TINCH v. ASTRUE

Filing 23

ENTRY ON JUDICIAL REVIEW (CLOSED REMANDED) - For the foregoing reasons, the final decision of the Commissioner of Social Security is hereby REMANDED. Signed by Judge Tanya Walton Pratt on 7/21/2011.(JD)

UNITED STATE DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AMBER M. TINCH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,

)
)
)
)
)
)
)
)
)
)

Case No. 1:10-CV-326-TWP-DML

Defendant.
ENTRY ON JUDICIAL REVIEW
Plaintiff, Amber Tinch ("Claimant"), requests judicial review of the final decision of
Defendant, Michael J. Astrue, Commissioner of the Social Security Administration (the
“Commissioner”), denying Claimant’s application for a period of disability and disability
insurance benefits (“DIB”) pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g.)
For the reasons set forth in this opinion, the Court REMANDS the decision of the
Commissioner.
I. BACKGROUND
A.

PROCEDURAL HISTORY
On October 24, 2003, Gene Tinch (“Tinch”) filed an application for a period of disability

and DIB alleging that he became disabled on May 24, 1999. (Tr. 133.) Tinch’s application was
denied on January 23, 2004 (Tr. 98) and, upon reconsideration, was denied again on February 19,
2004. (Tr. 95.) Tragically, Tinch committed suicide in April of 2006 (Tr. 977), and his daughter,
Claimant, was substituted as the party of interest. (Tr. 18.) A hearing held before the
Administrative Law Judge (“ALJ”) on October 10, 2006 resulted in an unfavorable decision on

March 20, 2007. (Tr. 73.) On December 14, 2007, Claimant appealed the unfavorable decision
(Tr. 124), and the Administrative Appeals Judge remanded the case back to the ALJ. (Tr. 89.)
The ALJ held a second hearing on May 8, 2009 and issued a denial decision on June 2, 2009.
On July 3, 2009, Claimant requested a review of the hearing decision. This request was denied
on January 19, 2010. Upon the Appeals Council’s denial of review, the ALJ’s decision became
the final decision by the Commissioner. 20 C.F.R. § 404.981; Luna v. Shalala, 22 F.3d 687, 689
(7th Cir. 1994.) Claimant now requests review of the ALJ’s decision pursuant to Title II of the
Social Security Act, 42 U.S.C. § 405(g.)
B.

TINCH’S WORK HISTORY
Tinch was born on November 19, 1961, and was 44 years old at the time of his death.

(Tr. 133.) Tinch had a high school education and attained his GED in 1991. (Tr. 193.) From
approximately 1981 to 1999, Tinch worked 40 hours per week as a carpet installer. (Tr. 189.)
Tinch’s employment as a carpet installer required heavy lifting, walking and crawling. (Tr. 189.)
From 2003 through the date of his DIB application, Tinch worked weekends for 16 hours each
week as a chemical dependency technician at LaVerna Lodge. (Tr. 1158.) Tinch stated that his
injuries required him to cease his employment as a carpet installer and switch to part-time
employment. (Tr. 189.)
C.

MEDICAL HISTORY
On November 7, 2003, Tinch reported to the Social Security Administration that his

ability to work was limited due to a back injury after an automobile accident, spinal fusion,
diabetes, and severe depression. (Tr. 188.)

2

1.

Back Pain and Spinal Fusion

In 1997, Tinch was treated by Dr. Carl Sartorius, M.D. (“Dr. Sartorius”) for a back injury
which he sustained while working as a carpet installer. (Tr. 972.) On November 5, 1997, Tinch
underwent a microlumbar diskectomy performed by Dr. Sartorius. (Tr. 970.) On January 8,
1998, Dr. Sartorius stated that Tinch was off medication, his mobility and activity level were
improving, and he could "return to work with no restrictions." (Tr. 968.)
On June 21, 1999, Tinch was seen by orthopedic surgeon, Herbert Biel, M.D. (“Dr.
Biel”) for back pain after sustaining further injury in an automobile accident in May 1999. (Tr.
465.) On June 21, 1999, Dr. Biel diagnosed Tinch with degenerative disc disease L5-S1. (Tr.
466.)

Approximately four months later, on November 1, 1999, Dr. Biel noted that after

reviewing Tinch’s CT discogram he informed Tinch of his option to pursue surgical stabilization
of the L5-S1 segment. (Tr. 459.) Dr. Biel explained that the surgery allowed for a 50-70%
chance of improvement. (Tr. 459.) On December 3, 1999, Dr. Biel performed a posterior spinal
fusion with segmental instrumentation and left iliac crest bone graft of Tinch’s L5-S1. (Tr. 424.)
During a three month, post-operation follow-up, Dr. Biel instructed Tinch to return to work on
the condition that he work only four days a week for two hours a day for four weeks. (Tr. 453.)
Tinch was seen by physical therapist, Gwen Eshleman P.T. (“Eshleman”), for work
conditioning on several occasions. (See Tr. 387, 399, 412, 413.) On April 13, 2000, Eshleman
opined that Tinch fell within the medium physical demand level. (Tr. 403.) Medium work
includes “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c.)
On June 21, 2000, following a post-operation appointment, Dr. Biel noted that Tinch was
doing well, had minimal discomfort and was not taking any medication at that time. (Tr. 451.)

3

Dr. Biel observed that the x-rays of the lumbar spine showed that the fusion was “nicely healed.”
(Tr. 451.) On June 21, 2000, approximately six months post-operation, Dr. Biel cleared Tinch to
return to work with the restriction that he was not to lift more than thirty-five pounds. (Tr. 398.)
From June 1999 through September 2005, Tinch was also being seen by his family
physician, Brian Kohles, M.D. (“Dr. Kohles”) for back pain. (Tr. 261; 275-76.) Dr. Kohles
prescribed Tinch Ibuprofen, Flexeril, and Lortab to address his complaints of lower back pain
and muscle spasms. (Tr. 281.)
On November 13, 2001, Dr. Kohles wrote a letter to the Family & Social Services
Administration in which he stated that Tinch had chronic low back pain with numbness in his
lower extremities. (Tr. 271.) Dr. Kohles further noted that an occupation which requires lifting
or prolonged standing was not recommended and that repetitious bending and twisting should be
avoided. (Tr. 271.)
On November 14, 2003, Dr. Kohles wrote a letter to the Disability Determination Bureau.
In this letter, Dr. Kohles stated that he had treated Tinch for approximately eight years and that
Tinch had suffered several misfortunes including losing his wife in September 2003, having
Type 1 diabetes, being involved in a motor vehicle accident in 1999, and injuring his back at
work. (Tr. 261.) Dr. Kohles also said that Tinch had difficulty with being on time for office
visits “due to lack of funds for his care.” (Tr. 261.) Dr. Kohles stated that Tinch was “absolutely
unable to lift or perform prolonged standing/bending/stooping.” (Tr. 261.) Dr. Kohles opined
that Tinch was “100% totally disabled and should be granted benefits concurring with this
opinion.” (Tr. 261.)
Nearly two years later, on September 2, 2005, Tinch was seen at Dr. Kohles' office and
appeared uncomfortable and trembling. (Tr. 547.) Dr. Kohles noted that Tinch’s back pain was

4

persistent. (Tr. 548.) Later that month, on September 28, 2005, Dr. Kohles completed a
Residual Functional Capacity (“RFC”) questionnaire on Tinch's behalf. (Tr. 534-538.) Dr.
Kohles diagnosed Tinch with back pain, degenerative disk disease and Type I diabetes. (Tr.
534.) Dr. Kohles noted that Tinch’s pain was moderately well controlled with morphine which
would allow him to perform activities of daily living but not physical labor or lifting. (Tr. 534.)
Dr. Kohles also stated that Tinch’s emotional factors contributed to the severity of his symptoms
and functional limitations. (Tr. 535.) Dr. Kohles believed that Tinch was not qualified for any
sedentary job unless it was something like “babysitting” with clients doing everything for him.
(Tr. 535.) Dr. Kohles opined that Tinch could (1) sit fifteen minutes at one time before needing
to get up, (2) stand for ten minutes before needing to sit down, (3) stand/walk for less than two
hours, (4) never twist, stoop, crouch, or climb ladders or stairs, (5) occasionally lift and carry less
than ten pounds, rarely lift and carry ten pounds, and never lift and carry twenty pounds (Tr. 53637.) Finally, Dr. Kohles stated that Tinch’s prolonged inability to work and the death of his wife
contributed to an emotional condition of situational depression. (Tr. 538.)
2.

Diabetes

Tinch was diagnosed with diabetes in 1983. (Tr. 248.) On June 10, 2005, Tinch was
treated by Christopher Rocco, M.D. (“Dr. Rocco”) for complaints of numbness of his right face
and right arm. (Tr. 788.) During evaluation, Dr. Rocco’s impression was distal sensory motor
peripheral polyneuropathy secondary to diabetes mellitus. (Tr. 789)
On September 17, 2005, Tinch was treated at Community Hospital—Anderson for
abdominal pain, difficulty in breathing, and chest pain. (Tr. 1089.)
physician diagnosed Tinch with diabetic ketoacidosis. (Tr. 1090.)

5

An emergency room

3.

Depression

From January 2002 through February 2005, Tinch was seen at the Center for Mental
Health for counseling and medication evaluation for anxiety, stress and dysrhythmia. (Tr. 30444, 944.) Tinch reported that he began experiencing symptoms of depression after his motor
vehicle accident in 1999. (Tr. 338.) During Tinch’s initial visit in January 2002, intake clinician
Dennis Banther, LMHC, LCSW, diagnosed Tinch with "Adjustment Disorder with Anxiety and
Depressed Mood" and "Posttraumatic Stress Disorder." (Tr. 342.) During Tinch’s treatment at
the Center for Mental Health, Tinch was prescribed Zoloft, Ambien, Restoril, Paxil, Tegretol,
and Valium. (Tr. 304, 337.)
On March 4, 2004, Addictions Therapist Heather Moody (“Moody”), supervised by
Psychologist Gregory Richardson, M.D., completed a psychiatric status report for Tinch. (Tr.
219-25.) Moody diagnosed Tinch with post traumatic stress disorder and major depression and
found Tinch’s current Global Assessment of Functioning (“GAF”) score to be 50, while his
highest GAF score in the past year was 55. (Tr. 219.) Moody noted that Tinch’s current
prognosis was “[f]air” but that he occasionally would have suicidal thoughts when he became
overwhelmed. (Tr. 224.)
On June 11, 2004, during a medication check up with psychiatrist Oleh Dzera, M.D.
(“Dr. Dzera”), Tinch appeared stable without any signs of decompensation or side effects to his
medication. (Tr. 955.) Dr. Dzera noted that Tinch had no suicidal or homicidal ideation and
demonstrated no behavior indicative of such ideation. (Tr. 955.) Tinch reported that he wanted
to start titrating off his Valium, and at that time, he was only taking five milligrams every other
day, whereas he was originally taking five milligrams daily. (Tr. 955.)

6

On August 6, 2004, during an individual therapy session with Moody, Tinch reported that
he was “functioning well; taking his meds as prescribed, eating healthy, managing health care
needs, socializing, managing family relationships, maintaining good sleep habits, managing work
responsibilities, and abstaining from narcotic medicine.” (Tr. 953.)
At another individual therapy session with Moody on September 3, 2004, Tinch reported
a stable mood and environment but expected “some grief and sadness due to the upcoming
anniversary of his wife’s death….” (Tr. 952.)
On December 10, 2004, during a medication check up with Dr. Dzera, Tinch reported
that his psychiatric medications were helping him, and he wished to continue their use. (Tr. 949.)
On February 17, 2005, Moody completed a discharge summary, wherein she noted that
Tinch’s discharge conditions had improved. (Tr. 947.) Tinch reported stability of mood. (Tr.
947.) Moody diagnosed Tinch with post-traumatic stress disorder and depressive disorder. (Tr.
947.) She described Tinch’s current prognosis as “[g]ood” and found Tinch’s discharge GAF
score to be 55. (Tr. 947.)
D.

SOCIAL SECURITY ASSESSMENTS
1.

Social Security Disability Examination

On December 19, 2003, Tinch underwent a disability examination with Anton
Kojouharov, M.D. (“Dr. Kojouharov”.) (Tr. 248.) Dr. Kojouharov's impression was injury of
lumbosacral spine in 1997, surgically treated with discectomy, injury of lumbosacral spine in
1999, surgically treated with spinal fusion surgery, chronic lumbosacral spine pain, degenerative
disk disease, insulin dependent diabetes mellitus, depression, and nicotine addiction. (Tr. 251.)

7

2.

Physical RFC Assessment

On January 19, 2004, Tinch underwent a physical RFC assessment with J. Corcoran,
M.D. (“Dr. Corcoran”.)

(Tr. 240-47.)

Dr. Corcoran found that Tinch had the following

exertional limitations: (1) occasionally lift and/or carry 50 pounds; (2) frequently lift and/or
carry 25 pounds; (3) stand and/or walk for about 6 hours in an 8-hour workday; (4) sit for about
6 hours in an 8-hour workday; and (5) ability to push and/or pull was unlimited except as shown
in the lift/carry limitations. (Tr. 241.)

Dr. Corcoran based his findings on Tinch’s lumbar

fusion and antalgic gait. (Tr.241.) As to Tinch’s postural limitations, Dr. Corcoran found that
Tinch could occasionally climb ramps, stairs, ladders, rope and scaffolds, balance, stoop, kneel,
crouch and crawl. (Tr. 242.) Dr. Corcoran found that Tinch had no manipulative, visual,
communicative or environmental limitations. (Tr. 243-44.)
3.

Mental Status/Psychiatric Examination

On January 7, 2004, at the request of Social Security Administration, Tinch was
evaluated by psychologist Carrie Dixon, Ph.D. (“Dr. Dixon”). (Tr. 253-256.) Tinch informed
Dr. Dixon that his daily activities included bathing, dressing, grooming, cooking lunch six times
a week, running the sweeper, doing some dishes, and short trips to the grocery store. (Tr. 254.)
Tinch reported that his depression began in 2000 because he was unable to go back to his fulltime job or provide for his family. (Tr. 254.) When asked about his symptoms of depression,
Tinch reported that he would "[c]ry a lot, stay at home a lot, or sometimes I'll stay in bed for a
couple days." (Tr. 254.) He admitted having suicidal ideations but said that he had no plan to
follow through. (Tr. 254.) Tinch also admitted to one suicide attempt that occurred shortly after
the death of his wife.1 (Tr. 254.) Tinch denied having any homicidal ideations. (Tr. 254.)
1

Tinch informed Dr. Dixon that he “[t]ook a lot of insulin one day, more than I would normally take and
hoped I wouldn’t wake up.” (Tr. 254)

8

Dr. Dixon performed a mental status examination on Tinch and concluded that Tinch
appeared capable of managing his own funds, exhibited signs of good reality contact, exhibited
intact memory skills, and experienced no difficulty performing simple calculations. She
diagnosed Tinch with depressive disorder and assigned a GAF score of 65. (Tr. 256.)
On January 20, 2004, R. Klion, Ph.D. (“Dr. Klion”) completed a psychiatric review
technique form. (Tr. 226.) Dr. Klion found that Tinch had mild difficulties regarding activities
of daily living, maintaining social functioning, and maintaining concentration, persistence or
pace. (Tr. 236.) Dr. Klion noted that Tinch works 16 hours per week and is limited due to
physical problems. (Tr. 238.) Dr. Klion further stated that Tinch prepares lunch for himself
daily and does light housework as necessary. (Tr. 238.) Dr. Klion indicated that Tinch’s mental
impairment was not seen. (Tr. 238.)
On December 26, 2005, Tinch underwent a mental status examination with Robert
Fischer, Ph.D., H.S.P.P. (“Dr. Fischer”.) (Tr. 486.) Tinch informed Dr. Fischer of the motor
vehicle accident in 1999 and that he still experienced flashbacks and occasional nightmares. (Tr.
486.) He could rarely drive and being in a motor vehicle caused him stress. (Tr. 486.) Tinch
stated that he had been depressed since the accident. (Tr. 486.) Tinch further explained that he
could barely dress and bathe himself, and he could not do any household chores. (Tr. 486.) Tinch
indicated that he liked to read, watch television, and phone family members. (Tr. 486.) Tinch
informed Dr. Fischer of his one suicide attempt but claimed to have suicidal ideation only very
rarely. (Tr. 486.) Dr. Fischer diagnosed Tinch with major depressive disorder (recurrent, severe),
generalized anxiety, and post-traumatic stress disorder and assigned a GAF of approximately 40.
(Tr. 488.)

9

E.

THE HEARINGS
Two hearings were held on this matter. The first was held on October 10, 2006 (Tr.

1161), and a second was held on May 8, 2009. (Tr. 1222.)
1.

Hearing held on October 10, 2006
i.

Testimony of Tinch’s Children

Claimant testified that she lived with Tinch after his automobile accident until June 2003.
(Tr. 1197-1198.) After his accident, Tinch could no longer coach the children in sports, and he
had difficulty finishing household chores because of his back pain. Claimant testified that she
believed Tinch was depressed and that although Tinch had both good days and bad days, his bad
days were more frequent than his good days. (Tr. 1199-1200.) However, Claimant stated that
Tinch did not mention thoughts of suicide, other than in a joking manner, while she lived with
him. Finally, Claimant testified that Tinch told her that his job at LaVerna Lodge was a
"babysitter job" and that "he could lay down on the couch" and watch television. (Tr. 1202.)
Claimant's brother, Andrew Tinch ("Andrew"), also testified at the October 2006 hearing.
(Tr. 1202.) Andrew testified that he moved out of his father's house in 2004 but moved back
after approximately one year. (Tr. 1203-04.) Andrew stated he moved back in with Tinch
because he wished to help take care of him and did not feel that Tinch could take care of himself.
(Tr. 1204-05.) Finally, Andrew noted that he saw no improvement in Tinch's mental condition
in the final months leading up to his death. (Tr. 1205.)
Claimant's sister, Kristina Anderson ("Kristina"), testified that she lived with Tinch until
August 2005. (Tr. 1207.)

After the accident, Tinch was emotionally depressed and cried

approximately three times a week. (Tr. 1208.)

10

Kristina stated that, after her wedding in

November 2005, Tinch spoke of suicide "once maybe every three weeks, but towards the end, it
was like once a week. It was like a cry wolf type thing." (Tr. 1209.)
ii.

Medical Experts’ Testimony
a.

Physical Impairments

Richard Hutson M.D. (“Dr. Hutson”), who is board certified in orthopedic surgery,
testified as a medical expert. (Tr. 1163.) Dr. Hutson testified that the record contained evidence
of back impairment, specifically, a degenerative disk disease at the lumbosacral level with
decreased disc space. (Tr. 1164.) Dr. Hutson referred to Tinch’s discogram done in 1999 and
Dr. Biel’s treatment notes. (Tr. 1164.) Dr. Hutson testified that Tinch’s impairment did not have
appropriate loss of neurological function and therefore did not meet the appropriate impairment
listing. (Tr. 1165.) He further testified that the physical therapist restricted Tinch to medium
work, which was consistent with Dr. Biel’s opinion a month later. (Tr. 1165.) Dr. Hutson stated
that there was no rationale to support Dr. Kohles’ assessment that Tinch could not work for eight
hours. (Tr. 1167.) Dr. Hutson further disagreed with Dr. Kohles’ assessment that Tinch must
avoid lifting or prolonged standing and repetitious bending and twisting. (Tr. 1169.) Dr. Hutson
opined that a person with a spinal fusion could sit or stand six hours out of an eight-hour day.
(Tr. 1170.) Dr. Hutson further disagreed with Dr. Kohles’ opinion that Tinch was "100 percent
disabled." (Tr. 1170.) Dr. Hutson said that this assessment by Dr. Kohles lacked objective
findings. (Tr. 1170.) Dr. Hutson also found Dr. Kohles’ assessment that if Tinch had a job at
which he worked eight hours per day, it would have to include periods of walking around every
10-15 minutes for as long as five minutes each lacked objective medical support. (Tr. 1174.)
However, Dr. Hutson conceded that that there is no objective test for pain. (Tr. 1174.)

11

b.

Mental Impairments

In addition to Dr. Hutson's testimony, Jack Thomas M.D. ("Dr. Thomas"), a licensed
clinical psychologist, testified at the hearing. (Tr.1178-97.) Dr. Thomas testified that the record
showed Tinch's medical impairments were major depressive disorder (recurrent, severe) and
post-traumatic stress disorder. (Tr. 1179.) Dr. Thomas stated that Tinch's medical treatment
dated back to 2002 and that he was compliant with treatment. (Tr. 1180.) Tinch received a GAF
of 45 and was having "serious symptomatology" when he first arrived at the Center for Mental
Health. (Tr. 1180.) Throughout his treatment between 2000 and 2003, Tinch managed his
psychiatric symptoms fairly well. (Tr. 1180.) However, a report in December 2005 indicated
more severe symptoms and a GAF of 40. Dr. Thomas also noted that an MMPI-II (Minnesota
Multiphasic Personality Inventory) ("MMPI") indicated that Tinch had a tendency to underreport
his symptoms.

(Tr. 1181.)

When asked whether it was likely that Tinch had been

underreporting his condition at previous evaluations, Dr. Thomas responded that doctors will
correct for any underreporting through their own objective observations. (Tr. 1193-94.) Dr.
Thomas noted that the GAF score of 40 assessed in December 2005 was probably appropriate;
however, Tinch's GAF scores through his record indicate that his GAF was "largely in the
moderate range." (Tr. 1183.) Dr. Thomas testified that his December 2005 score was indicative
of a decompensated state from which a person will generally "return to baseline particularly with
medical care." (Tr. 1185.) Tinch had been decompensated, but there was no available evidence
after that date to suggest a listing-level impairment. (Tr. 1187.) Dr. Thomas testified that a
person with a consistent GAF of 50 would be unable to work, but a person with a GAF between
50-55 could work and "sustain low stress environment probably without missing days." (Tr.
1192-93.)

12

iii.

Vocational Expert’s Testimony

Constance Brown, the vocational expert (“VE”) testified that Tinch's work at LaVerna
Lodge would be most appropriately categorized as "[l]ight, semiskilled work." (Tr. 1212.) The
ALJ then asked the VE to consider a hypothetical individual of the same age, work experience,
education, and physical and social limitations as Tinch and asked whether there were any jobs in
the state economy that would be available to such an individual. (Tr. 1215-1216.) The VE
responded in the affirmative and listed several jobs that involved light and sedentary work that
such an individual could perform. (Tr. 1216.) Those jobs included assembly work (14,000 light
jobs and 2300 at the sedentary level), inspector and tester work (4,800 light and 500 sedentary),
housekeeping (8,000 light), and clerical work (1,900 jobs.) (Tr. 1216.)
2.

Hearing held on May 8, 2009
i.

Testimony of Tinch’s Children

Claimant testified that, prior to Tinch's automobile accident, she had never seen him cry.
(Tr. 1239.) After the accident, he cried three to four times a week, and after his wife passed,
Tinch cried every day for approximately three months. (Tr. 1240-1241.) After that three month
period, Claimant moved out of the house and saw Tinch "[o]nce a month, if that" during the last
six months before Tinch's death. (Tr. 1243.) Claimant testified that she believed Tinch's
condition was getting worse during that time. (Tr. 1244.) He worked on the weekends but still
wore the same clothes during the week. Claimant estimated that he showered once or twice a
week. (Tr. 1244-45.)
Andrew testified that he witnessed Tinch cry on a daily basis both before and after
Tinch's wife died. (Tr. 1247-48.) Andrew stated that Tinch showered and shaved approximately
once a week and often wore the same clothes to bed. (Tr. 1248-49.) Andrew also testified that

13

he took guns out of the house because Tinch called his daughter to "tell her goodbye" on four or
five separate occasions. (Tr. 1250.)
ii.

Medical Experts’ Testimony
a.

Physical Impairments

Dr. Hutson testified that his opinion had not changed after a subsequent review of the
entire record. (Tr. 1228.)
b.

Mental Impairments

Dr. Thomas testified that his opinion that Tinch could have performed simple and
repetitive work had not changed. (Tr. 1229.) He acknowledged that the MMPI showed a
tendency for "very slight underreporting" but the objective medical results would be largely the
same. (Tr. 1230.) When asked about Tinch's suicide attempt, he testified that it was "a passive
way of not wanting to continue with life due to bereavement" and was provoked, in part, by his
wife's death. (Tr. 1231.) He also added that such a state would not be likely to persist. (Tr.
1231.) In regard to the December 2005 GAF score of 40, he testified that it was probably "a
little bit too low," and Tinch was probably "in the moderate range rather than the severe range."
(Tr. 1233.) When pressed to give what he believed to be a more accurate figure, Dr. Thomas
stated that Tinch's GAF was 51. (Tr. 1235.)
II. DISABILITY AND STANDARD OF REVIEW
To be eligible for disability insurance benefits, a claimant must establish a disability
under 42 U.S.C. § 423. "Disability" is defined as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment 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).

14

In order to determine whether a claimant is disabled, the ALJ must evaluate the claim
based on the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a)(4). At
step one, the ALJ must consider whether the claimant is engaged in a substantial gainful activity.
If the claimant has engaged in such activity, then he is not disabled. Id. Second, the ALJ
considers the medical severity of the claimant’s impairment(s). If the claimant does not have a
severe medically determinable physical or mental impairment that meets the duration
requirement set forth in 20 C.F.R. § 404.1509, or a combination of impairments that meet the
duration requirement, the claimant is not disabled. Id. In the third step of the analysis, the ALJ
considers the medical severity of claimant’s impairments. If claimant has an impairment that
meets or is equal to one of the impairments listed in Appendix 1 of this section and meets the
duration requirement, the claimant is disabled. Id. At step four, the ALJ considers the assessment
of claimant’s RFC and his past relevant work, and if the claimant is still able to do his past
relevant work, the claimant is not disabled. Id. The last step of the evaluation process requires
the ALJ to consider the claimant’s RFC assessment, age, education, and work experience to
determine if claimant can make an adjustment to other work. If an adjustment can be made,
claimant is not disabled. Id. The burden of proof during steps one through four is on the
claimant; however, the burden shifts to the Commissioner at step five. Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
The district court is vested with jurisdiction to review the Commissioner’s denial of
benefits. 42 U.S.C. § 1383(c)(3). However, the court’s standard of review in disability cases is
limited. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004) (citation and quotations omitted).
The court must determine whether the final decision of the Commissioner is supported by
substantial evidence and is based on the proper legal criteria. Id. (Citation omitted.) Substantial

15

evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (Citation and quotations omitted.) If the Commissioner’s findings are
supported by substantial evidence, the ALJ's decision will be upheld. Id.
While reviewing the record, the court will conduct a critical review of both the evidence
that supports and detracts from the Commissioner’s final decision. Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (citation omitted). "[T]he 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) (quotation marks omitted). In addition, the court
will review whether the ALJ rationally articulated the grounds for his decision, and a remand
may be required if the ALJ failed to “build an accurate and logical bridge from the evidence to
her conclusion.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). However, the court
must not attempt to substitute its judgment for the ALJ’s “by reconsidering facts, reweighing
evidence, resolving conflicts in evidence, or deciding questions of credibility.” Cannon v. Apfel,
213 F.3d 970, 974 (7th Cir. 2000) (quoting Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th Cir.
1999)).
III. DISCUSSION
A.

THE ALJ’S FINDINGS
Pursuant to the Social Security Regulations, the ALJ made the following findings as to

Tinch’s claim. At step one, the ALJ found that Tinch was not engaged in substantial gainful
activity during the period from his alleged onset date of May 24, 1999 through his date last
insured of September 30, 2006. (Tr. 20.) At step two, the ALJ determined that Tinch “has the
following severe impairments: degenerative disc disease of the lumbar spine, diabetes, past
history of ulcer and stroke conditions, anxiety/post-traumatic stress disorder and depression.”

16

(Tr. 21.) At step three, the ALJ found that Tinch’s impairments or combination of impairments
did not meet or medically equal a listed impairment. (Tr. 21.) At step four, the ALJ made the
following finding as to Tinch’s RFC determination through the date he was last insured:
… the claimant had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant’s work could not have
required climbing ropes, ladders, or scaffolds; must have been limited simple and
repetitive tasks; and has only occasional contact with the general public.
(Tr. 23.) At step four, the ALJ found that Tinch was unable to perform any past relevant work.
(Tr. 29.) At step five, the ALJ denied Tinch’s claim because the ALJ found that there were a
significant number of jobs in the national economy that Tinch could have performed. (Tr. 29.)
B.

CLAIMANT’S ARGUMENTS ON APPEAL
Claimant presents four arguments to this Court on appeal. First, Claimant contends that

the ALJ erred in picking and choosing only the evidence that supported his unfavorable decision.
Second, Claimant argues that the ALJ erred in placing a negative inference on the absence of a
mental illness diagnosis during the last months of Tinch’s life. Third, Claimant argues that the
ALJ was wrong to state that Tinch’s part-time work in a “somewhat of a sheltered work
environment” that did not rise to the level of substantial gainful activity constituted “convincing
evidence” that Tinch’s physical and mental impairments were not totally disabling. Pl.'s Br. at
24. Fourth, Claimant argues that the ALJ erred in rejecting the opinion of Tinch's treating
physician Dr. Kohles. Each argument is addressed below.
1.

Discussing only the Evidence Favorable to the ALJ's Decision

It is not permissible that "the ALJ select and discuss only that evidence that favors his
ultimate conclusion." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (citation omitted).
Claimant cites several instances throughout the ALJ's decision in which she believes the ALJ

17

erred by discussing only the testimony and evidence that was favorable to his decision to deny
disability benefits. This court will address each of those instances in turn.
It is not required that the ALJ evaluate each piece of evidence or testimony submitted and
discuss that evidence fully and separately. Id. "However, a minimal level of articulation of the
ALJ's assessment of the evidence is required in cases in which considerable evidence is
presented to counter the agency's position." Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir.
1984.)
Claimant contends that the ALJ erred by picking specific portions of Dr. Thomas's
testimony while excluding others.

First, the ALJ did not address the fact that the MMPI

indicated that Tinch may have had a tendency to underreport his symptoms. While this is true,
Claimant neglects to recognize the fact that Dr. Thomas also testified that this propensity to
underreport was "very slight" and that evaluations rely on objective observations of the doctor
which correct for any underreporting. (Tr. 1230, 1194.) Dr. Thomas' testimony effectively
rebuts the presumption that Tinch's propensity to slightly underreport was considerable evidence
countering the ALJ's decision. Therefore, this Court cannot say that the ALJ was unreasonable
in failing to articulate that particular piece of testimony.
Next, Claimant argues that the ALJ failed to acknowledge a discrepancy in Dr. Thomas'
two testimonies regarding the accuracy of the GAF score of 40 rendered by Dr. Fischer in
December of 2005. Dr. Thomas stated at the first hearing that the GAF of 40 was probably
appropriate but stated at the second hearing that the score was likely “a little bit too low.”
Claimant argues that the failure of the ALJ to point out this discrepancy constitutes erroneous
picking and choosing of evidence on the part of the ALJ. This Court disagrees. At both
hearings, Dr. Thomas' ultimate conclusion was that Tinch was generally in the moderate range

18

and that he could sustain light work. At the outset of the second hearing, Dr. Thomas stated that,
after a subsequent review of the record, his opinion on the matter had not changed. Therefore,
the Court finds this discrepancy insignificant in the grand scheme of Dr. Thomas' testimony. The
ALJ did not err by neglecting to reconcile the slight discrepancy in Dr. Thomas' testimony.
Claimant also takes issue with the ALJ's treatment of Tinch's ability to perform daily
living activities. First, Claimant alleges that Tinch's pronouncements that he was able to perform
these activities were made in evaluations prior to his wife's death, and the ALJ did not consider
the possibility of a decline in such ability after that unfortunate change in Tinch's circumstances.
Unfortunately, on this point, Claimant is mistaken. The evaluation from which the ALJ cited as
evidence that Tinch "independently [performed] daily living activities" was done in January
2004, approximately five months after his wife's death. (Tr. 23; 253-54.) Moreover, the report
specifically mentioned that "[Tinch] has been widowed since September 2003." (Tr. 253.)
Second, Claimant contends that the ALJ's use of a friend's statements regarding his
ability to perform daily living activities is misleading because the ALJ failed to mention other
statements by that person indicating that some activities were difficult for Tinch, that he had to
take breaks while completing those tasks, and that he was emotional and cried a lot. Pl.'s Br. 2122. While it is true that the ALJ did not acknowledge these other portions of the friend's
statement, the ALJ did acknowledge testimony from Tinch's children regarding a "lack of
personal hygiene, crying spells and prolonged sleeping." (Tr. 25.) This Court finds that the
children's testimony provides roughly the same probative value. The ALJ's alleged failure to
make use of each piece of the friend's statements was not error when he articulated other
evidence that provided the same substance. See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.

19

1993) (ALJ did not err by failing to explicitly recognize evidence that would merely corroborate
other evidence the ALJ recognized and be "essentially redundant").
Claimant argues that the ALJ gave a distorted view of Tinch's physical problems.
Specifically, Claimant argues that the ALJ did not sufficiently articulate Tinch's reports of pain
related to his back problems. The ALJ noted Tinch's successful spinal fusion surgery and
mentioned statements made by Tinch that the pain was not bad. (Tr. 25.) Claimant contends that
the ALJ should have gone further by referencing other statements by Tinch regarding his level of
pain. However, before discussing his surgery and the intensity of Tinch's pain, the ALJ
concluded that Tinch's statements regarding his level of back pain were not entirely credible.
(Tr. 25.) See Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) (hearing officers are in the best
position to determine credibility and such determinations are afforded special deference). This
Court can find little reason for requiring that the ALJ discuss at length a claimant's reports of
pain when such testimony has previously been found to be less than credible.
Finally, Claimant takes issue with the ALJ's discussion of Tinch's mental condition after
the death of Tinch's wife and alleges that the ALJ failed to adequately articulate and weigh
Tinch's suicide attempts and eventual suicide. The Court finds merit in this contention. In his
decision, the ALJ makes note of a report from the Center for Mental Health in which "claimant
responded with appropriate grief and was not suicidal" approximately one month after the death
of Tinch's wife. The ALJ followed this with a vague reference to "some understandable bouts
with severe depression" suffered by Tinch. (Tr. 26.) While his description of the Center for
Mental Health's report is accurate in the strictest sense, the ALJ's remaining characterization of
Tinch's mental state after September 2003 is wanting. There is no reference in the ALJ's
decision to Tinch's suicide attempt following the death of his wife. The Court finds this

20

particularly troubling considering the fact that the ALJ expressly noted that Tinch was not
suicidal after his wife's death. Moreover, the ALJ's reference to "understandable bouts of severe
depression" cannot be held to be an adequate representation of Tinch's suicide attempt, if that
was indeed the ALJ's intent. An event of such gravity constitutes considerable evidence which
counters the ALJ's decision and must be afforded its due attention. Likewise, the ALJ failed to
consider testimony from Tinch's son who had removed guns from Tinch's home on several
occasions as a response to Tinch's suicidal behavior. This testimony should also be considered
as part of the same line of evidence which runs contrary to the ALJ's decision. In addition, the
ALJ's sole discussion of Tinch's eventual suicide is found in a footnote in which it was stated that
"the concerns raised by the Appeal Council with regard to the claimant's April 2006 suicide on
the severity of his depression was fully considered both at that time and presently." (Tr. 27.)
The ALJ's conclusory statement on this matter is insufficient.
An administrative law judge may not "ignore an entire line of evidence that is contrary to
her findings, … rather she must articulate at some minimal level [her] analysis of the evidence to
permit an informed review." Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) (internal
quotations and citations omitted; emphasis added). Without discussion of the aforementioned
evidence, the Court's ability to perform an informed review is unduly frustrated.
While the Court recognizes that the existence of a suicide attempt or even Tinch's actual
suicide are not dispositive in determining disability, it is required that the ALJ provide a full
analysis of the evidence and state the reason for the decision in a cognizable manner. It cannot
be said that the ALJ's decision is supported by substantial evidence without a well-reasoned
explanation for the rejection of significant evidence. The ALJ's failure to adequately address the
evidence contrary to his finding warrants remand.

21

2.

ALJ's Treatment of the Absence of Medical Documentation

Claimant's next challenge to the ALJ's decision concerns the ALJ's treatment of the
absence of medical evidence relating to Tinch's depression during the last months of Tinch's life.
Claimant contends that the ALJ erroneously placed a negative inference on this absence of
medical documentation and used that absence as a means for denying disability benefits to
Tinch. However, this contention is not supported by the record.
In fact, the ALJ acknowledged that there was a "critical gap" during the months prior to
Tinch's death in which there was no record of mental health treatment. The ALJ stated that
"[s]ince there is no evidence in the record for that time period, speculation as to the claimant's
mental state during this time, would be an improper manner of assessing his function during…."
(Tr. 27.)
Claimant counters that the deterioration of Tinch's mental state is not a matter of
speculation, but rather, a matter of circumstantial evidence. In support of this position, Claimant
cites Wilder v. Apfel, 153 F.3d 799 (7th Cir. 1998). In Wilder, an expert witness testified that he
could not offer an opinion as to whether the claimant was afflicted with depression during the
years prior to the first mention in the records of psychiatric disorder. The expert further testified
that although the lay witnesses’ testimonies pointed to the fact that claimant's depression had
existed during that time period, the testimony was irrelevant because there was not
contemporaneous medical evidence to support the earlier diagnosis.
The Wilder administrative law judge then adopted the position of the expert and found
that a diagnosis of severe depression could not be made without contemporaneous medical
evidence. On appeal, the Seventh Circuit Court of Appeals ultimately disagreed with this finding
and held that a diagnosis of mental illness requires only, “contemporaneous corroboration of the

22

mental illness, … not necessarily contemporaneous medical corroboration." Id. at 802 (citations
omitted). Wilder, therefore, stands for the proposition that when corroborating evidence exists
that supports a diagnosis of mental disease, absence of medical documentation cannot alone lead
an ALJ to ignore the allegation of mental disease.
Here, unlike the administrative law judge in Wilder, the ALJ did not refuse to recognize
the existence of Tinch's depression during that "critical gap". There is no question that Tinch's
depression persisted during that period; rather, the issue was whether his symptoms of depression
were severe enough to warrant a finding of disability. The ALJ concluded that there was not
sufficient evidence to support the conclusion that Tinch's degree of depression met the requisite
level. Claimant alleges that the ALJ failed to consider contemporaneous evidence offered via the
testimony of Tinch's children and evidence from Dr. Kohles' office notes. However, the ALJ did
address contemporaneous evidence from these parties regarding this time period and weighed
that evidence in accordance with Social Security Ruling 96-7p. (Tr. 28-29.)
In this case, the absence of medical documentation in the last months of Tinch's life did
not lead the ALJ to conclude that Tinch's depression did not exist during that period. Instead, the
ALJ found that the evidence was not sufficient to support the claim that Tinch's depression
worsened well below the moderate level during that period. Therefore, it cannot be said that the
ALJ erred in his analysis of Tinch's mental condition during the time when no medical
documentation regarding that condition existed. While the Court recognizes the ALJ’s general
acknowledgement of the contemporaneous evidence, the ALJ’s assessment of this evidence is
nonetheless subject to the additional assessment of evidence pertaining to Tinch’s suicide and
suicide attempts, for which this case is remanded.

23

3.

The ALJ's Consideration of Tinch's Part-time Employment

Claimant contends that the ALJ's consideration of Tinch's part-time job as evidence that
Tinch was not disabled was error. In support of this contention, Claimant cites Wilder v. Chater,
64 F.3d 335 (7th Cir. 1995). "The fact that someone is employed is not proof positive that he is
not disabled, for he may be desperate and exerting himself beyond his capacity, or his employer
may be lax or altruistic." Id. at 337-338 (citations omitted). Claimant maintains that Tinch's
insistence on holding a part-time job under such sheltered work conditions cannot be held against
him as "proof positive" that he was not disabled.
Although the Court acknowledges that Claimant has undoubtedly stated an accurate
description of the law on this point, Claimant has misapplied it in this instance. Indeed, Tinch's
part-time employment cannot be considered by the ALJ to be proof positive that Tinch is not
disabled, especially in light of the fact that Tinch participated in what the ALJ recognized as
"somewhat of a 'sheltered' work environment." (Tr. 21.) That said, Claimant's contention that
the ALJ viewed this information as convincing evidence is unpersuasive. While it is true that the
ALJ stated that Tinch's part-time employment was the "most convincing evidence" that Tinch
was not totally disabled, that information was seen neither as conclusive nor proof positive. (Tr.
28.) Rather, Tinch's part-time employment was but a single factor, among several, upon which
the ALJ made his determination. Tinch's part-time employment was measured in conjunction
with other considerations such as Tinch's RFC and testimony by both medical experts. See
Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008) (the administrative law judge properly
considered a claimant's part-time employment when finding that such work cut against his claim
of disability). The concept that part-time employment is not proof positive that a person is not

24

disabled does not extend so broadly so as to preclude an ALJ from utilizing that fact as one
among many in making a determination.
This Court cannot say that it was unreasonable for the ALJ to consider Tinch's part-time
work as a factor in making his determination. It is within the purview of the ALJ to consider all
relevant factors and to weigh them appropriately in order to make the most accurate
determination possible. Therefore, the ALJ's consideration of Tinch's part-time employment was
not error.
4.

Rejection of the opinion of Dr. Kohles, a treating physician

Lastly, Claimant argues that the ALJ erred in discounting the opinion of Dr. Kohles, who
was one of Tinch's treating physicians. Generally, the opinion of a treating physician is entitled
to controlling weight by the ALJ because such opinions often provide a "detailed, longitudinal
picture" of a person's medical impairments. 20 C.F.R. § 404.1527(d)(2). However, a treating
physician's opinion is deserving of such weight only if it is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence" in the record. Id. See also Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir.
2004).
The ALJ determined that Dr. Kohles' opinion was not entitled to controlling weight in
this case because it was "without objective supporting documentation" and "primarily based
upon subjective opinion".

(Tr. 28.)

The ALJ further noted that Dr. Kohles' opinion was

inconsistent with the medical opinion of Dr. Biel, another treating physician, and Dr. Hutson,
who testified as a medical expert at both hearings.
In his letter sent on November 7, 2008, Dr. Kohles noted an MRI examination and went
on to explain his decision to prescribe pain medication to Tinch. (Tr. 1160.) Dr. Kohles noted in

25

that letter that he was "not in the habit of providing narcotics upon request" and that he was
"convinced [Tinch] needed narcotics for his severe pain due to observations made in my office
and outside it as I frequently observed him moving around visiting his wife in the hospital." (Tr.
1160.) Dr. Kohles went on to say that there was "never any doubt" that Tinch was disabled. (Tr.
1160.) Claimant argues that the explanation given therein constitutes proof that Dr. Kohles'
opinion is supported by objective medical documentation. This Court, however, must disagree.
Although Dr. Kohles authored two letters in which he advocated that Tinch was "100%
totally disabled," (Tr. 261, 1160), both letters are devoid of any objective rationale upon which
Dr. Kohles based his opinion. Furthermore, Dr. Hutson's testimony bolsters the position that Dr.
Kohles' opinion is not entitled to controlling weight.

Dr. Hutson stated that Dr. Kohles'

statements that Tinch could not work an eight hour day, could sit less than two hours in an eight
hour day, and that he could never carry twenty pounds were unsubstantiated by evidence in the
record and lacked an objective rationale. (Tr. 1167.)
The ALJ relied upon the medical facts in the record as well as testimony given by Dr.
Hutson in determining that little weight was to be given to Dr. Kohles' opinion. There is
substantial evidence to support the ALJ's conclusion that the record in this case lacks objective
support for statements made by Dr. Kohles concerning Tinch's degree of disability. Therefore,
the ALJ did not err in failing to give controlling weight to the opinion of Dr. Kohles.

26

IV. CONCLUSION
For the foregoing reasons, the final decision of the Commissioner of Social Security is
hereby REMANDED.
SO ORDERED.
07/21/2011
DATE: ___________________

________________________
Hon. Tanya Walton Pratt, Judge
______________________________
United States District Court
Honorable Tanya Walton Pratt
Southern District of Indiana Court
Judge, United States District

DISTRIBUTION:
Thomas E. Hamer
[e-mail]
Thomas E. Kieper
United States Attorney’s Office
[e-mail]

27