Bochat v. Colvin

Filing 23

DECISION AND ORDER signed by Judge Lynn Adelman on 7/23/15 that the ALJs decision is REVERSED, and this matter is REMANDED pursuant to 42 U.S.C. § 405(g), sentence four, for further proceedings consistent with this decision. The Clerk is directed to enter judgment accordingly. (cc: all counsel)(dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

PAUL A. BOCHAT,
Plaintiff,
v.

Case No. 15-C-34

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

DECISION AND ORDER
Plaintiff Paul Bochat applied for social security disability benefits, claiming that he could
no longer work due to Crohn’s disease, inflammatory arthritis, and depression. The Social
Security Administration (“SSA”) denied his application, and plaintiff now seeks judicial review.
I. FACTS AND BACKGROUND
For nearly 20 years, plaintiff worked steadily as a machine operator and packer, despite
his Crohn’s diagnosis. (Tr. at 218-19, 224, 239, 407.) In 2007, he began missing a significant
amount of work due to his symptoms (Tr. at 303-04, 305-36, 590-673), eventually exhausting
his FMLA time, resulting in the termination of his employment in September 2011 (Tr. 64, 33436). The following month, he applied for disability benefits, alleging a disability onset date of
August 18, 2011.1 (Tr. at 53, 211, 234.)
In support of the application, plaintiff submitted a report from Dr. John Linscott, his longtime primary care physician. Dr. Linscott listed diagnoses of rheumatoid arthritis, Crohn’s
disease, and depression, with associated symptoms of bloody diarrhea, abdominal pain and

1

Plaintiff’s last day of work was August 17, 2011. (Tr. at 334.)

cramping, loss of appetite, fistulas, nausea, peripheral arthritis, and fatigue. He further
indicated that plaintiff experienced chronic, wide-spread joint pain, mild to moderate 50% of the
time and severe 50% of the time. He indicated that stress precipitated episodes of severe pain,
rendering plaintiff unable to work. (Tr. at 531.) He also identified psychological conditions
affecting plaintiff’s physical condition, including depression and anxiety (situational, like in the
workplace). He opined that plaintiff could continuously walk one to two city blocks, sit 20-30
minutes, and stand 20 to 30 minutes; in an eight-hour day, plaintiff could sit about two hours
and stand/walk about two hours. (Tr. at 532.) Plaintiff also needed a job that allowed shifting
positions at will due to his rectal fistulas, ready access to a bathroom, and unscheduled
bathroom breaks every one to two hours lasting 15 minutes. (Tr. at 532-33.) Plaintiff would
likely be off task 10% of the workday due to his symptoms. Finally, Dr. Linscott indicated that
plaintiff’s impairments would produce good and bad days and about four absences from work
per month. (Tr. at 533.)
Plaintiff also submitted a report from Dr. Paul Harris, his treating psychiatrist, listing a
diagnosis of major depressive disorder with psychotic features, including chronic auditory
hallucinations, and clinical findings of sadness, reduced concentration, and insomnia. Dr.
Harris also noted that plaintiff had been hospitalized from August 21 to 24, 2012, for psychotic
depression and suicidal ideation. (Tr. at 542.) Regarding the mental abilities needed to do
unskilled work, Dr. Harris found plaintiff “unable to meet competitive standards” in the areas
of maintaining attention for a two hour segment, maintaining regular attendance and
punctuality, sustaining a routine without special supervision, completing a normal workday
without interruptions from psychologically based symptoms, performing at a consistent pace,
and dealing with normal work stress. He found plaintiff “seriously limited” in his ability to
2

remember work procedures, understand and remember short and simple instructions, carry out
short and simple instructions, work in coordination with others without distraction, make simple
work-related decisions, accept instructions and respond appropriately to criticism, and respond
appropriately to change. (Tr. at 544.) Dr. Harris also found that plaintiff would be absent from
work more than four days per month due to his impairments. (Tr. at 546.)
In denying plaintiff’s application at the initial and reconsideration levels, the SSA relied
on state agency consultant opinions that plaintiff could, despite his severe mental impairments
(which produced moderate limitations in attention, concentration, and public interaction),
perform simple, routine tasks. (Tr. at 113, 116-17, 131-32.) The consultants further opined
that plaintiff could, despite his severe physical impairments, perform light work with occasional
postural movements. (Tr. at 114-15, 129-31.)
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 152.)
At the hearing, plaintiff testified that he was 45 years old, 5'7" tall, 310 pounds, and lived with
his parents. (Tr. at 57-58.) He reported that he lost his job as a machine operator and line
worker after missing too much work due to back pain and Crohn’s flare-ups. (Tr. at 59-63, 6768.) Plaintiff testified that during a flare-up he experienced fatigue, cramping, pain, diarrhea,
and chills, and had to go to the bathroom seven to ten times per day for 10 to 15 minutes. (Tr.
at 68-69.) These flare-ups lasted three to five days, triggered by work stress and weather
changes. (Tr. at 70-71.)
Plaintiff testified that he also experienced chronic pain in his back, hands, shoulders,
and knees related to rheumatoid arthritis. (Tr. at 73.) He indicated that he could wash dishes
for about 15 minutes before he had to take a 15 minute break. He also had to stop after about
10-15 minutes of typing on the computer. (Tr. at 74.) He mowed the lawn once or twice per
3

month, sitting down after about 15 minutes due to pain. (Tr. at 80.) Regarding his mental
symptoms, plaintiff testified that he continued to experience auditory hallucinations, which
interfered with his sleep, requiring naps during the day. (Tr. at 75-76.) During a 24-hour day,
he spent about 18 hours in his room, watching TV, playing on the computer, and reading. (Tr.
at 76.)
Plaintiff testified that on a good day, he did not have to go to the bathroom a lot and his
bottom and back hurt less. On a bad day, he would go to the bathroom constantly, depression
would kick in, and he would have a lot of pain on the right side. (Tr. at 80.) Laying down was
the only way to relieve the pain. (Tr. at 80-81.) Plaintiff indicated that in a month he would
have 25 bad days. On those days, he would accomplish nothing. (Tr. at 81.) He left home at
least once per week to go to the grocery store, but he would be in and out quickly (within 15
minutes). (Tr. at 81.) When he left home he carried extra bandages to capture discharge but
not a spare change of clothes. (Tr. at 82.)
Plaintiff’s father testified that during flare-ups he could see the pain in his son’s face.
“He would be pale. He would be holding his side. He’d be going to the bathroom quite a bit.”
(Tr. at 84-85.) Plaintiff’s father further testified that, when he was working, plaintiff felt poorly
15-23 days out of the month. He would fill his lunch box with four by four gauze pads, using
those during the day because he was bleeding so much. (Tr. at 85.) Plaintiff’s father also
indicated that plaintiff did not cope with stress or changes in routine very well and had a hard
time making decisions and maintaining concentration. (Tr. at 85-87.) Plaintiff had to be
reminded to do household chores like taking out the garbage and recyclables; he did dishes
every three to four days, and it took him two plus hours to finish, taking frequent breaks. (Tr.
at 88.) He last mowed the lawn five weeks before the hearing, and it took him all day to do it.
4

When he would snow-blow the alley, his hands would swell. He did not socialize with friends;
they had given up on him because he did not go anywhere. (Tr. at 89.)
The ALJ also summoned a vocational expert (“VE”) to the hearing, and she classified
plaintiff’s past employment as medium, unskilled work. (Tr. at 96.) The ALJ then asked a
hypothetical question, assuming a person of plaintiff’s age, education, and work experience,
capable of lifting and carrying up to 20 pounds occasionally, 10 pounds frequently; standing
and walking six hours collectively and sitting for six hours in an eight-hour workday;
occasionally climbing ramps and stairs, balancing, crouching, kneeling, and crawling; needing
to avoid more than occasional exposure to extremes in temperature and humidity, as well as
hazards; and further limited to routine tasks that allowed for being off task up to 10% of the
workday in addition to regular breaks, did not require fact-paced production, and involved no
more than occasional interaction with the public. (Tr. at 96-97.) The VE testified that such a
person could not do plaintiff’s past work, performed at the medium level, but could do other
jobs such as food preparer, assembler, and order filler. (Tr. at 97.) Adding a further limitation
of occasional handling and fingering with the left hand would eliminate the food preparation and
assembly jobs, but the order filler job would remain; the person could also work as a mail clerk
and machine tender. (Tr. at 97-98.) If the person also required a sit/stand option at will, the
order filler job could not be done, but the mail clerk and machine tender jobs would remain.
However, if the person required five to six unscheduled breaks lasting up to 10 minutes, he
could not perform those jobs or any other unskilled work. (Tr. at 98.) The VE said that
employers would tolerate one to two absences per month. (Tr. at 100.)2

2

The VE stated that her testimony was consistent with the Dictionary of Occupational
Titles (“DOT”), but noted that the DOT refers to handling and fingering with one or both hands;
5

The ALJ issued an unfavorable decision. (Tr. at 18.) Following the familiar five-step
sequential evaluation process, see 20 C.F.R. § 404.1520(a)(4), the ALJ first determined that
plaintiff had not worked since August 18, 2011, the alleged disability onset date. At step two,
the ALJ found that plaintiff suffered from the severe impairments of inflammatory bowel disease
(“IBD”)/Crohn’s disease, anal fissures, inflammatory arthritis, obesity, and affective disorder.
(Tr. at 23.) At step three, the ALJ concluded that none of these impairments qualified as
conclusively disabling under the agency’s Listings. In evaluating the mental impairment
Listings, the ALJ found that plaintiff experienced mild restriction of activities of daily living;
moderate difficulties in social functioning; moderate difficulties in concentration, persistence,
and pace; and no episodes of decompensation. (Tr. at 24.)
The ALJ next determined that plaintiff retained the residual functional capacity (“RFC”)
to perform a range of light work, alternating between sitting and standing as needed;
occasionally climbing ramps and stairs, occasional handling and fingering with the left hand,
and occasionally balancing, crouching, kneeling, and crawling; avoiding more than occasional
exposures to hazards and extremes of temperature and humidity; and limited to routine tasks
allowing him to be off-task up to 10% of the workday in addition to regular breaks, no fastpaced production, and no more than occasional interaction with the public. In making this
finding, the ALJ considered the credibility of plaintiff’s alleged symptoms and the medical
opinion evidence. (Tr. at 25.)
Regarding plaintiff’s symptoms, the ALJ concluded: “The claimant’s testimony
concerning the presence of incapacitating discomfort and associated functional limitations is

it is not specific to one. (Tr. at 99.)
6

only partially credible.” (Tr. at 31.) In support, the ALJ pointed to “several inconsistencies that
negatively impact the claimant’s overall credibility.” (Tr. at 31.) The ALJ noted that while
plaintiff testified to disabling IBD symptoms, he “did not initially even mention IBD as a severe
impairment.” (Tr. at 31.) And, while plaintiff alleged a need for frequent bathroom breaks, he
did “not carry a change of clothing with him when he leaves home.” (Tr. at 31.) The ALJ also
found that the medical evidence did not support debilitating gastrointestinal symptoms but
instead indicated that plaintiff’s symptoms were well managed with medication. (Tr. at 31-32.)
Finally, the ALJ noted plaintiff’s daily activities, including laundry, dishes, vacuuming, taking his
dogs for short walks, preparing simple meals, playing on the computer, reading, mowing the
lawn or doing dishes with breaks, and going to the grocery store once per week. Plaintiff’s
father testified to these activities plus snow blowing (with breaks) and taking out the garbage,
and a June 2013 treatment note indicated plaintiff was “active” around the house. (Tr. at 32.)
The ALJ then turned to the opinion evidence, finding that the state agency consultants’
opinions supported a finding of not disabled. The ALJ found that although the consultants were
non-examining physicians, their opinions deserved some weight, particularly where there were
a number of other reasons to reach a similar conclusion. (Tr. at 32.) The ALJ did conclude
that additional evidence received at the hearing level supported further limitations, including
some handling and fingering limitations with the left hand. (Tr. at 32-33.)
Regarding Dr. Linscott’s opinion, the ALJ concluded:
This opinion is not given significant weight. First, such restrictive limitations are
inconsistent with Dr. Linscott’s own treatment notes from that very day where the
claimant denied pain, nausea, vomiting, diarrhea, changes in or problems with
bowel habits or blood in his stool and denied any joint pain, muscle pain or
swelling. Such restrictions are also inconsistent with the relatively normal
physical examination of the claimant that day, with an unremarkable abdominal
exam, normal musculoskeletal exam, with normal muscle tone, reflexes and
7

coordination, and normal mental status. Moreover, prior to the appointment at
which he completed that form, Dr. Linscott had not seen the claimant for nearly
10 months, since February 1, 2012.
(Tr. at 33, internal record citations omitted.)
Regarding Dr. Harris’s report, the ALJ stated:
This opinion is not entitled to significant weight; again, these restrictions are
inconsistent with Dr. Harris’s own treatment notes from that very day, where the
claimant reported his mood was “ok” and he was only experiencing an occasional
auditory hallucination, and mental status exam showed the claimant was neat,
fully oriented, with normal speech, goal-directed thought processes and good
insight and judgment. In addition, at the time of the appointment when Dr. Harris
completed this form, he had not seen the claimant in nearly three months, since
October 24, 2012. Moreover, these conclusions are inconsistent with other
treatment notes after his August 2012 hospitalization. Immediate posthospitalization follow-up was positive, with the claimant reporting good mood and
no more auditory hallucinations. In late October 2012, the claimant said his
mood was “pretty good” with no suicidal ideation, and no auditory hallucinations
and less than two weeks later, the claimant was neither anxious or nervous, with
normal mood and affect, normal behavior, normal judgment and thought content
and actually denied any depression; in fact, treatment notes indicate his
depression was controlled by his medication.
A month later, the claimant reported some depression but denied insomnia and
suicidal ideation and insisted his depression and anxiety were “doable” and much
improved from a year earlier. Moreover, he had a normal mood and affect,
normal behavior, normal judgment and normal thought content. Mental status
exam [at] the end of December 2012 was normal as well.
The end of January 2013, the claimant underwent a psychiatric evaluation where
he reported his depression symptoms had been under reasonable control until
three months earlier, when he suddenly became more depressive and isolative,
with increasing auditory hallucinations. Mental status exam was generally normal
but for a depressed mood and depressed and odd/child-like affect and some mild
psychomotor retardation. But just a few weeks later, the claimant stated his
auditory hallucinations were nearly completely resolved, and his morning anxiety
generally resolved quickly. Mental status exam was normal but for a constricted
affect. A month later, plaintiff stated he no longer experienced persistent or daily
depression or anhedonia, his hallucinations had decreased, his appetite was
stable and he felt hopeful. He was happy with his medication regimen and
denied any side effects.
The claimant’s mood remained generally stable without daily depression, without
8

a persistent low mood with some persistent but not disruptive auditory
hallucinations. Again, he was overall happy with his medications, denying side
effects, and exam was normal. Indeed, at the September 2013 appointment with
Dr. Weinstein, the claimant did not even mention any depression symptoms.
(Tr. at 33-34, internal record citations omitted.)
The ALJ concluded that while plaintiff experienced some significant gastrointestinal
issues and secondary complications such as IBD-induced arthritis and depression, the overall
treatment record showed generally unremarkable examinations and essentially routine
treatment that was generally successful in managing plaintiff’s symptoms.
The claimant’s arthritis, as well as his weight and GI symptoms, allows him to
perform light work, alternating between sitting and standing as needed with
occasional climbing of ramps and stairs, balancing, crouching, kneeling and
crawling but precludes climbing ropes, ladders and scaffolding. His arthritis
symptoms limit him to occasional handling and fingering with the left hand and
his constellation of his physical symptoms require that he avoid more than
occasional exposure to extremes in temperature and humidity and hazards. In
addition, these symptoms plus his mental health symptoms limit him to routine
tasks that allow him to be off task up to 10% of the work day but do not require
fast-paced production or more than occasional interaction with the public.
(Tr. at 34.)
Based on this RFC, the ALJ determined at step four that plaintiff could not perform his
past work as a machine operator and line worker. Finally, at step five, the ALJ concluded that
plaintiff could perform other jobs as identified by the VE, including mail clerk and machine
tender. (Tr. at 35.) The ALJ accordingly found plaintiff not disabled. (Tr. at 36.)
Plaintiff requested review by the Appeals Council (Tr. at 16-17), submitting a letter from
Dr. Linscott taking issue with the ALJ’s decision (Tr. at 678-81). The Appeals Council
considered the additional evidence but concluded that it did not provide a basis for changing
the ALJ’s decision, denying plaintiff’s request for review. (Tr. at 1-2.) This action followed.

9

II. STANDARD OF REVIEW
When the Appeals Council denies review (as it did in this case), the ALJ’s decision
constitutes the final decision of the Commissioner of Social Security. Moore v. Colvin, 743
F.3d 1118, 1120 (7th Cir. 2014). The court reviews the ALJ’s decision to ensure that it is
supported by “substantial evidence,” meaning such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, Minnick v. Colvin, 775 F.3d 929, 935 (7th
Cir. 2015), and applied the correct legal standards, Bates v. Colvin, 736 F.3d 1093, 1097 (7th
Cir. 2013). Although the court will not re-weigh the evidence or substitute its judgment for the
ALJ’s, this does not mean that the court simply rubber-stamps the decision. Minnick, 775 F.3d
at 935. The court must conduct a critical review of the record, considering both the evidence
that supports, as well as the evidence that detracts from, the ALJ’s decision; the decision
cannot stand if it lacks evidentiary support or an adequate discussion of the issues, Scrogham
v. Colvin, 765 F.3d 685, 695 (7th Cir. 2014), or fails to confront contrary evidence and explain
why that evidence was rejected, Moore, 743 F.3d at 1123. Finally, the ALJ’s decision must be
upheld, if at all, on the same basis articulated in the decision by the ALJ himself. Hanson v.
Colvin, 760 F.3d 759, 762 (7th Cir. 2014).
III. DISCUSSION
Plaintiff argues that the ALJ failed to evaluate the opinions of his treating physicians,
Drs. Linscott and Harris, under the proper legal standards; failed to account for his moderate
limitations in concentration, persistence, and pace (“CPP”); failed to properly evaluate
credibility; and erred in relying on the VE’s testimony at step five. I consider each contention
in turn.

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A.

Treating Source Reports
Under the regulations, an ALJ must give “controlling weight” to a treating source’s

medical opinion if it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(c)(2);
SSR 96-2p, 1996 SSR LEXIS 9, at *4. If the ALJ finds that a treating source’s opinion does
not meet the standard for controlling weight, he may not simply reject it; treating source
opinions are still entitled to deference and must be weighed under the factors set forth in the
regulations, SSR 96-2p, 1996 SSR LEXIS 9, at *9, including the length, nature, and extent of
the claimant and physician’s treatment relationship; the degree to which the opinion is
supported by the evidence; the opinion’s consistency with the record as a whole; and whether
the doctor is a specialist. 20 C.F.R. § 404.1527(c). In many cases, a treating physician’s
opinion will be entitled to the greatest weight and should be adopted, even if it does not meet
the test for controlling weight. SSR 96-2p, 1996 SSR LEXIS 9, at *9-10. Whenever an ALJ
does reject a treating source’s opinion, a sound explanation must be given for that decision.
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
1.

Dr. Linscott

As indicated above, the ALJ declined to give Dr. Linscott’s opinion “significant weight.”
(Tr. at 33.) He did not discuss the controlling weight standard or specifically apply the
regulatory factors for weighing medical source opinions. Rather, he discounted Dr. Linscott’s
opinion because plaintiff was asymptomatic, with an unremarkable physical exam, on the day
Dr. Linscott prepared the report, and at the time he prepared the report Dr. Linscott had not
seen plaintiff for nearly 10 months. (Tr. at 33.) These are not “good reasons.” See Scott v.
Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (“An ALJ must offer ‘good reasons’ for discounting
11

the opinion of a treating physician.”). It is inappropriate to reject a treating doctor’s opinion
based on a single treatment note, particularly when the claimant suffers from impairments likely
to produce fluctuating symptoms. See, e.g., Scott, 647 F.3d at 740; Bauer v. Astrue, 532 F.3d
606, 609 (7th Cir. 2008).3 Further, Dr. Linscott had treated plaintiff for about 20 years (Tr. at
531), allowing him to provide a significant “longitudinal picture” of plaintiff’s condition,
Scrogham, 765 F.3d at 696; it is hard to see how a 10 month gap – possibly due to plaintiff’s
insurance problems (see Tr. at 71, 486, indicating that plaintiff lost his insurance in mid-2012)
– could overcome this two-decade treatment history.
Finally, the ALJ took specific issue with Dr. Linscott’s opinions regarding unscheduled
breaks and absences – both of which would, if accepted, preclude employment (Tr. at 98-100)
– without considering the numerous work excuses Dr. Linscott provided over the last three
years of plaintiff’s employment identifying those very limitations. (E.g., Tr. at 592, 600, 605,
609, 613, 618, 625.) Plaintiff’s treating gastroenterologist and rheumatologist provided similar
work excuses and FMLA certifications during flare-ups, supporting Dr. Linscott’s opinion that

3

The Commissioner notes that the ALJ may discount a treating physician’s opinion if it
is internally inconsistent. See, e.g., Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004).
However, the ALJ may not “cherry pick” from mixed results in order to demonstrate
inconsistency. See Scott, 647 F.3d at 740. The ALJ is supposed to review a treating source
report for consistency with the record as a whole. 20 C.F.R. § 404.1527(c)(4). In her brief, the
Commissioner cites other treatment records (some of which the ALJ discussed earlier in his
decision) in which plaintiff’s GI symptoms were noted to be under control. However, the ALJ
did not cite this evidence in discounting Dr. Linscott’s report, and my review is limited to the
reasons the ALJ provided. See Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)
(“[R]egardless whether there is enough evidence in the record to support the ALJ’s decision,
principles of administrative law require the ALJ to rationally articulate the grounds for her
decision and confine our review to the reasons supplied by the ALJ.”). Moreover, the Seventh
Circuit has held that an ALJ may not reject a treating source’s report just because the doctor
does not have detailed notes to back it up. Herrmann v. Colvin, 772 F.3d 1110, 1111 (7th Cir.
2014).
12

plaintiff’s conditions would cause good and bad days and regular absences. (E.g., Tr. at 64649, 654, 656, 658-61, 666-69, 671-72.)
The Commissioner contends that records from prior to plaintiff’s alleged onset date are
not relevant. Courts have rejected that contention. E.g., Hamlin v. Barnhart, 365 F.3d 1208,
1222 n.15 (10th Cir. 2004) (citing 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 404.1527(d); Groves
v. Apfel, 148 F.3d 809, 810-11 (7th Cir. 1998); Frustaglia v. Sec’y of Health & Human Servs.,
829 F.2d 192, 193 (1st Cir. 1987)); see also Doherty v. Astrue, No. 11-cv-838, 2012 U.S. Dist.
LEXIS 139207, at *15 (S.D. Ind. Sept. 27, 2012) (“The Seventh Circuit and other circuits have
ruled that an ALJ must consider ‘all’ evidence in the administrative record and, in fact, preonset evidence may be particularly relevant to assessing a claimant’s degenerative condition
post-onset.”). Here, the pre-onset records are particularly relevant because they suggest that
plaintiff could not, due to absences and/or excessive breaks, sustain the full-time employment
he had held for more than 20 years. The matter must be remanded for reconsideration of Dr.
Linscott’s opinion based on the record as a whole.4
2.

Dr. Harris

The ALJ also declined to give Dr. Harris’s report “significant weight.” (Tr. at 33.) In so
ruling, the ALJ started with the same reasons he gave for discounting Dr. Linscott’s opinion –
at the time he prepared the report Dr. Harris had not seen plaintiff for three months, and his
treatment notes from that day did not validate the restrictions. As discussed above, a treating
source report must be evaluated based on the entire record, not a single note, and the ALJ

4

The parties discuss Dr. Linscott’s letter submitted to the Appeals Council, but my review
is limited to the evidence that was before the ALJ. See Eads v. Sec’y of Health & Human
Servs., 983 F.2d 815, 817 (7th Cir. 1993).
13

failed to explain why this modest gap cast doubt on the opinion of a doctor who had treated
plaintiff for 15 months. (See Tr. at 542.)
Unlike with Dr. Linscott’s report, however, the ALJ did go on to find that Dr. Harris’s
report conflicted with other evidence in the record, including treatment notes from after
plaintiff’s August 2012 hospitalization, which reported good mood and no further auditory
hallucinations, as well as a normal mental status exam from December 2012. The ALJ
acknowledged that in January 2013 plaintiff reported to his new psychiatrist, Dr. Jason Burns,
that he had become depressed and isolative, but subsequent notes from February and March
2013 again noted improvement. The final notes from Dr. Burns in May and June 2013 reported
generally stable mood, some persistent but not disruptive auditory hallucinations, and
satisfaction with medications.5 (Tr. at 33-34.)
Plaintiff faults the ALJ for not considering whether Dr. Harris’s report was consistent with
treatment notes prior to the August 2012 hospitalization. The Commissioner responds that the
ALJ did discuss those records, which generally noted improvement with treatment, earlier in
his decision. (Tr. at 28-29.) The ALJ did not rely on those records in rejecting Dr. Harris’s
report; in any event, the records reflect ups and downs in plaintiff’s mental state during this
time. Plaintiff first saw Dr. Harris on October 3, 2011, reporting auditory hallucinations (hearing
his name called, his dead uncle speaking to him), depression (isolation, irritability, interrupted
sleep, decreased energy and focus), and some paranoia. (Tr. at 481.) Dr. Harris diagnosed

5

The ALJ also noted that at his September 2013 appointment with Dr. Michael
Weinstein, his new primary physician, plaintiff did not mention depressive symptoms. (Tr. at
34.) However, it does not appear that Dr. Weinstein conducted a mental status exam at that
time. The notes discuss only physical problems. (Tr. at 674-75.)
14

major depressive disorder with psychotic features and a GAF score of 506 (Tr. at 484),
increasing Bupropion, starting Risperidone, and continuing Clonazepam7 (Tr. at 485). On
November 2, 2011, plaintiff reported a “bearable mood.” (Tr. at 480.) His hallucinations had
decreased but were still present. Dr. Harris increased Risperidone and started Trazodone.8
(Tr. at 480.) On November 30, 2011, plaintiff reported that his auditory hallucinations had
resolved and his sleep improved on Trazodone. Nevertheless, Dr. Harris increased Trazodone.
(Tr. at 479.) On January 12, 2012, plaintiff told Dr. Harris that his mood was “pretty good,” his
hallucinations had resolved, and his sleep was better on Trazodone. (Tr. at 478.) However,
on June 13, 2012, plaintiff reported depressed mood, auditory hallucinations of hearing his
parents call his name, reduced energy, and passive suicidal ideation. Dr. Harris increased
Risperidone and started Zoloft.9 (Tr. at 503.) On June 27, 2012, plaintiff reported that his
hallucinations were still present, with no change in his mood. Dr. Harris again increased
Risperidone. (Tr. at 504.) On July 25, 2012, plaintiff reported a reduction in his hallucinations

6

GAF (“Global Assessment of Functioning”) rates the severity of a person’s symptoms
and his overall level of functioning. Set up on a 0-100 scale, scores of 91-100 are indicative
of a person with no symptoms, while a score of 1-10 reflects a person who presents a
persistent danger of hurting himself or others. Scores of 51-60 reflect “moderate” symptoms,
41-50 “severe” symptoms, and 31-40 “some impairment in reality testing” or “major impairment
in several areas.” American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 32-34 (4th ed. 2000).
7

Bupropion
is
used
to
treat
major
depressive
disorder,
http://www.drugs.com/bupropion.html; Risperidone is a anti-psychotic medicine used to treat
schizophrenia, http://www.drugs.com/risperidone.html; and Clonazepam is used to treat seizure
disorders or panic disorder, http://www.drugs.com/clonazepam.html.
8

Trazodone is sometimes prescribed for sleep disorders combined with a depressive
state. http://www.ncbi.nlm.nih.gov/pubmed/10459686.
9

Zoloft is used to treat depression, obsessive-compulsive disorder, panic disorder, and
anxiety disorders. http://www.drugs.com/zoloft.html.
15

but continued depressed mood with low energy, and Dr. Harris increased Zoloft. (Tr. at 505.)
Finally, on August 21, 2012, plaintiff reported that he was afraid he would kill himself, and Dr.
Harris directed plaintiff’s father to remove the guns from the house and take plaintiff to the
emergency room (Tr. at 506), after which he was admitted for three days (Tr. at 513-18).
As the ALJ noted, plaintiff did seem to do better in the four months after his August 2012
hospitalization. (Tr. at 520, 539, 548, 549.) However, the ALJ overlooked evidence of disability
in Dr. Burns’s later notes. Dr. Burns took over plaintiff’s psychiatric care in January 2013. At
the initial evaluation on January 21, 2013, plaintiff reported worsening symptoms, including
anhedonia, amotivation, poor sleep, feelings of worthlessness and guilt, variable appetite, and
tearfulness. He had also begun to experience auditory hallucinations again, this time vague
mumblings of unknown voices. (Tr. at 584.) Dr. Burns noted that plaintiff gave a history of
mood disturbance preceding psychotic symptoms, pointing toward major depressive disorder
with psychosis. (Tr. at 586-87.) However, Dr. Burns also noted that plaintiff’s affect (“odd/childlike”), relational history (always living with his parents, never away from home), and the
presence of psychotic symptoms with mild depressive symptoms suggested the possibility of
primary psychotic illness, perhaps schizoaffective disorder (depressed type) or schizophrenia.
Dr. Burns diagnosed major depressive disorder with psychosis, rule out schizoaffective
disorder, and rule out schizophrenia, with a GAF of 40. (Tr. at 587.) While Dr. Burns did note
some improvement in plaintiff’s condition over the following months (Tr. at 580-81, 577-78, 57576), his final note from June 2013 still listed a GAF score of 45 (Tr. at 573). Scores below 50
do not support a conclusion that the person is “mentally capable of sustaining work.” Campbell
v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010).
The Commissioner notes that the American Psychiatric Association recently
16

discontinued use of the GAF, citing “its conceptual lack of clarity . . . and questionable
psychometrics in routine practice.” American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 16 (5th ed. 2013). However, the Seventh Circuit continues to
consider such evidence. See Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (discussing
a score of 45, indicative of serious impairment); see also Yurt v. Colvin, 758 F.3d 850, 853 (7th
Cir. 2014) (discussing GAF scores, which were still in use at the time of the examinations).
While the ALJ need not determine the extent of a claimant’s disability based on a single GAF
score, Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010), neither may he ignore or discount
evidence favorable to the claimant’s position, including GAF scores suggesting a lower level
of functioning than that captured by the ALJ’s hypothetical and mental RFC. Yurt, 758 F.3d
at 860 (citing Bates, 736 F.3d at 1100).
The matter must be remanded for reconsideration of Dr. Harris’s report based on the
entire record. In re-evaluating the treating source reports, the ALJ must follow the standards
set forth in 20 C.F.R. § 404.1527(c) and SSR 96-2p.
B.

Concentration, Persistence, and Pace (“CPP”)
In determining RFC and posing hypothetical questions to the VE, the ALJ must consider

all limitations that arise from medically determinable impairments, including deficiencies in
CPP. Yurt, 758 F.3d at 857; O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
The most effective way to ensure that the VE is fully apprised of the claimant’s limitations is to
include all of them directly in the hypothetical. Id. at 619. The Seventh Circuit has not adopted
a per se requirement that the specific terminology “concentration, persistence, and pace” be
used in the hypothetical in all cases. Id. For instance, the court has let stand hypothetical
questions that employed alternative phrasing specifically excluding those tasks that someone
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with the claimant’s limitations would be unable to perform, e.g., a hypothetical restricting the
claimant to low-stress work where his limitations were stress- or panic-related. Id. (citing
Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002)). In most cases, however, merely limiting
the claimant to “simple, routine, repetitive” tasks will fail to account for limitations in CPP. Id.
at 620.
In the present case, the ALJ found at step three that plaintiff had “moderate” difficulties
in CPP. (Tr. at 24.) In the RFC, the ALJ limited plaintiff to routine tasks allowing him to be offtask up to 10% of the workday in addition to regular breaks, with no fast-paced production and
no more than occasional interaction with the public (Tr. at 25); he included these same
limitations in his question to the VE (Tr. at 97). In determining RFC, the ALJ gave weight to the
opinion of the state agency psychological consultant (Tr. at 32),10 who found plaintiff
moderately limited in his ability to carry out detailed instructions, maintain attention and
concentration for extended periods, and complete a normal workday without interruptions from
psychological symptoms and perform at a consistent pace (Tr. at 131-32; see also Tr. at 11617). As a basis for these limitations, the consultant explained: “Poor focus due to combined
effects of physical health conditions, social stressors and mood d/o.” (Tr. at 132.)
Plaintiff contends that, as in O’Connor-Spinner and Yurt, the ALJ omitted the various
“moderate” limitations found by the state agency doctor. In those cases, however, the ALJ
attempted to account for moderate CPP-related limitations identified by the consultants by

10

The ALJ did not specifically adopt the consultants’ reports, finding that they deserved
“some weight” and supported a finding of not disabled. (Tr. at 32.) The ALJ’s findings on the
Listings – mild restriction of activities of daily living; moderate difficulties in social functioning;
moderate difficulties in CPP; and no episodes of decompensation (Tr. at 24) – did match the
consultant’s findings (Tr. at 128).
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restricting the claimant to simple work and limited interaction with others. See 758 F.3d at 85859; 627 F.3d at 620-21. In the present case, the RFC/hypothetical also allowed plaintiff to be
off-task up to 10% of the workday, in addition to regular breaks, with no fast-paced production.
See Zoephel v. Astrue, No. 12-C-726, 2013 U.S. Dist. LEXIS 14253 , at *38-39 (E.D. Wis. Feb.
1, 2013) (collecting cases distinguishing O’Connor-Spinner where the ALJ accounted for
limitations in CPP with similar restrictions).
Plaintiff further argues that the ALJ failed to explain how he came up with the 10% offtask limitation and how it addressed his concentration problems. See Rapp v. Colvin, No. 12cv-353, 2015 U.S. Dist. LEXIS 34106, at *13 (W.D. Wis. Mar. 19, 2015). In Rapp, the ALJ
attempted to account for CPP deficiencies with a 10% off-task limitation, despite the absence
of any medical evidence supporting it and without attempting to explain where it came from.
Id. at *15-16. The court concluded that “given the ALJ’s silence and the minimal record, it
cannot be said that Rapp was any more or less likely to be off-task 10% of the day than being
off-task for 50% of the day.” Id. at *17.
There is medical support for the restriction in this record; as plaintiff acknowledges, Dr.
Linscott specifically opined that plaintiff would be off-task 10% of the day.11 (Tr. at 533.) The
Commissioner contends that because no other doctor offered an opinion on time off task, it
was reasonable for the ALJ to use 10%. However, the ALJ did not say that he got the figure
from Dr. Linscott. As discussed above, the ALJ declined to give significant weight to Dr.
Linscott’s report, and there is no suggestion in the decision that the ALJ credited the 10% time-

11

Plaintiff contends that Dr. Linscott based this on physical impairments alone, but the
report discusses mental impairments as well (Tr. at 532-33), and the ALJ explained that the
10% figure he adopted was based on physical and mental symptoms (Tr. at 34).
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off-task limitation while rejecting the rest of the report. Further, Dr. Harris also offered opinions
on the issue. Specifically, he opined that plaintiff was “unable to meet competitive standards”
regarding his ability to complete a normal workday without interruption from symptoms and
perform at a consistent pace. (Tr. at 544.) The form explains that this means plaintiff would
be “distracted from job activity” from 21-40% of the workday. (Tr. at 544.)
The case must be remanded so the ALJ can explain how the RFC accounts for plaintiff’s
limitations in CPP, including any limitations identified by the state agency consultants accepted
by the ALJ. See Rapp, 2015 U.S. Dist. LEXIS 34106, at *19.
C.

Credibility
SSA rulings set forth a two-step process for evaluating the credibility of a claimant’s

statements about his symptoms. SSR 96-7p, 1996 SSR LEXIS 4, at *5. First, the ALJ must
determine whether the claimant suffers from an underlying medically determinable impairment
that could reasonably be expected to produce the claimant’s symptoms. If not, the symptoms
cannot be found to affect the claimant’s ability to do basic work activities. Id.
Second, if an underlying impairment that could reasonably be expected to produce the
symptoms has been shown, the ALJ must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they limit his ability to do
basic work activities. Id. at *5-6. At this step, the ALJ may not discount the claimant’s
statements just because they lack support in the objective medical evidence. E.g., Pierce v.
Colvin, 739 F.3d 1046, 1049-50 (7th Cir. 2014). Rather, the ALJ must make a finding on the
credibility of the claimant’s statements based on the entire case record, considering the
claimant’s daily activities; the location, duration, frequency, and intensity of the claimant’s pain
or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage,
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effectiveness, and side effects of any medication the claimant takes or has taken to alleviate
pain or other symptoms; treatment, other than medication, the claimant receives or has
received for relief of pain or other symptoms; any measures other than treatment the claimant
uses or has used to relieve pain or other symptoms; and any other factors concerning the
claimant’s functional limitations and restrictions due to pain or other symptoms. SSR 96-7p,
1996 SSR LEXIS 4, at *8.
The ALJ must then provide “specific reasons” for his credibility determination, supported
by the evidence and articulated in the decision. Id. at *3. So long as the ALJ substantially
complies with these requirements, the court will review a credibility determination deferentially,
reversing only if it is “patently wrong.” See, e.g., Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.
2008). However, where the credibility determination is based upon objective factors rather than
subjective considerations, the court has greater freedom to review the ALJ’s decision. Id.
Here, the ALJ found plaintiff’s testimony “only partially credible” based on several
inconsistencies in the record. (Tr. at 31.) First, the ALJ noted that plaintiff testified to disabling
IBD symptoms, but he did not initially allege IBD as a severe impairment. (Tr. at 31.) The ALJ
cherry picked from the reports to reach this conclusion. While plaintiff did not list Crohn’s or
irritable bowel in his November 1, 2011, disability report (Tr. at 238), he did list these
impairments and the associated symptoms in his November 18, 2011 function report (Tr. at
251, 253); he also reported associated symptoms in a November 13, 2011 pain questionnaire
(Tr. at 246). See also Yurt, 758 F.3d at 860 (noting that an impairment should not be
disregarded just because it was omitted from function reports).
Second, the ALJ noted that plaintiff alleged a need for frequent bathroom breaks, but
he did not carry a change of clothing with him when leaving home. (Tr. at 31.) This overlooks
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plaintiff’s testimony that he left home infrequently and for short durations (Tr. at 81), that he
always carried with him extra bandages to catch discharge, and that he did have “accidents,”
including one just a few days before the hearing when he could not get to the bathroom in time
(Tr. at 82).
Third, the ALJ found that the medical evidence did not support the alleged
gastrointestinal symptoms but instead indicated that the symptoms were well managed on
plaintiff’s current medication regimen. (Tr. at 31.) The ALJ did cite a significant amount of
medical evidence in support of this finding (Tr. at 31-32), and the Seventh Circuit has
recognized that “discrepancies between objective evidence and self-reports may suggest
symptom exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008). However, the ALJ
overlooked the fact that at the time of exams at issue plaintiff was no longer working and thus
no longer subject to the stress that exacerbated his symptoms. (See Tr. at 70, 92.) As
discussed above, the ALJ failed to consider plaintiff’s numerous work absences and need for
breaks prior to the termination of his employment.
Fourth, the ALJ cited plaintiff’s daily activities, including laundry, dishes, walking his
dogs, preparing simple meals, playing on the computer, mowing the lawn, and going to the
grocery store. (Tr. at 32.) Although it is appropriate for an ALJ to consider the claimant’s daily
activities when evaluating credibility, this must be done with care. Roddy v. Astrue, 705 F.3d
631, 639 (7th Cir. 2013). This is so because the pressures, the nature of the work, flexibility in
the use of time, and other aspects of the working environment often differ dramatically between
home and office or factory or other place of paid work. Mendez v. Barnhart, 439 F.3d 360, 362
(7th Cir. 2006).
The chores cited here are just the sort of minimal daily activities the Seventh Circuit has
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found do not suggest an ability to work. See, e.g., Zurawski v. Halter, 245 F.3d 881, 887 (7th
Cir. 2001) (“While the ALJ did list Zurawski’s daily activities, those activities are fairly restricted
(e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing
dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain.”);
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (finding that “minimal daily activities” such
as cooking simple meals, vacuuming, grocery shopping three times a month, walking for
exercise, and playing cards “do not establish that a person is capable of engaging in substantial
physical activity”). The ALJ also failed to consider plaintiff’s alleged limitations in performing
these activities. See Craft, 539 F.3d at 680 (“The ALJ ignored Craft’s qualifications as to how
he carried out those activities[.]”). For instance, plaintiff testified that he could do dishes for 15
minutes before he had to take a 15 minute break, and that he could type on the computer for
10 to 15 minutes before his hands started hurting. (Tr. at 74.) He reported that he tried to do
laundry once per week, but pain and lack of motivation made this “quite a chore” (Tr. at 279),
and that while he did take his dogs out, he mostly sat while they ran around (Tr. at 280).
Finally, the ALJ offered no explanation as to how any of these chores undercut plaintiff’s claims
about his symptoms and limitations. See Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011)
(“ALJs must explain perceived inconsistencies between a claimant’s activities and the medical
evidence.”); Shafer v. Colvin, No. 13-C-0929, 2014 U.S. Dist. LEXIS 61843, at *37 (E.D. Wis.
May 5, 2014) (“[T]he ALJ simply provided a list of activities, without linking them to any of
plaintiff’s claimed restrictions[.]”).12

12

The ALJ extracted from Dr. Burns’s June 2013 note an indication that plaintiff was
“active” around the house. (Tr. at 32.) The note stated: “Decided Our Space ‘not for me’ but
active around house.” (Tr. at 575.) Our Space is a daytime facility providing services to adults
experiencing mental illness. http://www.ourspaceinc.org/. It is unclear what being “active”
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The matter must be remanded for re-evaluation of plaintiff’s credibility under SSR 96-7p.
The ALJ should also consider statements from plaintiff’s father and former co-worker (Tr. at
303-04) under the standards set forth in SSR 06-3p, 2006 SSR LEXIS 5.
D.

Step Five Determination
The Commissioner bears the step five burden of establishing that the claimant can

perform other work that exists in significant numbers in the national economy. Overman v.
Astrue, 546 F.3d 456, 464 (7th Cir. 2008). A VE’s testimony can satisfy this burden, but only
if it is reliable. Id.
Plaintiff cites recent Seventh Circuit decisions questioning the reliability of vocational
testimony based on the Dictionary of Occupational Titles (“DOT”). See Voigt v. Colvin, 781
F.3d 871, 879 (7th Cir. 2015); Herrmann, 772 F.3d at 1112-14; Browning v. Colvin, 766 F.3d
702, 708-09 (7th Cir. 2014). He also contends that, according to the DOT, the mail clerk and
machine tender jobs the VE identified require frequent use of the hands, contrary to the ALJ’s
RFC for occasional use. Finally, plaintiff argues that the VE improperly gave jobs existing in
a three state region, rather than jobs in “reasonable proximity” to plaintiff’s residence. See
Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (Barrett I).
The Commissioner responds that because plaintiff failed to object to the vocational
testimony at the hearing the ALJ was allowed to accept the VE’s conclusions. See Liskowitz
v. Astrue, 559 F.3d 736, 745-46 (7th Cir. 2009). The Commissioner further notes that the ALJ
limited plaintiff to occasional use of his left (non-dominant) hand only, a limitation the VE

meant in that context. The ALJ also cited plaintiff’s father’s testimony for the proposition that
plaintiff engaged in various activities, including snow blowing and taking out the garbage, but
he overlooked the father’s testimony that plaintiff worked in short spurts due to pain and lack
of concentration. (Tr. at 87-88.)
24

specifically considered in identifying numbers of jobs. (Tr. at 97-98.) Finally, the Commissioner
notes that the law does not require identification of jobs in the immediate area where the
claimant lives. 42 U.S.C. § 423(d)(2)(A); see also Barrett v. Barnhart, 368 F.3d 691, 691-92
(7th Cir. 2004) (explaining that the “reasonable proximity” language in Barrett I was not intended
to alter the statutory standard).
Because the matter must be remanded for the reasons set forth above, I need not
determine whether Voigt, Herrmann, and Browning require a reviewing court to consider these
issues despite the absence of an objection before the agency (or whether any conflicts with the
DOT were so obvious that the ALJ should have picked up on them even absent an objection,
see Overman, 546 F.3d at 463). The parties will be free to litigate these issues on remand.
IV. CONCLUSION
THEREFORE, IT IS ORDERED that the ALJ’s decision is REVERSED, and this matter
is REMANDED pursuant to 42 U.S.C. § 405(g), sentence four, for further proceedings
consistent with this decision. The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 23rd day of July, 2015.
/s Lynn Adelman
LYNN ADELMAN
District Judge

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