Dotson v. Commissioner of Social Security
Filing
20
OPINION AND ORDER: The decision of the Commissioner is REMANDED for further proceedings consistent with this order. Signed by Magistrate Judge Andrew P Rodovich on 9/5/18. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
IEASHA DOTSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. 4:17-cv-31
OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Ieasha Dotson, on April 20, 2017. For the following
reasons, the decision of the Commissioner is REMANDED.
Background
The plaintiff, Ieasha Dotson, filed applications for Disability Insurance Benefits and
Supplemental Security Income on August 13, 2013, alleging a disability onset date of August 1,
2013. (Tr. 52). The Disability Determination Bureau denied Dotson’s applications on December
11, 2013, and again upon reconsideration on July 7, 2014. (Tr. 52). Dotson subsequently filed a
timely request for a hearing on August 22, 2014. (Tr. 52). A hearing was held on January 27,
2016, before Administrative Law Judge (ALJ) Laurie Wardell, and the ALJ issued an
unfavorable decision on February 12, 2016. (Tr. 52-62). Vocational Expert (VE) Richard J.
Hamersma testified at the hearing. (Tr. 52). The Appeals Council denied review, making the
ALJ’s decision the final decision of the Commissioner. (Tr. 1-6).
Dotson met the insured status requirements of the Social Security Act through December
31, 2017. (Tr. 54). The ALJ issued an unfavorable decision on February 12, 2016, and made
findings as to each of the steps in the five-step sequential analysis. (Tr. 52-62). At step one of
the five-step sequential analysis for determining whether an individual is disabled, the ALJ found
that Dotson had not engaged in substantial gainful activity since August 1, 2013, the alleged
onset date. (Tr. 54).
At step two, the ALJ determined that Dotson had the following severe impairments:
scoliosis, posttraumatic stress disorder, and bipolar disorder. (Tr. 54). At step three, the ALJ
concluded that Dotson did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 55). The ALJ indicated that she considered the listings in section 1.00 for
musculoskeletal disorders and section 12.00 for mental health disorders. (Tr. 55). However,
regarding Dotson’s scoliosis, the ALJ considered Listing 1.04 but indicated that she did not find
evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with
ineffective ambulation in the medical record. (Tr. 55). The ALJ also considered Dotson’s
mental impairments, singly and in combination, according to the criteria in Listings 12.04 and
12.06. (Tr. 55). Accordingly, the ALJ determined that the severity of Dotson’s mental
impairments did not meet or medically equal the listings. (Tr. 55).
In finding that Dotson did not meet the above listings, 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.
2
(Tr. 55). The ALJ defined a marked limitation as more than moderate but less than extreme and
repeated episodes of decompensation, each of extended duration, as three episodes within one
year or once every four months with each episode lasting at least two weeks. (Tr. 55).
The ALJ determined that Dotson had mild restriction in activities of daily living. (Tr.
55). The ALJ noted that the function reports completed by Dotson in September of 2013 and
June of 2014 indicated that she was able to complete similar activities daily living. (Tr. 55). The
ALJ noted that Dotson was able to care for her children, help her children with homework,
prepare meals, clean, use public transportation, manage finances, shop, and visit with family.
(Tr. 55).
Next, the ALJ concluded that Dotson had moderate difficulties in social functioning. (Tr.
55). Dotson indicated that she had extreme issues with social interaction. (Tr. 56). However,
the ALJ accounted for Dotson’s testimony that she lived with her two children, used public
transportation, spent an hour at a time on Facebook, and shopped in stores. (Tr. 56). Therefore,
ALJ found that those activities demonstrated that Dotson was able to interact with others. (Tr.
56).
Finally, the ALJ found that Dotson had moderate difficulties in concentration,
persistence, or pace. (Tr. 56). The ALJ noted that Dotson’s activities of daily living
demonstrated that she was able to maintain attention and concentration. (Tr. 56). The ALJ
found that Dotson had no episodes of decompensation which were of extended duration. (Tr.
56). Because Dotson did not have two marked limitations or one marked limitation and repeated
episodes of decompensation, the ALJ determined that she did not satisfy the paragraph B criteria.
(Tr. 56). Additionally, the ALJ concluded that Dotson did not satisfy the paragraph C criteria.
(Tr. 56).
3
After consideration of the entire record, the ALJ then assessed Dotson’s residual
functional capacity (RFC) as follows:
[T]he claimant has the residual functional capacity (RFC) to perform light
work as defined in 404.1567(b) and 416.967(b) as lifting/carrying 20 pounds
occasionally and 10 pounds frequently, standing/walking about six of eight
hours, and sitting about six or eight hours. The claimant also has the
following additional limitations: occasional stooping, couching, and
climbing ramps and stairs, but no climbing ladders, ropes or scaffolds; no
kneeling or crawling; simple, routine, and repetitive tasks not at production
rate pace; occasional conduct [sic] with coworkers and supervisors; no
tandem tasks and no work with the public; simple work decisions; only
occasional changes in the work setting.
(Tr. 57). The ALJ explained that in considering Dotson’s symptoms she followed a two-step
process. (Tr. 57). First, she 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 Dotson’s pain or other
symptoms. (Tr. 57). Then, she evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Dotson’s functioning. (Tr. 57).
The ALJ indicated that after consideration of the evidence, she found that Dotson’s
statements concerning the intensity, persistence, and limiting effects of her symptoms were not
entirely credible with the evidence as a whole, including the medical evidence and her noted
activities of daily living, did not support the allegations. (Tr. 59). The ALJ found that Dotson’s
type of treatment was conservative considering her alleged degree of pain and limitations. (Tr.
60). Also, the ALJ considered that Dotson’s ability to work demonstrated that she was capable
of more than she alleged. (Tr. 60). Finally, the ALJ noted that Dotson’s activities of daily living
also were inconsistent with her allegations of symptom and limitation severity. (Tr. 60).
At step four, the ALJ found that Dotson was unable to perform any past relevant work.
(Tr. 60). Considering Dotson’s age, education, work experience, and RFC, the ALJ concluded
4
that there were jobs in the national economy that she could perform, including mail sorter
(20,000 jobs nationally) and inspector (25,000 jobs nationally). (Tr. 61). The ALJ found that
Dotson had not been under a disability, as defined in the Social Security Act, from August 1,
2013, through the date of this decision, February 12, 2016. (Tr. 62).
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 her 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
decision if the ALJ supported her 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 and supplemental insurance benefits are available only to those individuals
who can establish “disability” under the terms of the Social Security Act. The claimant must
show that she is unable “to engage in any substantial gainful activity by reason of any medically
5
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The Social Security regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§
404.1520(b), 416.920(b). If 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), 416.920(c); see Williams v. Colvin, 757 F.3d 610,
613 (7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the
claimant’s impairments). Third, the ALJ determines whether that severe impairment meets any
of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it
does, then the impairment is acknowledged by the Commissioner to be conclusively disabling.
However, if the impairment does not so limit the claimant’s remaining capabilities, the ALJ
reviews the claimant’s “residual functional capacity” and the physical and mental demands of
her past work. If, at this fourth step, the claimant can perform her past relevant work, she will be
found not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(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), 416.920(f).
6
Dotson 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, Dotson has argued
that the ALJ: (1) made a mistake of fact in concluding that Dotson attended the administrative
hearing in person; (2) erred in evaluating the medical opinion of Christopher Hutcheson, LSW,
and Dr. Cathy Streifel, Ph.D.; (3) erred in evaluating Dotson’s mental residual functional
capacity; and (4) erred in evaluating Dotson’s subjective allegations in accordance with SSR 967p and SSR 16-3p.
First, Dotson has argued that the ALJ made a mistake of fact in concluding that Dotson
appeared in person at the administrative hearing. Dotson testified at the hearing via telephone.
The Commissioner does not dispute that fact. Dotson’s contention is that the ALJ’s decision
included observations that the ALJ was incapable of making considering that Dotson testified
over the phone. In evaluating Dotson’s subjective complaints, the ALJ found that Dotson’s
“demeanor at the hearing contradicted her allegations of pain and symptom severity because she
appeared comfortable throughout the hearing and sat without overt pain signs. Moreover, the
claimant interacted appropriately and responded to the questions with adequate memory,
concentration and attention.” (Tr. 60). Therefore, in light of the ALJ’s mistake of fact as well as
other errors in evaluating her subjective allegations, Dotson has argued that the ALJ’s evaluation
of her symptoms was patently wrong.
This court will sustain the ALJ’s credibility determination unless it is “patently wrong”
and not supported by the record. Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013); Schmidt
v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Prochaska v. Barnhart, 454 F.3d 731, 738 (7th
Cir. 2006) (“Only if the trier of fact grounds his credibility finding in an observation or argument
that is unreasonable or unsupported . . . can the finding be reversed.”). The ALJ must make
7
explicit findings and explain them “in a way that affords meaningful review,” or the ALJ’s
credibility determination is not entitled to deference. Steele v. Barnhart, 290 F.3d 936, 942 (7th
Cir. 2002). Further, “when such determinations rest on objective factors or fundamental
implausibilities rather than subjective considerations [such as a claimant’s demeanor], appellate
courts have greater freedom to review the ALJ’s decision.” Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000); see Bates, 736 F.3d at 1098.
The ALJ must determine a claimant’s credibility only after considering all of the
claimant’s “symptoms, including pain, and the extent to which [the claimant’s] symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence.”
20 C.F.R. ' 404.1529(a); Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective
complaints need not be accepted insofar as they clash with other, objective medical evidence in
the record.”); Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). If the claimant’s
impairments reasonably could produce the symptoms of which the claimant is complaining, the
ALJ must evaluate the intensity and persistence of the claimant’s symptoms through
consideration of the claimant’s “medical history, the medical signs and laboratory findings, and
statements from [the claimant, the claimant’s] treating or examining physician or psychologist,
or other persons about how [the claimant’s] symptoms affect [the claimant].” 20 C.F.R.
' 404.1529(c); see Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005) (“These
regulations and cases, taken together, require an ALJ to articulate specific reasons for
discounting a claimant’s testimony as being less than credible, and preclude an ALJ from merely
ignoring the testimony or relying solely on a conflict between the objective medical evidence and
the claimant’s testimony as a basis for a negative credibility finding.”).
8
Although a claimant’s complaints of pain cannot be totally unsupported by the medical
evidence, the ALJ may not disregard an individual’s statements about symptoms solely based on
objective medical evidence. SSR 16-3p, at *51; see Moore v. Colvin, 743 F.3d 1118, 1125 (7th
Cir. 2014) (“‘[T]he ALJ cannot reject a claimant’s testimony about limitations on her daily
activities solely by stating that such testimony is unsupported by the medical evidence.’”)
(quoting Indoranto, 374 F.3d at 474); Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004)
(“If pain is disabling, the fact that its source is purely psychological does not disentitle the
applicant to benefits.”). Rather, if the
[c]laimant indicates that pain is a significant factor of his or her alleged
inability to work, the ALJ must obtain detailed descriptions of the
claimant’s daily activities by directing specific inquiries about the pain and
its effects to the claimant. She must investigate all avenues presented that
relate to pain, including claimant’s prior work record, information and
observations by treating physicians, examining physicians, and third parties.
Factors that must be considered include the nature and intensity of the
claimant’s pain, precipitation and aggravating factors, dosage and
effectiveness of any pain medications, other treatment for relief of pain,
functional restrictions, and the claimant’s daily activities. (internal citations
omitted).
Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994); see Zurawski v. Halter, 245 F.3d 881,
887-88 (7th Cir. 2001).
In addition, when the ALJ discounts the claimant’s description of pain because it is
inconsistent with the objective medical evidence, she must make more than “a single, conclusory
1
The Social Security Administration updated its guidance about evaluating a claimant’s symptoms. See SSR
16-3p, 2016 WL 1119029 (effective March 28, 2016). SSR 16-3p superseded SSR 96-7p and removed the term
“credibility” from the Administration’s policies. SSR 16-3p at *1. The new policy clarifies that an ALJ should not
examine a claimant’s character similar to an adversarial proceeding when evaluating the claimant’s subjective
symptoms. SSR 16-3p at *1. Although SSR 16-3p post-dates the ALJ hearing in this case, a regulation that clarifies
rather than changes existing law is appropriate on appeal. Pope v. Shalala, 998 F.2d 473, 482–83 (7th Cir. 1993),
overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999). Because SSR 16-3p clarifies the
Administration’s policies, this court will evaluate the ALJ’s findings under the Administration’s new guidance. See
Roper v. Colvin, 2016 WL 3940035, at *3 (N.D. Ill. July 21, 2016) (finding it appropriate to consider the new
regulation on appeal).
9
statement . . . The determination or decision must contain specific reasons for the weight given to
the individual’s symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the adjudicator
evaluated the individual’s symptoms.” SSR 16-3p, at *9; see Minnick v. Colvin, 775 F.3d 929,
937 (7th Cir. 2015) (“[A] failure to adequately explain his or her credibility finding by discussing
specific reasons supported by the record is grounds for reversal.”) (citations omitted); Zurawski,
245 F.3d at 887; Diaz v. Chater, 55 F.3d 300, 307–08 (7th Cir. 1995) (finding that the ALJ must
articulate, at some minimum level, her analysis of the evidence). The ALJ is required to build an
accurate and logical bridge from the evidence to her conclusion. Zurawski, 245 F.3d at 887
(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). A minor discrepancy, coupled
with the ALJ’s observations is sufficient to support a finding that the claimant was incredible.
Bates, 736 F.3d at 1098. However, this must be weighed against the ALJ’s duty to build the
record and not to ignore a line of evidence that suggests a disability. Bates, 736 F.3d at 1099.
The ALJ determined that Dotson’s statements concerning the intensity, persistence, and
limiting effects of her symptoms were not entirely credible with the evidence as a whole,
including the medical evidence and her noted activities of daily living, and did not support the
allegations. (Tr. 59). In support of her credibility determination, the ALJ indicated that given
the degree of pain and limitation alleged by Dotson the record reflected conservative treatment.
(Tr. 60). The ALJ indicated that Dotson testified that she only had pain 40% of the day and that
she took Tylenol for the pain. (Tr. 60). Moreover, Dotson testified that she had three panic
attacks per week and that she took Klonopin when she felt the beginning of a panic attack. (Tr.
60). However, the ALJ noted that contrary to Dotson’s testimony, she indicated that she had not
10
taken Klonopin in a week. (Tr. 60). The ALJ properly accounted for the dosage and
effectiveness of the medications that Dotson took to alleviate her pain and for her panic attacks.
Moreover, the ALJ also supported her credibility finding by noting Dotson’s testimony
that she worked five hours per week cleaning banks. (Tr. 60). The ALJ concluded that this
testimony demonstrated that Dotson was capable of more than she alleged and that her symptoms
were not as debilitating as she alleged. (Tr. 60). The ALJ also explained how Dotson’s activities
of daily living were inconsistent with her allegations of symptom and limitation severity. The
ALJ found that Dotson’s testimony and her function reports from September of 2013 and June of
2013 were inconsistent with her alleged limitations. (Tr. 60). The ALJ discredited Dotson’s
testimony that she had extreme issues with social interactions because she had worked as a
massage therapist. (Tr. 60). The ALJ has made more than a single conclusory statement in
support of her credibility finding.
However, the ALJ erred when she relied on Dotson conservative treatment without
seeking the reasoning for her conservative treatment. See Craft v. Astrue, 539 F.3d 668, 679
(7th Cir. 2008) (holding that an ALJ cannot draw a negative inference from a lack of treatment
without exploring the claimant’s reason for the lack of medical care). An ALJ also cannot draw
a negative inference based on a claimant’s failure to obtain adequate treatment, even if she has
sought some treatment during the relevant time period. See Visinaiz v. Berryhill, 243 F. Supp.
3d 1008, 1014 (N.D. Ind. 2017) (remanding where “the ALJ did not ask Plaintiff about her
perceived failure to seek adequate treatment” when the Plaintiff’s only treatment was through
medication that provided “some benefit”); Parker v. Colvin, No. 2:15-CV-316, 2016 WL
4435622, at * 5 (N.D. Ind. Aug. 22, 2016) (remanding where “[t]he ALJ found Plaintiff less than
credible in part because she did not attend as many physical therapy appointments as authorized
11
by her insurance and was not participating in pain management or the types of pain medication
the ALJ thought would be appropriate” without “ask[ing] Plaintiff about her physical therapy
appointments or pain medication regime[n], and did not credit the pain medications Plaintiff did
take”). In the instant matter, the ALJ’s decision did not indicate any treatment that was prescribe
that Dotson did not undergo. Moreover, the ALJ did not explain how Dotson’s
“conservative treatment” undermined her allegations of pain. The ALJ must provide sufficient
details as to allow the court to trace the path of the ALJ’s reasoning. Diaz v. Chater, 55 F.3d
300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995).
The ALJ found that Dotson’s demeanor at the hearing contradicted her allegations of pain
and symptom severity. (Tr. 60). However, the ALJ relied on observations that she was unable to
make. The Commissioner has argued that although some of the observations in the ALJ’s
decision were visual in nature the purported error was harmless. An ALJ's error is harmless
where, having looked at the evidence in the record, the court “can predict with great confidence
what the result on remand will be.” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011). The
Commissioner acknowledged that the ALJ’s repeated reference to Dotson appearing comfortable
during the hearing was erroneous. However, the Commissioner contends that the ALJ has
provided other well-supported reasons for discounting Dotson’s subjective complaints.
Therefore, the error should not be grounds for remand.
The court finds that the ALJ’s assessment of Dotson’s credibility was patently wrong.
The ALJ relied on unsupported evidence when she concluded that Dotson was not entirely
credible. There is no dispute that the ALJ based her credibility finding on erroneous
observations when she discounted the severity of Dotson’s pain and symptoms. Moreover, the
ALJ improperly relied on Dotson’s conservative treatment without seeking the reasoning for her
12
treatment or providing some explanation for that finding. Accordingly, the ALJ’s decision is not
consistent with and supported by substantial evidence. On remand, the ALJ should reevaluate
Dotson’s subjective symptoms in accordance with SSR 16-3p.
Next, Dotson has argued that the ALJ erred in evaluating the medical opinion of
Christopher Hutcheson, LSW, and Dr. Cathy Streifel, Ph.D. 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(d)(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 her 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)); see 20 C.F.R. ' 404.1527(d)(2) (“We will always give good
reasons in our notice of determination or decision for the weight we give your treating source’s
opinion.”).
“[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
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
13
disability.”); see, e.g., Latkowski v. Barnhart, 93 Fed. App’x 963, 970-71 (7th Cir. 2004);
Jacoby v. Barnhart, 93 Fed. 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.
The ALJ noted that Hutcheson had completed a mental residual functional capacity
assessment in August of 2015. (Tr. 58). Hutcheson concluded from the assessment that Dotson
was markedly limited in activities of daily living, social functioning, and maintaining
concentration, persistence, or pace. (Tr. 58). The ALJ gave the assessment partial weight
because although the assessment was co-signed by Dr. Cathy Streifel, Ph.D., the evaluation was
completed by Hutcheson, a non-acceptable medical source. (Tr. 58). However, opinions from
non-acceptable medical sources are weighed using the same factors as medical sources, but not
every factor will apply because the evaluation of such opinion varies case by case. 20 C.F.R. §
404.1527(f). 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. An ALJ need not explicitly
14
mention every factor, so long as her decision shows that she “was aware of and considered many
of the factors.” Schreiber v. Colvin, 519 Fed.Appx. 951, 959 (7th Cir. 2013).
The ALJ indicated that Hutcheson and Dr. Streifel’s assessed limitations were
inconsistent with Dotson’s ability to perform her work as a home health aide. (Tr. 58). The ALJ
also cited inconsistencies in Hutcheson’s findings with his treatment records. For example, the
ALJ’s decision indicated that according to Hutcheson’s May 5, 2015, treatment record Dotson
was employed, enjoyed time with family, and had an interest in massage therapy. (Tr. 58).
Also, the October 2015 examination report indicated that Dotson was alert and fully oriented
with intact memory, intact judgment and insight, intact associations, logical and goal-oriented
thought processes, and that she was able to maintain attention and focus throughout the session.
(Tr. 58).
The ALJ provided some discussion of the factors set forth in 20 C.F.R. § 404.1527(c) to
support the weight assigned to Hutcheson and Dr. Streifel’s opinion. The ALJ is not required to
discuss every piece of evidence or every factor. However, the ALJ did not acknowledge the
length and nature and extent of Hutcheson’s relationship with Dotson in support of or against her
decision. The court is not concluding that the ALJ erred in evaluating the medical opinion of
Hutcheson and Dr. Streifel. However, since this matter is being remanded on a different issue,
the ALJ should reconsider the weight given to Hutcheson and Dr. Streifel’s opinion.
Finally, Dotson has argued that the ALJ erred in evaluating her mental residual functional
capacity. SSR 96-8p explains how an ALJ should assess a claimant’s RFC at steps four and five
of the sequential evaluation. In a section entitled, “Narrative Discussion Requirements,” SSR
96-8p specifically spells out what is needed in the ALJ’s RFC analysis. This section of the
Ruling provides:
15
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations). In assessing RFC, the adjudicator must
discuss the individual’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.
SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a
difference between what the ALJ must contemplate and what she must articulate in her written
decision. “The ALJ is not required to address every piece of evidence or testimony presented,
but he must provide a ‘logical bridge’ between the evidence and his conclusions.” Getch v.
Astrue, 539 F.3d 473, 480 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000)); see Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Although the ALJ does not
need to discuss every piece of evidence, she cannot ignore evidence that undermines her ultimate
conclusions. Moore, 743 F.3d at 1123 (“The ALJ must confront the evidence that does not
support her conclusion and explain why that evidence was rejected.”) (citing Terry v. Astrue,
580 F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009); Arnett v.
Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). “A decision that lacks adequate discussion of the
issues will be remanded.” Moore, 743 F.3d at 1121.
The ALJ’s RFC assessment and the hypothetical posed to the VE must incorporate all of
the claimant’s limitations supported by the medical record. Yurt v. Colvin, 758 F.3d 850, 857
(7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010));
Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ relies on testimony
from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the
16
claimant’s limitations supported by medical evidence in the record.”). That includes any
deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d at 857;
O’Connor-Spinner, 627 F.3d at 619 (“Among the limitations the VE must consider are
deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th
Cir. 2009) (indicating the hypothetical question “must account for documented limitations of
‘concentration, persistence, or pace’”) (collecting cases). The most effective way to ensure that
the VE is fully apprised of the claimant’s limitations is to include them directly in the
hypothetical. O’Connor-Spinner, 627 F.3d at 619.
Courts repeatedly have held terms like “simple, repetitive tasks” alone do not exclude
from the VE’s consideration those positions that present significant problems with concentration,
persistence, or pace. Stewart, 561 F.3d at 684–85 (finding hypothetical limited to simple,
routine tasks did not account for limitations of concentration, persistence, or pace); see also
Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015). Similarly, hypotheticals limiting the
claimant to minimal social interaction with coworkers, supervisors, or the general public failed to
account for difficulties in maintaining concentration, persistence, and pace. Stewart v. Astrue,
561 F.3d 679, 685 (7th Cir. 2009); see also Varga, 794 F.3d at 814.
The ALJ found that Dotson suffered from medically determinable severe mental
impairments of posttraumatic stress disorder and bipolar disorder. (Tr. 54). The ALJ concluded
that Dotson had moderate restrictions in concentration, persistence, or pace. (Tr. 55). In
assessing Dotson’s mental residual functional capacity, the ALJ limited Dotson to “simple,
routine, and repetitive tasks not at production rate pace; occasional conduct [sic] with coworkers
and supervisors; no tandem tasks and no work with the public; simple work decisions; only
occasional changes in the work setting.” (Tr. 57).
17
Dotson has argued that the RFC failed to account for her moderate restrictions in
concentration, persistence, or pace. She contends that the ALJ only accounted for the level of
complexity of tasks that she could perform, not her ability to perform work tasks that were
consistent with the expectations of competitive employment. Moreover, Dotson has argued that
the ALJ failed to explain how her limitation to simple, routine, and repetitive tasks not at
production rate pace would accommodate her moderate limitations in concentration, persistence,
or pace. Finally, Dotson has argued that that ALJ only considered the frequency of her contact
with her coworkers and supervisors rather than the quality of those interactions as well. The
Commissioner presented a brief statement that “the Seventh Circuit has affirmed ALJ decisions
with far fewer limits in the vocational expert’s hypothetical question.” Therefore, the
Commissioner has not explained what evidence supported the ALJ’s decision.
The Seventh Circuit has been very clear that a limitation to simple instructions or simple,
routine tasks does not adequately account for a moderate limitation in maintaining concentration,
persistence, or pace. The court finds that the ALJ did not support her finding nor explain how
she assessed Dotson’s mental RFC. An ALJ is always obligated to address how she reached an
RFC assessment by discussing some reasoning behind the RFC and the evidence that supports it.
SSR 96-8p stresses that “[t]he RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).” As SSR 96-8p
explains, findings concerning a claimant's limitations in the functional areas of activities of daily
living, social functioning, and concentration are not the same as an RFC. An ALJ cannot merely
lift her findings from these functional areas and include them in the RFC without explaining her
reasoning. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012). On remand, the ALJ should
18
offer a narrative discussion describing how the evidence in the record supports the ALJ’s
findings concerning Dotson’s mental residual functional capacity.
Dotson 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 5th day of September, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?