Kraft v. Berryhill

Filing 22

DECISION AND ORDER signed by Magistrate Judge David E Jones. IT IS HEREBY ORDERED that the Commissioner's decision is REVERSED. IT IS FURTHER ORDERED that this action is REMANDED to the Commissioner pursuant to sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order. (cc: all counsel)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONNA KRAFT,
on behalf of Kenneth W. Kraft,
Plaintiff,
v.

Case No. 17-CV-802

NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

DECISION AND ORDER REVERSING THE COMMISSIONER’S DECISION

Donna Kraft alleges that she is unable to work due to fibromyalgia, a
degenerative back and neck condition, and mental-health impairments. After the
Social Security Administration denied her applications for disability benefits, Ms.
Kraft requested and received a hearing before an administrative law judge. The
ALJ determined that Ms. Kraft remained capable of working notwithstanding her
impairments. Ms. Kraft now seeks judicial review of that decision.
Ms. Kraft argues that the ALJ erred in determining that she had the residual
functional capacity to perform a restricted range of light work. The Commissioner
contends that the ALJ’s RFC assessment is supported by substantial evidence. The
Court agrees with Ms. Kraft. Because the ALJ’s RFC assessment is not supported
by substantial evidence, her decision denying Social Security benefits to Ms. Kraft
will be reversed and this matter will be remanded for further proceedings.

I.

Background
Ms. Kraft was born in Wausau, Wisconsin, on October 27, 1965. Transcript

38, 717, ECF Nos. 10-2–10-8. At a young age, she moved to Milwaukee with her
family. Tr. 717. Ms. Kraft attended high school in the city; however, she dropped out
several months before graduating. Ms. Kraft moved to California for a short time
before returning to Milwaukee and securing a job in the restaurant industry. She
was married at age twenty-one but got divorced four years later. In 1996, Ms. Kraft
began working in a factory; she maintained this type of employment for about ten
years. Ms. Kraft remarried in 1999. Her second husband passed away in 2013. Ms.
Kraft has six adult-aged children.
In June 2014, Ms. Kraft applied for disability insurance benefits and
supplemental security income, alleging that she became disabled on January 31,
2006. Tr. 227, 234. She subsequently added a claim for disabled widow’s benefits.
See Tr. 15. Ms. Kraft asserted that she was unable to work due to fibromyalgia,
depression, back and neck problems, a fracture in her mid-back, bone spurs along
her spine, and arthritis in her back. See Tr. 63, 73. After the SSA denied her
applications initially, Tr. 62–82, and upon reconsideration, Tr. 83–135, Ms. Kraft
requested a hearing before an ALJ, see Tr. 172–73.
The SSA granted Ms. Kraft’s request, see Tr. 174–88, 192–224, and held an
administrative hearing on December 5, 2016, before ALJ Margaret J. O’Grady, see
Tr. 36–60. Ms. Kraft was represented by an attorney at the hearing. See Tr. 35. The

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attorney amended Ms. Kraft’s alleged onset date to her fiftieth birthday—October
27, 2015—to be consistent with her request for widow’s benefits. Tr. 39–40.
Ms. Kraft testified at the hearing. She indicated that her back and neck pain
was constant and that her medications (e.g., Percocet) provided some relief but did
not entirely alleviate her pain. Tr. 41–44. Ms. Kraft further indicated that she had
no permanent residence, Tr. 38–39, and that her typical day involved crocheting,
reading books, watching TV, caring for her personal needs, cooking, washing dishes,
vacuuming, shopping in stores, and using her phone, Tr. 44–46. Ms. Kraft testified
that she had trouble climbing stairs and that she could walk only one-half block
before needing to rest. Tr. 44–45. Ms. Kraft explained that, because of her back and
neck pain, her doctors restricted her from lifting anything over two pounds and
indicated that she could not sit or stand for more than two hours. Tr. 50–54.
The ALJ also heard testimony from Susan Entenberg, a vocational expert.
Ms. Entenberg testified that a hypothetical individual with Ms. Kraft’s age,
education, work experience, and RFC could still perform her past relevant work as a
laborer and could also work as a cashier, a housekeeper, or a small-parts assembler.
Tr. 56–58. According to Ms. Entenberg, those jobs would allow an employee to be off
task no more than ten percent of the workday, and employers at those jobs would
tolerate, on average, less than one unexcused absence each month. Tr. 58.
On February 13, 2017, the ALJ issued a decision unfavorable to Ms. Kraft.
Tr. 12–34. The ALJ determined that Ms. Kraft met the prerequisites for disabled
widow’s benefits; (1) Ms. Kraft had not engaged in substantial gainful activity since

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her amended alleged onset date; (2) Ms. Kraft suffered from ten “severe”
impairments: asthma, degenerative disc disease/spondylosis, fibromyalgia, hernia,
mood disorder, anxiety disorder, attention-deficit disorder, post-traumatic stress
disorder, bipolar disorder, and depression; (3) Ms. Kraft did not suffer from an
impairment or combination of impairments that met or medically equaled the
severity of a presumptively disabling impairment; Ms. Kraft had the RFC to
perform a restricted range of light work; (4) Ms. Kraft was capable of performing
her past job as a laborer; and (5) other jobs existed in significant numbers in the
national economy that Ms. Kraft could perform. See Tr. 18–29. Based on those
findings, the ALJ concluded that Ms. Kraft was not disabled.
Thereafter, Ms. Kraft requested review of the ALJ’s decision by the SSA’s
Appeals Council. Tr. 10–11. On April 10, 2017, the Appeals Council denied Ms.
Kraft’s request for review, Tr. 1–6, making the ALJ’s decision the final decision of
the Commissioner of Social Security, see Loveless v. Colvin, 810 F.3d 502, 506 (7th
Cir. 2016).
Ms. Kraft filed this action on June 7, 2017, seeking judicial review of the
Commissioner’s decision under 42 U.S.C. § 405(g). Complaint, ECF No. 1. The
matter was reassigned to this Court after the parties consented to magistrate judge
jurisdiction. See Order Reassigning Case on Consent, ECF No. 7; see also Consent to
Proceed Before a U.S. Magistrate Judge, ECF Nos. 4, 6 (citing 28 U.S.C. § 636(c)
and Fed. R. Civ. P. 73(b)). It is now fully briefed and ready for disposition. See
Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social

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Security, ECF No. 16; Defendant’s Memorandum in Support of the Commissioner’s
Decision, ECF No. 20; Plaintiff’s Reply to Defendant’s Memorandum in Support of
the Commissioner’s Decision, ECF No. 21.
II.

Standard of Review
“Judicial review of Administration decisions under the Social Security Act is

governed by 42 U.S.C. § 405(g).” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)). Pursuant to sentence
four of § 405(g), federal courts have the power to affirm, reverse, or modify the
Commissioner’s decision, with or without remanding the matter for a rehearing.
Section 205(g) of the Act limits the scope of judicial review of the
Commissioner’s final decision. See § 405(g). As such, the Commissioner’s findings of
fact shall be conclusive if they are supported by “substantial evidence.” See § 405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th
Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (other citations
omitted). The ALJ’s decision must be affirmed if it is supported by substantial
evidence, “even if an alternative position is also supported by substantial evidence.”
Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004) (citing Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992)).
In reviewing the record, this Court “may not re-weigh the evidence or
substitute its judgment for that of the ALJ.” Skarbek v. Barnhart, 390 F.3d 500, 503
(7th Cir. 2004) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.

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2003)). Rather, reviewing courts must determine whether the ALJ built an
“accurate and logical bridge between the evidence and the result to afford the
claimant meaningful judicial review of the administrative findings.” Beardsley v.
Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citing Blakes v. Barnhart, 331 F.3d 565,
569 (7th Cir. 2003) and Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)). The
ALJ’s decision must be reversed “[i]f the evidence does not support the conclusion.”
Beardsley, 758 F.3d at 837 (citing Blakes, 331 F.3d at 569). Likewise, reviewing
courts must remand “[a] decision that lacks adequate discussion of the issues.”
Moore, 743 F.3d at 1121 (citations omitted).
Reversal also is warranted “if the ALJ committed an error of law or if the
ALJ based the decision on serious factual mistakes or omissions,” regardless of
whether the decision is otherwise supported by substantial evidence. Beardsley, 758
F.3d at 837 (citations omitted). An ALJ commits an error of law if her decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004) (citing Prince v. Sullivan, 933 F.2d 598,
602 (7th Cir. 1991)). Reversal is not required, however, if the error is harmless. See,
e.g., Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012); see also Keys v. Barnhart,
347 F.3d 990, 994–95 (7th Cir. 2003) (citations omitted).
III.

Discussion
Ms. Kraft maintains that the ALJ’s decision denying her Social Security

benefits “is not supported by substantial evidence and is contrary to law.” Compl.

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¶ 8. She asks the Court to set aside the ALJ’s decision or, alternatively, to reverse
and remand the matter for further proceedings. Compl. p. 2.
A. Legal framework
Under the Social Security Act, a person is “disabled” only if she is unable “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or has
lasted or can be expected to last for a continuous period of not less than 12 months.”
See 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). The disability must be sufficiently severe
that the claimant cannot return to her prior job and is not capable of engaging in
any other substantial gainful work that exists in the national economy. 42 U.S.C.
§ 423(d)(2)(A).
In determining whether a person is disabled, the SSA must follow a five-step
sequential evaluation process, asking, in order: (1) whether the claimant has
engaged in substantial gainful activity since her alleged onset of disability;
(2) whether the claimant suffers from a medically determinable impairment or
combination of impairments that is severe; (3) whether the claimant’s impairment
or combination of impairments is of a severity to meet or medically equal the
criteria of any impairment listed in the SSA regulations as presumptively disabling;
(4) whether the claimant’s RFC leaves her unable to perform the requirements of
her past relevant work; and (5) whether the claimant is unable to perform any other
work. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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An affirmative answer at either step three or step five leads to a finding that
the claimant is disabled. Briscoe, 425 F.3d at 352. “The claimant bears the burden
of proof at steps one through four.” Id. Once the claimant shows an inability to
perform past work, the burden then shifts to the Commissioner to show the
claimant’s ability to engage in other work existing in significant numbers in the
national economy. Id.
B. Legal analysis
Between steps three and four of the sequential evaluation process, the ALJ
must determine the claimant’s RFC—that is, the most she can do despite her
physical and mental limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also
Social Security Ruling No. 96-8p, 1996 SSR LEXIS 5, at *5 (July 2, 1996). ALJs
must assess a claimant’s RFC “based on all of the relevant evidence in the case
record, including information about the individual’s symptoms and any ‘medical
source statements.’” SSR No. 96-8p, 1996 SSR LEXIS 5, at *5–6; 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). “The RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” SSR No. 96-8p, 1996 SSR LEXIS 5, at *19. “The [ALJ]
must also explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.” Id.
The ALJ here determined that Ms. Kraft had the RFC to perform light work,
except that she was limited to no concentrated exposure to fumes, dust, or

8

environmental irritants; no more than occasional climbing, stooping, crouching,
crawling, kneeling, or balancing; and simple, routine, repetitive, non-complex work.
Tr. 20. That RFC, according to the ALJ, was supported by the objective medical
evidence, the improvement and stability in Ms. Kraft’s impairments with
treatment, the clinical observations noted by Ms. Kraft’s treatment providers, and
Ms. Kraft’s daily activities. See Tr. 20–27. Ms. Kraft argues that the ALJ erred in
evaluating her physical RFC, her treating physicians’ opinions, her mental RFC,
and her subjective allegations.
1. Whether the ALJ erred in evaluating Ms. Kraft’s physical
RFC
Ms. Kraft first argues that the ALJ’s light-work finding is not supported by
substantial evidence. Ms. Kraft maintains that the ALJ created an evidentiary
deficit when she rejected all medical opinions and crafted her own RFC with specific
work-related limitations. According to Ms. Kraft, this error was material because
the vocational expert was questioned only about a hypothetical individual who could
perform the lifting requirements of light work. Ms. Kraft further claims that, if she
had been limited to sedentary work, then the medical-vocational guidelines (i.e., the
Grid) would direct a disabled finding. See Pl.’s Br. 4–8; Pl.’s Reply 1–3.
The record contains several assertions concerning Ms. Kraft’s lifting-andcarrying capabilities. Ms. Kraft indicated that she had difficulty lifting anything
and that her doctor had limited her to lifting only one or two pounds. See Tr. 55,
298, 303, 306, 320, 325, 328. Treating physician Arthur Mines, M.D., opined that
Ms. Kraft could lift five pounds, Tr. 556; another treating physician, Jesse
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VanBoomel, M.D., opined that Ms. Kraft could lift up to ten pounds, Tr. 593; state
agency medical consultant Pat Chan, M.D., determined that Ms. Kraft could
occasionally lift and carry ten pounds and frequently lift and carry less than ten
pounds, Tr. 70; and a different medical consultant, Mina Khorshidi, M.D.,
determined that Ms. Kraft could occasionally lift and carry fifty pounds and
frequently lift and carry twenty-five pounds, Tr. 99–100.
The ALJ rejected each of those five assertions and instead reached her own
conclusion: Ms. Kraft could perform light work without any additional lifting
restrictions, meaning she could lift no more than twenty pounds at a time and could
frequently lift and carry objects weighing up to ten pounds. See Tr. 20 (citing 20
C.F.R. §§ 404.1567(b), 416.967(b)). As discussed below, the record fails to support
this very specific work-related limitation.
The Commissioner maintains that Dr. Khorshidi’s opinion—that Ms. Kraft
could perform medium work—constitutes substantial evidence in support of the
ALJ’s physical RFC assessment. See Def.’s Mem. 4–6. But the ALJ gave little
weight to Dr. Khorshidi’s opinion because, in her view, more recent evidence showed
that Ms. Kraft was “even more limited than initially determined with regard to
postural and environmental limitations.” See Tr. 26–27. The Commissioner reads
into this explanation that the ALJ accepted Dr. Khorshidi’s opinion about Ms.
Kraft’s lifting capabilities. Even if true, that reading does not explain how the ALJ
arrived at her figures, as the ALJ determined that Ms. Kraft was significantly more
limited in her ability to lift and carry than opined by Dr. Khorshidi.

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The Commissioner also seems to suggest that the ALJ’s light-work finding is
supported by substantial evidence because it falls between Dr. Chan’s and Dr.
Khorshidi’s opinions. See Def.’s Mem. 6 (noting that “the opinions of the state
agency doctors indicate that [Ms. Kraft] was capable of lifting between ten and fifty
pounds”). The Commissioner, however, offers no support for this split-the-baby
approach. Indeed, at least one district court within the Seventh Circuit has rejected
it. See Bailey v. Barnhart, 473 F. Supp. 2d 822, 838–39 (N.D. Ill. 2006) (finding
error where the ALJ constructed a “middle ground” between two rejected medical
opinions regarding the claimant’s RFC).
The other evidence cited by the ALJ in support of her RFC assessment does
not substantiate a specific light-work lifting finding. The ALJ did not connect Ms.
Kraft’s supposed “minimal” objective medical findings and improvement with
treatment with an ability to lift a particular weight. The ALJ did not cite any
clinical findings demonstrating that Ms. Kraft could lift up to twenty pounds at a
time and frequently lift and carry ten pounds. And the daily activities cited by the
ALJ—preparing and completing simple meals, washing dishes, doing laundry,
driving, using public transportation, shopping in stores, handling personal finances,
talking to family and friends, spending time with an adult-aged child, caring for
personal needs, cleaning, reading books, playing games on a phone, crocheting,
watching TV, and vacuuming, Tr. 24 (citing Tr. 320–28, 716–22, hearing
testimony)—do not show that she had those capabilities.

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In sum, the ALJ’s light-work finding is not supported by substantial
evidence. It’s true that at the hearing level, the ALJ alone is responsible for
assessing the claimant’s RFC. See 20 C.F.R. §§ 404.1546(b), 416.946(b). But that
regulation does not relieve the ALJ from her obligation to build an accurate and
logical bridge from the evidence to her conclusions. The ALJ’s light-work finding
stands alone on an island with no such connecting bridge, leaving this Court with
no path to follow. Moreover, this error could be material, as the ALJ never elicited
testimony from the vocational expert on whether a hypothetical person with a more
restricted ability to lift could still work. See Tr. 55–58. The appropriate remedy
therefore is to remand this matter for another administrative hearing.
2. Whether the ALJ erred in evaluating the opinions of Ms.
Kraft’s treating physicians
Next, Ms. Kraft argues that the ALJ did not sufficiently explain the weight
she assigned to the opinions of Dr. Mines and Dr. VanBommel. According to Ms.
Kraft, the ALJ failed to analyze those opinions in accordance with the factors
outlined in 20 C.F.R. §§ 404.1527, 416.927. See Pl.’s Br. 8–12; Pl.’s Reply 3–6.
An ALJ must give “controlling weight” to a treating source’s opinion on the
nature and severity of the claimant’s impairment if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.”

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§§ 404.1527(c)(2), 416.927(c)(2); see also SSR No. 96-2p, 1996 SSR LEXIS 9, at *1–4
(July 2, 1996); Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).1
A treating source’s opinion that is not entitled to controlling weight need not
be rejected. Instead, the opinion is entitled to deference, and the ALJ must weigh it
using several factors, including the length, nature, and extent of the claimant’s
relationship with the treating source; the frequency of examination; whether the
opinion is supported by relevant evidence; the opinion’s consistency with the record
as a whole; and whether the source is a specialist. See §§ 404.1527(c), 416.927(c); see
also Ramos v. Astrue, 674 F. Supp. 2d 1076, 1087 (E.D. Wis. 2009). Moreover, the
ALJ must always give “good reasons” to support the weight ultimately assigned to
the treating source’s opinion. §§ 404.1527(c)(2), 416.927(c)(2); Campbell v. Astrue,
627 F.3d 299, 306 (7th Cir. 2010).
The record contains opinions from two of Ms. Kraft’s primary care physicians:
Arthur Mines, M.D., and Jesse VanBommel, M.D. Both treating doctors opined—in
March 2014 (Dr. Mines) and February 2015 (Dr. VanBommel)—that Ms. Kraft had
significant exertional (sitting, standing, walking, and lifting) and non-exertional
(twisting, stooping, crouching, squatting, climbing stairs, climbing ladders, looking
down, turning her head, looking up, holding her head in place, and using her hands,
fingers, and arms) limitations. See Tr. 555–59, 592–96. If either opinion had been

In early 2017, the SSA eliminated the “treating source rule.” See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18,
2017). Those revisions, however, do not apply here because Ms. Kraft’s claim was
filed before March 27, 2017. See id.
1

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afforded controlling weight, it is likely that Ms. Kraft would have been found
disabled.
The ALJ gave both opinions “no significant weight” because each was dated
prior to Ms. Kraft’s amended alleged onset date (October 2015) and because, in the
ALJ’s view, both were not supported by the objective medical evidence. See Tr. 25–
26. The ALJ also discounted Dr. VanBommel’s opinion because he had just begun
treating Ms. Kraft and had seen her on only five occasions at the time he completed
his assessment. Tr. 26. Further, the ALJ concluded that Dr. VanBommel’s opinion
“appear[ed] to be based on [Ms. Kraft’s] non-compliance with treatment and
unauthorized drug use.” Tr. 26.
The weight given to the opinions of Ms. Kraft’s treating doctors should be
reconsidered on remand. Strictly speaking, those opinions were rendered prior to
Ms. Kraft’s amended alleged onset date. But that fact would a good reason to
discredit the doctors’ opinions only if Ms. Kraft’s impairments and limitations had
improved since the doctors provided them. The ALJ, however, never made such a
connection. Indeed, the ALJ discounted the state agency doctors’ opinions—which
were made in February 2015—because more recent evidence showed that Ms. Kraft
was “even more limited than initially determined with regard to postural and
environmental limitations.” Tr. 26–27. The ALJ also failed to consider why Ms.
Kraft amended her alleged onset date. Ms. Kraft initially alleged that she became
disabled in January 2006. See Tr. 227. At the administrative hearing, her attorney

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amended that date to October 2015 so that Ms. Kraft would be eligible for widow’s
benefits, not because that is when her disability started. See Tr. 39.
Moreover, the ALJ did not sufficiently explain her other reasons for
discounting the treating doctors’ opinions. The ALJ concluded that the objective
medical evidence showed only “minimal” findings but never explained why those
findings did not support the doctors’ opinions. While SSA regulations require ALJs
to consider the length of the treatment relationship, see §§ 404.1527(c)(2)(i),
416.927(c)(2)(i), the ALJ never explained why five visits with Dr. VanBommel in
three months was insufficient to establish a reliable picture of Ms. Kraft’s
impairments. And the ALJ never explained why she believed that Dr. VanBommel’s
opinion was based on Ms. Kraft’s alleged unauthorized prescription drug use, what
that means, or why that affected the disability determination.
In sum, on remand the ALJ should reevaluate the opinions of Dr. Mines and
Dr. VanBommel and determine whether either (or both or neither) opinion is
entitled to controlling weight. If not, the ALJ must provide better reasons for the
weight she assigns to those opinions.
3. Whether the ALJ erred in evaluating Ms. Kraft’s mental RFC
Ms. Kraft also argues that the ALJ’s RFC assessment did not adequately
capture her mental limitations. According to Ms. Kraft, the record demonstrated
moderate difficulties with concentration, persistence, or pace and a limited ability to
focus. The ALJ’s limitation to simple, routine, repetitive, non-complex work did not,
in Ms. Kraft’s view, account for those difficulties. Ms. Kraft further maintains that

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the ALJ failed to consider fluctuations in her mental status and how her physical
and mental impairments worked in combination. See Pl.’s Br. 13–16; Pl.’s Reply 6–9
(citing O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010); Stewart v. Astrue,
561 F.3d 679 (7th Cir. 2009); Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014); Craft v.
Astrue, 539 F.3d 668 (7th Cir. 2008)).
ALJs must consider a claimant’s mental abilities when fashioning their RFC
assessments because “[a] limited ability to carry out certain mental activities, such
as limitations in understanding, remembering, and carrying out instructions, . . .
may reduce [the claimant’s] ability to do past work and other work.” 20 C.F.R.
§§ 404.1545(c), 416.945(c). Consequently, both the ALJ’s mental RFC and the
hypothetical questions posed to the vocational expert “must incorporate all of the
claimant’s limitations supported by the medical record.” See Yurt, 758 F.3d at 857.
At step three of the sequential evaluation process, the ALJ determined that
Ms. Kraft had a moderate limitation concentrating, persisting, or maintaining pace.
The ALJ based this finding on Ms. Kraft’s performance during the consultative
mental-status examination with Jeremy Meyers, Ed.D., as well as her reported
activities. See Tr. 19 (citing Tr. 320–28, 716–22). The ALJ’s subsequent mental RFC
assessment was more specific: Ms. Kraft had the RFC to perform “simple routine
repetitive non-complex work.” Tr. 20.
Ms. Kraft presented to Dr. Meyers on October 15, 2015, for a psychological
evaluation. See Tr. 716–22. After interviewing Ms. Kraft and administering a series
of mental-aptitude tests, Dr. Meyers reached the following conclusions regarding

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Ms. Kraft’s work capacity: Ms. Kraft had the ability “to understand, remember, and
carry out simple instructions subject to limitations imposed by her physical
condition”; Ms. Kraft “should be able to respond appropriately to supervisors and coworkers”; “maintaining concentration and attention may from time to time test [Ms.
Kraft’s] ability to focus”; Ms. Kraft should be able to meet work pace demands
(again subject to her physical limitations); Ms. Kraft “may have a problem
withstanding anything more than routine work stress”; and Ms. Kraft “should be
able to adapt to the kind of job site changes she would encounter in vocational
situations suitable to her skill level.” Tr. 720–21.
The ALJ afforded “some weight” to Dr. Meyers’s opinion concerning Ms.
Kraft’s mental abilities but did not accept Dr. Meyers’s caveats about Ms. Kraft’s
physical abilities. Tr. 25. According to the ALJ, Ms. Kraft’s physical abilities were
outside Dr. Meyers’s area of expertise.
While the ALJ’s mental RFC incorporated most of Dr. Meyers’s opined
limitations, it does not appear to address Ms. Kraft’s issues focusing and
maintaining concentration. On remand, the ALJ should consider whether an offtask limitation is appropriate and, if so, how that limitation affects Ms. Kraft’s
ability to work.
4. Whether the ALJ erred in evaluating Ms. Kraft’s subjective
Allegations
Finally, Ms. Kraft argues that the ALJ violated SSR 16-3p by failing to
explain how the evidence undermined her allegations of disabling symptoms. See
Pl.’s Br. 16–18; Pl.’s Reply 9–12.
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ALJs use a two-step process for evaluating an individual’s symptoms. Social
Security Ruling No. 16-3p, 2016 SSR LEXIS 4, at *5–10 (March 16, 2016). First, the
ALJ must “determine whether the individual has a medically determinable
impairment (MDI) that could reasonably be expected to produce the individual’s
alleged symptoms.” Id. at *5. Second, the ALJ must “evaluate the intensity and
persistence of an individual’s symptoms such as pain and determine the extent to
which an individual’s symptoms limit his or her ability to perform work-related
activities.” Id. at *9.
Reviewing courts “will overturn an ALJ’s decision to discredit a claimant’s
alleged symptoms only if the decision is ‘patently wrong,’ meaning it lacks
explanation or support.” Cullinan v. Berryhill, 878 F.3d 598, 603 (7th Cir. 2017)
(quoting Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014)). “A credibility
determination lacks support when it relies on inferences that are not logically based
on specific findings and evidence.” Id. “In drawing its conclusions, the ALJ must
‘explain her decision in such a way that allows [a reviewing court] to determine
whether she reached her decision in a rational manner, logically based on her
specific findings and the evidence in the record.” Murphy, 759 F.3d at 816 (quoting
McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011)).
The ALJ here concluded that Ms. Kraft’s medically determinable
impairments could reasonably be expected to cause her alleged symptoms but found
that Ms. Kraft’s statements concerning the intensity, persistence, and limiting
effects of those symptoms were “not entirely consistent with the medical evidence

18

and other evidence in the record.” Tr. 21. Specifically, the ALJ reasoned that “the
medical records fail[ed] to substantiate [Ms. Kraft’s] allegations of disabling
symptoms” and that Ms. Kraft’s “activities suggest[ed] a physical and mental
capacity in excess of what she has alleged.” Tr. 21; see also Tr. 20–27. This
determination does not appear to be patently wrong. However, on remand the ALJ
should reevaluate Ms. Kraft’s subjective allegations in light of the other issues
identified above.
IV.

Conclusion
For all the foregoing reasons, the Court finds that the ALJ erred when

assessing Ms. Kraft’s physical RFC and weighing the opinions of Ms. Kraft’s
treating doctors. Based on this record, however, the Court cannot determine
whether Ms. Kraft was disabled as of October 2015. Accordingly, the Court
concludes that it is necessary to remand this matter to the Commissioner for
reconsideration of the ALJ’s RFC assessment and, potentially, her step-four and
step-five findings.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
decision is REVERSED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Commissioner pursuant to sentence four of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
accordingly.

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Dated at Milwaukee, Wisconsin, this 14th day of September, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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