FULLER v. COLVIN

Filing 31

ENTRY - The Commissioner's decision will be reversed and remanded for reconsideration of Ms. Fuller's credibility according to the findings, conclusions, and instructions herein. Signed by Magistrate Judge Denise K. LaRue on 9/30/2015.(CBU)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

SARAH M. FULLER,
Plaintiff,
vs.

CAUSE NO. 1:14-cv-1339-DKL-JMS

CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
ENTRY
Plaintiff Sarah M. Fuller applied for disability-insurance benefits and a period of
disability under the Social Security Act, alleging a disability beginning on January 1, 2011.
The defendant Commissioner denied her application and Ms. Fuller brought this suit for
judicial review of that denial.
Standards
Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. '
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a
preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If
the evidence is sufficient for a reasonable person to conclude that it adequately supports
the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758
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(7th Cir. 2004). This limited scope of judicial review derives from the principle that
Congress has designated the Commissioner, not the courts, to make disability
determinations:
In reviewing the decision of the ALJ [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely impaired
as defined by the SSA regulations. Nor may we reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in general,
substitute our own judgment for that of the Commissioner. Our task is
limited to determining whether the ALJ’s factual findings are supported by
substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner=s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically-determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. ' 416.905(a). A
person will be determined to be disabled only if his impairments “are of such severity
that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
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whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect
of all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523
and 416.923.
The Social Security Administration has implemented these statutory standards in
part by prescribing a “five-step sequential evaluation process” for determining disability.
If disability status can be determined at any step in the sequence, an application will not
be reviewed further. At the first step, if the applicant is currently engaged in substantial
gainful activity, then he is not disabled. At the second step, if the applicant’s impairments
are not severe, then he is not disabled. A severe impairment is one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities.” Third, if the
applicant’s impairments, either singly or in combination, meet or medically equal the
criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404,
Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of
Impairments are medical conditions defined by criteria that the Social Security
Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If the applicant’s
impairments do not satisfy the criteria of a listing, then her residual functional capacity
(“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s
ability to do work on a regular and continuing basis despite his impairment-related
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physical and mental limitations and is categorized as sedentary, light, medium, or heavy,
together with any additional non-exertional restrictions.

At the fourth step, if the

applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth,
considering the applicant’s age, work experience, and education (which are not
considered at step four), and his RFC, the Commissioner determines if he can perform
any other work that exists in significant numbers in the national economy. 42 U.S.C. '
416.920(a)
The burden rests on the applicant to prove satisfaction of steps one through four.
The burden then shifts to the Commissioner at step five to establish that there are jobs
that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995,
1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to
perform the full range of work at her assigned RFC level, then the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step
five to arrive at a disability determination.

The grids are tables that correlate an

applicant’s age, work experience, education, and RFC with predetermined findings of
disabled or not-disabled. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
vocational expert must testify regarding the numbers of jobs existing in the economy for
a person with the applicant’s particular vocational and medical characteristics. Lee v.
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Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the applicant
and obtained by the agency, undergoes initial review by a state-agency disability
examiner and a physician or other medical specialist. If the application is denied, the
applicant may request reconsideration review, which is conducted by different disability
and medical experts. If denied again, the applicant may request a hearing before an
administrative law judge (“ALJ”).1 An applicant who is dissatisfied with the decision of
the ALJ may request the SSA’s Appeals Council to review the decision. If the Appeals
Council either affirms or declines to review the decision, then the applicant may file an
action in district court for judicial review. 42 U.S.C. ' 405(g). If the Appeals Council
declines to review a decision, then the decision of the ALJ becomes the final decision of
the Commissioner for judicial review.
Background
The ALJ found that Ms. Fuller met the insured-status requirement for benefits
through June 30, 2015.

1 By agreement with the Social Security Administration, initial and reconsideration reviews in

Indiana are performed by an agency of state government, the Disability Determination Bureau, a division
of the Indiana Family and Social Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the federal Social
Security Administration.

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At step one of the sequential evaluation process, the ALJ found that Ms. Fuller has
not engaged in substantial gainful activity since January 1, 2011, her alleged onset-ofdisability date. At step two, he found that she has the severe impairments of (1) major
depressive disorder, (2) anxiety disorder, (3) minimal disc bulges of the lumbar spine, (4)
cannabis dependence, and (5) alcohol dependence. At step three, he found that her
impairments, singly or in combination, do not meet or medically equal any of the
conditions in the listing of impairments. He discussed listings 1.04, disorders of the spine,
and 12.04, affective disorders. The ALJ found that Ms. Fuller did not satisfy listing 1.04
because, “among other things,” she did not provide evidence that she cannot ambulate
effectively. The ALJ found that she did not satisfy listing 12.04 because her impairment
did not satisfy either the paragraph B or C severity criteria.
For the purposes of steps four and five, the ALJ determined Ms. Fuller’s RFC. He
found that she retained the capacity for light work with the following additional
restrictions: she is capable of (1) following and remembering simple instructions, (2)
making adequate work-related decisions, (3) sustaining concentration on simple tasks,
over a normal eight-hour work day, (4) displaying adequate social behavior in the work
environment, and (5) her professional interactions would be limited due to anxiety,
which means that she is precluded from complex mental tasks.
Relying on the testimony of a vocational expert, the ALJ found that this RFC
permits Ms. Fuller to perform her past relevant work as a fast-food worker and inspector

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and that she is, therefore, not disabled. He did not proceed to make an alternate step-five
determination.
When the Commissioner’s Appeals Council denied Ms. Fuller’s request to review
the ALJ’s decision, his decision became the final decision of the Commissioner on her
claim and the one that the Court reviews.
Discussion
Ms. Fuller appears to assert seven errors in the ALJ’s decision.2

1. The ALJ ignored or rejected evidence. Ms. Fuller asserts that “[t]he denial
decision must be reversed because the ALJ ignored or rejected all of the evidence proving
she was disabled . . . .” (Plaintiff’s Brief in Support of Complaint To Review Decision of Social
Security Administration [doc. 21] (“Plaintiff’s Brief”), at 8.) Because she only states this
conclusion, but does not develop a factual and legal argument in support, the argument
is forfeited.
2. The ALJ made medical judgments. Ms. Fuller argues that the ALJ made
medical judgments regarding her psychological conditions which he was not qualified to
make. She cites one example: “Thus, the ALJ used the technique of citing (R. 29) a
statement by the claimant (R. 249-257) and then applying his layperson’s psychological
interpretation’ [sic] to conclude that her functioning was not Markedly impaired. The

2 The first five errors appear in Ms. Fuller’s first category. It is difficult to discern a unifying point

to these arguments.

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ALJ is thus simply and illegally playing doctor . . . .” (Plaintiff’s Brief, at 8-9.) Page 29 of
the record, to which she cites, is part of the “List of Exhibits” at the end of the ALJ’s
decision; it contains no citation to a statement by Ms. Fuller. Pages 249 to 257 of the
record, which she identifies as her statement, consist of single-page therapist’s notes of 8
group and 1 individual therapy sessions with Ms. Fuller at Aspire Indiana Behavioral
Health System from August 30, 2010 to October 16, 2010. As far as the Court can find,
the ALJ cited only one of these notes in his decision: the note of a group therapy session
held on October 4, 2010. (R. 17 (ALJ citing page 58 of Exhibit 2F, which is R. 251).) He
cited it in support of this observation:
The claimant began group therapy. The group therapist noted in several
records that the claimant did not demonstrate full commitment as
evidenced by her lack of consistent participation, her slowness in
presenting assignments, and lack of documentation to show that she
regularly attended AA meetings. (Exhibit 2F/58).
(R. 17.) The pertinent part of the group-therapy note reads:
The client is making slow progress at this time as evidenced by lack of
consistency in attending group/AA, fails to provide feedback during
critical presentation of group members, and appears to not connect with the
process. It might be that the client struggles with self-esteem issues coupled
with depression and fear of public expression of thoughts/feelings.
(R. 251.)
Neither this therapist note nor any of the others contain any statement by Ms.
Fuller. The ALJ’s comments on this note are not part of his discussion of the paragraph
B severity criteria for evaluating listing category 12.00, in which he assesses Ms. Fuller’s
limitations in three functional areas (“marked” being one of the ratings). Finally, the
ALJ’s observations of the therapist’s comments does not include any assessment of the
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degree of Ms. Fuller’s limitations in any functional category. In short, Ms. Fuller’s
argument makes no sense and shows no error.
3. Inference from failure to obtain treatments. Ms. Fuller argues that the ALJ
erred by drawing negative inferences from her failures to obtain treatments without first
inquiring into explanations for the failures, as required by S.S.R. 96-7p. She cites three
specific instances. First, citing the group therapist’s Termination Summary note that Ms.
Fuller’s therapy sessions were terminated because she withdrew, (R. 244), the ALJ wrote
that he “finds it reasonable to conclude that the claimant’s symptoms improved or
resolved if she withdrew from treatment despite it being available to her,” (R. 18).
Second, according to Ms. Fuller, “[t]he ALJ opined that her lack of psychotherapy while
in prison ‘significantly undermine the claimant’s allegations that she suffers from severe
and debilitating symptoms that would preclude all work.[‘]” (Plaintiff’s Brief, at 9-10,
quoting ALJ’s decision (R. 20).) Third, commenting on the evidence that Ms. Fuller
sought treatment for back pain in September 2010 and did not seek treatment again until
October 2011, the ALJ wrote that he “has a hard time accepting that the claimant was
suffering from severe and disabling symptoms that would preclude even light work
while not seeking treatment for a year.” (R. 20.)
Social Security Ruling 96-7p provides that, “the individual’s statements may be
less credible if the level or frequency of treatment is inconsistent with the level of
complaints, or if the medical reports or records show that the individual is not following
the treatment as prescribed and there are no good reasons for this failure.” (Emphasis added.)
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The Ruling emphasizes that “the adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment.” The Ruling specifically
anticipates an adjudicator recontacting a claimant after a hearing in order to determine
whether there are good reasons for a failure to seek, or to consistently pursue, treatment.3

The first and third instances of the ALJ drawing a negative credibility inference
from Ms. Fuller’s failure to seek, follow, or persist with treatments, without inquiring into
her reasons for the failures, are as she describes.4 The second instance, however, is not.
The ALJ did not “opine[ ] that her lack of psychotherapy while in prison” significantly
undermined her credibility.

Rather, he wrote that “these prison records tend to

significantly undermine the claimant’s allegations that she suffers from severe and
debilitating symptoms that would preclude all work.” (R. 20 (emphasis added).) In the
preceding paragraph, the ALJ described what “these prison records” showed: e.g., Ms.
Fuller reported to prison providers that she was doing well; a prison provider noted that

3 The Ruling is phrased in the present tense: “. . . in order to determine whether there are good

reasons the individual does not seek medical treatment or does not pursue treatment in a consistent
manner.” The same principle would apply to a claimant’s past failures to seek or consistently pursue
treatments.
4 On questioning by her attorney at the hearing in April 2013, Ms. Fuller explained that she stopped

psychiatric treatment because of her daughter’s health and her trying to finish high school, but that, when
her high school is done in January 2014, she intended to go back in psychotherapy. (R. 46.) It does not
appear that this period of non-treatment is one of the instances for which the ALJ drew a negative inference.
Ms. Fuller did not mention this explanation in her briefs.

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her mood was stable and euthymic; prison providers, including physicians, consistently
noted normal mental-status examinations; prison providers consistently noted G.A.F.
scores showing mild to moderate symptoms; there was no worsening of her condition
noted over several months of incarceration; Ms. Fuller did not report worsening
symptoms and request reinstatement of psychotropic medication until August 2012 (her
incarceration commenced in March 2012 and ended in September 2012, (R. 19)). (R. 20.)
Although the ALJ also noted that she reported to prison personnel that she stopped her
psychotropic medications in November 2011 (months before her incarceration), the
majority of “these prison records” which he cited for his credibility inference report more
than simply a lack of psychotherapy or a failure to seek or persist with psychiatric
treatments; they report affirmative evidence of lack of severe symptoms.
That leaves the first and third instances of the ALJ drawing negative credibility
inferences from Ms. Fuller’s failure to seek or persist with treatments, without first
obtaining an explanation from her. Because the Commissioner completely failed to
address this argument in her response, and the argument is not clearly untenable, the
Court construes the Commissioner’s silence as a concession of error and the Court agrees
that the ALJ erred. Because it is impossible to determine how much weight these
inferences carried in the ALJ’s overall credibility determination, the Commissioner’s
decision must be reversed and Ms. Fuller’s claim remanded for reconsideration of her
credibility without these two errors.

The Commissioner may either request an

explanation from Ms. Fuller for the two instances or drop the two instances, and then

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reconsider her credibility (and RFC and disability) in light of the explanation or without
the two instances.
4. Trial work period. Ms. Fuller argues that the ALJ’s reliance on her searching
for work as evidence that she is not disabled5 contravenes the Commissioner’s
regulation’s allowance of a trial work period permitting a disabled person to attempt
work without resulting in a determination that she is not disabled. “The trial work period
is a period during which you may test your ability to work and still be considered
disabled.” 20 C.F.R. § 404.1592(a). It allows the performance of services for nine months
(consecutive or non-consecutive) without having those services considered as evidence
that the person’s disability has ended. Id. Although the Commissioner did not address
this argument in her response, the Court notes that the trial work period rule is
inapplicable. It falls under the heading “CONTINUING OR STOPPING DISABILITY,” 20 C.F.R.
§ 404.1588; only persons who are entitled to disability-insurance benefits are entitled to a
trial work period, 20 C.F.R. § 404.1592(d); and a trial work period begins with the month
in which a person becomes entitled to disability-insurance benefits, 20 C.F.R. §
404.1592(e). Thus, it is a rule that applies only after it has been determined that a person
is entitled to disability-insurance benefits and it’s design is to avoid termination of
benefits due to unsuccessful trial work. Because Ms. Fuller has not been determined to

5 (R. 18-19 (“The fact that the claimant was looking for work tends to show that she herself believed

she could work”), 24 (“The [RFC] limitations assessed by the undersigned are consistent with . . . the
claimant’s activities of daily living including looking for work . . . .”), 25 (“In making this determination,
the undersigned considered the multiple credibility factors outlined in SSR 96-7p, including . . . the
claimant’s activities of daily living, which included looking for work.”).)

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be entitled to benefits, the trial work period does not apply to the ALJ’s citation of her
seeking work as a reason to find her allegations of disabling symptoms to be not entirely
credible.
5.

Ignored G.A.F. scores.

Ms. Fuller argues that the ALJ ignored without

explanation, and arbitrarily refused to accept, the Global Assessment of Functioning
(G.A.F.) scores of 45 that were assigned to her and which signify disabling-level
symptoms. She contends that the ALJ “apparently” refused to accept the G.A.F. scores
because he believed that they are not acceptable evidence of disability, which is
inconsistent with precedent in the United States Court of Appeals for the Seventh Circuit.
At the hearing, Ms. Fuller’s counsel contended that Ms. Fuller is totally disabled due to
longstanding anxiety and depression, and post-traumatic stress disorder. He contended
that “she had consistent GAF assessments of 45 which under the DSM-IV indicate an
inability to keep a job which indicates total disability.” (R. 39.) The ALJ concluded that
counsel’s representation of consistent GAF scores of 45 “is not reflected in the record.”
(R. 24.)
Contrary to Ms. Fuller’s argument, the ALJ neither ignored nor “arbitrarily refused
to accept” her G.A.F. scores of 45. He mentioned her G.A.F. scores several times in his
decision, (R. 17 (score of 45), 70 (45 and 70), 19 (72), 20 (63 and mild/moderate), 24 (45),
25 (improved)), and articulated his evaluation of them, (e.g., R. 18, 19, (scores of 63, 70,
and 72 show mild or moderate symptoms); 20 (prison records, including mild to
moderate G.A.F. scores, tend to significantly undermine Ms. Fuller’s allegations of severe
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and disabling symptoms); 24 (assertion that Ms. Fuller received consistent scores of 45
not reflected in the record); 25 (providers noted improved G.A.F. scores)). G.A.F. scores
are not controlling on the issue of disability and, in this case, most of Ms. Fuller’s assessed
G.A.F. scores were above her early “current” score of 45. The ALJ was required to
consider all of the evidence of record and he was entitled to evaluate her different G.A.F.
scores and their trend.
Ms. Fuller has not shown that the ALJ erred in his consideration of her G.A.F.
scores.
6. Failure to call medical advisor. Ms. Fuller argues that the ALJ erred by failing
to call a medical advisor to give an expert medical opinion on the issue of whether Ms.
Fuller’s impairments medically equal any of the listings. The state-agency psychologists
and physicians completed Disability Determination and Transmittal forms, (R. 56, 57),
which can supply the required medical-equivalence opinions, Scheck v. Barnhart, 357 F.3d
697, 700 (7th Cir. 2004); Barnett v. Barnhart, 381 F.3d 664, 670-71 (7th Cir. 2004). 6 But Ms.
Fuller argues that these forms could not supply the required medical opinions in this case
because medical evidence entered the record after the state-agency reviewers completed
the forms. The specific later-submitted records ― “treatment medical and psychotherapy
evaluations from 3-24-11 to 3-22-13” ― are exhibits 11F through 14F, (R. 302-410).

6 The state-agency reviewers produced other forms, (R. 278 (Case Analysis, on physical condition),

293 (Physical Residual Functional Capacity Assessment), 411 (Psychiatric Review Technique form (“PRTF”)), 301
(Case Analysis, confirming PRTF)), on which the D.D.T.s were based and which also ensure that medical
opinion on listings medical equivalence has been obtained, S.S.R. 96-6p.

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However, all that Ms. Fuller offers on the significance of these later-submitted
records is the conclusory statement “[p]resumably, if they [the state-agency reviewers]
had reviewed all of the evidence they would have reasonably determined he [sic] was
totally disabled.” (Plaintiff’s Brief, at 15.) The Court cannot simply make that same
presumption. An updated medical opinion must be obtained only “[w]hen additional
medical evidence is received that in the opinion of the administrative law judge or the
Appeals Council may change the State agency medical or psychological consultant’s
finding that the impairment(s) is not equivalent in severity to any impairment in the
Listing of Impairments.” S.S.R. 96-6p. Ms. Fuller has not shown that the ALJ or Appeals
Council believed that Exhibits 11F through 14F might have changed the state-agency
experts’ equivalency findings, or that their failure to so believe was not supported by
substantial evidence, through showing the significance of the later evidence in relation to
the previously submitted evidence of record. Thus, she has failed to show that the ALJ
erred in not calling for an updated medical opinion on listings equivalence.
7. Failure to properly assess mental limitations. Ms. Fuller argues that the ALJ
erred because his “limitation of the work did not address the impact of the claimant’s
mental limitations,” he “failed to account for the claimant’s combined mental
impairments,” and “his residual functional capacity assessment did not accurately
describe the claimant’s impairments.” (Plaintiff’s Brief, at 18.) She argues that the ALJ’s
failure to properly assess her mental limitations corrupted his step-five determination
(according to her heading); his step-three determination, because her mental
impairments satisfied listings 12.04 and 12.06; and/or his RFC determination. The ALJ
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did not make a step-five determination and Ms. Fuller adds nothing here to her previous
listings and general RFC arguments. She develops no argument. Thus, she has not
shown error.
Conclusion
The Commissioner’s decision will be reversed and remanded for reconsideration
of Ms. Fuller’s credibility according to the findings, conclusions, and instructions herein.
DONE this date: 09/30/2015

Distribution to all ECF-registered counsel of record via ECF-generated e-mail.

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