Wills v. Colvin

Filing 25

ORDER signed by Judge Rudolph T. Randa on 3/15/2016. 1 Plaintiff's action for judicial review GRANTED to extent that matter is REMANDED to Commissioner pursuant to 42 U.S.C. § 405(g) (sentence four) for further proceedings consistent with this Decision and Order, and DENIED in all other respects. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDWARD WILLS II,
Plaintiff,
-vs-

Case No. 14-C-960

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER
Plaintiff Edward Wills II appeals the denial of his applications for
social security disability insurance benefits and supplemental security
income (SSI) benefits.

The Court is reviewing the determination of the

Administrative Law Judge (ALJ) who, having conducted a hearing, found
that Wills has the following severe impairments: status post right ankle
fractures, status post Achilles tendon rupture, right hand impairment,
degenerative disc disease, and mental impairments of bipolar disorder,
polysubstance abuse, alcohol abuse, depressive disorder, psychosis not
otherwise specified, and anti-social personality disorder.

(Tr. 23.)

She

further found that Wills’ impairments do not meet or equal any medical
listing, including those found in §§ 1.00 or 12.00 of the Listing of
Impairments of 20 C.F.R. Part 404, Subpart P, App. 1. She further found

that Wills has the residual functional capacity (RFC)1 to perform light work
as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with limitations of
frequent but not constant handling and fingering; simple, routine and
repetitive work tasks involving simple work-related decisions; no public
contact; only occasional contact with co-workers and supervisors; and no
production-rate paced work. (Tr. 26.) Thus, she determined that Wills was
not disabled.2
Wills requested that the Appeals Council review the ALJ’s decision,
and he submitted additional evidence for consideration. (Tr. 1.) The Council
summarily declined to engage in plenary review of the ALJ’s decision,
making it the final determination of the Commissioner. (Tr. 1-3.) 20 C.F.R.

“(RFC) is an administrative assessment of what work-related activities an
individual can perform despite [his] limitations.” Dixon v. Massanari, 270 F.3d 1171,
1178 (7th Cir. 2001) (Citations omitted). see also 20 C.F.R. §§ 404.1545(a)(1);
404.1520(a)(4)(i-v).
1

The Social Security Administration (SSA) applies a similar five-step analysis to
social security disability insurance benefits and SSI claims. With respect to SSI claims,
the SSA considers whether the claimant has engaged in substantial gainful activity
during the claimed period of disability. It determines whether the claimant’s physical or
mental impairment is severe and meets the twelve-month durational requirement. The
SSA compares the impairment (or combination of impairments) found at step two to a
list of impairments identified in the regulations (“the Listings”). See 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant’s impairments meet or are “medically equal” to a
Listing, he is considered disabled, and the analysis concludes; if a Listing is not met, the
analysis proceeds to the next step. The SSA considers the claimant’s RFC and past
relevant work. If the individual can perform his past relevant work, he is found to be
not disabled. If not, the SSA considers the claimant’s RFC, age, education, and work
experience to see whether the claimant can make the vocational adjustment to other
available work in significant numbers within the national economy. If the claimant can
make the adjustment, he is found to not be disabled; if not, the claimant is found to be
disabled. 20 C.F.R. § 404.1520(a)(4); see also Weatherbee v. Astrue, 649 F.3d 565, 568-69
(7th Cir. 2011).
2

-2-

§ 404.981; Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013).
Wills contends that the ALJ (1) improperly evaluated the medical
opinions regarding functional limitations due to his mental disorder, which
impacted his RFC determination and the hypothetical presented to the
vocational expert (VE); (2) improperly evaluated his credibility and his RFC;
and (3) posed an incomplete hypothetical to the VE.

In addition, Wills

contends that the evidence submitted to the Appeals Council is new and
material and requires remand.
To uphold the denial of benefits, the ALJ’s decision must be supported
by substantial evidence, which is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).

Barnett v.

To determine whether

substantial evidence exists, the Court reviews the record as a whole but does
not attempt to substitute its judgment for the ALJ’s by reweighing the
evidence, resolving material conflicts, or reconsidering facts or the credibility
of witnesses. Beardsley v. Colvin, 758 F.3d 834, 836-37 (7th Cir. 2014).
The ALJ must articulate, at least minimally, her analysis of all
relevant evidence, Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), and
“the [ALJ's] decision cannot stand if it lacks evidentiary support or an
adequate discussion of the issues,” Lopez ex rel. Lopez v. Barnhart, 336 F.3d
535, 539 (7th Cir. 2003). Additionally, the ALJ must “build an accurate and

-3-

logical bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000).
An ALJ’s credibility determination is entitled to “special deference.”
Schomas, 732 F.3d at 708. The Court will reverse an ALJ’s credibility finding
only if it is patently wrong. See Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir.
2013).
Evaluation of Medical Evidence
Wills contends that the ALJ improperly evaluated medical opinion
evidence, indicating that 20 C.F.R. §§ 404.1527(b)-(c) and 416.927(b)-(c) and
Social Security Ruling (SSR)3 96-6p, 1996 WL 374180, at * 1, provide that “in
deciding whether an individual is disabled, the adjudicator will always
consider the medical opinions in the case record together with the rest of the
relevant evidence.” (Pl. Br. 8, ECF No. 19.) He also asserts that the ALJ did
not follow the criteria in evaluating medical sources because she did not cite
applicable factors in 20 C.F.R. §§ 404.1527(d) and 416.927(d) as required by
SSR 96-5p. (See Pl. Br. 9; see also Pl. Reply Br. 3, ECF No. 24.)
While this argument is broadly stated, Wills focuses on the ALJ’s
treatment of the opinions of non-examining state agency psychologists Beth
Jennings, Ph.D., and Eric Edelman, Ph.D., and that of Robert Bass, M.D.

3

1999).

These rulings are binding on ALJs. Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir.

-4-

The ALJ addressed the medical opinions regarding Wills’ mental health
issues summarizing as follows:
Drs. Jennings and Edelman opined that the claimant is capable of
performing the basic mental demands of unskilled work with
limited public contact and limited contact with coworkers and
supervisor (Exs. 5A; 13F). The opinions of Drs. Jennings and
Edelman are consistent with the overall record, including the
claimant’s mental health treatment history, performance on
mental status examinations, and documented improvement with
medication. Further, their opinions are largely consistent with the
observations of the consultative psychologist examiners, Drs.
Polczinski and Ertl (Ex. 8F).
(Tr. 31.) The ALJ further elaborated that psychologist Jeffrey Polczinski,
Psy.D., who saw Wills for a mental status evaluation, opined that Wills has
adequate ability to understand at least mildly complex instructions, adequate
memory for routine tasks, and intact attention and concentration. (Tr. 31.)
She also cited Polczinski’s finding that although Wills understands
appropriate social discourse, his characterological deficits and irritability
would likely adversely affect relationships.

(Id.)

The ALJ also noted

Polczinski’s conclusion that Wills had a poor ability to handle change and/or
stress.

(Id.)

The ALJ expressly stated that she gave less weight to

Polczinski’s opinion that Wills’ perseverance may be adversely affected by
depressive tendencies because the record reflects that Wills’ symptoms
improve when he takes his medication and abstains from substance abuse.
(Tr. 32.)

-5-

The ALJ also noted that Richard J. Ertl, Ph.D., a psychologist, opined
after a consultative examination that based on his mental status
examination, Wills would be expected to be able to understand, remember,
and carry out simple instructions. (Tr. 31.) The ALJ further noted Ertl’s
conclusion that with psychiatric medication, Wills’ ability to relate to others
would be much improved; he would be able to maintain concentration,
attention, and work pace; and he would have a normal ability to withstand
routine work stressors and adapt to changes on the job. (Tr. 31-32.) The ALJ
considered the factors required by the regulations and adequately articulated
her reasons for giving more weight to the opinions of the two non-treating
psychologists.
Wills argues that the ALJ improperly applied the opinions of Jennings
and Edelman regarding activities of daily living; social functioning;
concentration, persistence and pace; and decompensation. The Commissioner
states that the argument is without merit. With respect to Jennings’ findings
in the Mental Residual Functional Capacity Assessment (MRFCA) form, the
Commissioner counters that “[a]gency policy and the instructions on the form
are clear that psychological consultants must express the claimant’s workrelated limitations of function in narrative form in section III of the MRFCA
form (Tr. 509-10), and that section I (Tr. 507-508) is merely a ‘worksheet to
aid in deciding the presence and degree of functional limitations and the

-6-

adequacy of documentation.’ POMS DI 24510.060,” citing Johansen v.
Barnhart, 314 F.3d 283, 288-89 (7th Cir. 2002).4 (Def. Mem. 3, ECF No. 23.)
Varga states “[t]his circuit has declined to adopt a blanket rule that
checked boxes in Section I of the MRFCA form indicating moderate
difficulties in mental functioning need not be incorporated into a hypothetical
to the VE.” 794 F.3d at 816 (citing Yurt v. Colvin, 758 F.3d 850, 858 (7th Cir.
2014).) Nonetheless, the circuit held “in some cases, an ALJ may rely on a
doctor's narrative RFC, rather than the checkboxes, where that narrative
adequately encapsulates and translates those worksheet observations.” Id.
(Emphasis added.)
Jennings completed the checkbox portion of MRFCA form, indicating
that Wills had moderate limitation in daily activities; marked limitation in
social functioning; mild limitation in concentration, persistence, and pace;
and one or two episodes of decompensation. (Tr. 503.)
completed the narrative portion of the form.

In addition, she

After summarizing Wills’

background, the results of two consultative examinations, and Wills’
hospitalization and follow-up at the Medical College of Wisconsin, she opined

The Commissioner also cites Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 637
(3d Cir. 2010) which held that an ALJ was not required to include findings noted in
Section I of the MRFCA form that the claimant was moderately limited in various areas
of mental functioning because Section I is merely a worksheet to aid doctors in deciding
the presence and degree of functional limitations. However, the Seventh Circuit Court of
Appeals has expressly declined to follow Smith. Varga v. Colvin, 794 F.3d 809, 816 (7th
Cir. 2015).
4

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that Wills “has the ability to perform a range of at least low skill occupations.
He should avoid occupations with freq[uent] public contact or contact with
[large] groups, due to his anger and irritability.
searching for jobs.”

(Tr. 510.)

He has been actively

Edelman completed a Disability

Determination Explanation Form indicating that Wills had moderate
limitations in daily activities; social functioning; and concentration,
persistence, and pace; and one or two episodes of decompensation. (Tr. 118.)
Wills argues that the ALJ’s conclusions at step two were inconsistent
with the findings of Jennings and/or Edelman and that the ALJ erred when
she did not accept Jennings or Edelman’s opinions and did not explain why.
At step two, the ALJ indicated that Wills had no limitation in daily
activities; moderate limitation in social functioning; moderate limitation in
concentration,

persistence,

and

pace;

and

decompensation, each of extended duration.

one

to

two

(Tr. 24-25.)

episodes

of

With regard to

activities of daily living, the ALJ noted that Wills reported spending time
looking for employment, doing volunteer work, hanging out with friends,
watching television and doing chores.

Although Wills reported needing

reminders, he admitted tending to his personal care independently.
Therefore, the ALJ concluded the record demonstrated that Wills’ mental
impairments did not cause any restriction in his daily activities. This finding
differs from the moderate limitations found by Jennings and Edelman.

-8-

However, Edelman remarked that Wills was “able to count change and pay
bills, able to leave the home alone and use public transp[ortation].” (Tr. 119.)
The ALJ also noted a conflict between Wills’ reports of limited activities and
the overall record, which demonstrated that mental impairments did not
cause restrictions in his daily activities. (Tr. 25.) The ALJ concluded that
Wills’ medically determinable impairments could cause his symptoms, but his
claim as to the intensity and impact on function was not consistent with the
totality of the evidence. (Tr. 27-29.) Contrary to Wills’ contention, the ALJ
adequately articulated her reasons for finding that his daily activities were
not limited, and those findings are supported by substantial evidence.
In social functioning, the ALJ discussed Wills’ anti-social behavior and
noted that it had been observed by mental health providers. However, the
ALJ concluded that Wills’ documented daily activities and the fact that
treating physicians described him as cooperative and calm when compliant
with his medication warranted a finding of moderate limitation. This, again,
differs from Jennings’ finding of marked limitations, but it is consistent with
Edelman’s finding of moderate limitation. The ALJ cited the reasons for her
determination, and Edelman’s finding provides substantial evidence to
support it.
When discussing Wills’ concentration, persistence, and pace, the ALJ
noted that Wills reported an inability to concentrate for more than three

-9-

minutes. However, she indicated that Wills’ documented daily activities
required some degree of concentration. This, together with the reports of
examining providers indicating that Wills had good concentration and
attention and consistently displayed linear and goal-orientated thought
process and good memory—even when depressed or irritable—were the basis
for her finding of moderate limitation.

This finding is consistent with

Edelman’s finding, exceeded that of Jennings, and is supported by
substantial evidence.
The ALJ found that Wills had experienced one to two episodes of
decompensation, each of extended duration. In addition, there had been two
more recent hospitalizations—not of extended duration—and on both
occasions Wills had been noncompliant with medications on intake but was
discharged in stable condition. This is consistent with the findings of both
Edelman and Jennings.
With respect to Bass’ opinion, a treating physician’s opinion is
generally given controlling weight if it is well-supported and not inconsistent
with other substantial evidence in the record. See Scott v. Astrue, 647 F.3d
734, 739 (7th Cir. 2011). More weight is given to treating sources because
they are likely to be the medical professionals most able to provide a detailed
longitudinal picture, and they bring a unique perspective to medical evidence
that individual, consultative, or brief hospitalizations may not. See 20 C.F.R.

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§§ 404.1527(c)(2); 416.927(c)(2). If a treating source’s opinion on the issue(s)
of the nature and severity of impairment(s) is well supported by medically
acceptable clinical and laboratory diagnostic techniques, and is not
inconsistent with other substantial evidence, it is given controlling weight.
See id.

When a treating source is not given controlling weight, the ALJ

considers the following: (1) the length, nature, and extent of the treating
relationship; (2) the frequency of examination; (3) the physician’s specialty;
(4) the types of tests performed; and (5) the consistency and supportability of
the physician’s opinion. See Scott, 647 F.3d at 740.
Wills contends that the ALJ committed legal error when she did not
give sufficient weight to Bass’5 opinion, citing Scrogham v. Colvin, 765 F.3d
685, 696 (7th Cir. 2014) (“[A]n ALJ ‘should give more weight to the opinion of
a source who has examined [the claimant] than to the opinion of a source who
has not examined [the claimant].’”). (See Pl. Br. 10.) Bass reported that
Wills had “enough problems for disability permanent.” (Tr. 632.)
The ALJ noted that the record shows only one visit with Bass—on the
day his opinion was rendered—and that Bass’ treatment notes contain a list
of “subjective complaints/reported medical history,” rather than documenting

5 Nothing in the record indicates Bass’ specialty. His note is written on medical
record stationery for “Repairers of the Breach.” The fax cover letter page and logo
indicate it is a medical and outreach clinic for the indigent at 1335 West Vliet Street, in
Milwaukee, Wisconsin. (See Tr. 635.)

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an objective physical examination. (Tr. 31.)

“[I]f the treating physician's

opinion is . . . based solely on the patient's subjective complaints, the ALJ
may discount it.” Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008)
(emphasis added). See also, Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir.
2004) (holding that “medical opinions upon which an ALJ should rely . . .
[ought] not amount merely to a recitation of a claimant's subjective
complaints”). Substantial evidence supports the ALJ’s determination that
Bass’s

one-page

note

does

not

satisfy

the

§§ 404.1527(c)(2)(i)-(ii) and 416.927(c)(2)(i)-(ii).6

criteria

of

20

C.F.R.

The ALJ discussed issues

required by the regulations and gave “little weight” to Bass’ opinion because
it lacked the characteristics required of a treating physician. Elder v. Astrue,
529 F.3d 408, 416 (7th Cir. 2008) (holding that a treating physician who
opines a diagnosis without a corroborating medical examination, and who is
not a specialist in the field, was not entitled to more weight); see also Simila
v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009) (holding that a physician who
does not have an ongoing relationship with the patient is not deemed a
“treating source”).
Wills implies that Bass’ opinion was not given proper weight because

6 Although the Commissioner cites Dixon, 270 F.3d at 1178, which states that an
ALJ may reject a doctor’s opinion if it appears to be based on a claimant’s exaggerated
subjective allegations, Dixon’s “exaggerated subjective allegations” was not the reason
given by the ALJ for discounting Bass’ opinion.

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the ALJ improperly discounted subjective symptoms, citing Korzeniewski v.
Colvin, No. 12 C 6895, 2014 WL 1457854, at *7 (N.D. Ill. Apr. 14, 2015) (“All
diagnoses, particularly those involving mental health conditions, require
consideration of the claimant's subjective symptoms”). (See Pl. Reply Br. 3.)
In Korzeniewski, which is not binding on this Court, the court held that an
ALJ improperly discounted the opinion of a treating physician, finding that
the “opinion was ‘colored by the claimant's subjective complaints’ because the
doctor completed the questionnaire shortly after the claimant’s suicide
attempt.” Korzeniewski, 2014 WL 1457854, at *7. Here, Bass’ opinion did not
satisfy the criteria to be considered that of a treating physician. Opinions
that merely state conclusions are not medical opinions and encroach on the
ALJ’s role. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Therefore, substantial
evidence supports the ALJ’s determination that Bass’ opinion was not
entitled to “treating source” controlling weight.7
In sum, this Court concludes that the ALJ did not err as a matter of
law, that she adequately articulated her reasons in assessing the medical
evidence from examining and non-examining physicians, and that her

Wills also argues that the ALJ was required to contact Bass for clarification,
citing SSR 96-5p, 1996 WL 374183, at *6 (“[b]ecause treating source evidence . . . is
important, if the evidence does not support a treating source’s opinion on any issue
reserved to the Commissioner and the adjudicator cannot ascertain the basis of the
opinion from the case record, the adjudicator must make ‘every reasonable effort’ to recontact the source for clarification of the reasons for the opinion.”). However, based on
the ALJ’s determination that Bass is not a treating source, SSR 96-5p does not apply.
7

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conclusions are supported by substantial evidence.
Credibility and RFC Assessments
Wills maintains that the ALJ’s credibility assessment is improper and
that the ALJ articulated the credibility determination via a “boilerplate”
statement, making the analysis deficient. (Pl. Br. 17.)
However, if the ALJ has otherwise explained her conclusion
adequately, the inclusion of this boilerplate language can be harmless. Filus
v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). In this case, the boilerplate
excerpt is merely the beginning of a long discussion comparing Wills’
objective medical records, examination results, and episodes of noncompliance with psychiatric medications to his allegations of limitations.
Nearly three pages of the ALJ’s decision discuss inconsistencies between
Wills’ complaints and examining and or treating physicians’ observations.
The use of boilerplate is not a ground to remand if the ALJ justified her
credibility assessment based on the evidence. Loveless v. Colvin, 810 F.3d
502, 508 (7th Cir. 2016). In determining credibility, an ALJ must consider
several factors, including the claimant's daily activities, level of pain or
symptoms, aggravating factors, medication, treatment, and limitations, see
20 C.F.R. § 404.1529(c)(3); SSR 96-7p, and justify her finding with specific
reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
The ALJ must “competently explain” any adverse credibility finding

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“with specific reasons supported by the record.” Engstrand v. Colvin, 788 F.3d
655, 660 (7th Cir. 2015). Furthermore, in analyzing the evidence, the ALJ is
not permitted to cherry-pick, ignoring the parts that conflict with her
conclusion. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). While an ALJ
is not required to mention every piece of evidence, “[s]he must at least
minimally discuss a claimant’s evidence that contradicts the Commissioner's
position.” Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000).
In making her credibility evaluation with respect to Wills’ mental
impairments, the ALJ relied on multiple factors.

She cited the conflict

between Wills’ reports of limited activities and the overall record, which
demonstrated that mental impairments did not cause restrictions in his daily
activities.

(Tr. 25.)

The ALJ noted that Wills had voluntarily sought

emergency treatment for depression on multiple occasions and those episodes
had been accompanied by substance use and medication non-compliance.8
(Tr. 28.) The ALJ also noted Wills’ access to relatively consistent medical
management, but that treating providers indicated a history of noncompliance with prescriptions.

(See Tr. 452, 470-71, 29.)

The ALJ also

For example, the ALJ cited a March 2011 hospitalization after Wills threatened
to kill his ex-girlfriend. She noted that he was intoxicated and had not been taking his
psychiatric medications, and that Dr. J. Robles, M.D., who treated Wills, documented
that his condition improved “quickly” after three days of treatment with psychiatric
medication. (See Tr. 446.) The ALJ cited Wills’ condition upon discharge, including his
GAF of 65 (see Tr. 447), as demonstrating that with proper medication and abstaining
from substance abuse, Wills’ mental impairments result in only mild difficulty with
social or occupational functioning. (Tr. 28-29.)
8

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discussed treating physicians’ observations that Wills’ symptoms improved
when he took his medications and abstained from substance abuse. (Tr. 28.)
Additionally, the ALJ found that Wills’ credibility was undermined by
multiple notations in the treatment records about possible exaggeration of
symptoms for secondary gain.9 (Tr. 30.) Steiner’s June 2011 report stated
that Wills was “still searching for IT position.”

(Tr. 520.)

The ALJ

interpreted this as indicating that as of at least 2011 Wills thought he could
work, undermining his credibility about his inability to work as of October
2008.

(Tr. 30.)

The ALJ further noted that during Wills’ long-standing

history of mental impairment, he had maintained employment, with his most
recent employment from 2000 to 2008 including skilled work and supervising
six employees. (Tr. 29.) In addition, she noted that he was terminated from
work for reasons unrelated to the symptoms of his mental impairment. (Id.)
Wills asserts that in determining his RFC, the ALJ misapplied
Jennings and Edelman’s opinions by overlooking evidence of limitations.

The ALJ cited Polczinski’s comment that Wills may have minimized his use of
alcohol, and that his presentation regarding hallucinations suggested some
exaggeration (Tr. 440); George Lind, M.D.’s comment that during hospitalization Wills’
“manner was somewhat manipulative and there seemed to be evident secondary ‘gain,’
and that each time Wills was interviewed, “he repeatedly mentioned that he needed
disability payments restored” (Tr. 420); and several statements by Wills’ treating
psychiatrist, Kimberly B. Steiner, M.D. (citing a comment that Wills’ “psychotic
symptoms per chart have been also suspicious during prior treatment intervals . . . for
malingering” (Tr. 468), and she “[could not rule out] secondary gain as motivation for
[Wills’] presenting for treatment” (Tr. 471), and comments that during an appointment
Wills initially said he was taking his medications and later said that he had not been
taking them (Tr. 470), and a note that Wills made rocking motions during the interview
which were not observed in the waiting room (Id.).
9

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Wills’ treating and examining physicians noted that many of his mental
limitations correlated with medication non-compliance, substance abuse, and
possible malingering or secondary gain.

(Exs. 5A, 12F, 13F.) The ALJ

discussed the difference in Wills’ RFC when he remained on medication and
avoided substance abuse. (Tr. 31-32.) The ALJ also discussed Wills’ Global
Assessment of Functioning scores over time, noting that low scores were
during periods of substance abuse or non-compliance and that Wills’
perseverance improved with medication and abstaining from substance
abuse. The ALJ discussed Polczinski’s opinion that Wills could understand
at least mildly complex instructions and that his memory for routine tasks
and his attention and concentration were intact. The ALJ also considered the
testimony of Wills’ girlfriend.
Jennings noted moderate limitations in Wills’ ability to carry out
detailed instructions; perform activities within a schedule, maintain regular
attendance, and be punctual; sustain an ordinary routine; work in
coordination and proximity to others; complete a normal workday without
interruptions from psychologically-based symptoms and perform at a
consistent pace without an unreasonable number and length of rest periods.
(Tr. 507-08.)
Jennings concluded that Wills’ symptoms were not wholly consistent
with evidence in the file and his statements about his symptoms and their

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functional effects were only partially credible.

(Tr. 510.)

Jennings gave

specific examples of Wills’ complaints of limitations, but found that Wills had
the ability to perform at least low skill occupations with infrequent contact
with the public. (Id.)
Edelman’s RFC assessment found no limitations in memory, but he did
find moderate limitation in the ability to carry out detailed instructions;
perform within a schedule, maintain regular attendance and punctuality;
sustain an ordinary routine without special supervision; work in coordination
with or in proximity to others; and complete a normal work day. Edelman
concluded that Wills had moderate limitations in concentration, persistence,
and pace; and social limitations in the ability to interact appropriately with
the public, accept instruction and criticism, and get along with coworkers.
(Tr. 119-20.)
The ALJ concluded that Wills was not entirely credible given the
inconsistency between his reports concerning the “intensity, persistence and
limiting effects of his symptoms and the objective evidence documenting his
response to treatment and his activities of daily living, which showed him to
be a reasonably functional individual,” stating:
In sum, the above [RFC] assessment is supported by the overall
record, including the opinions of Drs. Khorsidi [sic], Shaw,
Jennings, Edelman, Polczinski and Ertl. The undersigned’s review
of the record indicates that the objective medical findings are not
consistent with a finding of total disability. Rather, the claimant

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benefits from medication compliance and has been able to manage a
range of daily activities and functioning. The undersigned finds the
claimant remained capable of performing a range of light work with
appropriate accommodation for the symptoms of his physical and
mental impairments, as described in the [RFC] finding herein.
(Tr. 32.)

The ALJ’s RFC included limitations for avoiding detailed

instruction or public contact, only occasional contact with co-workers and
supervisors, and no production-rate paced work. (Tr. 26.) Here, unlike Yurt
v. Colvin, 758 F.3d 850, 858 (7th Cir. 2014), where the ALJ disregarded
opinions because they were inconsistent with her own, most of the source
opinions acknowledge at least one of the following issues with Wills’
impairments:

non-compliance,

substance

abuse,

secondary

gain,

exaggeration, credibility issues, and possible malingering.
Wills contends that the credibility determination was defective because
the ALJ failed to consider Wills’ lack of insurance and the side-effects of
medications as the basis of his non-compliance with medications.

The

Commissioner contends that the ALJ did not “specifically find Wills less than
credible because of noncompliance with medications,” because she cited both
non-compliance and substance abuse as reasons Wills required treatment.
(Def. Mem. 10.)
“[T]he failure to follow a treatment plan can undermine a claimant's
credibility, an ALJ must first explore the claimant’s reasons for the lack of
medical care before drawing a negative inference.” Shauger v. Astrue, 675

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F.3d 690, 696 (7th Cir. 2012). An ALJ may need to “question the individual
at the administrative proceeding 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.” Id. (quoting SSR 96–7p, 1996 WL
374186, at *7.) The claimant’s “good reasons” may include an inability to
afford treatment, ineffectiveness of further treatment, or intolerable side
effects. Id.
Additionally, there may be a relationship between bipolar disorder and
substance abuse. See Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir 2006)
(noting that bipolar disorder can precipitate substance abuse, for example as
a means by which the sufferer tries to alleviate his symptoms.) Furthermore,
“mental illness in general and bipolar disorder in particular . . . may prevent
the sufferer from taking [his] prescribed medicines or otherwise submitting to
treatment.” Id. at 630.
At the hearing, the ALJ questioned Wills regarding his medications
and how long he had been taking them. (Tr. 67-71.) She also asked Wills if
the medications had any side effects.

(Tr.

78.)

Wills testified that the

medications did not have side effects (id.); however, a disability appeal report
completed by Wills’ friend indicates that Trazadone caused drowsiness. (Tr.
332.) Wills also testified that the medications did not help because he still
heard voices, talked to himself, had trouble sleeping, was depressed, had

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crying spells, did not socialize and was not very trusting of people. (Tr. 71.)
Wills also indicated that he drank alcohol and ingested cocaine. (Tr. 72-73.)
However, the ALJ did not question Wills about the reason for his alcohol and
cocaine use. She also asked no questions regarding his failure to consistently
take his prescription medications for his mental health impairments.
Wills also alluded to an inability to obtain medical care. (Tr. 64-65.)
The ALJ asked whether Wills went to free medical clinics (Tr. 65), but she
asked no additional questions regarding his ability to afford treatment.
Absent questioning or exploration of these issues, the ALJ cannot draw a
negative inference. Thus, this case must be remanded to allow the ALJ to
properly address the issue. Beardsley, 758 F.3d at 840 (citing Craft v. Astrue,
539 F.3d 668, 679 (7th Cir. 2008); SSR 96-7p).
Vocational Expert Hypothetical
Wills maintains that the ALJ’s hypothetical to the VE was incomplete
because it did not include a limitation to simple, routine, and repetitive work
tasks and did not include Wills’ limitations with respect to concentration,
persistence, and pace, citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619
(7th Cir. 2010).

The Commissioner admits that Wills’ RFC limitation of

“simple, routine and repetitive work tasks involving simple work-related
decisions” was omitted from the hypothetical given to the VE. (See Def. Mem.
5.)

However, the Commissioner contends that any error was harmless

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because the VE testified that Wills could perform a significant number of
unskilled jobs, citing transcript pages 95-96, 99, and all the jobs the VE
identified actually included the omitted limitation.10 The Commissioner also
contends that the ALJ included other limitations in her RFC to accommodate
for Wills’ moderate limitations in concentration, persistence or pace.
An error in a social security determination is harmless when,
considering the evidence in the record, a court “can predict with great
confidence what the result on remand will be.” McKinzey v. Astrue, 641 F.3d
884, 892 (7th Cir. 2011); see also Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.
2010) (holding errors harmless when “it is predictable with great confidence
that the agency will reinstate its decision on remand”).
The ALJ asked the VE to assume a person able to perform at all
exertional levels but no work requiring public contact, limited to occasional
contact with co-workers and supervisors, no fast-paced production work, but
an ability to perform goal-oriented work that allowed for variability in pace.
(Tr. 95.) The VE identified jobs as a cleaner (DOT number 323.687-014),
street cleaner (DOT number 955-687-018), and inspector (DOT number
559.687-074), all of which are light work. (Tr. 95-96.)
The Commissioner’s citation regarding harmless error combines the case name
Shramek v. Apfel with the reporter citation of Donahue v. Barnhart. Based on content,
the Commissioner apparently intended to cite Donahue, 279 F.3d 441, 444 (7th Cir.
2002) (remand not required for ALJ’s failure to include plaintiff’s shortcomings in
concentration in hypothetical where vocational expert did not name jobs requiring
steady concentration).
10

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However, SSR 00-4p, 2000 WL 1898704, at *3, states:
A skill is knowledge of a work activity that requires the exercise
of significant judgment that goes beyond the carrying out of
simple job duties and is acquired through performance of an
occupation that is above the unskilled level (requires more than
30 days to learn). (See SSR 82-41.) . . . The DOT lists a specific
vocational preparation (SVP) time for each described occupation.
Using the skill level definitions in 20 CFR 404.1568 and 416.968,
unskilled work corresponds to an SVP of 1-2; . . ..
Id. (Emphasis added.)

In determining whether describing a person as

capable of “simple, routine, and repetitive tasks” captures limitations in
concentration, persistence, or pace, Varga, 794 F.3d at 814, addresses
“simple, routine, and repetitive tasks . . . ‘unskilled work’ which the
regulations define as work which can be learned by demonstration in less
than 30 days.” In this case, the hypothetical did not include a limitation to
simple, routine, and repetitive work, but the cleaner, street cleaner and
inspector jobs cited by the VE and adopted by the ALJ have an SVP of 1:
“[s]hort demonstration only,” or 2 “[a]nything beyond short demonstration up
to

and

including

1

month.”

See

http://www.occupationalinfo.org/

appendxc_1.html (last visited March 7, 2016). The ALJ also found that the
jobs identified by the VE were representative “light, unskilled occupations.”
(Tr. 33.)

Since unskilled jobs are by definition “simple, routine, and

repetitive,” the omission from the hypothetical of these limitations is
harmless. See Donahue, 279 F.3d 444.

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The Seventh Circuit has held that ALJs may not ignore checked boxes
on the MRFC form, but must adequately account for limitations in
concentration, persistence and pace. Yurt, 758 F.3d at 858-59. “Worksheet
observations, while perhaps less useful to an ALJ than a doctor’s narrative
RFC assessment, are nonetheless medical evidence which cannot be ignored.”
Varga, 794 F.3d at 816. In addition, when no narrative documentation or
translation by a doctor or agency RFC exists, “an ALJ’s hypothetical question
to the VE must take into account any moderate difficulties in mental
functioning [from] the MRFCA form, including those related to concentration,
persistence or pace.” See id. (Emphasis added).
While the ALJ included Jennings’ narrative translation in the
hypothetical to the VE, that narrative does not exclude jobs that require
concentration, persistence and/or pace.

It also fails to

otherwise

accommodate Wills’ moderate deficiencies in concentration, persistence and
pace.

Thus, on remand, the ALJ must revisit the step five analysis of

whether a significant number of jobs are available to Wills in the national
economy by including those limitations in the hypothetical.
New and Material Evidence
Under 20 C.F.R. § 404.970(b), additional evidence submitted to the

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Appeals Council will be evaluated only if it is “new and material” 11 and
“relates to the period on or before the date of the [ALJ] hearing decision.”
Stepp, 795 F.3d at 721.

If the newly submitted evidence satisfies these

conditions, the Appeals Council shall incorporate that evidence into the
administrative record and shall then evaluate that record, “including the new
and material evidence.” Id. (citing 20 C.F.R. § 404.970(b).) However, the
Council will only grant de novo review of the ALJ's decision if it determines,
based on the supplemented record, that the ALJ’s conclusions are “contrary
to the weight of the evidence.” Id.
Stepp, decided after briefing of Wills’ appeal was completed, examines
how a court is to determine the grounds upon which the Appeals Council
declined to grant plenary review. Id. at 722. If the Council determined that
a claimant's newly submitted evidence was, for whatever reason, not new and
material, and deemed the evidence “non-qualifying under the regulation,” the
courts retain jurisdiction to review that conclusion for legal error. Id. (citing
Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012); Eads v. Sec’y of the Dep’t
of Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993)). If the Appeals
Council deemed the evidence new, material, and time-relevant, but denied

Evidence is considered “new” if it was “not in existence or available to the
claimant at the time of the administrative proceeding,” and it is considered “material” if
there is a “reasonable probability that the Commissioner would have reached a different
conclusion had the evidence been considered” in the first instance. Stepp v. Colvin, 795
F.3d 711, 721 n.2. (7th Cir. 2015) (Citation omitted).
11

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plenary review of the ALJ's decision based on its conclusion that the record as
supplemented does not demonstrate that the ALJ’s decision was “contrary to
the weight of the evidence,” the Council’s decision not to engage in plenary
review is “discretionary and unreviewable.” Id. (citing Perkins v. Chater, 107
F.3d 1290, 1294 (7th Cir. 1997)). Stepp reviewed the Council’s responses in
Farrell and Perkins and concluded that the response in Stepp was more like
that in Farrell.
Stepp noted that an ALJ denied Farrell’s claim for benefits in part
because the record did not contain evidence confirming that Farrell had been
diagnosed with fibromyalgia, and in spite of additional evidence reflecting a
firm diagnosis of fibromyalgia, the Appeals Council summarily denied
Farrell’s petition for review. Id. at 723. The Council explained that it had
“considered . . . the additional evidence . . . [and] found that this information
d[id] not provide a basis for changing the [ALJ’s] decision.”

Id. (quoting

Farrell, 692 F.3d at 771). This was standard boilerplate language, and was
identical to the language of Stepp’s denial notice. Analyzing that language,
the court of appeals explained:
this text, which often appears in orders of the Appeals Council
rejecting plenary review, is not as clear as it might be. On the
one hand, it might indicate that the Appeals Council found the
proffered new evidence to be immaterial, but on the other hand it
might indicate that the Council accepted the evidence as
material but found it insufficient to require a different result.

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Id.

Without more specific language from the Council, the appeals court

interpreted the denial notice to imply the former conclusion—i.e., that the
Council “rejected Farrell's new evidence as non-qualifying under the
regulation.” Id. The court then proceeded to review the “limited question” of
whether the Council had erroneously concluded that the newly submitted
evidence was not new and material. Id.
Wills argues that it was legal error for the Appeals Council to decline
to review the ALJ’s decision, citing Farrell, 692 F.3d at 771, and by reference,
Perkins, 107 F.3d at 1296. (Pl. Br. 10-11.) The Commissioner counters that
although the Council’s language denying Wills’ request for review was
similar to that of Farrell, the Council also explicitly stated that it had
considered “additional evidence.” (Def. Mem. 13.) The Commissioner asserts
that there was no error of law and there is no basis for reviewing the Appeals
Council’s discretionary decision to deny review, citing Perkins.
The Council’s order contains the following language, “In looking at your
case, [the Council] considered . . . the additional evidence listed on the
enclosed Order of Appeals Council” (Tr. 1), and the Order lists Exhibit 24F,
Outreach Community Health Center records dated February 19 through
March 4, 2014 (Tr. 5). The Appeals Council’s order and denial notice in Wills’
case is similar to that in Stepp, 795 F.3d at 723, which states “while Stepp’s
case clearly falls somewhere on the spectrum between Perkins and Farrell,

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we believe it is closer to Farrell. Id. at 725. Based on Stepp, the minimal
information provided by the Appeals Council in its denial of Wills’ request for
review is insufficient to allow this Court “to determine with any confidence”
that the Council accepted Fischer’s notes and letter as new and material
evidence. Id. Thus, the Court considers Wills’ contention that it was legal
error for the Council to refuse to review the additional evidence.
Wills filed an after-visit summary of Dr. Donald Fischer, M.D., a
psychiatrist at Outreach Community Centers, and a letter from Fischer,
which stated “[Wills] has been diagnosed with Paranoid Schizophrenia (in
remission), Major Depressive Disorder, . . . and Unspecified Personality
Disorder, making it difficult to navigate daily tasks.” The letter indicated
that Wills was being provided medication management, he had been a
patient of the Centers since February 21, 2014, he would benefit from
supportive permanent housing, and that Fischer “certified Mr. Wills meets
the disability definition required by the Department of Housing and Urban
Development.” (Tr. 643.) Fischer states that the certification is attached to
the letter.
These records are “new” because they were “not in existence or
available to the claimant at the time of the administrative proceeding.”
Perkins, 107 F.3d at 1296 (citation and internal quotation marks omitted).
The administrative hearing was held in November 2013. The ALJ’s decision

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was issued February 19, 2014, and addressed the question of disability from
October 28, 2008, through the date of the decision. Stepp, 795 F.3d at 725.
Evidence is “material” under § 404.970(b) if it creates a “reasonable
probability that the Commissioner would have reached a different conclusion
had the evidence been considered.” Id. (citation omitted). In this case, there
is minimal evidence from treating psychiatrists or psychologists.

Thus,

Fischer’s opinion that Wills’ mental conditions make it difficult to navigate
daily tasks is material within the meaning of § 404.970(b). On remand the
ALJ should also reevaluate Wills’ RFC in light of Fischer’s opinion.
For the sake of completeness, the Court also addresses Wills’
contention that Fischer’s letter is a decision by another government agency
that must be reviewed. (Pl. Br. 11-12.) He relies on SSR 06-03p, 2006 WL
2329939, at *6, which provides in relevant part:
we are required to evaluate all the evidence in the case record
that may have a bearing on our determination or decision of
disability, including decisions by other governmental and
nongovernmental agencies (20 CFR [§§] 404.1512(b)(5) and
416.912(b)(5)). Therefore, evidence of a disability decision by
another governmental or nongovernmental agency cannot be
ignored and must be considered.
Fischer’s opinion, addressed “To Whom It May Concern,” was prepared on
Wills’ behalf for presentation to a government agency. It is not a decision of a
governmental agency. Therefore, the Council was not required to consider it.
Summary

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This matter is remanded due to errors in the ALJ’s credibility
determination and the hypothetical to the VE. Upon remand, the ALJ must
revisit her credibility determination with respect to Wills’ failure to take
mental health medications consistently, his ability to obtain medical care,
and the connection, if any, between his substance abuse and his bipolar
disorder. The revisited credibility determination may impact the ALJ’s RFC
determination, as may Fischer’s opinion.

Furthermore, in obtaining an

opinion regarding whether a significant number of jobs are available to Wills
in the national economy the ALJ must include moderate deficiencies in
concentration, persistence and pace.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Wills’ action for judicial review (ECF No. 1) is GRANTED to the extent
that

this matter is REMANDED pursuant to sentence four of 42 U.S.C.

§ 405(g) for further proceedings consistent with this Decision and Order, and
DENIED in all other respects; and,
The Clerk of Court is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of March, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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