Pratt v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The decision of the Commissioner of Social Security is REMANDED for further proceedings consistent with this Order. Signed by Magistrate Judge Andrew P Rodovich on 10/24/18. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CONNIE R. PRATT,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.
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Case No. 2:17-cv-311
OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Connie R. Pratt, on July 21, 2017. For the following
reasons, the decision of the Commissioner is REMANDED.
Background
The plaintiff, Connie R. Pratt, filed an application for Disability Insurance Benefits on
March 17, 2014, alleging a disability onset date of December 10, 2013. (Tr. 21). The Disability
Determination Bureau denied Pratt’s application on May 1, 2014, and again upon reconsideration
on September 5, 2014. (Tr. 21). Pratt subsequently filed a timely request for a hearing on
October 21, 2014. (Tr. 21). A hearing was held on November 21, 2016, before Administrative
Law Judge (ALJ) William E. Sampson, and the ALJ issued an unfavorable decision on
December 14, 2016. (Tr. 21-29). Vocational Expert (VE) Leonard M. Fisher testified at the
hearing. (Tr. 21). The Appeals Council denied review, making the ALJ’s decision the final
decision of the Commissioner. (Tr. 1-7).
Pratt met the insured status requirements of the Social Security Act through December
31, 2017. (Tr. 23). On December 14, 2016, the ALJ issued an unfavorable decision and made
findings as to each of the steps in the five-step sequential analysis. (Tr. 21-29). At step one of
the five-step sequential analysis for determining whether an individual is disabled, the ALJ found
that Pratt had not engaged in substantial gainful activity since December 10, 2013, the alleged
onset date. (Tr. 23).
At step two, the ALJ determined that Pratt had the following severe impairments:
degenerative disc disease of the lumbar spine status post-surgery, migraines, and obesity. (Tr.
23). The ALJ considered Pratt’s mental impairment of major depressive disorder, but found that
it did not cause more than minimal limitation in Pratt’s ability to perform basic work activities,
and therefore was considered non-severe. (Tr. 24). The ALJ considered the paragraph B criteria
for mental impairments, which required at least two of the following:
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. 24).
The ALJ determined that Pratt had mild limitations in activities of daily living, social
functioning, and concentration, persistence, or pace. (Tr. 24). Also, the ALJ found that Pratt did
not experience any episodes of decompensation which would have been of extended duration.
(Tr. 24). The ALJ considered that Pratt was never psychiatrically hospitalized nor did she
experience significant deficits in adaptive functioning. (Tr. 25). Because Pratt’s limitations
caused no more than “mild” limitation and “no” episodes of decompensation which had been of
extended duration, the ALJ found that her medically determinable mental impairments were nonsevere. (Tr. 25).
At step three, the ALJ concluded that Pratt did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
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C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 25). The ALJ considered Pratt’s impairments
against the criteria set forth in Listings 1.02, 1.04, 11.00 et. seq., 12.04, and Social Security
Ruling 02-1p. (Tr. 25). The ALJ indicated that no acceptable medical source had mentioned
findings equivalent in severity to the criteria of any listed impairment, either individually or in
combination. (Tr. 25).
After consideration of the entire record, the ALJ then assessed Pratt’s residual functional
capacity (RFC) as follows:
[T]he claimant has the residual functional capacity (RFC) to perform
sedentary work as defined in 20 CFR 404.1567(a) except the claimant could
never climb ladders, ropes or scaffolds; occasionally climb ramps and stairs,
balance, stoop, kneel, crouch and crawl; avoid concentrated exposure to
extreme cold and hazards, such as dangerous moving machinery and
unprotected heights.
(Tr. 25). The ALJ explained that in considering Pratt’s symptoms he followed a two-step
process. (Tr. 25). 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 Pratt’s pain or other
symptoms. (Tr. 25). Then, he evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Pratt’s functioning. (Tr. 26).
Pratt testified that she had back surgery in April of 2015. (Tr. 26). She indicated that she
drove only once a week because she was embarrassed about going out due to her weight. (Tr.
26). Pratt tried to increase her physical activity, but she reported that it resulted in back spasms.
(Tr. 26). Pratt reported that her back spasms occurred on the left side and that she still was
experiencing pain after her surgery. (Tr. 26). Pratt started using a cane the week of the hearing.
(Tr. 26). However, she stated that at home she used the walls, rather than a cane. (Tr. 26). She
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alleged that she only could stand 10-15 minutes; sit for 30 minutes before needing to walk
around; and lift/carry between 5 and 10 pounds. (Tr. 26).
Pratt indicated that her normal day consisted of cooking, washing dishes, and doing
laundry, but that she was unable to do laundry downstairs. (Tr. 26). Pratt reported that she could
sit half a day and that she could stay on her feet for the other half. (Tr. 26). She reported that
she needed to lie down because of back spasms about 2-3 times a week for 1-1.5 hours. (Tr. 26).
However, the ALJ noted that Pratt indicated that she was unable to do her past job because she
could not sit the whole time. (Tr. 26). Also, she reported that she experienced migraine
headaches and that the headaches affected her concentration. (Tr. 26). However, the ALJ noted
that she adequately followed along at the hearing. (Tr. 26). The ALJ determined that Pratt’s
medically determinable impairments reasonably could have been expected to cause the alleged
symptoms. (Tr. 26). However, her statements concerning the intensity, persistence, and limiting
effects of her symptoms were not entirely consistent with the medical evidence and other
evidence. (Tr. 26).
The ALJ noted that Pratt had a history of back pain complaints. (Tr. 26). In 2014, Pratt
underwent an EMG/NCS that showed acute lumbosacral radiculopathy. (Tr. 26). Also, she
underwent a lumbar spine MRI that revealed a disc bulge at L4-5 and L5-S1 resulting in
neuroforaminal stenosis at L4-5 and compressing S1 nerve root. (Tr. 26). However, on physical
examination she had a normal gait and strength with some tenderness in the lower back and
decreased sensation in the lateral aspect of the left lower leg and foot in a patchy distribution.
(Tr. 27). Also in 2014, the ALJ noted that Pratt participated in physical therapy and displayed
some improvement in pain, lumbar range of motion, and increased lower extremity strength. (Tr.
27).
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A 2015 lumbar spine MRI demonstrated facet arthritis at L4-5, severe thecal sac stenosis
at L3-4, and a disc protrusion with nerve root impingement on the right. (Tr. 27). Pratt
underwent surgery in April/May of 2015. (Tr. 27). The ALJ found that in late 2015 Pratt had
intact sensation, normal motor activity, normal deep tendon reflexes, and normal gait and station.
(Tr. 27). The ALJ considered that prior to Pratt’s March of 2016 visit with a pain management
doctor she had not been seen for 17 months, which the ALJ found suggested improvement post
back surgery. (Tr. 27). Also, the ALJ noted that Pratt reported doing all of her normal activities
of daily living and that she did not require daily pain medications. (Tr. 27).
The ALJ indicated that he considered all of Pratt’s impairments, symptoms, clinical signs
and diagnostic tests, including notes of improvement and some exacerbations when limiting her
to less than full range of sedentary work. (Tr. 27). The ALJ noted that a sit/stand option was
unnecessary because there was evidence that Pratt’s straight leg raising was negative and that her
condition improved with some treatment modalities, which included physical therapy, surgery,
and more recent injection therapy. (Tr. 27). Also, the ALJ rejected Pratt’s need to lie down
during the day because no regular documentation in the medical progress notes suggested that
she was doing that or that she needed to do so. (Tr. 27).
Pratt complained of migraine headaches. (Tr. 28). However, the ALJ noted that Pratt
denied headaches in 2016 and that she never required hospitalization due to uncontrollable
headaches/migraines. (Tr. 28). However, the ALJ accounted for Pratt’s headaches/migraines by
including some environmental limitations in the residual functional capacity. (Tr. 28).
As for the opinion evidence, the ALJ assigned some weight to the State agency medical
consultant who found that Pratt was limited to light exertional level with occasional postural
activities and avoiding concentrated exposure to extreme cold and hazards. (Tr. 28). Next, the
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ALJ assigned little weight to Pratt’s pain management doctor who opined that Pratt was unable
to perform her job duties due to pain resulting in the need for frequent position changes. (Tr.
28). Pratt’s spinal doctor determined that Pratt could sit for 4 hours in a workday and stand/walk
for 2 hours, avoid continuous sitting, lift/carry a maximum of 10-20 pounds. (Tr. 28). The ALJ
assigned little weight to the spinal doctor’s opinion because the findings were not consistent with
the periods of improvement noted in the record. (Tr. 28).
At step four, the ALJ found that Pratt was able to perform her past relevant work as an
account payable bookkeeper. (Tr. 29). The ALJ found that the work did not require the
performance of work-related activities precluded by Pratt’s RFC. (Tr. 29). The ALJ found that
Pratt had not been under a disability, as defined in the Social Security Act, from December 10,
2013 through the date of this decision, December 14, 2016. (Tr. 29).
Discussion
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
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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).
Disability 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 she 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. The ALJ first considers whether the claimant is presently employed and
“doing . . . substantial gainful activity.” 20 C.F.R. § 404.1520(b). If she is, the claimant is not
disabled and the evaluation process is over. If she 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); 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 her past work. If, at this fourth step, the claimant can perform her past
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relevant work, she will be found not disabled. 20 C.F.R. § 404.1520(e). However, if the
claimant shows that her impairment is so severe that she is unable to engage in her past relevant
work, then the burden of proof shifts to the Commissioner to establish that the claimant, in light
of her 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).
Pratt has requested that the court reverse the ALJ’s decision and award benefits, or in the
alternative remand the matter for additional proceedings. In her appeal, Pratt has argued that the
ALJ erred in: (1) failing to properly weigh the medical opinion evidence in determining her
residual functional capacity; (2) finding that she did not have a severe mental impairment; (3)
failing to properly evaluate her testimony; and (4) failing to consider her obesity.
Pratt has argued that the ALJ erred in assigning little weight to the opinions of her
treating neurologist, Dr. Mohammad S. Shukairy. 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)).
“[O]nce well-supported contradicting evidence is introduced, the treating physician’s
evidence is no longer entitled to controlling weight and becomes just one more piece of evidence
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for the ALJ to consider.” Bates, 736 F.3d at 1100. Controlling weight need not be given when a
physician’s opinions are inconsistent with his treatment notes or are contradicted by substantial
evidence in the record, including the claimant’s own testimony. Schmidt, 496 F.3d at 842 (“An
ALJ thus may discount a treating physician’s medical opinion if the opinion is inconsistent with
the opinion of a consulting physician or when the treating physician’s opinion is internally
inconsistent, as long as he minimally articulates his reasons for crediting or rejecting evidence of
disability.”); see, e.g., Latkowski v. Barnhart, 93 F. App’x 963, 970-71 (7th Cir. 2004); Jacoby
v. Barnhart, 93 F. App’x 939, 942 (7th Cir. 2004). If the ALJ was unable to discern the basis for
the treating physician’s determination, the ALJ must solicit additional information. Moore v.
Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014) (citing Similia v. Astrue, 573 F.3d 503, 514 (7th
Cir. 2009)). Ultimately, the weight accorded a treating physician’s opinion must balance all the
circumstances, with recognition that, while a treating physician “has spent more time with the
claimant,” the treating physician may also “bend over backwards to assist a patient in obtaining
benefits . . . [and] is often not a specialist in the patient’s ailments, as the other physicians who
give evidence in a disability case usually are.” Hofslien v. Barnhart, 439 F.3d 375, 377 (7th
Cir. 2006) (internal citations omitted); see Punzio, 630 F.3d at 713.
If the ALJ decides that the treating physician’s opinion should not be given controlling
weight, the ALJ is “required by regulation to consider certain factors in order to decide how
much weight to give the opinion.” Scrogham v. Colvin, 765 F.3d 685, 697 (7th Cir. 2014).
These factors are set forth in 20 C.F.R. § 404.1527(c)(1)-(5) and include: 1) the length of the
treatment relationship and the frequency of examination; 2) the nature and extent of the treatment
relationship; 3) supportability; 4) consistency with the record as a whole; and 5) whether the
treating physician was a specialist in the relevant area.
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The ALJ’s decision indicated that he assigned little weight to the opinion of treating
neurologist, Dr. Shukairy. (Tr. 28). Dr. Shukairy completed a Spinal Impairment Questionnaire
on April 19, 2016. (Tr. 581). Dr. Shukairy found that Pratt could sit for 4 hours total and
stand/walk for 2 hours in an 8-hour workday. (Tr. 583). Also, she must avoid continuous sitting
during a workday, but she does not need to elevate her legs. (Tr. 584). Pratt could lift/carry a
maximum of 10-20 pounds, and no cane was medically necessary. (Tr. 584). Finally, Dr.
Shukairy determined that Pratt’s concentration/attention would be interrupted occasionally and
that unscheduled breaks would be needed. (Tr. 585). The ALJ indicated that Dr. Shukairy’s
opinions were issued more recently, yet they were not consistent with the periods of
improvement noted in the record. (Tr. 28). However, Pratt contends that Dr. Shukairy’s April
2016 findings indicated that the symptoms and related limitations applied as far back as June 29,
2013. (Tr. 586).
An ALJ must first determine whether the treating source’s opinion is entitled to
controlling weight in consideration of supportability and consistency with the record. If the ALJ
finds the opinion is lacking in either of these aspects, the ALJ must proceed to step two, where
he applies the checklist of factors articulated in 20 C.F.R. § 404.1527. The ALJ must use these
factors to determine exactly what weight to assign to the opinion. This process consists of two
“separate and distinct steps.” Williams v. Berryhill, 2018 WL 264201, at *3 (N.D. Ill. Jan. 2,
2018). The court acknowledges that an ALJ need not explicitly mention every factor, so long as
his decision shows that he “was aware of and considered many of the factors.” Schreiber v.
Colvin, 519 F. App’x 951, 959 (7th Cir. 2013).
As indicated by the Commissioner, the ALJ discounted Dr. Shukairy’s opinion, in part,
because it was not consistent with the longitudinal record, which showed that Pratt had improved
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with treatment. The rationale for according controlling weight is that a treating source may
provide a longitudinal and detailed picture of a claimant’s impairments and may bring a unique
perspective to the medical evidence that may not be shown by objective medical findings alone
or reports from individual examinations. 20 C.F.R. § 404.1527(c)(2). Pratt acknowledges that
she had some periods of improvement with physical therapy, spinal surgery, and a spinal
injection. However, “there can be a great distance between a patient who responds to treatment
and one who is able to enter the workforce . . .” Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir.
2011). Moreover, the ALJ has failed to consider the length of the treatment relationship, the
nature and extent of that treatment relationship, and that Dr. Shukairy was a neurosurgeon, all
factors that weighed heavily in Dr. Shukairy’s favor pursuant to 20 C.F.R. § 404.1527.
Also, the ALJ assigned some weight to the State agency medical consultants’ opinion that
Pratt was limited to light exertional level with occasional postural activities and avoiding
concentrated exposure to extreme cold and hazards. (Tr. 28). However, the ALJ noted that due
to Pratt’s back pain with occasional positive physical examination signs, surgery in 2015, and
some left lower extremity pain/fluctuating sensation issues, he found that a sedentary RFC was
more appropriate. (Tr. 28). The ALJ has assigned more weight to the State agency medical
consultant’s opinion than Pratt’s treating neurologist, Dr. Shukairy.
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,
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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).
The State agency consultants reviewed the medical evidence on April 28, 2014 and
August 29, 2014, approximately a year prior to Pratt’s back surgery and over two years before
the ALJ’s unfavorable decision. (Tr. 91-101). Thus, the opinions of the non-examining
consultants were based on an undeveloped record. The opinions of State agency consultants can
be given weight only to the extent they are supported by evidence in the record. See 20 C.F.R. §
404.1527(c)(3) (stating that “because nonexamining sources have no examining or treating
relationship with [Plaintiff], the weight we will give their opinions will depend on the degree to
which they provide supporting explanations for their medical opinions.”). An ALJ would be
hard-pressed to justify casting aside a treating source opinion in favor of two year old state
agency opinions. See Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011).
On remand, the ALJ is directed to thoroughly address the medical evidence in the record,
including properly weighing the reports of examining neurologist, Dr. Shukairy and the State
agency medical consultants in accordance with the regulations, and to obtain additional
information as needed. See, e.g., Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (“An
ALJ has a duty to solicit additional information to flesh out an opinion for which the medical
support is not readily discernable.”).
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Next, Pratt has argued that the ALJ erred when he found that her impairment of major
depressive disorder was not severe. At step two, the claimant has the burden to establish that she
has a severe impairment. Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010). A severe
impairment is an “impairment or combination of impairments which significantly limits [one’s]
physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 404.1521;
Castile, 617 F.3d at 926. Basic work activities include “[u]nderstanding, carrying out, and
remembering simple instructions,” “[r]esponding appropriately” to supervisors and co-workers,
and “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 404.1521; Meuser v.
Colvin, 838 F.3d 905, 910 (7th Cir. 2016). “[A]n impairment that is ‘not severe’ must be a slight
abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on
the ability to do basic work activities.” SSR 96-3p, 1996 WL 374181, at *1. Courts have
characterized step two as a de minimis screening device that disposes of groundless claims.
Johnson v. Sullivan, 922 F.2d 346, 347 (7th Cir. 1990); Elkins v. Astrue, 2009 WL 1124963, at
*8 (S.D. Ind. April 24, 2009) (citing Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005)).
Pratt was diagnosed with major depressive disorder, moderate and recurrent in 2014. The
ALJ indicated that Pratt’s mini-mental status examinations during treatment for her physical
impairments found that her attention and concentration were typically intact. (Tr. 24). The ALJ
found that Pratt’s major depressive disorder did not cause more than minimal limitation in her
ability to perform basic mental work activities, and therefore was non-severe. (Tr. 24). The ALJ
assigned great weight to the State agency opinions that Pratt’s major depressive disorder was
non-severe because she had not received specialized treatment for her mental health and most of
her mini-mental status examinations were normal. (Tr. 24). The ALJ determined that Pratt had
mild limitations in activities of daily living, social functioning, concentration, persistence, or
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pace, and that she had not experienced any episodes of decompensation which were of extended
duration. (Tr. 24). Because Pratt’s limitations caused no more than “mild” limitation and “no”
episodes of decompensation which have been of extended duration, the ALJ found that her
medically determinable mental impairments were non-severe. (Tr. 25).
Pratt contends that the ALJ’s finding that she had a medically determinable impairment
of “major depressive disorder” standing alone contradicts the ALJ’s finding that she did not have
a severe mental impairment. Moreover, Pratt has argued that the non-examining psychologists
reviewed the file on April 29, 2014, and September 2, 2014, prior to her beginning psychiatric
treatment. (Tr. 88, 98). Also, contrary to the ALJ’s mental status findings Pratt’s treating
psychiatrist, Dr. Daniel Kim, M.D., found that Pratt had depressed mood, feelings of guilt and
worthlessness, poor recent memory, anhedonia/pervasive loss of interest, appetite
disturbances/weight change, decreased energy, and excessive sleep. (Tr. 707). Moreover, Pratt
asserts that the ALJ’s conclusion that she did not receive regular mental health treatment was
contradicted by the record. Dr. Kim indicated that he had treated Pratt every three months
between November 3, 2014 and June 13, 2016. (Tr. 706).
The Seventh Circuit reversed an ALJ’s step-two finding of non-severe where the claimant
had a diagnosis of “major depression, recurrent severe.” O'Connor-Spinner v. Colvin, 832 F.3d
690, 697 (7th Cir. 2016). In doing so, the court explained:
“That determination is not supported by substantial evidence and, indeed,
strikes us as nonsensical given that the diagnosis, by definition, reflects a
practitioner’s assessment that the patient suffers from ‘clinically significant
distress or impairment in social, occupational, or other important areas of
functioning.”
O'Connor-Spinner, 832 F.3d at 697 (emphasis added) (quoting American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders 679-80 (4th ed. Text Rev.
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2000)). Similarly, the ALJ in that matter relied on two non-examining psychologists. However,
the court notes that the non-examining psychologists in the instant matter had reviewed Pratt’s
file prior to her beginning psychiatric treatment.
In light of this Seventh Circuit precedent, the ALJ erred in finding her mental impairment
non-severe at step two. However, “any error that an ALJ commits at step two is harmless as long
as she goes on to consider the combined impact of a claimant’s severe and non-severe
impairments.” Loftis v. Berryhill, 2017 WL 2311214, at *2 (N.D. Ill. May 26, 2017) (citing
Curvin v. Colvin, 778 F.3d 645, 648-49 (7th Cir. 2015); see also Denton v. Astrue, 596 F.3d
419, 423 (7th Cir. 2010) (“A failure to fully consider the impact of non-severe impairments
requires reversal.”). The ALJ never mentioned Pratt’s mental impairments again after step two.
Therefore, there is no indication that the ALJ considered the impact of Pratt’s mental
impairments, even if non-severe, when assigning the RFC. Rice v. Berryhill, 2018 WL 2049931,
at *5 (N.D. Ill. May 2, 2018) (finding that the ALJ’s step-two determination that the claimant’s
major depression was non-severe was not a harmless screening error because the ALJ did not
include any mental limitations in the RFC).
Moreover, the VE testified that if Pratt was as limited as found by the ALJ, but also was
restricted to simple, repetitive, and routine tasks that could be learned within 30 days, she could
not perform her past work and would have no transferable skills to other work. (Tr. 81).
Therefore, the ALJ’s error was not harmless, and the matter will be remanded on this issue.
The ALJ should have incorporated Pratt’s non-severe mental impairment into the RFC
analysis. See 20 C.F.R. § 404.1545(a)(1) (“We will assess your residual functional capacity
based on all the relevant evidence in your case record.”) (emphasis added). Because the RFC did
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not adequately address Pratt’s mental impairment at step two, remand is appropriate so that the
ALJ can address the effects of her major depressive disorder in assessing the RFC.
Pratt has argued that the ALJ failed to properly evaluate her testimony. 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). 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.”
Under SSR 16-3, the ALJ first must determine whether the claimant has a medically
determinable impairment that could reasonably be expected to produce her 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. The ALJ must weigh the
claimant’s subjective complaints, the relevant objective medical evidence, and any other
evidence of the following factors:
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(i) The individual’s daily activities;
(ii) Location, duration, frequency, and intensity of pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) Type, dosage, effectiveness, and side effects of any medication;
(v) Treatment, other than medication, for relief of pain or other symptoms;
(vi) Other measures taken to relieve pain or other symptoms;
(vii) Other factors concerning functional limitations due to pain or other symptoms.
See 20 C.F.R. § 404.1529(c)(3).
The ALJ determined that Pratt’s medically determinable impairments reasonably could
have been expected to cause the alleged symptoms but that her statements concerning the
intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the
medical evidence and other evidence. (Tr. 26). The court finds that the ALJ’s credibility
determination provided specific reasons, and therefore was sufficiently specific and clearly
articulated so the court could assess how he evaluated the symptoms. SSR 16-3p, 2016 WL
1119029, at *9.
Pratt has argued that the ALJ failed to consider her exemplary work history, which
entitled her to substantial credibility. However, a good work history “is still just one factor
among many, and it is not dispositive.” Summers v. Berryhill, 864 F.3d 523, 529 (7th Cir. 2017)
(internal quotation marks and citation omitted); see also 20 C.F.R. § 404.1529(c)(3). However,
since this matter is being remanded on other issues, the ALJ may reconsider Pratt’s subjective
complaints.
Finally, Pratt contends that the ALJ failed to consider her obesity in making the RFC
finding. If a claimant is obese, the ALJ must specifically address the Aincremental effect@ of
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obesity on the claimant=s limitations. Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005).
Ruling 02-1p provides that in evaluating obesity in assessing RFC, “[a]n assessment should also
be made of the effect obesity has upon the individual’s ability to perform routine movement and
necessary physical activity within the work environment.” SSR 02-1p, 2002 WL 34686281, at
*6 (Sept. 12, 2002). Further, Ruling 02-1p explains that an ALJ’s RFC determination must
consider an individual’s maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis. SSR 02-1p, at *6 (citing SSR 96-8p).
Even if a claimant does not contend that obesity is one of his impairments, SSR 02-1p
requires an ALJ to consider the effects of obesity on the claimant=s other conditions. However,
failure to explicitly consider these effects can be Aharmless error.@ Prochaska v. Barnhart, 454
F.3d 731, 736 (7th Cir. 2006). Since the ALJ in Prochaska Asufficiently analyzed@ the claimant=s
obesity (by implicitly considering the issue, in part by relying on medical documents that noted
the claimant=s height and weight), and because the claimant did not specify how obesity
specifically impaired her work ability, the Seventh Circuit found that any error on the ALJ=s part
in not explicitly considering the claimant=s obesity was harmless. Prochaska, 454 F.3d at 737.
At step two, the ALJ found that Pratt’s severe impairments included obesity. (Tr. 23).
The ALJ acknowledged Pratt’s testimony that she was 5’4 ½” tall and 275-280 pounds. Also,
the ALJ indicated that he considered all of Pratt’s “impairments, symptoms, and clinical signs
and diagnostic tests . . . when limiting the claimant to less than the full range of sedentary work.”
(Tr. 27). Moreover, the ALJ in giving the State agency medical consultants’ opinions some
weight, he indicated that he agreed with the non-exertional limitations due to her back pain,
obesity, and migraine headaches. Pratt has not demonstrated that her obesity caused further
limitations. Therefore, any error on behalf of the ALJ to further explain why he found that
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Pratt’s obesity did not affect her ailments was harmless. See Skarbek v. Barnhart, 390 F.3d 500,
504 (7th Cir. 2004) (ALJ=s adoption of limitations suggested by doctors who were aware of
claimant=s obesity, plus claimant=s failure in specifying how weight impaired the ability to work,
was harmless error). However, on remand the ALJ may reconsider Pratt’s obesity, singly and in
combination, with her other impairments.
Pratt 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.
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this order.
ENTERED this 24th day of October, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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