STANLEY v. COLVIN

Filing 25

ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the final decision of the Commissioner is REMANDED for further proceedings consistent with this Entry as authorized by Sentence Four of 42 U.S.C. § 405(g). Signed by Judge Tanya Walton Pratt on 1/12/2018. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ARIEL STANLEY, by her mother and courtappointed co-guardian Melinda Stanley,
Plaintiff,
v.
NANCY A. BERRYHILL, 1 Acting Commissioner
of the Social Security Administration,
Defendant.

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) Case No. 1:16-cv-01129-TWP-MJD
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ENTRY ON JUDICIAL REVIEW
Plaintiff Ariel E. Stanley (“Ariel”) requests judicial review of the final decision of the
Commissioner of the Social Security Administration (the “Commissioner”) denying her
Application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act
(the “Act”). For the following reasons, the Court REMANDS the decision of the Commissioner
for further consideration.
I. BACKGROUND
A.

Procedural History
On July 25, 2012, Melinda Stanley (“Melinda”), filed an application for SSI, alleging a

disability of Borderline Intellectual Functioning for her daughter Ariel, beginning April 18, 1994,
Ariel’s date of birth. (Filing No. 13-2 at 19.) The claim was initially denied on October 2, 2012,
and again on reconsideration on November 7, 2012. (Filing No. 13-2 at 19.) After filing a written
request for a hearing, Ariel and her mother appeared and testified at a hearing held on May 9, 2014,

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Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Commissioner Carolyn W. Colvin as
the defendant in this suit.

in Indianapolis, Indiana before Administrative Law Judge Mark C. Ziercher (the “ALJ”). (Filing
No. 13-2 at 19.) The claim was denied on August 26, 2014, and on March 2, 2016, the Appeals
Council denied Ariel’s request for review of the ALJ’s decision, making the ALJ’s decision the
final decision of the Commissioner for purposes of judicial review. (Filing No. 13-2 at 19; Filing
No. 13-2 at 2.) On May 6, 2016, Ariel filed this action for judicial review of the ALJ’s decision
pursuant to 42 U.S.C. § 405(g). (Filing No. 1.)
B.

Factual Background 2
In November 2008, at age 14, Ariel was referred from the Indiana Bureau of

Developmental Disability Services, to psychologist Jessica Jones, Psy.D. (“Dr. Jones”). (Filing
No. 13-7 at 7.) Dr. Jones noted that Ariel had been previously diagnosed with Borderline
Intellectual Functioning, ADHD, Auditory Processing Disorder, Amblyopia 3, and Microcephaly.
(Filing No. 13-7 at 13.) Using the Stanford-Binet Intelligence Scale, Fifth Edition, Dr. Jones
assessed Ariel with a verbal IQ score of 78, a nonverbal IQ score of 68, and a full scale IQ score
of 72. (Filing No. 13-7 at 12.) This IQ score placed her intellectual functioning within the
borderline range. (Filing No. 13-7 at 12.) Dr. Jones made a variety of recommendations, including
that Ariel receive continued support and treatment through school programming, continue to take
psychotropic medication for attention deficits, and receive screenings to determine if further
formal speech, occupational therapy, and vision therapy services were warranted. (Filing No. 137 at 12-13.) Dr. Jones also stated that Ariel would benefit from services to help her maintain
current functioning, learn new skills, and increase her independence. (Filing No. 13-7 at 13.) Dr.

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The parties’ briefing contains detailed factual accounts of the relevant medical background. The Court recounts here
only the facts relevant to the issues being appealed.
3

Amblyopia is the loss of the ability to see clearly through one eye, also called “lazy eye”. It is the most common
cause of vision problems in children. https://medlineplus.gov/ency/article/001014.htm.

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Jones also indicated that Ariel needed a structured environment, and indicated that she would
benefit from the continued services of a legal guardian. (Filing No. 13-7 at 2.) She also suggested
that Ariel continue to develop her social skills through community involvement, social events, and
social skills therapy and training. (Filing No. 13-7 at 12.)
In March 2009, Ariel completed another Multidisciplinary Educational Evaluation, where
she was administered the Woodcock-Johnson Tests of Cognitive Abilities, Third Edition. (Filing
No. 13-7 at 30-31.) That evaluation concluded that her overall intellectual ability was in the low
range. (Filing No. 13-7 at 36.) She demonstrated “very low” performance in processing speed,
short term memory, and working memory. (Filing No. 13-7 at 36.) Her adaptive behavior skills
were below average. (Filing No. 13-7 at 36).
As Ariel was about to enter high school, in March 2009, the Indiana Family and Social
Services Administration found that Ariel met the definition of a person with a developmental
disability. (Filing No. 13-7 at 3.) Ariel proceeded through high school with an Individualized
Education Program which took into account a vision impairment, low adaptive behavior, and
problems with short term memory. (Filing No. 13-8 at 32-41.) She completed high school with a
series of accommodations. (Filing No. 13-8 at 11-41.) Her report cards reflected grades of A’s.
B’s and C’s, though with some D’s and F’s. Ariel was a member of the school band and from a
young age has played the flute.
In March 2012, when Ariel was 17 years old, Dr. David Strus, Ph.D. (“Dr. Strus”),
conducted a mental evaluation of Ariel for the purposes of determining whether a guardianship, in
which her parents would serve as co-guardians, was appropriate for Ariel after she reached the age
of 18. (Filing No. 13-7 at 66-68.) Dr. Strus concluded that Ariel “has generally done better than
most would have predicted,” given her microcephaly. (Filing No. 13-7 at 66.) Dr. Strus noted that

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Ariel suffered from bullying and peer issues, and that while she did “reasonably well socially,”
she had also been the “victim of ostracism [at] about the level that would unfortunately be
expected.” (Filing No. 13-7 at 67.) He found that she lacked insight into the abstract issues of
life, and that Ariel would “profit enormously” from her parents having a guardianship over her.
(Filing No. 13-7 at 68.) Dr. Strus assessed a Global Assessment Functioning (“GAF”) score of
50. (Filing No. 13-7 at 68.)
On June 15, 2012, a judge in the Howard County Circuit Court, Indiana, declared Ariel an
“incapacitated adult” and appointed her parents as co-guardians over both her person and estate.
(Filing No. 13-5 at 3.)
In May and August 2012, Ariel underwent further educational evaluations. (Filing No. 1311 at 1-13.) The May 2012 evaluation concluded that Ariel’s overall adaptive skills were below
average. (Filing No. 13-11 at 4.) The August 2012 evaluation concluded that Ariel “demonstrated
very weak pragmatic/critical social thinking skills that were commensurate with very weak
language skills.” (Filing No. 13-11 at 11.) In September 2012, Ariel was referred to Dr. Michael
O’Brien, Psy.D. (“Dr. O’Brien”) for a psychological evaluation. (Filing No. 13-8 at 70.) Dr.
O’Brien assessed a full scale IQ score of 75, and diagnosed Ariel with a Disorder of Written
Expression (per records) and Borderline Intellectual Functioning, and he assigned a GAF score of
63. (Filing No. 13-8 at 70.) Dr. O’Brien noted that Ariel’s ability generally fell in the lower and
borderline range. Id.
On October 2, 2012, Dr. Stacia Hill, Ph.D. conducted a review of Ariel’s records. She
concluded that Ariel demonstrated mild restrictions in activities of daily living; moderate
restrictions in social functioning; and moderate limitations in concentration, persistence, or pace.
(Filing No. 13-9 at 17.) On October 9, 2012, Ariel’s treating physician Dr. William H. Mohr,

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M.D. (“Dr. Mohr”), completed a questionnaire regarding Ariel’s impairments. (Filing No. 13-11
at 25-.) Dr. Mohr indicated diagnoses of mental retardation; microcephaly; attention deficit
disorder; stress incontinence; amblyopia and esotropia; and multiple musculoskeletal problems.
(Filing No. 13-11 at 25.) Dr. Mohr opined that Ariel was prevented from engaging in substantial
gainful activities primarily because of her mental deficiency. (Filing No. 13-11 at 26.)
In January 2013, General Motors (“GM”) Benefits and Services Center approved Ariel as
a “totally and permanently disabled” child. (Filing No. 17 at 20). In February 2013, Ariel was
approved for traditional Medicaid benefits for the Aged, Blind, and Disabled from October 2012
and continuing. Id. On April 5, 2013, Ariel was approved for Vocational Rehabilitation Services
through the Indiana Family Social Services Administration (“FSSA”).
II.

STANDARD OF REVIEW

Under the Act, a claimant may be entitled to DIB or SSI only after she establishes that she
is disabled. Disability is defined 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). 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 which exists in the national economy, considering
her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. 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. § 416.920(a)(4)(i). At step two, if the
claimant does not have a “severe” impairment that meets the durational requirement, she is not

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disabled. 20 C.F.R. § 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. § 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. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve month
duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii).
If the claimant’s impairments do not meet or medically equal one of the impairments on
the Listing of Impairments, then her residual functional capacity will be assessed and used for the
fourth and fifth steps. Residual functional capacity (“RFC”) is the “maximum that a claimant can
still do despite [her] mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th
Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to
perform her past relevant work, she is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth
and final step, it must be determined whether the claimant can perform any other work in the
relevant economy, given her RFC and considering her age, education, and past work experience.
20 C.F.R. § 404.1520(a)(4)(v). The claimant is not disabled if she can perform any other work in
the relevant economy.
The combined effect of all the impairments of the claimant shall be considered throughout
the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the court “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). In

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reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the findings are
supported by substantial evidence 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. Further, 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). While the Court reviews the ALJ’s decision deferentially, the Court cannot uphold
an ALJ’s decision if the decision “fails to mention highly pertinent evidence, . . . or that because
of contradictions or missing premises fails to build a logical bridge between the facts of the case
and the outcome.” Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).
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).
III. THE ALJ’S DECISION
The ALJ began with the five-step analysis. At step one, the ALJ found that Ariel had not
engaged in substantial gainful activity since July 25, 2012, the application date. (Filing No. 13-2
at 21.) At step two, the ALJ found that Ariel had the following severe impairments: borderline
intellectual functioning and adjustment disorder with mixed anxiety and depressed mood. (Filing
No. 13-2 at 21.) At step three, the ALJ concluded that Ariel did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Filing No. 13-2 at 22.)

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The ALJ then determined that Ariel had an RFC to perform a full range of work at all
exertional levels with the following non-exertional limitations:
She can understand, remember, and perform work tasks at GED Reasoning Level
02 (as defined in the Dictionary of Occupational Titles (DOT)). The claimant can
perform goal-oriented rather than production-oriented work. She can perform work
that does not involve financial transactions. The claimant can perform work that
involves routine tasks (i.e., no more than occasional changes in core work duties on
a monthly basis). She can have occasional contact with the general public and
coworkers.
(Filing No. 13 at 24).
At step four, the ALJ found that Ariel had no past relevant work. (Filing No. 13-2 at 29.)
At step five, the ALJ found that considering Ariel’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national economy that
she can perform. (Filing No. 13-2 at 29.) The ALJ therefore determined that Ariel is not disabled
as defined in the Social Security Act and denied her application for SSI.
IV. DISCUSSION
In her request for judicial review, Ariel asserts six basis of error: (1) the ALJ erred in failing
to credit the State of Indiana’s decree that Ariel is an incapacitated adult under the Full Faith and
Credit Clause; (2) that the ALJ failed to consider Ariel’s Disorder of Written Expression at step
two, (3) the ALJ improperly concluded that she did not meet any Listed impairment at Step three,
(4) the RFC decisions are not supported by substantial evidence; (5) the ALJ made erroneous
credibility determinations; and (6) that the Appeals Council erred in not considering new and
material evidence. The Court will address each assertion in turn.
A.

Full Faith and Credit
Ariel argues that under the Full Faith and Credit Clause of the United States Constitution,

the State of Indiana decree declaring her an incapacitated adult has preclusive effect on the Social

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Security determination. (Filing No. 17 at 28.) She contends that the decree mandated a finding of
disability by the ALJ, and that therefore this Court should remand this case, not for further
hearings, but for an immediate award of benefits. (Filing No. 17 at 29.) The Commissioner
responds that the ALJ was not bound by the Indiana guardianship decree, and that the ALJ must
make a disability determination based on social security law.

(Filing No. 20 at 9.)

The

Commissioner contends that the ALJ adequately considered the decree, and no remand is
necessary. (Filing No. 20 at 9-12.)
Social Security regulations are clear on this point: under 20 C.F.R. § 416.904, an ALJ is
not bound by a disability decision made by another governmental agency. 20 C.F.R. § 416.904
(as amended); see also, Allord v. Barnhart, 455 F.3d 818, 820 (7th Cir. 2006). The Howard County
guardianship determination does not have preclusive effect, and did not mandate a finding of
disability. Further, the ALJ acknowledged the Indiana Guardianship Decree in his decision when
he noted that Ariel’s mother is the duly appointed guardian of Ariel’s person and estate. (Filing
No. 13-2 at 19 n.1). The ALJ also opened his administrative hearing with a discussion about the
facts and circumstances surrounding the guardianship. (Filing No. 13-2 at 39-42). Any error to not
weigh and consider the guardianship decree within other steps in the ALJ’s decision was harmless
error because a determination of disability made by another agency is not binding on the
Commission. Accordingly, remand is not warranted on this basis.
B.

Disorder of Written Expression
Ariel next contends that the ALJ failed to consider her learnings Disorder of Written

Expression, at step two. (Filing No. 21 at 21). The Commissioner acknowledges that the ALJ did
not consider Ariel’s Disorder of Written Expression; however, asserts that this error was harmless
because the ALJ considered Borderline Intellectual Functioning, which was inclusive of Disorder

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of Written Expression (Filing No. 20 at 13). This error was not harmless, and the failure to consider
this impairment affected the remaining steps as the steps related to this impairment. The step two
analysis of severity affects the ALJ’s determinations at later steps. “This is not the only place,
however, in which the severity of an applicant’s conditions is properly part of the ALJ’s analysis.
It also affects the ALJ’s determination of residual functional capacity, for example, and thus, no
matter what happens at step two, a correct assessment remains important.” Farrell v. Astrue, 692
F.3d 767, 772 (7th Cir. 2012)(citation omitted). Failure to consider a disorder or combination of
impairments at step two, dispenses the ALJ’s consideration of any effects the disorder might have
on the claimant’s ability to maintain employment. See O’Connor-Spinner v. Colvin, 832 F.3d 690,
698 (7th Cir. 2016) (holding “had the ALJ not excluded depression at Step 2, he would have been
required to fully explore the restrictions caused by O’Connor-Spinner’s depression”). The general
impairment Borderline Intellectual Functioning, which is a categorization of intelligence for
people with below average cognitive ability, does not take into account the effects of Disorder of
Written Expression which is a learning disorder specific to poor writing skills. Disorder of Written
Expression, MedlinePlus,
https://medlineplus.gov/ency/article/001543.htm (last visited October 4, 2017). The ALJ’s failure
to consider Disorder of Written Expression, despite medical evidence confirming a diagnosis,
infected later steps. Accordingly, the Court, remands this issue back to the Commissioner for
further proceedings.
C.

Substantial Evidence
Ariel challenges a variety of aspects of the ALJ’s step 2, step 3, and RFC determinations

on the basis that substantial evidence does not support the ALJ’s conclusions. (Filing No. 17 at
19-59.) The Court notes at the outset, as indicated above, the ALJ’s failure to consider Ariel’s

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Disorder of Written Expression affected the remaining steps of the analysis. The Court also notes
that for reasons explained above, Ariel’s arguments regarding the guardianship decree is
unavailing as to later steps.
1.

Paragraph B Criteria

Ariel argues that substantial evidence does not support the ALJ’s finding that she does not
meet the Paragraph B criteria relevant to Listings 12.02 and 12.06. (Filing No. 17 at 31.)
Specifically, she argues that the ALJ disregarded contrary evidence, including the state court
guardianship decree and the underlying medical and evaluative evidence from Dr. Strus, in
concluding that she did not exhibit marked limitations in two of the four broad areas of functioning.
(Filing No. 17 at 31.) The Commissioner responds that substantial evidence supports the ALJ’s
finding. (Filing No. 20 at 14-16.)
In order to meet the requirements of Listings 12.02 (Organic Mental Disorders) and 12.06
(Anxiety Related Disorders), Ariel is required to show that she satisfies the “Paragraph B criteria.”
20 C.F.R. Part 404, Subpart P, Appendix 1, 12.02, 12.06. To do so, she must show that her mental
impairments result in at least two of the following: (1) marked restriction of activities of daily
living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in
maintaining concentration, persistence, or pace; and (4) repeated episodes of decompensation,
each of extended duration. 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.02, 12.06. A “marked”
limitation is one that is more than “moderate” but less than “extreme.” See Flener v. Barnhart,
361 F.3d 442, 447 (7th Cir. 2004).
The ALJ concluded that Ariel has a mild limitation in activities of daily living; mild
difficulties in social functioning; and moderate difficulties regarding concentration, persistence,
and pace. With regards to daily living, the ALJ noted that the record showed that her restrictions

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did not rise to a level that meaningfully interfered with daily living as she completed many daily
living activities independent of supervision or direction. (Filing No. 13-2 at 22). With regards to
social functioning the ALJ noted that Ariel suffered only mild restrictions that would interfere with
her capacity to independently interact with others as evidenced by Dr. O’Brien’s examination and
the fact that she participated in marching band in high school. Id. at 22-23. The ALJ determined
that Ariel had moderate difficulties in concentration, persistence, or pace based primarily on the
accommodations she received in school and Dr. O’Obrien’s evaluation. Id. at 23.
Ariel provided the ALJ with the underlying medical evidence submitted to the guardianship
court in making its capacity and guardianship determination, which constitutes the “medical and
other evidence of the existence of a disability,” that the Commissioner claims here was lacking.
Those records included findings such as Ariel’s “very low” performance in processing speed,
short-term memory, and working memory, (Filing No. 13-7 at 36), below average adaptive skills,
(Filing No. 13-7 at 36), low range intellectual ability, (Filing No. 13-7 at 36), and social ostracism,
(Filing No. 13-7 at 67). While the failure to mention the state incapacity decision at this stage in
the analysis was harmless error because it is clear from the record that the ALJ considered it, the
ALJ was required, at a minimum, to provide some analysis as to the import of Dr. Strus’ underlying
(and related) medical and evaluative evidence used in making the guardianship determination as
it related to Paragraph B Criteria. This was notably absent from the ALJ’s decision. There is an
obvious tension between the evidence not evaluated at this stage (i.e. the declaration of incapacity
and guardianship and Dr. Strus’ report) and the determination that, for example, Ariel suffers only
mild limitations in activities of daily living and social functioning.

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Because the ALJ did not adequately consider lines of evidence surrounding Dr. Strus’
opinion which related to the guardianship decree, the Court concludes that this issue must be
remanded for further consideration.
2.

Paragraph C Criteria

Ariel argues that the ALJ did not adequately consider her Paragraph C Criteria of an
“inability to function outside a highly supportive living arrangement” because the ALJ did not
consider Ariel’s guardianship as a result of the incapacity determination. She also argues that the
ALJ failed to consider Listing 12.05(C) because the ALJ incorrectly determined that Ariel’s IQ
score was invalid. The Commissioner responds that the ALJ’s decision is based on substantial
evidence because there are repeated references in the record that the purpose of Ariel’s
guardianship was for allowing her parents to manage her finances and that the ALJ did not consider
an invalid, lone IQ score of 68 taken when Ariel was fourteen.
In order to meet the “C” criteria, Ariel must show that she has medically documented
history of a chronic organic mental disorder of at least two years duration causing both a more than
minimal limitation to do basic work activities with symptoms or signs attenuated by medication
or psychosocial support, and either: (1) repeated episodes of decompensation, each of extended
duration; or (2) a residual disease process resulting in such marginal adjustment that even a
minimal increase in mental demands or environmental changes would be predicated to cause the
individual to decompensate; or (3) a current history of one or more years inability to function
outside a highly supportive living arrangement, with an indication of continued need for such an
arrangement. 20 C.F.R. Part 404, Subpt.P, Appx.1, § 12.02 (C).
The ALJ considered Ariel’s IQ score of 68 at age 14; however, noted that scores less than
70 are valid until the claimant reaches age 18 (Filing No. 13-2 at 26). Specifically, the ALJ noted

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the IQ score taken at age 14 was valid but not current. Id. The ALJ noted that Ariel’s results after
age 18, were 71, 74, and 75. Id. For this reason, the ALJ determined that Ariel did not meet Listing
12.05 (C) Intellectual Disability, but that she did have a diagnosis of Borderline Intellectual
Functioning. The Court finds that the ALJ’s conclusion regarding the validity and weight given
to Ariel’s IQ tests were supported by substantial evidence.
The ALJ generally stated that the evidence failed to establish the presence of Paragraph C
Criteria, but unlike his analysis of Paragraph B criteria, he did not discuss what evidence he
considered during the “C” criteria. On remand, the Commission should consider and evaluate
Ariel’s evidence submitted regarding her highly supportive living arrangement and adaptive
functioning deficits on this issue.
D.

RFC Decisions
The ALJ concluded that Ariel had the RFC to perform a full range of work at all exertional

levels, but had certain non-exertional limitations as indicated in Section III above. (Filing No. 132 at 24). Ariel argues that the RFC is not supported by substantial evidence because the ALJ failed
to consider and weigh institutional opinions, rejected the testimony of Ariel’s treating physician,
Dr. Mohr, and never considered Dr. Strus’ opinion. Ariel also argues that the ALJ’s determination
that Ariel could perform jobs that have a GED Reasoning Level of 2 4 was not supported by
substantial evidence. (Filing No. 17 at 52).
As indicated above, the ALJ’s failure to consider Ariel’s Disorder of Written Expression
was reversible error that affected later steps. “When determining the RFC, the ALJ must consider
all medically determinable impairments, physical and mental, even those that are not considered

4

GED Reasoning Level 2 involves applying commonsense understanding to carry out detailed but uninvolved
written or oral instructions and/or dealing with problems involving a few concrete variables in or from standardized
situations.

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“severe.” Craft v. Astrue, 539 F. 3d 668, 676 (7th Cir. 2008)(emphasis in original) As to the
remaining arguments, the Commissioner responds that the ALJ did consider Dr. Mohr and Dr.
Strus’ opinions, but assigned them very little weight.
“An RFC assessment must include a discussion explaining how specific medical and
nonmedical evidence supports each conclusion.” SSR 96-8p at *7 (S.S.A. July 2, 1996). “The
adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.” Id. A treating physician’s opinion regarding the
nature and severity of a medical condition is entitled to controlling weight if it is (1) supported by
medical findings; and (2) consistent with substantial evidence in the record. See 20 C.F.R. §
404.1527(d)(2); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004).
It is not clear if the ALJ concluded that Dr. Mohr’s opinion was neither supported by
medical findings nor consistent with substantial evidence in the record because the ALJ rejected
his opinion on the basis that Dr. Mohr made an opinion that Ariel was disabled, which is a
determination reserved to the Commissioner. (Filing No. 13-2 at 27). Because the ALJ rejected
Dr. Mohr’s related medical diagnoses on this account, which had nothing to do with a flaw in Dr.
Mohr’s medical conclusions, this was a patently erroneous reason for rejecting it. On remand, the
ALJ must adequately consider if Dr. Mohr’s diagnoses are supported by medical findings and
consistent with substantial evidence in the record. If Dr. Mohr’s diagnoses clear these hurdles, then
Dr. Mohr’s opinion is entitled to controlling weight.
Dr. Strus conducted a mental evaluation of Ariel for the purposes of determining whether
a guardianship was appropriate for her after she reached the age of 18. He assigned her a GAF
score of 50. Ariel argues that the ALJ never considered Dr. Strus’ opinion when he assessed her
work abilities. (Filing No. 21 at 21). The Commissioner responds that the ALJ did consider Dr.

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Strus’ opinion when it referenced his notes of an updated IQ score of 71. This is impermissible
cherry-picking of the evidence, because the rest of his opinion is mentioned nowhere else in
making an RFC assessment. The ALJ only highlighted the portion of Dr. Strus’ opinion that
supported his determination. “[T]hese statements were cherry-picked from the record, selected
without context in which they appear. An ALJ cannot rely only on the evidence that supports her
opinion.” Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013). This is reversible error.
There is a more fundamental flaw with the ALJ’s decision failure to explicitly mention Dr.
Strus’ opinion. In Craft v. Astrue, the Seventh Circuit held that an ALJ’s failure to mention detailed
medical evidence regarding the claimant’s mental assessment in the RFC analysis was reversible
error as there was no “accurate and logical bridge.” See Craft, 539 F. 3d at 677-678 (“we cannot
tell whether the ALJ considered and rejected this piece of evidence because she did not mention
it.”) On remand, the ALJ should consider the entirety of Dr. Strus’ opinion including his evaluation
of Ariel’s need for a guardianship in assessing Ariel’s RFC.
Ariel argues that the totality of the evidence did not support the ALJ’s conclusion that Ariel
could perform jobs with a GED Reasoning Level 2 and lacks a logical bridge. The Commission
responds that any error caused by the ALJ’s unclear conclusion regarding the GED Reasoning
Level 2 was resolved at Step 5 where the VE stated that Ariel could perform three positions that
involved “unskilled work.” As noted above, the ALJ’s decision contained lines of medical
evidence 5 that were not adequately considered in earlier stages and in the RFC analysis. The
Seventh Circuit has held that the label of “unskilled” work does not provide information about a
claimant’s mental condition or abilities and that an ALJ’s RFC’s analysis should reflect some work
requirements relevant to mental abilities when the issue arises. Id. at 677. Thus, a determination

5

The incapacity decree, Drs. Strus and Mohr’s opinions, and Ariel’s Written Expression Disorder were not
adequately considered in the RFC analysis.

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of a RFC limited to “unskilled work” would not cure any deficiencies regarding a failure to account
for work restrictions caused by a mental impairment. On remand, the ALJ should consider and
evaluate Ariel’s underlying medical and institutional evidence that exhibited mental difficulties
with concentration, persistence, pace, and repetition that might have an effect on her work
restrictions and incorporate those restrictions into his RFC analysis.
E.

Credibility Determinations
The factors that the ALJ must consider when assessing the credibility of a claimant’s

statements include the claimant’s daily activities; the location, duration, frequency and intensity
of the claimant’s symptoms; factors that precipitate and aggravate the symptoms; the type, dosage,
effectiveness, and side effects of any medication the claimant takes to alleviate the symptoms; any
measures other than treatment the claimant uses or has used to relieve symptoms; and any other
factors concerning the claimant’s functional limitations and restrictions due to symptoms. SSR
96-7p; 20 C.F.R. § 404.1529(c)(3). Because credibility is largely a factual determination, and
because the ALJ is able to perceive witness testimony firsthand, the court will not upset credibility
determinations so long as there is some support in the record and the ALJ is not “patently wrong.”
Herron, 19 F.3d at 335; see Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (credibility
findings are afforded “considerable deference” and can only be overturned if they are unreasonable
or unsupported). “When assessing an ALJ’s credibility determination, [the court does not]
undertake a de novo review of the medical evidence that was presented to the ALJ. Instead, [the
court] merely examine[s] whether the ALJ’s determination was reasoned and supported.” Elder
v. Astrue, 529 F.3d 408, 413. Only when the ALJ’s determination lacks any explanation or support
will the court determine that her credibility determination is “patently wrong” and requires
reversal. Id.

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Ariel argues that the ALJ made erroneous credibility determinations based on Ariel’s
testimony, and testimonies from her mother and her job coach Cindy Devarey (“Devarey”). The
Commissioner responds that the ALJ properly considered the testimonies of Ariel and her mother
and although, the ALJ cited the wrong exhibit with regards to Devarey’s statement, in any event,
the correct statement would have further buttressed his decision with more compelling evidence
because the statement indicated Ariel performed “very well” at a mock interview for a cleaning
position. (Filing No. 20 at 29).
The Court first notes that the ALJ found Ariel’s testimony credible; however found that
her Borderline Intellectual Functioning impairment, education records, and reports to examiners
reflect only mild restrictions in activities of daily living and mild difficulties in social functioning.
(Filing No. 13-2 at 28.) Ariel argues that the ALJ took too narrow of a view of her activities of
daily living. The Court finds that because the ALJ found Ariel’s testimony was credible and
weighed her testimony against the full record, his determination that she had only mild restrictions
and difficulties was not patently wrong to the extent of the evidence that he considered on the
record. 6 The ALJ found her mother’s testimony partially credible because he found that Ariel’s
mother had personal interest in the outcome as she will also benefit financially if Ariel is found
disabled. Because the ALJ articulated some support from the record in determining the credibility
of Ariel’s mother and found her partially credible, his determination was not patently wrong.
Further, had the ALJ properly considered Devarey’s statement, it would have provided evidence
against a disability conclusion. This was harmless error.
Accordingly, the Court concludes the ALJ adequately articulated minimal justifications for
his credibility determinations and remand is not warranted on this issue. See Scheck, 357 F.3d at

6

See Section C1, supra.

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700; see also Sawyer v. Colvin, 512 F. App'x 603, 607 (7th Cir. 2013) (“[t]his court gives
considerable deference to an ALJ’s credibility finding and will uphold it unless “patently wrong”)
(citations omitted). Nevertheless, the ALJ should determine how the incapacity decree and other
evidence that he did not consider affects Ariel’s restrictions on remand.
F.

Appeals Council
A claimant may seek review of an ALJ’s decision by submitting additional evidence to the

Appeals Council. 20 C.F.R. § 404. 970(b). The Appeals Council “consider[s] the additional
evidence” only if the evidence is 1) “new,” 2) “material,” and 3) “relate[d] to the period on or
before the date of the administrative law judge hearing decision.” Brown v. Colvin, No. 1:14-cv01797-JMS-JMD, 2015 WL 3886029 at *12 (S.D.Ind. June 22, 2015.) Evidence that meets this
three-part test is deemed “qualifying” evidence. Id. at *13. After the evidence meets this threshold,
the Appeals Council then proceeds to review the entire record, which includes exhibiting the
“qualifying” evidence into the administrative record and determines whether the ALJ’s decision is
contrary to the weight of the evidence. Id. See Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir.2012).
If the Appeals Council determines that the additional evidence fails any part of the three-part test,
outlined above then the Council “will prepare a denial notice” and [n]ot exhibit the evidence.
Brown, 2015 WL 3886029 at *13 (quoting HALLEX I–3–5–20(A), 1993 WL 643143, at *1).
Remand by the district court is appropriate only where new evidence is “material to the claimant's
condition during the relevant time period encompassed by the disability application under review.”
Anderson v. Bowen, 868 F.2d 921, 927 (7th Cir. 1989). The district court’s standard of review for
the Appeals Council’s determination of additional evidence as “qualifying” is de novo. Farrell v.
Astrue, 692 F.3d 767, 771 (7th Cir. 2012).

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When the Appeals Council concludes that the evidence is not “qualifying”, it should still
associate the evidence that it rejected with the applicant’s file, so that the Federal Court can review
the evidence to determine the limited question of whether the Appeals Council’s conclusion that
the evidence was not new and material was correct. Barnhill v. Colvin, No. 1:15-cv-JMS-MJD,
2016 WL 6680358 at *7 (S.D.Ind. November 14, 2016). The Appeals Council found that the
evidence was “non-qualifying,” because it was not new or material, but failed to associate the
evidence in Ariel’s file for this Court’s review. On remand, the Court orders the Commissioner to
make part of the certified administrative record the additional evidence by association the
additional evidence that Ariel submitted to the Appeals Council and the Appeals Council rejected.
V.

CONCLUSION

For the reasons set forth above, the final decision of the Commissioner is REMANDED
for further proceedings consistent with this Entry as authorized by Sentence Four of 42 U.S.C.
§ 405(g).

SO ORDERED.

Date: 1/12/2018

DISTRIBUTION:
Adriana Maria de la Torre
THE DE LA TORRE LAW OFFICE LLC
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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