Forsey v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court REVERSES the Commissioner's decision and REMANDS this matter to the Commissioner for further proceedings consistent with this Opinion and Order. Signed by Judge Jon E DeGuilio on 2/11/19. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SUSAN MARIE FORSEY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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Case No. 3:18-CV-184 JD
OPINION AND ORDER
Plaintiff Susan Marie Forsey appeals the denial of her claim for disability insurance
benefits. For the following reasons, the Court remands this matter to the Commissioner for
further proceedings consistent with this opinion.
BACKGROUND
Ms. Forsey filed her initial application for benefits on February 19, 2014, alleging
disability beginning May 28, 2008. She later amended the onset date to May 26, 2012, and her
date of last insured was June 30, 2015. Ms. Forsey’s application was denied initially, on
reconsideration, and following an administrative hearing in September 2016 at which she was
represented by counsel. At that hearing, the ALJ heard testimony from Ms. Forsey and
vocational expert Tobey Andre. The ALJ found that Ms. Forsey had some severe impairments
but that she was not disabled during the adjudicative period, May 26, 2012, through June 30,
2015. See 20 C.F.R. § 404.1520. The Appeals Council denied review of the ALJ decision,
making the ALJ’s decision the final determination of the Commissioner.
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STANDARD OF REVIEW
Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as
the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013). The Court will affirm the Commissioner’s denial of disability benefits if it is
supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It must be
“more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about the disability status of
the claimant, the Court will affirm the Commissioner’s decision as long as it is adequately
supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In this substantial-evidence determination, the Court does not reweigh evidence, resolve
conflicts, decide questions of credibility or substitute the Court’s own judgment for that of the
Commissioner. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Court does, however,
critically review the record to ensure that the ALJ’s decision is supported by the evidence and
contains an adequate discussion of the issues. Id. The ALJ must evaluate both the evidence
favoring the claimant as well as the evidence favoring the claim’s rejection; he may not ignore an
entire line of evidence that is contrary to his findings. Zurawski v. Halter, 245 F.3d 881, 887 (7th
Cir. 2001). The ALJ must also “articulate at some minimal level his analysis of the evidence” to
permit informed review. Id. Ultimately, while the ALJ is not required to address every piece of
evidence or testimony presented, he must provide a “logical bridge” between the evidence and
his conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
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DISCUSSION
Disability benefits are available only to individuals who are disabled under the terms of
the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). A claimant is disabled
if he or 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 contain a five-step test to ascertain
whether the claimant has established a disability. 20 C.F.R. § 404.1520(a)(4). These steps
require the Court to sequentially determine:
1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant’s impairment meets or equals one listed in the regulations;
4. Whether the claimant can still perform relevant past work; and
5. Whether the claimant can perform other work in the community.
20 C.F.R. § 404.1520(a)(4); Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At step
three, if the ALJ determines that the claimant’s impairment or combination of impairments meets
or equals an impairment listed in the regulations, the Commissioner acknowledges disability. 20
C.F.R. § 404.1520(a)(4)(iii). However, if a listing is not met or equaled, the ALJ must assess the
claimant’s residual functional capacity (“RFC”) between steps three and four. The RFC is then
used to determine whether the claimant can perform past work under step four and whether the
claimant can perform other work in society at step five. 20 C.F.R. § 404.1520(e). The claimant
has the burden of proof in steps one through four, while the burden shifts to the Commissioner at
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step five to show that there are a significant number of jobs in the national economy that the
claimant is capable of performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Ms. Forsey now challenges several aspects of the ALJ’s opinion. First, she argues that the
ALJ erred at step three by finding that her impairments did not satisfy Listing 1.02 without
providing sufficient analysis. Second, that the ALJ failed to weigh the medical opinions of
various physicians. Third, that the ALJ failed to support his RFC assessment with sufficient
evidence and thereby failed to account for Ms. Forsey’s psychiatric disorder, bilateral knee
problems, and osteoarthritis in her hands. And fourth (subsumed within Ms. Forsey’s attack on
the ALJ’s RFC determination), that the ALJ improperly assessed her statements concerning the
intensity, persistence, and limiting effects of her symptoms to be inconsistent with the medical
evidence. The Court need not address Ms. Forsey’s first two arguments, however, because the
ALJ committed critical errors by failing to explore possible reasons for Ms. Forsey’s limited
treatment in 2015, and by neglecting to consider Ms. Forsey’s non-severe psychological
impairments when crafting the RFC.1 These errors necessitate remand.
1.
Subjective Complaints – Failure to Seek Treatment
Because the ALJ is in the best position to determine a witness’s truthfulness and
forthrightness, the Court will not overturn an ALJ’s credibility determination unless it is patently
wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). The ALJ’s decision must,
however, provide specific reasons for the weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and must be sufficiently specific or clearly
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The Court need not examine whether the ALJ sufficiently addressed Ms. Forsey’s bilateral knee
problems and osteoarthritis in light of the Court’s finding that the RFC failed to take her psychological
disorders into account. Ms. Forsey is of course free to pursue her arguments regarding these conditions on
remand, along with her arguments pertaining to Listing 1.02 and weight of opinion evidence.
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articulated so the individual and any subsequent reviewers can assess how the adjudicator
evaluated the symptoms. SSR 16-3p2 (superseding SSR 96-7p); see also Pepper v. Colvin, 712
F.3d 351, 367 (7th Cir. 2013) (“[A]n ALJ must adequately explain his credibility finding by
discussing specific reasons supported by the record.”). An ALJ’s failure to give specific reasons
for a credibility finding, supported by substantial evidence, is grounds for remand. Id.; Myles v.
Astrue, 582 F.3d 672, 676 (7th Cir. 2009).
Failure to seek medical treatment in the face of claimed illness can be a factor in
evaluating credibility. See Schaaf v. Astrue, 602 F.3d 869, 876 (7th Cir. 2010); Sienkiewicz v.
Barnhart, 409 F.3d 798, 804 (7th Cir. 2005). Nonetheless an ALJ “‘must not draw any
inferences’ about a claimant’s condition from [her failure to seek treatment] unless the ALJ has
explored the claimant’s explanations as to the lack of medical care.” Craft, 539 F.3d at 679
(citing SSR 96-7p). “ALJs have a duty to consider factors like inability to travel, mental illness,
or economic constraints that may have prevented claimants from seeking or receiving medical
care.” Orienti v. Astrue, 958 F. Supp. 2d 961, 977 (N.D. Ill. 2013) (citing Godbey v. Apfel, 238
F.3d 803, 809 (7th Cir. 2000)).
In evaluating the intensity, persistence, and limiting effects of Ms. Forsey’s symptoms,
the ALJ relied heavily upon his perception that she did not seek any further treatment in 2015
following a visit to Dr. Stephen Smith on March 19 of that year, whom she had been consulting
2
A little more than one year before the ALJ issued his opinion in this case, the Social Security
Administration issued SSR 16-3p, which supersedes SSR 96-7p. SSR 16-3p, 2016 WL 1119029 (March
16, 2016). SSR 96-7p referred to a claimant’s “credibility,” but SSR 16-3p removed that term in order to
“clarify that subjective symptom evaluation is not an examination of the individual’s character.” SSR 163p, 2016 WL 1119029, at *1. Instead, the ALJs are reminded to “consider all of the evidence in an
individual’s record when they evaluate the intensity and persistence of symptoms after they find that the
individual has a medically determinable impairment(s) that could reasonably be expected to produce
those symptoms,” as consistent with the regulations. Id. Under either SSR version the outcome in this
case would be the same.
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for chronic neck, back, and shoulder pain. (R. 541). The ALJ cited this lack of follow up at no
fewer than four distinct points in his credibility assessment:
In fact, in March 2015, the claimant reported she was going to Norfolk and
Virginia Beach and was requesting ten extra Percocet for the car ride, and the
hiking, she was planning to do. There was no other follow up in 2015.
…
She had severe left shoulder derangement and required two surgeries. An MRI
later disclosed severe right shoulder derangement and there was discussion of
surgery, but she hardly had any follow up in 2015.
…
The lack of supportive objective findings on longitudinal examinations to support
alleged disability, and inconsistent reports about her functioning, all together
render her subjective reports inconsistent with and grossly disproportional to the
objective medical evidence and findings in the record. For example, pain
improved with treatment such that she was able to plan travel and hiking and she
hardly had any follow up in 2015.
…
An MRI showed osteoarthritis of the right AC joint and internal derangement.
While surgery was discussed, there was no follow up in 2015 and it was not
scheduled until 2017, which shows the right shoulder was not as significantly
symptomatic. Therefore, I find she could frequently, but not constantly, reach in
all directions with the right arm to avoid pain exacerbation.
(R. 23-24) (emphasis added). In other words, the ALJ used Mr. Forsey’s limited treatment
history in 2015 to discredit her statements regarding the severity of her pain and cited her failure
to schedule right shoulder surgery that year as indicative of her ability to frequently reach in all
directions with her right arm, which formed part of the ALJ’s RFC.
The ALJ erred here in several ways. First and most critically, the ALJ made no evident
attempt to determine why Ms. Forsey elected not to pursue additional treatment or schedule right
shoulder surgery in 2015. He simply inferred from the lack of medical records for that year that
her symptoms were not as serious as alleged and that she could “frequently reach overhead and
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in other directions with the right upper extremity” during the adjudicative period. (R. 20).
Notably, while the ALJ mentioned in summary fashion that Dr. Christopher Balint planned for
arthroscopic right shoulder surgery as early as July 2014 (R. 22, 402), he never attempted to find
out why Ms. Forsey’s right shoulder surgery did not take place until 2017. His failure to explore
reasons for a gap in Ms. Forsey’s treatment was a legal error, requiring remand. See Beardsley v.
Colvin, 758 F.3d 834, 840 (7th Cir. 2014) (remanding where ALJ improperly relied on the fact
that claimant elected not to undergo knee surgery without attempting to explore the reasons for
claimant’s decision).
The ALJ’s shortcoming here is only compounded by the several pieces of evidence in the
record that otherwise provide context for Ms. Forsey’s lack of treatment in 2015. For example, in
August 2014, Ms. Forsey informed Dr. Daniel Cooke that Dr. Balint had recommended surgical
intervention for her continued shoulder problems, but that her chronic smoking had prevented the
surgery from being scheduled. (R. 532). Indeed, part of Dr. Balint’s surgical plan in July 2014
included the instruction that Ms. Forsey stop smoking. (R. 402). It appears Ms. Forsey was able
to quit briefly toward the end of 2014 (R. 545), but by March 2015, Dr. Smith noted that she
reverted to a “current every day smoker.” (R. 601). Additionally, medical records dated February
2015 indicate that Ms. Forsey did not wish to undergo any more surgeries on her back or
shoulders (R. 542); she testified that she put off surgery on her right shoulder because she
remained fearful from a prior surgical mishap where doctors punctured her dural sheath,
resulting in complications. (R. 55, 60). By drawing an inference about Ms. Forsey’s lack of
treatment in 2015 without considering any of this relevant context, the ALJ impermissibly
engaged in “cherry-picking” facts from the medical record to support his conclusions while
ignoring evidence from the same record that supports Ms. Forsey’s allegations. See Denton v.
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Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the obligation to consider all relevant
medical evidence and cannot simply cherry-pick facts that support a finding of non-disability
while ignoring evidence that points to a disability finding.”).
In addition, the ALJ failed to consider evidence of financial barriers to treatment
contained in the record. For example, during the adjudicative period, Ms. Forsey was referred to
a psychiatrist. (R. 443). But at the hearing, Ms. Forsey testified that she stopped seeing her
therapist once she discovered that her insurance did not cover the treatment, leaving her “stuck
with a very large bill.” (R. 67).3 And it was further noted in March 2014 that Ms. Forsey was
experiencing difficulty obtaining a bone growth stimulator due to insurance roadblocks. (R. 384).
A claimant’s inability to afford treatment can excuse the failure to seek such treatment, and by
failing to explore this possibility as an explanation for Ms. Forsey’s lack of treatment in 2015,
the ALJ committed error. Myles, 582 F.3d at 677; Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir.
2013) (noting that “the agency has expressly endorsed the inability to pay as an explanation
excusing a claimant’s failure to seek treatment”) (citing SSR 96-7p).
Furthermore, the medical record belies the ALJ’s statements that Ms. Forsey had “no
other follow up” after her March 2015 appointment. Shortly before the date of last insured (June
30, 2015), Ms. Forsey sought treatment for her right shoulder on or about June 4, 2015, when she
presented to Dr. Smith with “an occipital neuralgia type pain on the right as well as some arm
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While Ms. Forsey does not challenge whether the ALJ erred at step two in finding her mental
impairments of panic disorder and somatization disorder non-severe, the Court invites the ALJ to
reevaluate this conclusion in light of Ms. Forsey’s testimony regarding her lack of insurance coverage for
therapy. At step two, the ALJ based his finding in part on his observation that Ms. Forsey “was referred to
psychiatry, but she apparently never followed up.” (R. 18). As above, the ALJ drew conclusions from Ms.
Forsey’s lack of treatment without exploring the context of her failure to follow up. This shortcoming is
only exacerbated by her testimony. Moreover, the ALJ should approach the treatment issue with caution
when a claimant has a mental illness. Barnes v. Colvin, 80 F. Supp. 3d 881, 887 (N.D. Ill. 2015). The
Seventh Circuit has recognized that mental illness “may prevent the sufferer from taking her prescribed
medicines or otherwise submitting to treatment.” Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006).
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pain” that caused her pain with range of motion. (R. 618). The ALJ made no mention of this
record except for a fleeting citation to Ms. Forsey’s pain in his step two analysis (R. 18); he did
not reconcile this record with his observations regarding Ms. Forsey’s limited treatment in 2015,
nor with the conclusions he drew therefrom about her symptomatic complaints. Although the
ALJ need not consider every piece of evidence in the record, given his emphasis on Ms. Forsey’s
lack of follow up treatment in 2015, he should rectify this logical gap on remand. Terry, 580
F.3d at 475.
2.
Non-Severe Mental Limitations
Ms. Forsey also argues that the ALJ erred by failing to consider her psychological
diagnoses and related symptoms when formulating the RFC. In formulating a claimant’s residual
functional capacity, the ALJ must consider all of the relevant evidence in the record, and must
build “an accurate and logical bridge from the evidence to her conclusion.” Murphy v. Colvin,
759 F.3d 811, 819 (7th Cir. 2014). In doing so, “an ALJ must consider the combined effects of
all of the claimant’s impairments,” even those that are not severe. Terry, 580 F.3d at 477;
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (noting that “the ALJ needed to
consider the aggregate effect of this entire constellation of ailments”). Thus, even if a condition
would not be disabling on its own, an ALJ must still consider the evidence relating to that
condition and decide what limitations, if any, it would have on the claimant’s ability to work. Id.
At step two, the ALJ determined that Ms. Forsey’s diagnoses of panic disorder and
somatization disorder caused no more than a minimal limitation to her ability to perform basic
mental tasks and were therefore non-severe. (R. 18). Assessing Ms. Forsey’s mental functioning,
the ALJ found that she had mild limitations interacting with others and adapting or managing
herself. (R. 18-19). Before moving on to step three, the ALJ noted that “the following residual
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functional capacity assessment reflects the degree of limitation I have found” in the mental
functioning analysis. (R. 19).
The rest of the ALJ’s opinion, however, makes no mention of Ms. Forsey’s non-severe
mental limitations, and the ALJ never explains why or how Ms. Forsey’s limited ability to
interact with others, adapt, or manage herself deserve no part in the RFC. In other words, the
ALJ summarily states that his RFC analysis reflects the mental functioning limitations he
assessed at step two, but then fails to explain how it is that those limits translate to Ms. Forsey’s
specific abilities to work during the adjudicative period. Thus, the ALJ failed to consider the
combined impact of Ms. Forsey’s impairments “throughout the disability determination process.”
20 C.F.R. § 404.1523. He has left the Court unable to adequately review his RFC analysis,
especially given Ms. Forsey’s October 2014 neuropsychiatric evaluation results, in which Dr.
Paul Macellari observed a “reduced level of psychological functioning” stemming from
generalized hypersensitivity and fearfulness that “certainly may be debilitating to her in both
social and work settings.” (R. 424-25). The ALJ overlooked these particular observations, further
adding to his error. See Myles, 582 F.3d at 678 (“It is not enough for the ALJ to address mere
portions of a doctor’s report.”) The ALJ’s failure to account for Ms. Forsey’s non-severe mental
limitations in his RFC analysis requires remand. Denton, 596 F.3d at 523 (citing Terry, 580 F.3d
at 477; Golembiewski, 322 F.3d at 918).
CONCLUSION
The remedy for the ALJ’s shortcomings is further consideration, not the immediate award
of benefits. And so, for the reasons stated herein, the Court REVERSES the Commissioner’s
decision and REMANDS this matter to the Commissioner for further proceedings consistent
with this opinion.
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SO ORDERED.
ENTERED: February 11, 2019
/s/ JON E. DEGUILIO
Judge
United States District Court
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