PENMAN v. COLVIN
ENTRY ON JUDICIAL REVIEW - For the reasons stated above, Ms. Penman's request for remand is DENIED and the Commissioner's final decision is AFFIRMED. Final judgment will be entered by a separate order. **See order** Signed by Judge Tanya Walton Pratt on 6/23/2016.(JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MELISSA M. PENMAN,
CAROLYN W. COLVIN, Acting Commissioner )
of the Social Security Administration,
Case No. 1:15-cv-00440-TWP-MPB
ENTRY ON JUDICIAL REVIEW
Plaintiff, Melissa M. Penman (“Ms. Penman”) requests judicial review of the final decision
of the Defendant, Carolyn W. Colvin, Acting Commissioner of the Social Security Administration
(“Commissioner”), wherein the Commissioner denied her application for Supplemental Security
Income (“SSI”) under Title II of the Social Security Act. For the reasons stated below, the Court
AFFIRMS the Commissioner’s final decision.
Ms. Penman filed a Title II application for a period of disability and disability insurance
benefits, alleging a disability onset date beginning December 11, 2005. (Filing No. 12-2 at 12.)
The claim was initially denied by the Social Security Administration and upon reconsideration.
On July 30, 2012, Ms. Penman filed a timely request for a hearing. Id. at 12.
On October 11, 2013, a hearing was held by Administrative Law Judge, Monica LaPolt
(“the ALJ”), wherein Ms. Penman appeared and testified. (Filing No. 12-2 at 12.) Also appearing
and testifying at the hearing was Gail H. Franklin (“the VE”), an impartial Vocational Expert. Id.
On December 11, 2013, the ALJ denied Ms. Penman’s claim. (Filing 12-2 at 26.) On January 29,
2015, the Appeals Council denied Ms. Penman’s request for review of the ALJ’s decision, thereby
making it the final decision of the Commissioner. (Filing No. 17 at 1.) See 20 C.F.R. § 404.981.
On March 16, 2015, Ms. Penman filed her appeal to this Court.
Relevant Medical History
Ms. Penman was born on October 6, 1976, making her twenty-nine years old on her alleged
onset date and thirty-seven years old at the time of her hearing. (Filing No. 12-2 at 72.) Her
highest level of education is the tenth grade. Since 1996, Ms. Penman has worked at McDonald’s
restaurants. At the October 11, 2013 hearing, Ms. Penman testified to working thirty hours a week
as a cash register operator at a McDonald’s restaurant.
On December 11, 2005, Ms. Penman was shot in her left arm while waiting at a stop light.
(Filing No. 17 at 2.) The gunshot injury shattered the bones in her left arm. Id. Ms. Penman
subsequently underwent three surgeries to repair the damage to her left arm: the first in 2005, the
second in March 2006, and the third in May 2006. (Filing No. 19 at 2.)
As a result of this event, Ms. Penman has been diagnosed with post-traumatic stress
disorder (PTSD) and depression. (Filing No. 12-8 at 79.) She has flashbacks of the shooting,
hypervigilance, sleep disturbances, and fear of going out at night. (Filing No. 12-9 at 3.) She has
been prescribed various medications to remedy her PTSD symptoms, including amlodipine,
prazosin, Risperdal, Zoloft, and Ibuprofen. (Filing No. 12-9 at 39.)
On January 29, 2007, Ms. Penman began mental health treatment at Midtown Community
Mental Health Center. (Filing No. 12-9 at 3.) During her treatment, Ms. Penman reported an
incident in 2002 when she was hospitalized for a period of five days as a result of a nervous
breakdown. Id. at 4. Ms. Penman reported improvement during the course of the treatment, which
included both medication and therapy meetings. Id. at 35. On January 15, 2008, she was
discharged from treatment with instructions to return if symptoms of PTSD returned. Id.
Ms. Penman went five years without any mental health treatment until October 2, 2012,
when she reinitiated mental health services. (Filing No. 12-9 at 36.) After reporting increased
paranoia and not feeling safe leaving the hospital, Ms. Penman was admitted for inpatient
treatment at Midtown Community Mental Health Center. Id. She was diagnosed with PTSD,
which she reported to be triggered by issues she had with a male cousin who had moved into her
home. Id. at 37. In this regard, Ms. Penman reported that her cousin had previously tried to
physically assault her. Id. Ms. Penman received medication to treat her increased anxiety, as well
as both individualized and group therapy. Id. at 39-42. On October 3, 2012 she was admitted to
psychiatry and her medications were changed and adjusted. On October 12, 2012, Ms. Penman
was discharged from inpatient treatment with instructions to continue outpatient treatment
including individualized counseling to help her cope with PTSD symptoms. (Filing No. 12-10 at
On October 2, 2012, an initial evaluation of Ms. Penman’s Global Assessment of
Functioning (“GAF”) 1 was assessed at 30, which indicated that “[b]ehavior is considerably
influenced by delusions or hallucinations OR serious impairment, in communication or judgment
The Court notes that the most recent version of the Diagnostic & Stat. Manual of Mental Disorders (“DSM”),
no longer uses GAF scores. See Am. Psychiatric Ass’n, Diagnostic & Stat. Manual of Mental Disorders, 16 (5th ed.,
2013) (“DSM-V”). However, the Court will address this issue because at the time of Ms. Penman’s claim the GAF
scale was still used. The Social Security Administration and courts within this Circuit have repeatedly opined that a
claimant’s GAF scores, while used to make treatment decisions, do not directly correlate with the severity
requirements of the regulations and that the ALJ is therefore not bound by them when determining disability. See
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, at 5076450765 (2000) (“The GAF scale . . . does not have a direct correlation to the severity requirements in our mental
disorders listings”); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); Wilkins v. Barnhart, 69 Fed. App’x 775, 780
(7th Cir. 2003) (unpublished); Sparks v. Colvin, 1:14-CV-1519; 2015 WL 3618344, at *6 (S.D. Ind. 2015) (“The
[GAF] score has limited value in determining whether a [claimant] can engage in substantial gainful activity.”).
(e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to
function in almost all areas”. (Filing No. 17 at 6; emphasis in original; Filing No. 12-10 at 31.)
However, a later evaluation, on May 27, 2013, indicated that Ms. Penman’s GAF was 60, which
indicated stability. (Filing No. 12-2 at 18; Filing No. 12-10 at 45.) In addition to her mental health
issues, Ms. Penman suffers from obesity and also reports not to be able to lift over ten pounds.
(Filing No. 12-11 at 18.)
Vocational Expert Testimony
At the December 11, 2013 hearing, the VE noted that, under the Dictionary of Occupational
Titles (“DOT”), Ms. Penman was previously employed as a fast food worker and a retail cashier.
The VE explained that both occupations that Ms. Penman previously held were light strength
occupations, requiring a specific vocational preparation of two under the DOT. (Filing No. 12-2
The ALJ gave a hypothetical asking the VE to determine if an individual with light range
of work, ability to understand simple instructions and ability to carry out supportive lifting with
the left hand, could engage in similar work as Ms. Penman’s past jobs. Id. at 63-64. In response,
the VE responded that such individual would be able to perform fast food or cashier jobs. Id. at
The ALJ then asked the VE if the individual from the first hypothetical were constrained
to sedentary positions only, and therefore could not perform any of Ms. Penman’s past jobs, would
such an individual have alternative job options. Id. at 64-65. The VE again answered in the
affirmative, and listed three possible occupations for an individual restricted to sedentary light
strength positions. Id. at 65. Specifically, the VE stated that such an individual could find work
as a telephone quotation clerk, a document preparer, and a table worker. Id. Additionally, the ALJ
asked the VE that if the same individual from the second hypothetical were to only be able to
occasionally handle items with the upper left extremity, would it restrict the occupational options.
Id. at 65. The VE responded that the additional restriction would not further limit the individual
as long as the individual was right handed. Id. at 64-65.
However, in response to further questioning by the ALJ and Ms. Penman’s attorney, the
VE testified that an individual that needed a five to ten minute break per hour, would miss more
than one day per month, and could not concentrate for a period of more than two hours could not
sustain gainful and skilled employment. Id. at 66-67.
The ALJ’s Decision
The ALJ first determined that Ms. Penman met the insured status requirements of the Social
Security Act through December 31, 2015. (Filing No. 12-2 at 15.) The ALJ then began the fivestep disability analysis. At step one, the ALJ found that Ms. Penman had engaged in substantial
gainful activity during 2008-2011. Id. However, because there was a continuous 12-month period
in which Ms. Penman did not engage in substantial gainful activity, the ALJ found it proper to
address those periods. Id. at 16. At step two, the ALJ found Ms. Penman to have the following
severe impairments: left forearm gunshot wound residuals, obesity, and post-traumatic stress
disorder. Id. At step three, the ALJ concluded that Ms. Penman did not have an impairment or
combination of impairments that met or medically equaled one of the Listed Impairments in 20
CFR Part 404, Subpart P, Appendix 1. Id. at 18. At step four, the ALJ determined that Ms. Penman
had the residual functional capacity (“RFC”) to perform a limited range of light work as defined
in 20 CFR 404.1567(b). Id. at 20. More specifically, the ALJ stated that Ms. Penman had the
mental capacity to understand, remember, and follow simple instructions. Id. Additionally, the
ALJ stated that Ms. Penman could tolerate moderate exposure to cold, and could carry out work-
like tasks with reasonable pace and attention. Id. However, the ALJ found that Ms. Penman would
be unable to climb ladders, ropes, and scaffolds. Id.
Ultimately, the ALJ determined that Ms. Penman was capable of performing past relevant
work as a fast food worker. Id. at 25. Thus, the ALJ found Ms. Penman to be not disabled. Id.
III. LEGAL STANDARD
Under the Social Security Act, a claimant is entitled to SSI if he establishes he has a
disability. 42 U.S.C. §§ 423(a)(1)(E), 1382. Disability is defined as the “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 twelve months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). To justify a finding
of disability, a claimant must demonstrate that his physical or mental limitations prevent him from
doing not only his previous work but any other kind of gainful employment which exists in the
national economy, considering his age, education, and work experience. 42 U.S.C. §§
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If disability status can be determined at
any step in the sequence, an application will not be reviewed further. Id. At step one, if the
claimant is engaged in substantial gainful activity, he is not disabled despite his medical condition
and other factors. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, if the claimant
does not have a “severe” impairment that meets the durational requirement, he is not disabled. 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe impairment is one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§
At step three of the sequential analysis, the ALJ must determine whether the claimant’s
impairment or combination of impairments meets or equals the criteria for any of the conditions
included in 20 C.F.R. Part 404, Subpart P, App’x 1 (the “Listings”).
20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also 20 C.F.R. Pt. 404, Subpart P, App’x 1. The
Listings are medical conditions defined by criteria that the Social Security Administration has predetermined to be disabling. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004); 20 C.F.R. §§
404.1525(a), 416.925(a). See also 20 C.F.R. Pt. 404, Subpart P, App’x 1. For each Listing, there
are objective medical findings and other findings that must be met or medically equaled to satisfy
the criteria of that Listing. 20 C.F.R. §§ 404.1525(c)(2)-(5), 416.925(c)(2)-(5).
If the claimant’s impairments do not meet or medically equal a Listing, then the ALJ
assesses the claimant’s residual functional capacity for use at steps four and five. 20 C.F.R. §§
404.1520(e), 416.920(a)(4)(iv). Residual functional capacity is the “maximum that a claimant can
still do despite his mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th
Cir. 2008); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.945(a)(1).
At step four, if the claimant is able to perform his past relevant work, he is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the ALJ determines whether the
claimant can perform any other work in the relevant economy, given his RFC and considering his
age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). See
also 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The claimant is not disabled if he can perform
any other work in the relevant economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The
combined effect of all of a claimant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. §§ 423(d)(2)(B); 1382c(a)(3)(G). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner at the fifth step. Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Review of the Commissioner’s Final Decision
When the Appeals Council denies review, the ALJ’s ruling becomes the final decision of
the Commissioner. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009); Hendersen v. Apfel,
179 F.3d 507, 512 (7th Cir. 1999). Thereafter, in its review, the district court will affirm the
Commissioner’s findings of fact if they are supported by substantial evidence. 42 U.S.C. §
405(g)(2012); Craft, 539 F.3d at 673; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Dixon, 270 F.3d at 1176; Zurawski v. Halter, 245 F.3d 881,
887 (7th Cir. 2001). See also Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (Substantial
evidence must be “more than a scintilla but may be less than a preponderance.”).
In this substantial-evidence determination, the court does not decide the facts anew, reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute the court’s own
judgment for that of the Commissioner. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008);
Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Accordingly, if the
Commissioner’s decision is adequately supported and reasonable minds could differ about the
disability status of the claimant, the court must affirm the decision. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008).
Ultimately, the sufficiency of the ALJ’s articulation aids the court in its review of whether
the Commissioner’s final decision was supported by substantial evidence. See Stephens v.
Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985) (“The ALJ’s opinion is important not in its own
right but because it tells us whether the ALJ has considered all the evidence, as the statute requires
him to do.”). While, the ALJ need not evaluate every piece of testimony and evidence submitted
in writing, the ALJ’s decision must, nevertheless, be based upon consideration of all the relevant
evidence. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009); Carlson v. Shalala, 999 F.2d 180,
181 (7th Cir. 1993). In this vein, the ALJ may not discuss only that evidence that favors his
ultimate conclusion but must confront evidence that contradicts his conclusion and explain why
the evidence was rejected. Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
Further, the ALJ’s decision must adequately demonstrate the path of reasoning, and the
evidence must lead logically to the ALJ’s conclusion. Terry, 580 F.3d at 475; Rohan v. Chater,
98 F.3d 966, 971 (7th Cir. 1996). Indeed, to affirm the Commissioner’s final decision, “the ALJ
must build an accurate and logical bridge from the evidence to [his] conclusion.” Zurawski, 245
F.3d at 888–89; Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Ms. Penman raises several challenges to the ALJ’s decision. First, she argues the ALJ
erred in finding that she did not meet the required criteria for Listing 12.06. (Filing No. 17 at 11.)
Second, she argues the ALJ erred by not summoning a medical advisor to testify as to whether her
mental and physical impairments medically equaled any Listing, including 12.06. Id. at 14. Third,
Ms. Penman argues that the ALJ incorrectly assessed her ability to perform her past relevant work
of fast food employee. Id. at 17.
The ALJ relied on substantial evidence in determining criteria for Listing 12.06
Ms. Penman argues that the ALJ’s determination finding that she does not meet the criteria
for Listing 12.06 is not supported by substantial evidence. More specifically, Ms. Penman argues
that the ALJ failed to consider relevant evidence that proved her disability. The Court is not
persuaded and finds the ALJ’s decision to be supported by substantial evidence.
A claimant has the initial burden of presenting medical evidence to demonstrate that his
impairments satisfy all of the requirements in a Listing. Ribaudo v. Barnhart, 458 F.3d 580, 583
(7th Cir. 2006); Knox v. Astrue, 327 Fed. App’x 652, 655 (7th Cir. 2009) (unpublished opinion)
(“[a]lthough an ALJ should provide a step-three analysis, a claimant first has the burden to present
medical findings that match or equal in severity all the criteria specified by a Listing”). Thereafter,
the ALJ also has a duty to mention the specific Listing he is considering and offer more than a
perfunctory analysis. Ribaudo, 458 F.3d at 583 (internal quotations omitted); Barnett, 381 F.3d at
Listing 12.06 applies when an individual has anxiety related disorders and the anxiety “is
either the predominant disturbance or it is experienced if the individual attempts to master
symptoms; for example, confronting the dreaded object or situation in a phobic disorder or
resisting the obsessions or compulsions in obsessive compulsive disorders.” 20 C.F.R. Pt. 404,
Subpart P, App’x 1 § 12.06. To be found disabled under this Listing, Ms. Penman must satisfy
the requirements of Subpart A, along with the requirements of either Subpart B or C. Id.
Listing 12.06 indicates that to meet the criteria for Subpart A there must be medically
documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four of the following
signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity; or c.
Apprehensive expectation; or d. Vigilance and scanning; or 2. A persistent
irrational fear of a specific object, activity, or situation which results in a
compelling desire to avoid the dreaded object, activity, or situation; or 3. Recurrent
severe panic attacks manifested by a sudden unpredictable onset of intense
apprehension, fear, terror and sense of impending doom occurring on the average
of at least once a week; or 4. Recurrent obsessions or compulsions which are a
source of marked distress; or 5. Recurrent and intrusive recollections of a traumatic
experience, which are a source of marked distress.
20 C.F.R. Pt. 404, Subpart P, App’x 1 § 12.06(A).
In order to satisfy Subpart B, the Plaintiff must show that her mental impairments resulted
in at least two of the following: marked restrictions of activities of daily living; marked difficulties
in maintaining social functioning; marked difficulties in maintaining concentration, persistence or
pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404,
Subpart P, App’x 1 § 12.06(B).
In her decision, the ALJ appears to acknowledge that Ms. Penman has the mental
impairments necessary to satisfy Subpart A of Listing 12.06, by focusing her analysis, instead, on
the Subpart B criteria. In this regard, the ALJ stated that “the claimant’s mental impairment does
not cause at least two “marked” limitations”, which indicates that the issue was not whether the
ALJ believed Ms. Penman met Subpart A’s diagnostic requirements, but instead Subpart B’s
severity requirements. (Filing No. 12-2 at 20.) Accordingly, the Court finds the ALJ’s Listing
determination to be adequately supported and sufficiently articulated.
In regards to Subpart B’s requirements for marked restrictions of daily living activities, the
ALJ found that Ms. Penman only had mild restrictions. (Filing No. 12-2 at 19.) In support of her
finding, the ALJ noted that Ms. Penman had been working full time since 2007 at a McDonald’s
restaurant. Id. At the time of the hearing date, Ms. Penman was still working thirty hours a week
at McDonald’s. Id. Also, the ALJ noted that Ms. Penman was able to drive, attend Bible Study,
and keep her medical appointments as indicative of only mild restrictions in daily activities. Id.
Next, the ALJ found Ms. Penman to have only mild difficulties in the marked difficulties in social
functioning part of Subpart B. Id. In support, the ALJ indicated that Ms. Penman had a boyfriend
and had been able to perform satisfactorily at work. Id. Further, the ALJ found Ms. Penman to
only have moderate difficulties regarding concentration, persistence, or pace. Id. The ALJ cited
to medical records which indicated Ms. Penman’s ability to concentrate, speak normally, be
logical, be organized, and have a good memory. Id. Lastly, the ALJ found that Ms. Penman had
experienced no episodes of decompensation, which had been of extended duration. Id. While the
ALJ acknowledged one occasion where Ms. Penman decompensated, the ALJ found that it was
not of an extended duration. Id. at 20. The Court finds the ALJ’s analysis and decision regarding
Subpart B’s requirements to be well supported by the record evidence and sufficiently explained.
Ms. Penman’s most strident argument regarding the ALJ’s Listing determination is that the
ALJ committed reversible error by mentioning her GAF score of 60, but failing to mention her
lower GAF score of 30. (Filing No. 23 at 3; Filing No. 12-10 at 31.) Ms. Penman contends that
the ALJ’s failure to mention the lower GAF score indicates the ALJ did not rely on substantial
evidence in determining if Ms. Penman met the criteria for Listing 12.06. (Filing No. 17 at 12.)
In this regard, the Seventh Circuit has stated that “nowhere do the Social Security regulations or
case law require an ALJ to determine the extent of an individual’s disability based entirely on his
GAF score.” Denton, 596 F.3d at 425. Nonetheless, the Seventh Circuit has also stated that an
ALJ is not allowed to “cherry-pick” medical records that support his or her decision, while ignoring
evidence favorable to the plaintiff. Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014). The Yurt
court found it impermissible for an ALJ to cite to the Plaintiff’s highest initial GAF score, while
ignoring the Plaintiff’s multiple and subsequent lower GAF scores, diagnosed by another
physician. Id. See also Pickett v. Astrue, No. 1:11-CV-0160-SEB-DML, 2012 WL 4470242 at 6
n.3. (S.D. Ind. Sept. 27 2012) (noting, in a footnote, that “nowhere in the Social Security
regulations or case law does it permit an ALJ to ignore low GAF scores while considering other
high GAF scores”).
The actions of the ALJ in Ms. Penman’s case are clearly distinguishable from those
requiring remand in the Yurt decision. In Yurt, the ALJ ignored the plaintiff’s most recent GAF
scores which showed a decrease in mental health. (Yurt, 758 F.3d at 859.) Instead, the ALJ in
Yurt cited to the plaintiff’s highest GAF score ever recorded in order to support her decision and
ignored the two subsequent lower GAF scores. Id. Further, the lower GAF scores that the ALJ
failed to mention had been assessed by two separate treating physicians. Id.
In contrast, in Ms. Penman’s case, the ALJ cited to the most recent GAF score on record
for Ms. Penman, which also happened to be the highest GAF score of 60. (Filing No. 12-2 at 24.)
While the ALJ did not explicitly mention the lower GAF score of 30, which occurred earlier on
October 2, 2012, the ALJ did consider and discuss Ms. Penman’s contemporaneous episode of
decompensation during which the lower GAF score was assessed. Id. at 19-20. In her opinion,
the ALJ acknowledged that “[a]lthough the claimant did decompensate on one occasion, it was not
of an extended duration”. (Filing No. 12-2 at 20.) It was during this period of decompensation
that Ms. Penman’s GAF score was evaluated at 30. (Filing No. 12-10 at 31.) Further, later in her
decision, the ALJ discussed the period of decompensation again. (Filing No. 12-2 at 24.) The
ALJ’s discussion of Ms. Penman’s decompensation, along with discussion of other evidence of
Ms. Penman’s mental health, indicates that the ALJ was not engaged in impermissible cherrypicking of the evidence. Similar balancing of the evidence was not present in the Yurt case.
Additionally, the GAF score of 30 that the ALJ did not mention in her decision was assessed by
only one physician on one occasion. (Filing No. 12-10 at 31.) In contrast, in the Yurt case, the
ALJ failed to consider two GAF scores assessed by a different physician that assessed the higher
GAF score of 60. Yurt, 758 F3.d at 859-860.
Because the ALJ’s actions in the present matter greatly differ from the ALJ’s actions in the
Yurt case, the ALJ’s omission of the GAF score of 30 constitutes, at most, “harmless error”. See
Scott v. Astrue, 730 F. Supp. 2d 918, 935 (C.D. Ill. 2010) (“[h]armless errors are those that do not
affect the ALJ’s determination that a claimant is not entitled to benefits”); Sanchez v. Barnhart,
467 F.3d 1081, 1082-83 (7th Cir. 2006) (“errors if harmless do not require (or indeed permit) the
reviewing court to upset the agency’s decision”). See also, Salt River Project Agric. Improvement
and Power Dist. v. U.S., 762 F.2d 1053, 1060 n. *8 (D.C. Cir. 1985) (“[w]hen it is clear that based
on the valid findings the agency would have reached the same ultimate result, we do not improperly
invade the administrative province by affirming.”); Scott, 730 F. Supp. 2d at 935 (C.D. Ill. 2010)
(“[h]armless errors are those that do not affect the ALJ’s determination that a claimant is not
entitled to benefits.”); Sanchez, 467 F.3d at 1082-83 (“errors if harmless do not require (or indeed
permit) the reviewing court to upset the agency’s decision”). Moreover, the Commissioner argues
that even if the ALJ had included the lower GAF score of 30, it would have only furthered the
Commissioner’s argument that Ms. Penman had greatly improved, as her most recent GAF scores
were much higher. As such, the ALJ’s failure to mention the low score is not the kind of error
that, but for the omission, the agency might have reached a different result.
In addition, Ms. Penman argues that the ALJ failed to consider as evidence of her severe
mental impairment the fact that on October 2, 2012, she informed her intake doctors that she was
calling her boyfriend over thirty times to make sure he was well. (Filing No. 17 at 11; Filing No.
12-9 at 36.) Ms. Penman argues that her repeated telephone calls to her boyfriend were an
indication of her paranoia. (Filing No. 17 at 11.) However, the intake evaluation was conducted
during the same period of decompensation that the ALJ discussed in her decision. (Filing No. 122 at 19-20.) As such, the Court is not persuaded that the ALJ ignored the evidence. Further, an
ALJ is not required to discuss every piece of evidence presented, as long as the ALJ builds a
“logical bridge” between the evidence and his or her conclusion. Skarbek v. Barnhart, 390 F.3d
500, 503 (7th Cir. 1997). As discussed previously, the ALJ built a logical bridge, thus, the Court
finds that the ALJ’s Listing determination was supported by substantial evidence.
The ALJ did not err by failing to obtain an updated medical expert opinion to
determine if Ms. Penman’s mental-physical impairments equaled any listed
The Seventh Circuit has made it clear that an ALJ must consider an expert’s opinion when
determining whether a claimant’s impairment equals a Listing. Barnett, 381 F.3d at 670-71
(holding that, because it involves a medical determination, an ALJ is required to consider an
expert’s opinion when determining whether a claimant’s impairment equals a Listing). See also,
20 C.F.R. § 404.1526(c) (when considering equivalency with a Listing, the Commissioner “also
consider[s] the opinion given by one or more medical or psychological consultants designated by
the Commissioner”); S.S.R. 96-6p (“longstanding policy requires that the judgment of a physician
(or psychologist) designated by the Commissioner on the issue of equivalence . . . must be received
into the record as expert opinion evidence and given appropriate weight.”).
Ms. Penman contends that the ALJ was obligated to obtain an updated opinion of a medical
expert to determine if her severe impairments medically equaled any listed impairment. She argues
that the opinions of the agency physicians were “dated” since they were given in 2012. (Filing
No. 17 at 15.) She believes a medical expert should have reviewed her medical treatment of 2013.
(Id.) However, Ms. Penman fails to cite to any controlling precedent to support her argument.
The Seventh Circuit has repeatedly found that an ALJ does not automatically have to
update a medical opinion when there is evidence that post-dates the original. See Skarbek, 390
F.3d at 504 (7th Cir. 2004) (stating that an ALJ need recontact a medical source only when the
evidence received is inadequate to determine if the claimant is disabled.); Buckhanon ex rel. J.H
v. Astrue, 368 F. App’x 674, 679 (7th Cir. 2010) (stating that an ALJ is not compelled by SSR 966p to summon a medical expert to assess evidence generated after an initial medical opinion)
These Seventh Circuit decisions are also consistent with the regulation concerning an
ALJ’s duty regarding medical equivalency, which states that an ALJ must obtain an updated
opinion when “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.” SSR 96-6P (SSA July 2, 1996) (emphasis added).
In Ms. Penman’s case the ALJ’s decision not to update the medical record is consistent
with Skarbek, Buckhanon, and the language of SSR 96-6p. For example in Buckhanon, the medical
opinions stating that the plaintiff’s impairments were not medically equivalent to any Listing were
provided in 2005. Buckhanon, 368 F. App’x at 679. Because the ALJ issued his decision in 2007,
the plaintiff claimed that the ALJ should have obtained an updated opinion that considered newer
evidence. Id. However, the Buckhanon court concluded that there was enough opinion evidence
to support the ALJ’s findings and the ALJ was within his discretion to not obtain an updated
medical opinion. Id. The Buckhanon court stated that the “SSR 96–6p requires an ALJ to secure
another expert opinion only when, “in the opinion of the administrative law judge,” new evidence
might cause the initial opinion to change”. Id.
Here, the state physician’s opinions pre-dated some of the evidence in the record.
However, the ALJ in Ms. Penman’s case did not solely rely on the physician’s opinions. The ALJ
also considered the other evidence on record such as, Ms. Penman’s daily activities, objective
medical evidence, and the opinion of Ms. Penman’s family physician. (Filing No. 12-2 at 25.) It
is apparent that the ALJ did not believe that the new evidence would change the state agency
physician’s opinion on medical equivalency. The ALJ sufficiently supported her conclusion.
(Filing No. 12-2 at 19-20.) As such, the ALJ was within her discretion to not update the medical
In support of her argument, Ms. Penman also cites to Seventh Circuit cases stating that an
ALJ is not allowed to “play doctor”. (Filing No. 17 at 15.) See, e.g., Barnett, 381 F.3d 664 (stating
that an ALJ must consider an expert’s opinion on the issue of equivalency); Green v. Apfel, 204
F.3d 780, 781 (7th Cir. 2000) (stating that a medical expert must testify if necessary to provide an
informed basis for disability determination). The Seventh Circuit has found that an ALJ must
obtain a medical expert’s opinion when deciding a Listing equivalency issue. Barnett, 381 F.3d
664; Green, 204 F.3d at 781. However, in the cases cited by Ms. Penman, the ALJ failed to
summon a medical expert at all. (Id.) In contrast, the ALJ in Ms. Penman’s case obtained the
opinion of two medical experts regarding medical equivalency. (Filing No. 12-2 at 19.) The ALJ
also stated additional reasons for not finding a medical equivalency for Ms. Penman. (Id.)
Similarly, Ms. Penman supports her argument by citing to Graves v. Astrue, 11-cv-249SEB-DKL, 2012 WL 4019533 (S.D. Ind. Sept. 11, 2012), in which the court cited the language of
the SSR 96-6P regulations indicating when an ALJ must update a medical opinion. (Filing No. 17
at 15.) However, in the Graves decision, the court found that an updated opinion was necessary
because the state physician’s opinion was assessed before the only psychological examination was
performed. Graves, 2012 WL 4019533 at *3. In contrast, in Ms. Penman’s case, the state
physicians had access to Ms. Penman’s previous psychological record. (See Filing No. 12-2 at
19.) Thus, the facts in the Graves case are distinguished from those in Ms. Penman’s case. The
ALJ in Ms. Penman’s case did not “play doctor”, but instead relied on legitimate and substantial
evidence in the record, to determine that Ms. Penman’s severe impairments did not medically equal
The Court also notes that Ms. Penman does not elaborate on what new evidence needed to
be reexamined. In this vein, the Court notes that it is the burden of the Plaintiff to prove that she
meets the criteria of a Listing. See Ribaudo, 458 F.3d at 583. (stating that a claimant first has the
burden to present medical findings that match or equal in severity all the criteria specified by a
Listing). Here Ms. Penman did not meet her burden.
In sum, the Court finds that the ALJ supported her medical equivalency decision with
substantial evidence in the record and she was within her discretion to not obtain an updated
opinion regarding medical equivalency. The opinions of the state physicians and the record
evidence that the ALJ cited to, provide sufficient articulation to build a rational bridge between
the evidence and her conclusion. (Filing No. 12-2 at 19-20.) Thus, the Court finds no error in the
ALJ’s decision to not obtain an updated medical opinion.
Substantial evidence supports the ALJ’s finding that Ms. Penman could perform her
past relevant work.
Finally, Ms. Penman argues that the ALJ erroneously presented the Vocational Expert with
incomplete hypotheticals. (Filing No. 17 at 17.) To the extent the ALJ relies on the testimony
from a Vocational Expert, the hypothetical question posed to the expert must incorporate all
relevant limitations from which the claimant suffers in order to accurately gauge how many jobs
are available to the claimant in the national economy. Young, 362 F.3d at 1003.
To begin, the Court notes that the ALJ’s hypothetical was a mirror image of his RFC
finding. For instance, the ALJ stated his RFC determination of Ms. Penman as follows,
I find that the claimant has the residual functional capacity to perform a limited
range of light work, as defined in 20 CFR 404.1567(b). The claimant could not
climb ladders ropes and scaffolds. She could tolerate no more than moderate
exposure to cold. She has the mental capacity to understand, remember and follow
simple instructions. Within these parameters and in the context of performing
simple, routine, repetitive, concrete, tangible tasks, the claimant is able to sustain
attention and concentration skills sufficient to carry out work-like tasks with
reasonable pace and persistent.
(Filing No. 12-2 at 20.) By way of comparison, the ALJ’s first hypothetical presented to The VE
indicated an individual that was,
capable of the full range of light work with no ladders, ropes, or scaffolding. Where
the left hand can only be used for supportive lifting…no more than moderate
exposures to extremes of cold…. And the individual has the mental capacity to
understand, remember and follow simple instructions. Within those parameters and
the context to perform simple, routine, repetitive, concrete, tangible tasks, the
individual is able to sustain attention and concentration skills sufficient to carry out
work-like tasks with reasonable pace and persistent.
(Filing No. 12-2 at 63-64.)
The hypothetical presented by the ALJ is nearly identical to the ALJ’s RFC determination.
In response to this hypothetical, the Vocational Expert found that an individual with those
limitations would be able to work as a fast food worker, cashier, or small product assembler.
(Filing No. 12-2 at 64.) The ALJ then continued with two more hypotheticals, both with
limitations greater than the limitations assessed in the ALJ’s RFC determination. Id. at 64-66. In
the second hypothetical, the ALJ asked The VE to consider the individual from the first
hypothetical to be limited to only sedentary work, and if such individual would be employable. Id.
In response, The VE answered in the affirmative and suggested that such an individual could find
work as a telephone quotation clerk, document preparer or table worker. Id. In the third
hypothetical, the ALJ added the limitation of only being able to use the left extremity occasionally,
to which The VE found would not change her answer to the previous hypothetical. Id. at 65-66.
The hypotheticals are a fair reflection of the ALJ’s RFC determination and, as such, the
ALJ properly relied on The VE’s testimony to determine that Ms. Penman was capable of
performing past relevant work as a fast food worker. See Packham v. Astrue, 762 F. Supp. 2d
1094, 1097 (N.D. Ill. 2011) (holding valid a hypothetical based upon a valid RFC determination).
See also Sims v. Barnhart, 309 F.3d 424, 432 (7th Cir. 2002) (noting that an ALJ may properly
rely upon a vocational expert’s testimony, as long as the ALJ submits a hypothetical that reflects
the ALJ’s conclusions regarding the extent of the claimant’s impairments); Simila v. Astrue, 573
F.3d 503, 521 (7th Cir. 2009) (noting that an ALJ is “required only to incorporate into his
hypotheticals those impairments and limitations that he accepts as credible”).
Rather than challenging the ALJ’s hypothetical, it may be that Ms. Penman is actually
challenging the ALJ’s RFC determination. In this regard, the Court concludes that the ALJ’s RFC
decision was substantially supported and adequately articulated. (Filing No. 12-2 at 20-25.) An
ALJ’s factual conclusions are entitled to deference as long as they are supported by substantial
evidence in the record. See Elder, 529 F.3d at 413; Craft, 539 F.3d at 673; Lopez, 336 F.3d at 539
(stating that in a substantial evidence determination, the court will not reweigh evidence);
Richardson v. Perales, 402 U.S. 389, 401 (1971) (stating that the court will not overturn an ALJ=s
decision where it is supported by such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion).
In sum, the Court finds no error in the ALJ’s step four determination finding that Ms.
Penman was able to perform her past relevant work as a fast food worker.
For the reasons stated above, Ms. Penman’s request for remand is DENIED and the
Commissioner’s final decision is AFFIRMED. Final judgment will be entered by a separate
Patrick Harold Mulvany
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
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