impartial Vocational Expert (VE) Julie Bose appeared at the hearing.
The ALJ found that Lear met the insured status requirements of the Social Security Act
through June 30, 2007. (Tr. 371). At step one of the five step sequential analysis for
determining whether an individual is disabled, the ALJ found that Lear had not engaged in
substantial gainful activity since his alleged onset date of April 1, 2005. (Tr. 371). At step two,
the ALJ determined that Lear had the following severe impairments: organic mental disorder
secondary to traumatic brain injury and neuropathy, lower extremity. (Tr. 372).
At step three, the ALJ concluded that Lear did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments. (Tr.
372). Specifically, the ALJ found that Lear did not meet Listing 11.14, Peripheral Neuropathy,
because the medical evidence showed generally that Lear had no problems walking, maintaining
his balance, rising from a seated position, or using his upper extremities. (Tr. 373). Based on
the medical evidence, the ALJ found that the severity of the neuropathic disorder affecting his
lower extremities did not meet or medically equal the listing criteria. (Tr. 373). The ALJ also
concluded that Lear failed to meet Listing 11.18, Traumatic Brain Injury, as the evidence did not
show that he had marked limitation in his ability to understand, remember, or apply information;
interact with others; concentrate, persist, maintain pace, or adapt; or manage himself. (Tr. 37374).
The ALJ determined that Lear failed to meet Listing 12.02, Organic Mental Disorders,
because he did not satisfy the paragraph B criteria, which required a marked limitation in at least
two of the following:
restriction of activities of daily living; difficulties in maintaining social
functioning; difficulties in maintaining concentration, persistence, or pace;
or a marked limitation in one of the following:
restriction of activities of daily living; difficulties in maintaining social
functioning; difficulties in maintaining concentration, persistence, or pace;
and repeated episodes of decompensation, each of extended duration.
(Tr. 378). 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. 378).
The ALJ determined that Lear had moderate restrictions in daily living activities. (Tr.
378). The ALJ noted that with reminders and guidance from his case manager, Lear was capable
of completing activities of daily living. (Tr. 379). The most recent Function Report indicated
that he could clean, do laundry, and go shopping. (Tr. 379). However, the ALJ noted that daily
activities took Lear extra time because of his decreased motor skills. (Tr. 379). Further, the ALJ
noted that the case manager documented repeatedly that she reminded Lear to reduce the clutter
in his home. (Tr. 379).
Next, the ALJ found that Lear had moderate difficulties in social functioning. (Tr. 379).
Lear reported that he had lost a job because he argued with his supervisor and cursed at a
coworker. (Tr. 379). He sought treatment from a therapist because he was frustrated easily and
had difficulty controlling his anger. (Tr. 379). However, the ALJ found that there was no
evidence that he responded to his frustrations with verbal or physical aggression. (Tr. 379).
Lear’s employer stated that Lear had trouble accepting criticism and debated with him
frequently. (Tr. 379). However, the ALJ found that there was no evidence that this debate took
the form of verbal aggression. (Tr. 379). The ALJ noted that Lear had trouble meeting new
people, especially women. (Tr. 379). Lear reported that his last relationship ended in August
2015 and that he obsessed over the relationship ending until February 2016. (Tr. 379).
The ALJ concluded that Lear had marked difficulties in concentration, persistence, or
pace. (Tr. 379). Lear alleged that he struggled with concentration and that he had memory loss.
(Tr. 379). In February 2011, he underwent a psychological consultative evaluation. (Tr. 379).
The evaluating psychologist found that his memory function was below average. (Tr. 379). A
second evaluation by a treating psychiatrist in December 2015 found that Lear did well in terms
of attention, registration, concentration, and short term memory. (Tr. 379-80). The ALJ noted
that in the time between the two evaluations, Lear had stopped drinking alcohol and smoking
marijuana. (Tr. 380). Lear reported that he had difficulty processing information in social
situations. (Tr. 380). Further, the ALJ noted that Lear’s ability to sustain his concentration was
affected by stress. (Tr. 380). Also, the ALJ indicated that occasionally Lear’s leg pain could
cause his mind to wander while performing tasks. (Tr. 380).
The ALJ found that Lear had not experienced any episodes of decompensation which
were of extended duration. (Tr. 380). Lear alleged that he had a history of suicidal ideation and
that he had attempted suicide. (Tr. 380). However, he did not receive mental health treatment
until October 2012, and he stated to his treating psychiatrist that he had not felt suicidal since he
was 24. (Tr. 380). Because Lear did not have two marked limitations or one marked limitation
and repeated episodes of decompensation, the ALJ determined that he did not satisfy the
paragraph B criteria. (Tr. 380).
Additionally, the ALJ found that Lear did not satisfy the paragraph C criteria. (Tr. 381).
The ALJ determined that there was no evidence that Lear had experienced any episodes of
decompensation. (Tr. 381). Moreover, the ALJ determined that the evidence did not suggest
that Lear would decompensate if subjected to even a minimal increase on mental demands or
change in environment. (Tr. 381). The ALJ acknowledged that Lear received skill training both
in and out of his home from a case manager. (Tr. 381). However, he found that there was no
evidence to suggest that Lear required a highly supportive living arrangement or that he was
incapable of working on his own. (Tr. 381).
The ALJ then assessed Lear’s residual functional capacity (RFC) as follows:
the claimant has the residual functional capacity to lift and/or carry up to 20
pounds occasionally and 10 pounds frequently, and has no limitations in the
total amount of time he is able to sit throughout an 8-hour workday. He can
walk 1 mile at a time, and can stand or walk for a total of 6 hours out of an
8-hour workday. The claimant needs to alternate his position between
sitting, standing, and walking for no more than five minutes out of every
half hour. While doing so, he would not need to be off task. He is unable
to perform prolonged ambulation on wet, slippery, or uneven terrain. The
claimant can occasionally climb ramps and stairs, and he can occasionally
stoop, kneel, balance, crouch, and crawl, but he can never climb ladders,
ropes, or scaffolds. The claimant is limited to working in non-hazardous
environments, i.e., no driving at work, operating moving machinery,
working at unprotected heights, or around exposed flames or unguarded
large bodies of water. He should avoid concentrated exposure to unguarded
hazardous machinery. He is incapable of work requiring rapid or complex
verbal communication. The claimant is further limited to simple, routine
tasks, work involving no more than simple decision-making, no more than
occasional and minor changes in the work setting, and work requiring the
exercise of only simple judgment. He can work at an average production
pace, but not at an above average pace. He ought not to be required to
exercise motivation with respect to work tasks, but should have work
presented to him at his workstation at an average production pace. His
work should involve less variety of tasks than in his current dishwasher
janitorial position. He is further precluded from work involving direct
public service, in person or over the phone, although the claimant can
tolerate brief and superficial interaction with the public that is incidental to
his primary job duties. He is unable to work in crowded, hectic
environments. The claimant can tolerate brief and superficial interaction
with supervisors and co-workers, but is not to engage in tandem tasks.
(Tr. 381-82). The ALJ explained that in considering Lear’s symptoms he followed a two-step
process. (Tr. 382). First, he determined whether there was an underlying medically
determinable physical or mental impairment that was shown by a medically acceptable clinical
and laboratory diagnostic technique that reasonably could be expected to produce Lear’s pain or
other symptoms. (Tr. 382). Then, he evaluated the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limited Lear’s functioning. (Tr. 382).
The ALJ found that Lear’s statements concerning the intensity, persistence, and limiting
effects of his symptoms were not consistent with medical evidence and other evidence in the
record. (Tr. 383). The ALJ found that while Lear experienced symptoms and limitations due to
his physical and mental impairments, his testimony and allegations regarding those limitations
were disproportionate to the objective findings within the record. (Tr. 383). The ALJ found that
the record did not establish that Lear’s limitations were severe enough to preclude him from
working all together. (Tr. 383).
Lear has alleged that he was disabled beginning April 1, 2005. (Tr. 383). He testified
that he was hit by a car, and thereafter underwent physical, occupational, and speech therapy.
(Tr. 382). He has indicated that he never has completely recovered. (Tr. 382). However, the
ALJ found that there was no evidence showing any medically determinable mental or physical
impairments prior to 2013. (Tr. 383). The ALJ found that while Lear did have leg pain, his pain
management was under control with the use of medication. (Tr. 384). Further, while he had
limited use of his lower extremities immediately following the accident, he improved and the
record showed normal muscle strength, tone, reflexes, and sensation responses in all of his
extremities. (Tr. 384). Lear’s treating neurologist described his gait as ataxic, but the ALJ found
that the record did not show that he had any issues walking. (Tr. 384). In fact, the ALJ noted
that Lear enjoyed nature walks and that he worked side jobs in landscaping and cutting lawns in
May 2016. (Tr. 384).
Next, Lear testified that the tremor in his left hand made daily activities difficult. (Tr.
384). However, the physician who conducted the internal medicine consultative examination did
not document a tremor and noted that Lear had normal grip strength with no difficulty
performing fine or gross manipulations. (Tr. 384).
Regarding Lear’s memory issues, the ALJ found that while he needed reminders to stay
on task there was no evidence that he could not complete the tasks that were given to him. (Tr.
384). Lear testified that a case manager checked on him at least once every two weeks to remind
him to pay bills and to complete chores. (Tr. 384). However, the ALJ noted that there was no
evidence that the case manager monitored Lear’s ability to complete the chores or managed his
finances closely. (Tr. 384). Further, the ALJ noted Lear’s ability to drive and found that driving
required an individual to multitask. (Tr. 385).
In the prior decision, the ALJ assigned no weight to the opinion of physician Mutena
Korman, M.D., who conducted Lear’s internal medicine consultative examination. (Tr. 387).
Dr. Korman found that Lear’s cognitive functioning prevented him from working in a “normal
working environment.” (Tr. 387). The ALJ rejected this opinion because Dr. Korman was a
primary care physician and there was no evidence that he had performed cognitive testing on
Lear. (Tr. 387). However, Judge Simon rejected this reasoning and found that Dr. Korman
would have received training in cognitive functioning and was fully capable of diagnosing and
treating mental dysfunction. (Tr. 387).
The ALJ has concluded that Dr. Korman did not provide a reasonable explanation based
on the medical evidence to support his opinion. (Tr. 387). The ALJ noted that Judge Simon
determined that the GAF score of 45 provided to Lear by psychologist John Heroldt, Ed. D., was
sufficient to support Dr. Korman’s opinion. (Tr. 387). However, the ALJ has disagreed, finding
that a single GAF score provided by a psychologist after one examination was not enough to
support a family practioner’s opinion of cognitive function. (Tr. 388). The ALJ stated that GAF
scores were subjective and that a trend of scores was needed to get an accurate picture of one’s
abilities. (Tr. 388).
Judge Simon determined that the ALJ did not establish a logical bridge between the
psychological evaluation’s findings and the ALJ’s determination that those findings were
“relatively normal.” (Tr. 388). The ALJ agreed. (Tr. 388). Therefore, in readdressing the issue
the ALJ noted that Dr. Heroldt did not specifically state that Lear was unable to work because of
his below average cognitive capacity. (Tr. 388). Moreover, the ALJ has claimed that the single
GAF score given by Dr. Heroldt, without access to medical evidence, did not show Lear’s ability
to function beyond the moment he received the score. (Tr. 388-89).
Judge Simon concluded that Lear’s testimony that he received “significant
accommodations” was ignored by the ALJ. (Tr. 389). However, the ALJ determined that extra
time on a test or to finish an assignment was not a significant accommodation, but rather a
reasonable accommodation. (Tr. 389). The ALJ noted that Lear did not receive special
education services nor did he have an Individualized Education Program (IEP) plan, and
therefore he did not receive significant accommodations. (Tr. 389).
The ALJ rejected Dr. Korman’s opinion based on Lear’s work history. (Tr. 389). Judge
Simon concluded that the ALJ’s finding that Lear could not perform his last job supported Dr.
Korman’s opinion that he was unable to perform in a normal working environment. (Tr. 389).
However, the ALJ has indicated that Lear could not perform his last job because the exertional
level required exceeded the exertional level provided in the RFC assessment. (Tr. 389). The
ALJ further noted that Dr. Korman was basing his opinion on Lear’s lowered cognitive function.
Moreover, the ALJ has indicated that Dr. Korman and Dr. Heroldt were unaware of
Lear’s substance abuse. (Tr. 389). Therefore, the ALJ has indicated that Lear’s abuse of alcohol
and marijuana reasonably could have effected Lear’s cognitive functioning at the time of his
examination by Dr. Korman. (Tr. 389). The ALJ has claimed that the findings of the mental
status examination in December 2015 indicated that Lear showed improvement in his cognitive
function after he stopped using alcohol and marijuana. (Tr. 389).
At step four, the ALJ found that Lear had no past relevant work. (Tr. 392). Considering
Lear’s age, education, work experience, and RFC, the ALJ concluded that there were jobs in the
national economy that he could perform, including cleaner and polisher (23,900 jobs nationally),
laundry folder (95,300 jobs nationally), and labeler (21,900 jobs nationally). (Tr. 393).
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.”); Pepper v. Colvin,
712 F.3d 351, 361–62 (7th Cir. 2013); Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005);
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial evidence has
been defined 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; Pepper, 712 F.3d at 361–62; Jens v. Barnhart, 347
F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002). An ALJ’s
decision must be affirmed if the findings are supported by substantial evidence and if there have
been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Rice v. Barnhart,
384 F.3d 363, 368–69 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002).
However, “the decision cannot stand if it lacks evidentiary support or an adequate discussion of
the issues.” Lopez, 336 F.3d at 539.
Disability and 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. §§ 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§
404.1520(b), 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. §§ 404.1520(c), 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. §§ 404.1520(e), 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. §§ 404.1520(f),
Lear has argued that the ALJ failed to account for his marked difficulties in
concentration, persistence, or pace in his mental RFC assessment. SSR 96-8p explains how an
ALJ should assess a claimant’s RFC at steps four and five of the sequential evaluation. In a
section entitled, “Narrative Discussion Requirements,” SSR 96-8p specifically spells out what is
needed in the ALJ’s RFC analysis. This section of the Ruling provides:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,
observations). In assessing RFC, the adjudicator must discuss the
individual’s ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule), and describe the maximum amount
of each work-related activity the individual can perform based on the
evidence available in the case record. The adjudicator must also explain
how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.
SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a
difference between what the ALJ must contemplate and what he must articulate in his written
decision. “The ALJ is not required to address every piece of evidence or testimony presented,
but he must provide a ‘logical bridge’ between the evidence and his conclusions.” Getch v.
Astrue, 539 F.3d 473, 480 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000)); see Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Although the ALJ does not
need to discuss every piece of evidence, he cannot ignore evidence that undermines his ultimate
conclusions. Moore, 743 F.3d at 1123 (“The ALJ must confront the evidence that does not
support his conclusion and explain why that evidence was rejected.”) (citing Terry v. Astrue, 580
F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009); Arnett v.
Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). “A decision that lacks adequate discussion of the
issues will be remanded.” Moore, 743 F.3d at 1121.
Lear has argued that the ALJ erred in finding that he could perform simple, routine tasks
at an average pace despite his marked difficulties in concentration, persistence, or pace. Lear has
indicated that the ALJ failed to account for his slowed motor skills and his inability to complete
serial sevens examination. Further, Lear asserts that the record contained evidence that he was
told by others previously that he operated at too slow of a pace. Moreover, he had difficulty
completing tasks before becoming sidetracked or overwhelmed. The ALJ must confront the
evidence that does not support his conclusion and explain why that evidence was rejected. Terry
v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)
The Commissioner contends that the ALJ properly supported and addressed Lear’s
deficiencies in concentration, persistence, or pace. The RFC indicated that Lear is “limited to
simple, routine tasks, work involving no more than simple decision-making, no more than
occasional and minor changes in the work setting, and work requiring the exercise of only simple
judgment. He can work at an average production pace, but not at an above average pace.” (Tr.
382). The Commissioner has argued that limiting Lear to “average production pace” sufficiently
accounts for Lear’s marked limitation in concentration, persistence, or pace.
The Seventh Circuit has rejected the notion that confining a claimant to simple, routine
tasks adequately captures the limitations of one who has deficiencies in concentration,
persistence, or pace. Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014). Whether simple,
routine tasks can be learned is “unrelated to the question of whether an individual with mental
impairments – e.g., with difficulties maintaining concentration, persistence, or pace – can
perform such work.” Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015). “The ability to stick
with a given task over a sustained period is not the same as the ability to learn how to do tasks of
a given complexity.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010). In this
matter, the ALJ determined that Lear had marked restrictions, which were more severe than
moderate restrictions. 20 C.F.R. § 404.1520a(c)(4). The RFC indicated that Lear could work at
an “average production pace,” however the ALJ failed to define “average production pace.” The
Seventh Circuit has held that limiting a claimant to “no fast paced production requirements,”
does not adequately define the limitations for someone with a moderate limitation in
concentration, persistence, or pace. Varga, 794 F.3d at 815. Moreover, the Seventh Circuit held
that such a term must be defined, or else it would be “impossible … to assess whether a person
with [the claimant’s] limitations could maintain the pace proposed.” Varga, 794 F.3d at 815.
In failing to provide a definition for “average production pace,” the ALJ limited Lear to
“simple, routine tasks” for an undetermined sustained period, which the Seventh Circuit has held
does not adequately account for a moderate limitation in maintaining concentration, persistence,
or pace. See Bainter v. Colvin, 2015 WL 5177754, at *11 (N.D. Ill. 2015) (the ALJ failed to
define “average production standards”); Buitron v. Colvin, No. 2:14-CV-445-PRC, 2016 WL
1056053, at *14 (N.D. Ind. Mar. 17, 2016); O’Connor-Spinner, 627 F.3d at 620. The
Commissioner's argument that the limitations to simple, routine work and to no more than
average production requirements adequately capture moderate limitations in concentration,
persistence and pace are contrary to binding precedent. Ingle v. Colvin, 2016 WL 270006, at *9
(S.D. Ill. 2016).
Lear also has argued that the ALJ created an evidentiary deficit for which he had no
medical opinion to base his RFC assessment. Lear has argued that once the ALJ determined that
none of the available medical evidence accurately accounted for his functional restrictions, he
was not permitted to offer his lay interpretation of the objective medical evidence. Since the
court has found that the ALJ did not properly account for Lear’s marked limitations in
concentration, persistence, or pace, the ALJ should consider and weigh all of the relevant
evidence in formulating Lear’s RFC.
Next, Lear has argued that the ALJ erred in evaluating the opinion of examining
physician, Dr. Mutenta Korman, M.D. Lear contends that the ALJ did not follow the District
Court’s remand order. Generally, an ALJ affords more weight to the opinion of an examining
source than the opinion of a non-examining source, but the ultimate weight given depends on the
opinion’s consistency with the objective medical evidence, the quality of the explanation, and the
source’s specialty. Givens v. Colvin, 551 F. App’x 855, 860 (7th Cir. 2013); 20 C.F.R. §
404.1527(c). “An 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 v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). An ALJ may
give less weight to an examining source’s opinion when it appears to rely heavily on the
claimant’s subjective complaints. Givens, 551 F. App’x at 861; see 20 C.F.R. § 404.1527(c)(3)
(“The more a medical source presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight we will give the opinion. The better
explanation a source provides for an opinion the more weight we will give that opinion.”); Filus
v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012).
Dr. Korman determined that Lear’s cognitive functioning prevented him from working in
a “normal working environment.” (Tr. 387). The ALJ has indicated that Dr. Korman’s opinion
was not supported by a reasonable explanation that was based on medical evidence. (Tr. 387).
The ALJ asserts that after reviewing the exhibits he determined that they did not support Dr.
Korman’s opinion. (Tr. 387). However, Judge Simon in his remand order indicated that Dr.
Korman’s opinion was in fact corroborated by Dr. Heroldt’s low GAF score. Lear v. Berryhill,
No. 2:14-CV-00307, 2016 WL 1165682 at *4.
The ALJ pointed out that GAF scores were removed from the fifth edition of Diagnostic
and Statistical Manual of Mental Health Disorder, as the American Psychiatric Association
concluded that a single GAF score contains information that is likely to vary from time to time.
(Tr. 387-388). Therefore, the ALJ has indicated that a single GAF score may not accurately
depict one’s functioning level. (Tr. 388-389). Moreover, the ALJ represented that treating
psychiatrist, Paul Dobransky, M.D., gave Lear GAF scores of 60 three separate times over six
months of treatment. (Tr. 391). The ALJ contended that the consistency of GAF scores over the
course of six months deserves more weight than a single score given by an examining physician.
In the ALJ’s decision, he indicated that after reviewing the exhibits he determined that
they did not support Dr. Korman’s opinion. (Tr. 387). An ALJ cannot play the role of doctor
and interpret medical evidence when he is not qualified to do so. Rohan v. Chater, 98 F.3d 966,
970 (7th Cir. 1996); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990). Moreover, when an
ALJ has rejected or even discounted an examining SSA doctor's opinion, he must provide a good
explanation for doing so. Beardsley, 758 F.3d at 839. The ALJ has not pointed to any medical
evidence to support his contention, and therefore has failed to establish the logical bridge
necessary for meaningful review of the decision.
Lear has argued that the ALJ failed to comply with Judge Simon’s remand order. In the
prior decision, the ALJ did not account for Lear’s testimony that he needed significant
accommodations to graduate from high school when considering Dr. Korman’s medical opinion.
Judge Simon indicated that to build a logical bridge the ALJ should have at least mentioned
Lear’s claim that he received extra time on tests or assignments. Lear v. Berryhill, No. 2:14CV-00307, 2016 WL 1165682 at *4. The ALJ concluded that extra time on tests or to finish
assignments was not significant accommodation, rather the ALJ determined it was a reasonable
accommodation. (Tr. 389). Additionally, the ALJ noted that Lear graduated from high school
without special education services or an Individualized Education Program (IEP). (Tr. 389).
It is unclear from the ALJ’s decision if the ALJ considered Lear’s accommodation,
whether reasonable or significant, in weighing Dr. Korman’s opinion. The ALJ cannot cherry
pick the evidence that is favorable to a finding of nondisability. Golembiewski v. Barnhart, 322
F.3d 912, 918 (7th Cir. 2003). The ALJ should have at least considered Lear’s accommodation,
regardless if it was reasonable or significant, in weighing Dr. Korman’s opinion that Lear could
not perform in a normal work environment.
Next, Lear has argued that the ALJ erred in evaluating his subjective allegations that
addressed the intensity, persistence, and limiting effects of his pain and symptoms. 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). The SSA has issued new guidance on how the agency assesses the effects of a claimant's
alleged symptoms. On March 28, 2016, Social Security Ruling 16-3p became effective and
issued new guidance regarding the evaluation of a disability claimant’s statements about the
intensity, persistence, and limiting effects of symptoms. See SSR 16-3p, 2016 WL 1237954
(Mar. 28, 2016). Under SSR 16-3p, an ALJ must assess the claimant’s subjective symptoms
rather than assessing his “credibility.” The Social Security Administration clarified that Social
Security Ruling 16-3p only applies when the ALJ’s “make determinations and decisions on or
after March 28, 2016” and that Social Security Ruling 96-7p governs cases decided before that
date. See Notices, Social Security Ruling 16-3p, 2017 WL 4790249 (Oct. 25, 2017). The ALJ
issued his decision in this matter on November 25, 2016. Therefore, the Commissioner’s
contention that SSR 96-7p governs this case is misplaced.
Under SSR 16-3, the ALJ must first determine whether the claimant has a medically
determinable impairment that could reasonably be expected to produce his symptoms. SSR 163p, 2016 WL 1119029, at *2. Then, the ALJ must evaluate the “intensity, persistence, and
functionally limiting effects of the individual's symptoms to determine the extent to which the
symptoms affect the individual's ability to do basic work activities.” SSR 16-3p, 2016 WL
1119029, at *2. An individual's statements about the intensity and persistence of the pain may
not be disregarded because they are not substantiated by objective medical evidence. SSR 16-
3p, 2016 WL 1119029 at *5. In determining the ability of the claimant to perform work-related
activities, the ALJ must consider the entire case record, and the decision must contain specific
reasons for the finding. SSR 16-3p, 2016 WL 1119029, at *4, 9.
Lear has argued that the ALJ over-relied on his activities of daily living in finding that his
allegations that concerned the intensity, persistence, and limiting effects of his pain and
symptoms were not entirely consistent with the medical evidence and other evidence in the
record. To support a finding that the claimant can sustain employment, the claimant’s daily
activities must reflect that the person is capable of engaging in work eight hours a day for five
consecutive days a week. Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004); see
Hughes v. Astrue, 705 F.3d 276 (7th Cir. 2013); Roddy v. Astrue, 705 F.3d 631 (7th Cir. 2013).
To show this, the record should reflect that the claimant engages in such activities for a
substantial part of the day. Carradine, 360 F.3d at 756. “The critical differences between
activities of daily living and activities in a full-time job are that a person has more flexibility in
scheduling the former than the latter, can get help from other persons . . . and is not held to a
minimum standard of performance, as he would be by an employer.” Hughes, 705 F.3d at 278
(quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)). The Seventh Circuit Court
cautions, however that the claimant's “ability to struggle through the activities of daily living
does not mean that he can manage the requirements of a modern workplace.” Punzio v. Astrue,
630 F.3d 704, 712 (7th Cir. 2011)).
The ALJ indicated that Lear testified that a case manager checked on him at least once
every two weeks to remind him to pay bills and to complete chores. (Tr. 384). However, the
ALJ noted that there was no evidence that the case manager monitored Lear’s ability to complete
the chores or his finances closely, rather she just reminded him to complete them. (Tr. 384).
Lear has argued that the ALJ minimized the role that the case manager played in his ability to
complete activities of daily living. Therefore, Lear contends that the need for constant reminders
or special supervision to keep him on track would preclude him from competitive employment.
Lear also has claimed that the ALJ placed emphasis on his ability to drive and that he was
employed part-time. The ALJ offered no explanation as to how Lear’s ability to drive meant that
he could sustain full time employment. See Skubisz v. Colvin, 2014 WL 4783851, at *9 (N.D.
Ill. 2014) (“The ALJ offers no further explanation as to how Skubisz's ability to operate a motor
vehicle creates a logical bridge to the conclusion that he can sustain full time employment.”).
The ALJ noted that Lear had worked part-time washing dishes. The ALJ indicated that while
Lear may have had difficulty remembering a task, there was no evidence that he could not
complete the tasks assigned to him. (Tr. 384). Lear contends that the ALJ has relied on
speculation and conjecture that he was able to perform every task assigned to him.
Lear is correct, an ALJ may not substitute speculation for evidence. White ex rel. Smith
v. Apfel, 167 F.3d 369, 375 (7th Cir. 1999) (“Speculation is, of course, no substitute for
evidence, and a decision based on speculation is not supported by substantial evidence.”).
Further, the court finds that the ability to work part-time or to sustain employment with an
"indulgent employer" does not disprove that someone is not disabled. Gentle v. Barnhart, 430
F.3d 865, 867 (7th Cir. 2005). The ALJ is not permitted to equate Lear’s part-time employment
with his ability to maintain full-employment.
The court is not concluding that the ALJ over-relied on Lear’s daily living, rather that the
ALJ’s evaluation of Lear’s subjective symptoms could use elaboration. Also, because this
matter is being remanded on a different issue, the ALJ should reevaluate Lear’s subjective
symptoms. On remand, the ALJ will have an opportunity to assess Lear’s subjective symptoms
under the standard set out in SSR 16-3p.
Lear has requested that the court remand for an award of benefits. An award of benefits
is appropriate “only if all factual issues involved in the entitlement determination have been
resolved and the resulting record supports only one conclusion—that the applicant qualifies for
disability benefits.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). The Seventh Circuit
has held that when an ALJ’s decision is not supported by substantial evidence, the appropriate
remedy is to remand for further proceedings unless the evidence before the court compels an
award of benefits. Briscoe v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). The record here
does not warrant an award of benefits. On remand, the court suggests that Lear’s case be
assigned to a different ALJ. See Travis v. Sullivan, 985 F.2d 919, 924 (7th Cir. 1993).
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this order, and the request for an award of benefits is
ENTERED this 9th day of March, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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