Kelley v. Social Security Administration

Filing 21

OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with the conclusions in this order. Signed by Judge Jon E DeGuilio on 2/10/14. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
JASON D. KELLEY
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,1
Defendant.

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CAUSE NO.: 4:12-CV-064-JD

OPINION AND ORDER

On November 21, 2012, Plaintiff Jason D. Kelley (“Kelley”), by counsel, filed his
Complaint seeking review of the final decision of the Defendant Commissioner of Social
Security (“Commissioner”) [DE 1]. The Commissioner filed an Answer to Kelley’s Complaint
on February 11, 2013 [DE 11]. On May 2, 2013, Kelley filed his brief in support of his request
to reverse the decision of the Commissioner [DE 15], to which the Commissioner responded on
June 28, 2013 [DE 16]. On July 18, 2013, Kelley filed his reply [DE 19]. The matter is now ripe
for ruling and jurisdiction is established pursuant to 42 U.S.C. § 405(g).
I. PROCEDURAL HISTORY
On August 25, 2010, Kelley filed a Title II application for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) (Tr. 78–81), alleging a disability since
August 1, 2010 resulting from a learning disability, mental retardation, ADHD, and problems

1

Carolyn W. Colvin became the acting Commissioner of Social Security on February 14, 2013. Pursuant to
Fed. R. Civ. P. 25(d), Colvin is substituted for Michael J. Astrue as the Defendant in this action. No further action
needs to be taken as a result of this substitution. 42 U.S.C. § 405(g) (“[a]ny action instituted in accordance with this
subsection shall survive notwithstanding any change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office.”).

1

with reading. (Tr. 224).2 Kelley’s applications were initially denied on September 3, 2010, and
again upon reconsideration on October 28, 2010. (Tr. 82–95). Consequently, on November 2,
2010, Kelley requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 100–01).
On June 30, 2011, Kelley, represented by counsel, appeared and testified at a hearing
held before ALJ Jason Mastrangelo in Valparaiso, Indiana. (Tr. 32–61). Kelley’s mother,
Margaret Sako, and a Vocational Expert (“VE”), Leonard Marion Fisher, Ph.D., also testified.
(Tr. 61–76). Thereafter, the ALJ determined that Kelley was capable of performing his past
work and other work in the economy, and thus, did not qualify for benefits. (Tr. 26). Kelley
requested that the Appeals Council review the ALJ’s decision, but his request was denied on
August 16, 2012, making the ALJ’s decision the Commissioner’s final decision. (Tr. 5).
II. STATEMENT OF FACTS
A.

Medical Background
Kelley was born on May 20, 1982; therefore, he was 28 years old when he applied for

disability and 29 years old on the date the ALJ issued his decision. (Tr. 38). A sixth grade
educational evaluation completed in September 1994 provided that Kelley functioned
academically at a first or second grade level. (Tr. 254). Various tests were also performed in
September 1994, including the Wechsler Intelligence Scale for Children Test Third Edition
(“WISC-III”), Wechsler Individual Achievement Test, the Adaptive Behavior Scale (“ABS”),
and the Developmental Test of Visual-Motor Integration. (Tr. 182–188, 252–54). The WISC-III
yielded a full-scale IQ score of 56, a verbal IQ score of 66, and a performance IQ score of 59,
and these scores fell within the mild mentally handicapped range. (Tr. 184, 253). Additionally,

2

The regulations governing the determination of disability for DIB are found at 20 C.F.R. § 401.1501 et.
seq., while the SSI regulations are set forth at 20 C.F.R. § 416.901 et. seq. Because the definition of disability and
the applicable five-step process of evaluation are identical for both DIB and SSI in all respects relevant to this case,
reference will only be made to the regulations applicable to DIB for clarity.

2

the WISC-III revealed that Kelley’s short term auditory memory was in the low average range,
attention to visual detail and speed at remembering and reproducing symbols were in the
borderline range, and all other subtests were within the mental retardation range. (Tr. 253). The
ABS indicated that, while Kelley’s personal self-sufficiency and social/personal adjustments
were well developed, Kelley exhibited deficits in community self-sufficiency and social/personal
responsibility. (Tr. 253). Overall, the tests revealed that Kelley’s intellectual ability fell within
the mildly mentally handicapped range and that his academic skills were within the first to
second grade range. (Tr. 255). Accordingly, school psychologist Gail Mayton noted that Kelley
still needed the school’s special education services. (Tr. 254). September 1994 notes from
Kelley’s teachers indicate that they observed Kelley having continued difficulty with staying on
task and completing homework and he often needed instructions repeated, however he did get
along with his peers. (Tr. 187).
On September 27, 1995, WISC-III test results indicated that Kelley had a verbal IQ score
of 66, a performance IQ score of 59, and a full-scale IQ score of 56. (Tr. 255). The Wechsler
Individual Achievement Test revealed that Kelley performed reading, writing, and math skills at
the first and second grade levels. (Tr. 255).
An annual review conducted in November 1995 indicated that Kelley was enrolled in the
seventh grade in the mildly mentally handicapped program and he was functioning “very low” in
the program compared to his program peers, he was having difficulty with memory and abstract
reasoning, and he was reading at a second grade level. (Tr. 171–79). The records also indicated
that he was earning low grades in his classes. (Tr. 174).
For the 1996–1997 academic school year, administrators again placed Kelley in a special
education program for most of the school day because of his mildly mentally disabled status. (Tr.

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165–70, 180). The records additionally noted that Kelley’s skills were well below functional
levels, he did not complete homework, and he was on Ritalin for ADHD.
On October 23, 1997, when Kelley was in the ninth grade, his level of functioning was
re-evaluated. (Tr. 247–51). Testing revealed that Kelley had a verbal IQ score of 56,
performance IQ score of 68, and full-scale IQ score of 58. (Tr. 248). The Adaptive Behavior
Evaluation Scale (School Version) (“ABES-R”) indicated that his adaptive behavior quotient3
was just below average. (Tr. 250). School Psychologist Jennifer Koskey explained that Kelley
“continue[d] to function in the range of a student who is mentally handicapped.” (Tr. 251). She
further asserted that, while Kelley increased his grade level in math, he continued to function at
second and third grade levels with respect to his reading and spelling skills. (Tr. 251). She also
noted that his adaptive behavior quotient was somewhat higher than expected, his self-care and
communication skills were well developed, and he was able to complete simple household tasks
and fix simple meals. (Tr. 251). However, she also recognized that Kelley experienced
difficulty getting started on assignments and finishing them accurately after instructions were
provided. (Tr. 251).
In March of 1999, Kelley’s individualized education program report noted that he was
pursuing a special education curriculum which focused on vocation and life skills. (Tr. 257).
The report indicated that his reading skills were poor, he needed a lot of help with assignments
for any general education class, and he functioned at a moderate mentally handicapped level.
(Tr. 256, 259). In describing Kelley’s strengths, the report noted that Kelley had good work
habits and communication skills, and he worked well with his hands. (Tr. 258). The school
ultimately implemented a series of educational modifications and accommodations to assist

3

The adaptive behavior quotient represents the degree with which one meets the standards of personal
independence and social responsibility expected for one’s age. (Tr. 250).

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Kelley with his ability to learn, which included among other things the need to give written
directions to supplement verbal directions, reduce visual distractions, and provide individualized
allotted time to complete assignments. (Tr. 266).
Kelley’s participation in the school’s work experiences program in 1999/2000 and
2000/2001 revealed that he received good reviews, although he required more attention and
direction than other employees in many aspects. (Tr. 274–77). Specifically, a review from his
employer revealed that Kelley required more attention than other employees with regard to
remembering instructions, performing tasks that required some imagination or decision-making,
and taking initiative on the job. (Tr. 276). He also had some difficulty with remaining on task.
On November 13, 2000, school personnel conducted an assessment of Kelley’s
functioning. (Tr. 244–46). At the time, Kelley had been attending classes in the morning and
then working at McDonald’s. (Tr. 245). Notes from the evaluation indicated that he appeared to
be doing well at his job, but that he did “not show much effort with academics in the classroom
setting.” (Tr. 245). Kelley’s ABES-R evaluation resulted in a below average score of 78, where
an average behavioral quotient would be 90 to 109. (Tr. 245–46). School Psychologist Jennifer
Koskey noted that Kelley, who was in the twelfth grade at the time, demonstrated first and
second grade skills and lacked communication and social skills. (Tr. 244, 246). Further, she
recognized that although Kelley seemed to be gaining more from his experience in the
workplace, he was less interested in classroom academics. (Tr. 246).
On August 17, 2009, consultative psychologist Dr. Victor Rini evaluated Kelley. (Tr.
287–89). With regard to Kelley’s history, Dr. Rini noted that Kelley was single and living in his
father’s home with his two-year-old daughter. (Tr. 287). At the time, Kelley reported to Dr.
Rini that he was in good physical health and denied any problems with anxiety or depression, yet

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he also complained that he had trouble sleeping for months. (Tr. 287). Dr. Rini observed that
Kelley’s mood and affect was “pleasant with underlying depression and anxiety.” (Tr. 287).
After conducting a WAIS-III examination, Dr. Rini found that Kelley had a verbal IQ score of
67, a performance IQ score of 72, and a full-scale IQ score of 66. (Tr. 283). Kelley’s verbal and
full-scale scores were described as extremely low, and his performance score was described as
borderline. (Tr. 283). Dr. Rini asserted that Kelley was not bothered by anxiety or depression
during testing and that accordingly, Kelley’s test scores accurately measured his memory and
intellectual abilities. (Tr. 287). Additionally, Kelley was assigned a Global Assessment of
Functioning (“GAF”)4 score of 59. (Tr. 288).
During the evaluation, Kelley reported that he had obtained a driver’s license by having
the test read to him and reported that he was able to provide for his own personal care, cook,
clean, grocery shop, perform cash transactions, do laundry, and pick up after his child. (Tr. 288).
However, Dr. Rini emphasized that Kelley’s “report of his own capabilities may not be
altogether reliable” and explained that Kelley not only had significant and overt deficits with
functional academic skills and social skills, he also “overstated his actual ability to function in
other areas of adaptive function . . . based on his test scores, which suggest[ed]—for example—
that he is not able to provide for his own home as he maintains he can.” (Tr. 288). Based on his
findings, Dr. Rini diagnosed Kelley with mild mental retardation and adjustment disorder with
depression and anxiety. (Tr. 288). In conclusion, Dr. Rini emphasized that Kelley functioned in

4

A GAF score measures a clinician’s judgment of the individual’s overall level of psychological, social, and
occupational functioning. See DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS-Text Revision 32 (4th
ed. 2000). The higher the GAF score, the better the individual’s level of functioning. While GAF scores have
recently been replaced by the World Health Organization Disability Assessment Schedule, at the time relevant to
Kelley’s appeal, GAF scores were in use. See Wikipedia, Global Assessment of Functioning,
http://en.wikipedia.org/wiki/Global_Assessment_of_Functioning (last visited Feb. 3, 2014). A GAF score of 51–60
indicates moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate
difficulty in social, occupational, or school functioning.

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the extremely low range of intellectual ability, his memory and concentration were in the low
average range, and his social functioning was below average. (Tr. 288).
On September 3, 2010, state agency physician Dr. Donna Unversaw completed a mental
residual functional capacity (“RFC”)5 assessment and a psychiatric review technique based on
Kelley’s medical records. (Tr. 290–307). She opined that Kelley was not significantly limited in
his ability to understand, remember, and carry out short and simple instructions or in his ability
to remember locations and work-like procedures, but that he was moderately limited in his
ability to understand, remember, and carry out detailed instructions. (Tr. 290). Additionally, Dr.
Unversaw determined that Kelley was not significantly limited in his ability to maintain attention
and concentration, to perform activities within a schedule with regular attendance, to sustain an
ordinary routine without special supervision, to work with or in proximity to others without
being distracted by them, to make simple work-related decisions, to sustain concentration and
persistence, and to interact socially with the public, co-workers, and supervisors. (Tr. 290–91).
She further opined that Kelley demonstrated no significant limitations with adaptation. (Tr. 291).
After noting Kelley’s 1994 WISC scores and 2009 WAIS scores, along with Dr. Rini’s
findings, Dr. Unversaw opined that Kelley was capable of performing simple work. (Tr. 292).
Notably, Dr. Unversaw also believed Kelley suffered from mental retardation (having had a valid
verbal, performance, or full scale IQ of 60–70), but found that Kelley only had mild limitations
in performing activities of daily living and maintaining social functioning, with moderate
difficulties in maintaining concentration, persistence, or pace, and no episodes of
decompensation. (Tr. 294–304). Subsequently, on October 28, 2010, state agency physician Dr.
Joelle Larsen reviewed the evidence and affirmed Dr. Unversaw’s assessment. (Tr. 308).

5

Residual Functional Capacity is defined as the most a person can do despite any physical and mental
limitations that may affect what can be done in a work setting. 20 C.F.R. § 404.1545(a)(1).

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B.

Hearing Testimony
On June 30, 2011, a hearing was held during which Jason Kelley, his mother, and the

Vocational Expert (“VE”) testified. (Tr. 32–77).
1.

Kelley’s Testimony
Kelley confirmed that he spent several years in a special education program and was able

to graduate high school. (Tr. 39). While in school, he sometimes drifted off and teachers had to
remind him to pay attention. (Tr. 57). At the time of the hearing, Kelley had been employed for
one week in a 90-day trial period with Vanguard. (Tr. 36, 41). He obtained the position after
walking in and completing his own application. (Tr. 41–42). At Vanguard, he noted he assists
with assembling semi-trailers, but has had difficulty learning the job, which includes operation of
overhead cranes. (Tr. 40, 41). Notably, Kelley had already been told about mistakes he was
making. (Tr. 48).
Regarding previous employment, Kelley testified that he never had a job that lasted more
than six months. (Tr. 42). In 2010, he was employed by Anchor Truck Center washing semitrucks; however, he confirmed that the job ended after a few months because the company “said
[he] had an attitude towards other people.” (Tr. 43). Thereafter, Kelley worked full-time as a
dishwasher at Yesteryear’s Meats, but he had to leave the job within two months because of
family-related matters. (Tr. 43). Kelley also worked for three months as a dishwasher at Sand
Creek Country Club (“Sand Creek”). (Tr. 44). He testified that at Sand Creek, he occasionally
fell behind and that another worker would assist him in getting caught up. (Tr. 59–60). Kelley
further explained that he only fell behind three or four times and that it was attributable to the
restaurant being very busy. (Tr. 72). He felt that he was capable of keeping a reasonable pace
otherwise. (Tr. 73). Despite the occasional struggle to keep up, Kelley was not reprimanded or

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fired from Sand Creek. (Tr. 59–60). Rather, his job at Sand Creek was terminated after he
walked out because his employer would not permit him to go to the hospital when his eye was
bothering him. (Tr. 44).
When asked what inhibited him from working, Kelley explained that he had trouble
concentrating on the work, although he denied having any physical problems. (Tr. 47, 48). He
asserted that the more tasks he is given, the more distracted he becomes. (Tr. 47). Kelley
explained that he was able to work several hours without becoming distracted, but thereafter he
sometimes began “spacing off” and then stopped paying attention to what he was doing. (Tr.
48). He believed he could lift 90 to 100 pounds at a time. (Tr. 46).
Kelley testified that he lives on his own but his bills and the rent are taken care of in
exchange for his helping out around the house, and he takes care of his four-year-old daughter
with help from his mother. (Tr. 38, 49, 52). He explained that his mother sometimes assists him
with cooking, laundry, and watching his daughter. (Tr. 52, 53). While Kelley previously had
difficulty doing laundry, once he was taught how to properly separate the clothing and operate
the washer, he no longer experienced difficulty with laundry. (Tr. 54). He has his driver’s
license and can use his GPS to help him travel from one place to another. (Tr. 39, 288). Kelley
asserted that, while he continues to struggle with reading some words, he is able to read
children’s books to his daughter. (Tr. 40). He believed that he could manage his own finances,
but had difficulty with it at times and had trouble tracking the balance of his food stamps. (Tr.
49–50). Kelley also maintained that he was capable of taking care of his personal needs, such as
showering, changing, and getting his clothes together. (Tr. 56). He also did not have any
difficulty operating his cellular phone or using a gas pump. (Tr. 61).

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Kelley testified that he enjoyed fishing, canoeing, and playing baseball and basketball.
(Tr. 53). He explained that he has a temper, but treats others with respect if they do the same.
(Tr. 55). Kelley denied taking medications or engaging in any type of counseling (Tr. 56),
although he was previously taking Ritalin until doctors took him off of the medication for
reasons that were unknown to Kelley. (Tr. 59).
2.

Margaret Sako’s Testimony
Kelley’s mother, Margaret Sako, testified that Kelley may have exaggerated some of his

abilities. (Tr. 62). Specifically, she explained that she caught Kelley doing a full load of laundry
on the low cycle, he missed a couple of his daughter’s doctor appointments, and he struggled to
keep track of his checking account balance. (Tr. 62). Although Ms. Sako asserted that she
assisted in keeping an eye on and bathing her granddaughter, she also stated that Kelley “can
pretty much help take care of [his daughter] and stuff.” (Tr. 62). When questioned about
Kelley’s potential behavioral problems, Ms. Sako explained that Kelley gets angry over simple
things. (Tr. 63). The ALJ asked whether Ms. Sako noticed any issues with depression or anxiety
or whether Kelley just got upset easily, to which Ms. Sako answered that Kelley just got upset
easily. (Tr. 63).
3.

Vocational Expert’s Testimony
The VE characterized Kelley’s past work as a dishwasher as unskilled work with a

medium exertional level and an SVP of 26, although one of the dishwashing jobs actually
performed by Kelley was performed at a heavy exertional level. (Tr. 65). The ALJ asked the
VE whether an individual of Kelley’s age, education, and work experience would be able to
perform Kelley’s past relevant work if the individual was limited to understanding,

6

SVP stands for “specific vocational preparation,” or the Dictionary of Occupational Titles way of
measuring the amount of time required by a typical worker to learn the techniques, acquire the information, and
develop the abilities needed for average performance in a specific work situation.

10

remembering, and carrying out simple, routine, repetitive tasks; but could keep pace to complete
tasks and meet quotas typically found in unskilled work; could read only short, simple words;
and could perform tasks that did not require him to make change or handle money. (Tr. 65). The
VE responded affirmatively, stating that Kelley’s previous dishwasher position could
accommodate the aforementioned limitations and restrictions. (Tr. 66). Additionally, the VE
asserted that other jobs existed in the national economy, which would accommodate the same
restrictions. (Tr. 66). These jobs were at the medium exertional level with an SVP of 2 and
included, but were not limited to, positions as a hand packer (21,000 jobs in the state, 798,000
jobs nationally), dining room attendant (7,510 jobs in the state, 401,000 jobs nationally),
industrial cleaner (49,000 jobs in the state, 336,000 jobs), and automobile cleaner (7,000 jobs in
the state). (Tr. 66).
Next, the ALJ asked the VE about work that could be performed by a second hypothetical
individual who had all of the previously-mentioned limitations in addition to the following
restrictions: ability to engage only in goal-oriented work instead of production rate pace type of
work; ability to only tolerate occasional changes in the work setting; and ability to make only
occasional simple decision-making. (Tr. 68). The VE responded that a restriction concerning
occasional work changes would not have any effect on the individual’s ability to perform the
previously identified jobs. (Tr. 69). However, limiting a person to only occasional simple
decision making would preclude all full-time, competitive employment. (Tr. 68–69). In
addition, the VE testified that an individual who was unable to understand, remember, and carry
out simple, routine tasks over an eight-hour day would be precluded from employment. (Tr. 69).
When asked about Kelley’s occasional tendency to fall behind as a dishwasher and
require extra help, the VE explained that the extra help that was required on only a few occasions

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and was not an accommodation, but rather constituted “ordinary employment practices” when a
restaurant becomes very busy. (Tr. 71). The VE also advised that an individual must remain
relatively consistently on task for eight hours to maintain employment. (Tr. 75–76).
C.

The ALJ’s Decision
On July 12, 2011, the ALJ rendered his decision. (Tr. 28). He found that Kelley had not

engaged in substantial gainful activity since the alleged onset date of August 1, 2010, and that
Kelley had a severe impairment of mild mental retardation. (Tr. 18). In relevant part, the ALJ
also found that Kelley suffered from adjustment disorder with depression and anxiety, but
determined that the impairment was non-severe because there was a lack of objective evidence
that Kelley had ongoing problems or that he sought treatment due to the condition; Kelley denied
any problem with anxiety or depression; and Kelley did not allege an adjustment disorder,
depressive disorder, or anxiety disorder as disabling impairments in his application for benefits.
(Tr. 19). The ALJ also determined that Kelley’s alleged ADHD was a non-medicallydeterminable impairment. (Tr. 19). He reasoned that, although records indicated that Kelley
reported an ADHD diagnosis and took a form of Ritalin in the seventh grade, “the claimant
reported that he does not have a recent psychological or medical diagnosis related to ADHD and
there is no objective evidence in the record to support that claimant was ever formally diagnosed
with ADHD.” (Tr. 19).
The ALJ next determined that Kelley’s impairments did not meet or equal any listed
impairment, either individually or in combination. (Tr. 19). See 20 C.F.R. pt. 404, Subpt. P,
Appendix 1 (“the Listings”). He reasoned that, although evidence demonstrated an onset of
mental retardation prior to age twenty-two, the Listing requirements of 12.05 had not been met.
(Tr. 20). Specifically, the ALJ explained that the paragraph A requirements for Listing 12.05

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were not satisfied because Kelley and his mother both testified that he was not dependent on
others for his personal needs. (Tr. 20). Second, the ALJ found that the paragraph B
requirements were not met because, although Kelley’s 1995 and 1997 IQ scores fell within the
requisite range, Kelley’s 2009 IQ scores were not within the requisite range and more accurately
reflected his true IQ. (Tr. 20). The ALJ reasoned that the record demonstrated that Kelley’s
“functional ability is much greater than his academic records would indicate” and Dr. Rini
opined that the 2009 scores accurately reflected Kelley’s abilities. (Tr. 20). Third, the ALJ
found that the paragraph C requirements were not met because, although Kelley satisfied the IQ
requirement, he did not have the requisite physical or mental impairment imposing an additional
and significant work-related limitation of function. (Tr. 21). Last, the ALJ determined that
Kelley did not satisfy the paragraph D requirements because Kelley only possessed mild
restrictions in activities of daily living, exhibited mild difficulties in social functioning, displayed
moderate difficulties with regard to concentration, persistence, or pace, and experienced no
episodes of decompensation. (Tr. 21-22).
The ALJ ultimately found that Kelley had the following RFC:
[t]o perform a full range of work at all exertional levels but with
the following nonexertional limitations: the claimant is able to
understand, remember, and carry out simple, routine, and repetitive
tasks; further, the claimant would be able to keep pace to complete
tasks and meet quotas typically found in unskilled work; finally,
the claimant would be able to read only short simple words and
could not perform tasks requiring handling money.
(Tr. 23). With respect to his RFC finding, the ALJ afforded significant weight to the opinion of
state agency psychological consultant Dr. Unversaw. (Tr. 25). When assessing Kelley’s
credibility, the ALJ determined that Kelley’s overall level of functioning, including his activities
of daily living, social functioning, and concentration, persistence, and pace, suggested that he

13

was not as impaired as he alleged. (Tr. 24). The ALJ emphasized, among other things, Kelley’s
ability to take care of himself and his daughter with some help from his mother; Kelley’s ability
to socially function well enough to apply for and obtain multiple jobs, care for his daughter, and
attend medical appointments; Kelley’s ability to follow instructions and answer questions
without difficulty during medical appointments; and Kelley’s ability to obtain a license with no
difficulties. (Tr. 24). The ALJ recognized that both Dr. Rini and Kelley’s mother believed that
Kelley may overestimate his own capabilities, and the ALJ confirmed that he took this into
consideration when assessing Kelley’s RFC (without explaining how, see infra). (Tr. 25).
Ultimately, the ALJ determined that, although Kelley’s mild mental retardation
impairment was severe, it did not preclude him from completing basic work-related activities.
(Tr. 25). Based on Kelley’s RFC and the VE’s testimony, the ALJ found that Kelley was not
disabled because he was capable of performing his past relevant work as a dishwasher and he
could perform several other occupations, such as hand packer, dining room attendant, and
industrial cleaner. (Tr. 26–27).
III. STANDARD OF REVIEW
The ruling made by the ALJ becomes the final decision of the Commissioner when the
Appeals Council denies review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009).
Thereafter, in its review, the district court will affirm the Commissioner’s finding of fact and
denial of disability benefits if they are 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). This evidence 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

14

minds could differ” about the disability status of the claimant, the Court must 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 considers the entire administrative
record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review
of the evidence” before affirming the Commissioner’s decision, and the decision cannot stand if
it lacks evidentiary support or an inadequate discussion of the issues. Id. Ultimately, while the
ALJ is not required to address every piece of evidence or testimony presented, the ALJ must
provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580 F.3d
471, 475 (7th Cir. 2009).
Further, conclusions of law are not entitled to deference; so, if the Commissioner
commits an error of law, reversal is required without regard to the volume of evidence in support
of the factual findings. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
IV. ANALYSIS
Disability and supplemental insurance benefits are available only to those individuals
who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d
636, 638 (7th Cir. 1998). Specifically, the claimant must be 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
create a five-step sequential evaluation process to be used in determining whether the claimant

15

has established a disability. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The steps are to be used in the
following order:
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.
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, disability is acknowledged by the Commissioner. 20 C.F.R.
§ 404.1520(a)(4)(iii). However, if a listing is not met or equaled, in between steps three and
four, the ALJ must then assess the claimant’s RFC, which, in turn, is used to determine whether
the claimant can perform his past work under step four and whether the claimant can perform
other work in society at step five of the analysis. 20 C.F.R. § 404.1520(e). The claimant has the
initial burden of proof in steps one through four, while the burden shifts to the Commissioner in
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).
Kelley takes issue with several aspects of the ALJ’s decision. First, Kelley argues that
the ALJ erred in finding that his adjustment disorder was non-severe. Second, Kelley contends
that the ALJ improperly determined that his impairments did not meet or equal Listing 12.05.
Third, Kelley argues that the ALJ failed to account for some of his alleged limitations in the RFC
and failed to properly weigh the hearing testimony. The Court addresses each argument in
correspondence with the sequential order of the ALJ’s evaluation.

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A.

Whether the ALJ erred in finding that Kelley’s adjustment disorder was non-severe
Kelley first challenges the ALJ’s step two determination that Kelley’s adjustment

disorder was non-severe. At step two, the ALJ must determine the severity of the claimant’s
impairments. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is severe if it significantly limits
the claimant’s physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c); 404.1521(a). According to 20 C.F.R. § 404.1521(b), “basic work activities”
means:
the abilities and aptitudes necessary to do most jobs. Examples of these include-(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work
situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b).
In determining that Kelley’s adjustment disorder with depression and anxiety was a nonsevere impairment, the ALJ reasoned that the impairment did not significantly limit Kelley’s
ability to perform work activities. The ALJ indicated that despite Dr. Rini’s diagnosing Kelley
with adjustment disorder with underlying depression and anxiety, Dr. Rini had also indicated that
Kelley was not bothered by any depression or anxiety during his testing. The ALJ also
supported his finding by stating that Kelley had specifically denied problems with anxiety or
depression, and there was no objective evidence indicating that Kelley had ongoing problems or
sought treatment for adjustment disorder. (Tr. 19).
There are some troubling aspects of the ALJ’s step two determination. First, while the
ALJ relied on Dr. Rini’s assessment to make his determination, he did not make mention of other

17

information contained in Dr. Rini’s assessment which may have specifically supported a finding
that Kelley’s adjustment disorder was severe. For instance, at step two, the ALJ completely
ignored Dr. Rini’s impression that Kelley overstated his capabilities and that Kelley’s report of
his own abilities may not be reliable. Dr. Rini’s opinion in this respect would potentially account
for Kelley’s self-proclaimed denial of any problems with anxiety or depression and Kelley’s
having not sought further treatment for his mental health condition. Yet, no such discussion of
this evidence favoring Kelley was provided, despite the ALJ’s reliance on other aspects of Dr.
Rini’s report, and this was error. See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)
(noting that the ALJ has an obligation to consider all relevant evidence and cannot “cherry-pick”
facts that support a finding of non-disability while ignoring evidence that points to a disability
finding).
Additionally, although the ALJ supported his step two finding by noting Kelley’s lack of
treatment for adjustment disorder, the ALJ failed to inquire as to Kelley’s reasons for not seeking
treatment for his mental health problems. Had the ALJ inquired into the reason for Kelley’s
failure to pursue regular medical treatment for his mental health issues, then the ALJ would have
been in a position to evaluate whether Kelley’s self-reported capabilities were in fact credible,
despite Dr. Rini’s opinion that they were not. See e.g., Shauger v. Astrue, 675 F.3d 690, 696 (7th
Cir. 2012) (“an ALJ must first explore the claimant’s reasons for the lack of medical care before
drawing a negative inference.”) (citations omitted); SSR 96–7p (“the adjudicator must not draw
any inferences about an individual's symptoms and their functional effects from a failure to seek
or pursue regular medical treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or irregular
medical visits or failure to seek medical treatment.”); see also Mendez v. Barnhart, 439 F.3d 360,

18

361-62 (7th Cir. 2006) (“The fact that a psychiatric patient does not follow through on
counseling or take antipsychotic drugs regularly is a common consequence of being psychotic
and is especially to be expected of a person with a very low IQ.”) (emphasis added). The Court
recognizes that some evidence of record, such as Dr. Unversaw’s report, might support the ALJ’s
overall conclusion that Kelley’s adjustment disorder with depression and anxiety was nonsevere. However, the ALJ did not mention Dr. Unversaw’s report as a basis for supporting his
conclusion at step two. Even so, on remand, the ALJ needs to explain his inconsistent reliance
on Dr. Rini’s opinion and determine the reason for Kelley’s lack of mental health treatment.
The Court realizes of course that once the ALJ finds any severe impairment—as he did
here, by finding that Kelley suffered from the severe impairment of mild mental retardation—the
claimant has already met the necessary threshold at step two and the ALJ is required to proceed
with the five-step analysis. 20 C.F.R. § 404.1520(a)(4)(ii) (requiring a “severe” impairment to
move on to step three); Castile v. Astrue, 617 F.3d 923, 926–27 (7th Cir. 2010) (“[T]he step two
determination of severity is merely a threshold requirement.”). However, in this case, the
severity of other impairments also affected the ALJ’s equivalency determination (step three), and
therefore a correct assessment at step two remains important. See e.g., Farrell v. Astrue, 692 F.3d
767, 772 (7th Cir. 2012). Consequently, the Court remands the case so the ALJ may support his
step two analysis with sufficient discussion.
B.
Whether the ALJ’s finding that Kelley did not meet Listing 12.05 was supported by
substantial evidence
Kelley next challenges the ALJ’s determination that he did not meet or equal any of the
impairments listed in 20 C.F.R. pt. 404, Subpt. P, Appendix 1. Specifically, Kelley contends that
he satisfied Listing 12.05(C) for mental retardation. The Commissioner disagrees.

19

At step three, the ALJ must determine whether the claimant has met any of the listed
impairments enumerated in the Listing of Impairments found in 20 C.F.R. pt. 404, Subpt. P,
Appendix 1. The Listing of Impairments describes impairments for each of the major body
systems that the Social Security Administration considers to be severe enough to prevent an
individual from doing any gainful activity. 20 C.F.R. § 404.1525. Thus, when a claimant
satisfies the criteria of a Listing, that person is deemed disabled and is automatically entitled to
benefits, regardless of his age, education, or work experience. Id.; 20 C.F.R. § 404.1526. For
each Listing, there are objective medical findings and other findings that must be met to satisfy
the criteria of that Listing. Id. Furthermore, the claimant bears the burden of proving that his
impairments meet the requirements of a Listing. See Maggard v. Apfel, 167 F.3d 376, 380 (7th
Cir. 1999).
Listing 12.05 contains an introductory paragraph with the basic description of the
impairment “mental retardation.” Listing 12.05 also contains four sets of criteria (A through D).
If the claimant satisfies the description in the introductory paragraph and any one of the four sets
of criteria (A through D), then the claimant meets the Listing, and the claimant will be deemed
disabled. See Adkins v. Astrue, 226 Fed.Appx. 600, 604-05 (7th Cir. 2007) (unpublished
opinion). Listing 12.05 states:
Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before
age 22. The required level of severity for this disorder is met when
the requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others
for personal needs (e.g., toileting, eating, dressing, or
bathing) and inability to follow directions, such that the use
of standardized measures of intellectual functioning is
precluded; or

20

B. A valid verbal, performance, or full scale IQ of 59 or
less; or
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function; or
D. A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05.
At step three, the ALJ determined in relevant part that, although Kelley had the requisite
IQ score, he did not meet Listing 12.05(C) because he did not have any other physical or mental
impairment that imposed additional significant work-related limitations in functioning. (Tr. 21).
Listing 12.05 states that an additional impairment presents a significant work-related limitation
of function if, “[it] is a ‘severe’ impairment, as defined in §§ 404.1520(c) and 416.920(c).” 20
C.F.R. Pt. 404, Subpt. P, App. 1. Although 20 C.F.R. § 404.1520(c) and § 416.920(c) define
“severe impairment” for purposes of the step two analysis, they specifically state that a severe
impairment is an impairment which significantly limits a claimant’s physical or mental ability to
do basic work activities. Thus, from a plain reading of the relevant Code of Federal Regulations,
as cited, it appears that the definition of a “severe impairment” for purposes of step two is the
same as the definition of an “additional and work-related limitation of function” for Listing
12.05. 20 C.F.R. §§ 404.1520(c), 416.920(c).
In Higgins v. Barnhart, the Seventh Circuit afforded deference to the Social Security
Administration’s similar interpretation of the regulation, noting that the Administration, itself,

21

equated “additional and significant work-related limitation” with “severe.” Higgins v. Barnhart,
42 Fed.Appx. 846, 849-850 (7th Cir. 2002) (unpublished opinion). See also Peterson v. Astrue,
No. 09 C 50084, 2010 WL 5423751, at *6 (N.D. Ill. Dec. 22, 2010) (“Seventh Circuit case law
clearly equates the meanings of ‘additional and significant work-related limitation of function’
requirement under § 12.05C and Step Two’s ‘severity standard’”); Elster v. Barnhart, No. 01 C
4085, 2003 WL 124432, at *5 (N.D. Ill. Jan. 13, 2003) (“the newly revised § 12.00 equates
‘additional and significant’ with ‘severe.’”).
Here, the ALJ failed to mention whether Kelley’s adjustment disorder had any impact on
Kelley’s ability to satisfy Listing 12.05(C). This is likely because the ALJ had already
determined that Kelley’s adjustment disorder was a non-severe impairment—a decision that, for
the reasons previously discussed, requires remand. Should it ultimately be determined that
Kelley has another severe impairment at step two, such as adjustment disorder, then this would
be a finding that would be synonymous with Kelley’s having an “additional and significant
work-related limitation of function” under 12.05(C). Thus, on remand, the Court directs the ALJ
to adequately explain how Kelley’s adjustment disorder (or any other limitation for that matter)
impacts his ability to satisfy Listing 12.05(C).
For purposes of remand, the Court also notes that the ALJ erred by misstating the
standard noted in Listing 12.05’s introductory paragraph. In his analysis, the ALJ asserted that,
although there is evidence of Kelley’s suffering from deficits in adaptive functioning, there is
little evidence that Kelley had a “‘significant’ adaptive deficit ” related to his social or
interpersonal skills. (Tr. 20-21) (emphasis added). However, Listing 12.05 only requires deficits
in adaptive functioning—not significant deficits. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05
(“Intellectual disability refers to significantly subaverage general intellectual functioning with

22

deficits in adaptive functioning initially manifested during the developmental period . . .”)
(emphasis added); Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007) (“The key term in the
introductory paragraph . . . is ‘deficits in adaptive functioning.’ The term denotes inability to
cope with the challenges of ordinary everyday life.”) (citing APA, Diagnostic and Statistical
Manual of Mental Disorders, Text Revision (DSMIV-TR) 42 (4th Ed. 2000)). Consequently, on
remand, the ALJ shall apply the correct standard in determining whether Kelley also satisfied
Listing 12.05’s introductory paragraph requirements.
C.
Whether the ALJ erred with respect to his credibility finding and resulting RFC
determination
Kelley asserts that in deciding his RFC, the ALJ failed to make an adequate credibility
finding with respect to the hearing testimony provided by him and his mother, and failed to
account for some of his alleged limitations in the RFC. The Court agrees.
The RFC is an assessment of the work-related activities a claimant is able to perform on a
regular and continued basis despite the limitations imposed by an impairment or combination of
impairments. Carradine v. Barnhart, 360 F.3d 751, 780 n. 27 (7th Cir. 2004). This finding must
be based upon all of the relevant evidence in the record, 20 C.F.R. § 404.1545(a), and this means
that the ALJ is to consider, among other things, “statements about what [the claimant] can still
do that have been provided by medical sources” and “descriptions and observations of [the
claimant’s] limitations . . . provided by [the claimant], [the claimant’s] family, neighbors,
friends, or other persons. Id. (citing 20 C.F.R. § 404.1545(e) and § 404.1529). Further, the ALJ
must consider all medically determinable impairments, even if not considered “severe,” 20
C.F.R. § 404.1545(a)(2), and the RFC determination must be supported by substantial evidence.
Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012). The ALJ’s decision regarding a claimant’s
RFC is a legal decision, rather than a medical one. 20 C.F.R. §§ 404.1546(c), 404.1527(e).

23

Kelley is correct that in finding him not to be credible, the ALJ initially used the same
boilerplate language which the Seventh Circuit has admonished ALJ’s for using.7 See, e.g.,
Bjornson v. Astrue, 671 F.3d 640, 645–46 (7th Cir. 2012). However, more problematic is the
ALJ’s failure to explain whether he found Kelley’s complaints of difficulties with focusing,
concentrating, and multi-tasking, to be incredible, or whether he believed that Kelley suffered
from these limitations to the extent complained of and therefore somehow accounted for the
restrictions in the RFC finding. (Tr. 24). Without such an explanation,8 the Court is unable to
determine if the RFC finding adequately accounts for Kelley’s lifelong documented difficulties
of maintaining concentration and focus for a prolonged period of time. This is especially true
where, in deciding the RFC, the ALJ afforded “significant weight” to the opinion of
psychological consultant Dr. Unversaw, who believed that Kelley was capable of performing
simple work because, in relevant part, he was not significantly limited in his ability to maintain
attention, concentration, and persistence, sustain an ordinary routine, and work without
distraction.
The ALJ also erred by failing to sufficiently explain how Kelley’s ability to engage in
activities of daily living, care for his daughter with assistance, and independently obtain
employment and attend medical appointments, means that Kelley is also able to perform a full
day of work on a regular and consistent basis given his mental limitations. See Bjornson, 671
F.3d at 647 (“The critical differences between activities of daily living and activities in a fulltime job are that a person has more flexibility in scheduling the former than the latter, can get

7

Specifically the ALJ stated: “After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairment could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above residual functional capacity assessment.” (Tr. 23).
8

And the ALJ’s vague statement that the “RFC has taken into account the alleged impairments that are
encompassed by [being] mildly mentally retarded” is insufficient. (Tr. 24).

24

help from other persons (in this case, Bjornson's husband and other family members), and is not
held to a minimum standard of performance, as she would be by an employer.”). In fact, Kelley
has never been able to maintain a job for longer than six months. And while the ALJ supported
his RFC finding by relying on Kelley’s self-proclaimed abilities, the ALJ did so despite the
opinions of Dr. Rini and Kelley’s mother who believed that Kelley overstated his capabilities.
The ALJ noted in conclusory fashion that he had taken into consideration the possibility that
Kelley might have overestimated his own capabilities (as opined by Dr. Rini and Kelley’s
mother), but the ALJ never explained what he meant by this. In other words, the ALJ failed to
explain in what respect he agreed that Kelley may have overstated his abilities and how Kelley’s
actual abilities were accounted for in the RFC finding.
On remand, rather than making the blanket assertion that “[t]o the extent the claimant’s
allegations are inconsistent with this [RFC] assessment, such [statements] are not deemed fully
credible,” the ALJ is instructed to explain which statements of Kelley’s were discredited,
especially in regards to his ability to maintain concentration, persistence, and pace. In addition,
the ALJ shall explain how Kelley’s actual abilities and limitations were accounted for in the RFC
assessment.
D.

Steps 4 and 5
The ALJ found that given the RFC determination, Kelley could perform his past work

(step four) and other jobs that existed in significant numbers in the national economy (step five).
However, without a proper credibility determination and RFC evaluation, steps four and five
cannot be properly analyzed. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004) (the ALJ
must determine the claimant’s RFC before performing steps 4 and 5 because a flawed RFC
typically skews questions posed to the VE); 20 C.F.R. §§ 404.1520, 404.1545; SSR 96-8p. In

25

other words, the Court has no way of concluding whether the hypothetical questions posed to the
VE ultimately included all of Kelley’s limitations because there was an insufficient discussion of
the record evidence supporting the ALJ’s RFC determination. Moreover, to the extent some of
the more restrictive hypotheticals may have included all of the limitations from which Kelley
suffers, i.e. the inability to understand, remember, and carry out simple routine tasks over an
eight-hour day, the VE responded that Kelley would not have been able to sustain competitive
employment. In essence, given the unsupported RFC determination, it is impossible for the
Court to determine whether the questions posed to the VE were adequate and inclusive of all the
conditions Kelley alleges he suffers from, and whether the VE’s testimony sufficiently
established whether Kelley could in fact perform his past work and other work.9 See Jelinek v.
Astrue, 662 F.3d 805, 813 (7th Cir. 2011) (noting that ALJ’s must provide vocational experts
with a “complete picture of a claimant’s residual functional capacity.”).
V. CONCLUSION
For the aforementioned reasons, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings consistent with the conclusions in this order.
SO ORDERED.
ENTERED: February 10, 2014
/s/ JON E. DEGUILIO
Judge
United States District Court

9

Admittedly, the Seventh Circuit has occasionally assumed a VE’s familiarity with the claimant’s
limitations, despite any gaps in the hypothetical, when the record shows that the VE independently reviewed the
medical record or heard testimony directly addressing those limitations. O’Connor-Spinner v. Astrue, 627 F.3d 614,
n. 5 (7th Cir. 2010) (citing Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Young, 362 F.3d at 1003; Steele v.
Barnhart, 290 F.3d 936, 942 (7th Cir. 2002); Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995); Ehrhart v.
Sec'y of Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992)). This exception does not apply here, since the
ALJ asked a series of increasingly restrictive hypotheticals that focused the VE’s attention on the limitations of the
hypothetical person, rather than on the record itself or the limitations of the claimant himself. Id. (citing Simila, 573
F.3d at 521; Young, 362 F.3d at 1003).

26