SAVAGE v. ASTRUE

Filing 24

ENTRY ON JUDICIAL REVIEW: For the reasons discussed above, the decision of the Commissioner is REVERSED and this case is REMANDED for further proceedings consistent with this Entry ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 3/22/2012.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LISA A. SAVAGE,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

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Cause No. 1:11-cv-151-WTL-TAB

ENTRY ON JUDICIAL REVIEW
Plaintiff Lisa A. Savage requests judicial review of the final decision of Defendant
Michael J. Astrue, Commissioner of the Social Security Administration (“Commissioner”),
denying her application for a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the
Act”). The Court rules as follows.
I. PROCEDURAL BACKGROUND
Savage initially filed her application for SSI and DIB on December 18, 2006, alleging
that she became disabled in April 2005 due to depression, asthma, gastroesophageal reflux
disease (“GERD”), obesity, plantar fasciitis, heart problems, and claustrophobia. Her application
was denied initially and upon reconsideration, whereupon she requested and was granted a
hearing before an Administrative Law Judge (“ALJ”). A hearing was held before ALJ Deborah
A. Arnold on July 10, 2009, at which Savage was represented by counsel. Savage and
vocational expert Harold Steinberg testified at the hearing.
The ALJ issued a decision denying Savage’s application on January 13, 2010. The

Appeals Council upheld the ALJ’s decision on December 17, 2010. Savage then filed this timely
appeal.
II. APPLICABLE STANDARD
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment that exists in the national economy, considering
her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b).1 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d).

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The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.

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At step four, if the claimant is able to perform her past relevant work, she is not disabled. 20
C.F.R. § 404.1520(f). At step five, if the claimant can perform any other work in the national
economy, she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this Court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ “need not evaluate
in writing every piece of testimony and evidence submitted.” Carlson v. Shalala, 999 F.2d 180,
181 (7th Cir. 1993). However, the “ALJ’s decision must be based upon consideration of all the
relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). The ALJ must
articulate his analysis of the evidence in his decision; while she “is not required to address every
piece of evidence or testimony,” she must “provide some glimpse into her reasoning . . . [and]
build an accurate and logical bridge from the evidence to her conclusion.” Id.
III. THE ALJ’S DECISION
Applying the five-step analysis, the ALJ found that Savage was not disabled on or at any
time from April 10, 2005, through the date of her decision. At step one of the analysis, the ALJ
found that Savage had not engaged in any substantial gainful activity (“SGA”) after April 10,
2005, because Savage’s earnings after that date were insufficient to meet the SGA earnings
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requirements. The ALJ also found that her work during that time did not qualify as an
unsuccessful work attempt because it lasted for thirteen months. At steps two and three of the
analysis, the ALJ determined that Savage suffered from the severe impairments of depression,
asthma, GERD, obesity, plantar fasciitis, heart problems, and claustrophobia, but that her
impairments did not meet or medically equal a listed impairment.
At step four, the ALJ concluded that Savage retained the residual functional capacity
(“RFC”) to “perform work related activities except that [she] is limited in that she can only
perform jobs involving simple, repetitive tasks with occasional interaction with others and can
have no concentrated exposure to pulmonary irritants.” The ALJ concluded that, given Savage’s
RFC, she was not able to return to her past relevant work as a home health aide, clothing sales
person, or teaching assistant in a daycare center. However, considering her age, education, work
experience, and RFC, the ALJ found that she was capable of performing a significant number of
other jobs in the national economy, including hand packer, courier, mail clerk, and office helper,
among others. Therefore, the ALJ determined at step five that Savage was not disabled.
IV. DISCUSSION
Savage advances several objections to the ALJ’s decision, each of which is addressed, in
turn, below.
A. Failure to Develop the Record Regarding Savage’s IQ
Savage argues that the ALJ failed to fully develop the record because she did not order an
intelligence quotient (“IQ”) test to determine whether Savage is per se disabled under Medical
Listing 12.05, mental retardation. Listing 12.05 directs a finding of disability for a person with
“significantly subaverage general intellectual functioning,” which the Listing defines to include
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those with an IQ below 60 and those with an IQ between 60-70 who also demonstrate a physical
or mental impairment that causes work-related limitations. “While a claimant bears the burden
of proving disability, the ALJ in a Social Security hearing has a duty to develop a full and fair
record.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009). The Seventh Circuit “generally
upholds the reasoned judgment of the Commissioner on how much evidence to gather.” Id.; see
also Elbert v. Barnhart, 335 F. Supp.2d 892, 905 (E.D. Wis. 2004) (“[B]ecause the primary
responsibility for producing medical evidence demonstrating the severity of impairments
remains with the claimant, and because it is always possible to identify one more test or
examination an ALJ might have sought, the ALJ’s reasoned judgment of how much evidence to
gather should generally be respected.”) (citations omitted).
In this case, the record before the ALJ clearly and unequivocally called Savage’s
intellectual ability into question. Dr. Thomas A. Smith, a clinical psychologist, conducted a
mental status examination on behalf of the Disability Determination Bureau and concluded as
follows: “Intellectually she appears to be functioning well below average, perhaps in the mild
mental retardation range.” Record at 340. Consistent with this evaluation, Savage’s case
manager at Midtown Community Mental Health Center, Lindi Yarnell, reported that she
“appears to have slightly slowed cognition, in that she seems confused by instructions at times
and will ask more than once about something that has already been explained. CM tried to put
things in the simplest terms possible for her. She usually is able to pick up on the instructions
after a more simplified explanation.” Id. at 326. There is nothing on the record to suggest that
Savage is not limited by her intellectual ability; rather, as the ALJ notes in her decision,
“[[a]lthough borderline intellectual functioning was suspected, no scores from an examination

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made to determine the claimant’s valid IQ are present in the record.” Id. at 20.
Given the record before the ALJ, while it is a very close call, the Court finds that this
case is an exception to the general rule that the ALJ’s decision with regard to whether the record
needs to be supplemented should be upheld. The record was clear that there were issues with
Savage’s intellectual ability and that her functioning was affected by it. Given that fact, the
Court believes the ALJ erred in not sending Savage for an IQ test so that her step three
determination could be based on a fully developed record, rather than on the absence of
evidence. Accordingly, remand is appropriate to enable the ALJ to obtain and consider Savage’s
IQ scores.
B. Failure to Evaluate Savage’s Mental Impairments Properly
Savage also argues that the ALJ did not fulfill her duty to properly evaluate Savage’s
psychological impairments. The Court agrees.
The ALJ found that Savage suffers from the severe impairment of depression, and the
record certainly confirms that fact. Indeed, Savage sought treatment at Midtown Community
Mental Health Center (“Midtown”) in October 2006 because she had suicidal ideation. At that
time she began regular treatment at Midtown for depression. Her treatment included medication
as well as participation in group and individual therapy. In August 2007 she enrolled in an
intensive “partial hospitalization” program at Midtown which she participated in for several
months; after that program was discontinued by Midtown, she continued in group and individual
therapy.
The record contains several evaluations of Savage’s mental condition. First, as
referenced above, Dr. Smith conducted a Mental Status Examination on March 6, 2007. Dr.

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Smith diagnosed Savage with major depressive disorder, recurrent without complete
interepisodal recovery, severe with psychotic features and panic disorder with agoraphobia, and
assessed her GAF at 45. His summary of his assessment of her mental condition reads as
follows:
Ms. Savage has depression and a panic disorder, both of which interfere with her
functioning in numerous ways. She has dysphoria, sleep disturbance, loss of
interest, low energy, slowed functioning, cognitive inefficiency, low self-esteem
and recent thoughts of suicide. She also has avoidance of others and muscle
tension, restlessness, edginess, easy startling, difficulty concentrating, irritability
and easy fatigue. It is possible that she has a psychosis, but that is not clear from
the current information.
Record at 340. Dr. Smith further opined that Savage was not capable of managing her own
funds.
On September 30, 2009, Dr. Anuradha Thumuluri, M.D., and Deborah May, DNS, who
began treating Savage for depression in March 2009, completed a Mental Residual Functional
Capacity Assessment form in which they opined that Savage was unable to perform the
following: understand and remember very short and simply instructions; understand and
remember detailed instructions; carry out detailed instructions; maintain attention and
concentration for extended periods; perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; sustain an ordinary routine without
special supervision; work in coordination with or proximity to others without being distracted by
them; complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods; interact appropriately with the general public; accept instructions and respond
appropriately to criticism from supervisors; get along with coworkers or peers without

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distracting them or exhibiting behavior extremes; maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the
work setting; be aware of normal hazards and take appropriate precautions; and set realistic goals
or make plans independently of others.
Taken together, these assessments paint a picture of Savage as someone who is unable to
work due to her mental impairments. Consistent with these assessments is one that was made at
the Larue D. Carter Memorial Hospital on February 2, 2009, as part of an evaluation to
determine whether Savage was an appropriate subject for a study on psychotic depression. At
that time, she was diagnosed with major depressive disorder, recurrent with psychotic features,
and given a GAF of 40.
The ALJ rejected these assessments, however, in favor of that of Dr. Joseph A. Pressner,
a psychologist who completed a Mental Residual Functional Capacity Assessment form on
March 19, 2007, after reviewing Savage’s records. Dr. Pressner checked boxes that indicated
that Savage was moderately limited in the following mental activities: (1) ability to understand
and remember detailed instructions; (2) ability to carry out detailed instructions; and (3) ability
to maintain attention and concentration for extended periods. Dr. Pressner found that she was
not significantly limited in any of the other categories listed on the form. Dr. Pressner also
completed a Psychiatric Review Technique form and a Psychiatric Review Technique form on
which he opined that Savage did not have any of the symptoms listed in the “A Criteria” for
Listing 12.04 (affective disorders) or Listing 12.06 (anxiety-related disorders); that she had the
following functional limitations: (1) mild restriction of activities of daily living; (2) moderate
difficulties in maintaining social functioning; and (3) mild difficulties in maintaining

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concentration, persistence, or pace; and that she did not satisfy the “C Criteria” for either Listing.
Dr. Pressner provided the following narrative regarding his functional capacity assessment:
The claimant alleged disability due to depression, anxiety, and
claustrophibia [sic.]. The claimant was referred to Dr. Thomas A. Smith, Ph.D.
for an evaluation who diagnosed Major Depressive d/o, recurrent w/o complete
interepisodal recovery, severey [sic.] w/ psychotic features, Panic d/o w/
agoraphobia, and BIF suspected. GAF of 45 given. The consultant did not give
any medical opinions in regard to functional limitations nor is there any other
medical opinion in file.
The MER and reports of functioning in file suggest that the claimant is
capable of understanding, remembering, and carrying out simple instructions.
She is able to take public transportation on her own and make simple meals in the
microwave. It seems possible that there would be deficits in the claimant’s ability
to carry out more detailed instructions. The information in file suggests that the
claimant has the intellectual wherewithal to make simply work related decisions,
to remember locations, and to remember simple work-like procedures. She was
able to attend group meetings on a weekly basis without difficulty, and attendance
was excellent. The claimant seems capable of observing the usual safety
precautions and maintaining an ordinary routine without special supervision.
The claimant seems to relate adequately to other people. She does not
have many friends, but spends some time with family, got along well in group,
and had no difficulties interacting with case manager. Therefore it appears that
the claimant would be able to relate adequately to co-workers, and to work
supervisors. Interpersonal conflicts on the job would probably be within normal
limits for the population at large. The claimant seems capable of seeking
necessary assistance from others. It does not appear that others would unduly
distract the claimant.
The claimant’s activities suggest that the claimant can attend to task for
extended periods. She watches TV regularly and is able to sustain an adequate
attention span. The claimant’s pace would be within normal limits. The claimant
seems able to manage day-to-day stresses, and thus should be able to adapt to
change within the work place. It appears that the claimant is capable of
maintaining a schedule. Any problems with tardiness or absenteeism would seem
to be a matter of choice rather than the effects of the claimant’s mental disorder.
Thus, although the claimant has a severely limiting condition, it appears
that the claimant retains the ability to perform simple, repetitive tasks on a

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sustained basis without extraordinary accommodations.2
Record at 345. Dr. Pressner’s assessment was concurred with by another reviewer.
Because Dr. Thumuluri is a psychiatrist who treated Savage,3 her opinion was entitled to
“‘controlling weight’” if it was “‘well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence.’” Larson v. Astrue,
615 F.3d 744, 749 (7th Cir. 2010) (quoting 20 C.F.R. § 404.1527(d)(2) and citing Schaaf v.
Astrue, 602 F.3d 869, 875 (7th Cir.2010) and Denton v. Astrue, 596 F.3d 419, 424 (7th Cir.2010)).
“An ALJ who does not give controlling weight to the opinion of the claimant’s treating
physician must offer “‘good reasons’” for declining to do so.” Larson, 615 F.3d at 749 (quoting
20 C.F.R. § 404.1527(d)(2) and citing Schaaf, 602 F.3d at 875 and Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir.2007)).
In this case, it is not clear that the ALJ recognized Dr. Thumuluri as a treating physician.
She did, however, discuss Dr. Thumuluri’s opinion in her decision as follows:
The opinion provided by Dr. Anuradha Thumuluri regarding claimant’s
limitations due to her mental impairments is not entitled to great weight. Dr.
Thumuluri opined that the claimant cannot understand, remember and carry out
detailed instructions or very short and simple instructions, or sustain ordinary
routine without special supervision. [S]he further opined maintain [sic.] attention
and concentration for extended periods of time, maintain regular attendance, be
punctual, maintain socially appropriate behavior, respond appropriately to
changes in work settings, be aware of normal hazards, and accept criticism and
respond appropriately is not consistent with the entire record of evidence [sic.].
Dr. Thumuluri’s opinion is inconsistent with the record since [she] concludes the

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The Court notes that it is not clear what Dr. Pressner deems an “extraordinary”
accommodation; nor is it clear whether any “non-extraordinary” accommodations that Savage
might require would render her disabled for SSI and DIB purposes.
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Both Savage and the Commissioner characterize Dr. Thumuluri as a treating psychiatrist
in their briefs.
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claimant cannot sustain an ordinary routine without special supervision or
remember and carry out very short and simple instructions, yet the record shows
the claimant is not only able to regularly attend multiple therapy sessions during
the week, but that her attendance is “excellent.” Since Dr. Thumuluri’s opinion is
inconsistent with the record, the undersigned does not give great weight to Dr.
Thumuluri’s opinions.
Record at 24. In essence then, the ALJ rejected Dr. Thumuluri’s opinion regarding Savage’s
condition because she believed it was inconsistent with Savage’s ability to “multiple therapy
sessions during the week” with “excellent” attendance. As evidence of this ability to maintain
excellent attendance, the ALJ cites to the report of Dr. Pressner and Savage’s own testimony.
While Savage did testify that she attends therapy four times a week, she also testified that she
has trouble getting to her therapy sessions on time because “I have problems getting out of the
house. I have problem [sic.] getting out of the house and my surroundings. I don’t like to do
anything anymore.” Record at 51. She further testified that she has trouble remembering things
and that she remembered to come to the hearing because a family member reminded her. Id. at
52. Therefore Savage’s testimony does not support the conclusion for which the ALJ cites it.
Further, while Dr. Pressner does say in his narrative that Savage’s attendance at group therapy
was excellent, the record also includes a report by Savage’s case manager to a social security
representative in March 2007 that while Savage attended group therapy weekly, she “wasn’t
good at following through on individual sessions.” Record at 326. This is consistent with other
notations in her records from Midtown. See, e.g. id. at 546 (Midtown record dated January 29,
2007 indicating that Savage missed an appointment because she “forgot); id. at 616 (Midtown
record dated February 5, 2008, indicating that Savage has a history of “no call/no show for
appointments).
The Court finds that the ALJ disregarded the opinion of Savage’s treating psychiatrist
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without articulating a “good reason” for doing so. The Court further notes that Dr. Pressner’s
evaluation on which the ALJ relied occurred more than two years prior to the hearing date.
During the intervening time, Savage’s son was murdered, an event that the record demonstrates
clearly had a significant impact on her mental condition. Therefore, even if it was appropriate
for the ALJ to rely on Dr. Pressner’s opinion regarding Savage’s condition in March 2007, it was
not appropriate for her to rely on that opinion to determine that Savage was not disabled at the
time of the hearing in July 2009, at least not without addressing the later evidence of record that
Dr. Pressner did not have the benefit of reviewing.
C. Savage’s Remaining Arguments
Savage advances two addition arguments, each of which merits only a quick mention.
First, Savage argues that the ALJ erred in failing to consider her chronic headaches. However,
while there was evidence in the record that Savage suffered from headaches, there was nothing
to suggest that they are disabling or that she believed herself to be disabled because of them.
Second, Savage argues that “the vocational conclusions reached by the ALJ in the decision are at
odds with the evidence of record.” Savage Brief at 21. This is essentially a reprise of the errors
discussed above with regard to the ALJ’s findings regarding Savage’s mental impairments, and
therefore does not require separate analysis here. In addition, Savage argues that the ALJ should
have considered whether her need to attend multiple therapy sessions each week would prohibit
employment simply because of the time involved. Many people have obligations outside of
work, however, and the need to spend several hours a week in therapy does not, by itself,
preclude full-time employment.
V. CONCLUSION

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For the reasons discussed above, the decision of the Commissioner is REVERSED and
this case is REMANDED for further proceedings consistent with this Entry. Specifically, the
ALJ should reopen the record in order to obtain and consider Savage’s IQ scores. The ALJ also
should reconsider the weight to be given the opinion of treating psychiatrist Dr. Thumuluri and
should reconsider whether Savage meets or equals Listing 12.05 (mental retardation), Listing
12.04 (affective disorders), and/or List 12.06 (anxiety-related disorders). If the ALJ again
determines that she does not, then she should consider whether Savage’s mental impairments
nonetheless render her disabled, and should specifically address whether the combined effect of
Savage’s intellectual deficits and her depression render her disabled.
SO ORDERED: 03/22/2012

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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