The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
STEPHANIE LYNN CHESNUT, )
)
Plaintiff, )
)
v. ) No. 19-cv-3005
)
ANDREW SAUL, Commissioner )
of Social Security, )
)
Defendant. )
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Stephanie Lynn Chesnut appeals from the denial of her
application for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act. 42 U.S.C. §§ 416(i), 1381a and 1382c. This appeal is
brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Chesnut filed a
Motion for Summary Judgment (d/e 12). The Defendant Commissioner
filed a Motion for Summary Affirmance (d/e 18). The parties consented to
proceed before this Court. Consent to the Jurisdiction by a United States
Magistrate Judge and Reference Order entered May 16, 2019 (d/e 10). For
the reasons set forth below, the Commissioner is affirmed.
Chesnut raises three claims of error committed by the Administrative
Law Judge (ALJ):
STATEMENT OF ERRORS
1. The ALJ erred in failing to develop the record as to
Plaintiff’s mental health, resulting in an RFC unsupported
by substantial evidence.
2. The ALJ’s RFC failed to account for Plaintiff’s limitations
as to maintaining concentration, persistence and pace,
resulting in an RFC unsupported by substantial evidence.
3. The case was adjudicated by an unconstitutionally-
appointed ALJ, and the matter should be remanded for a
new hearing with a different ALJ.
Plaintiff’s Memorandum of Law in Support of a Motion for Summary
Judgment (d/e 13), at 1. The Court discusses the facts relevant to these
claims of error.
STATEMENT OF FACTS
Chesnut was born on March 6, 1974. She secured a GED. She
previously worked as a cashier, cashier/checker, nurse assistant, and coin
operated laundry attendant. R. 142, 270, 336. She has not worked since
she filed her SSI application on March 10, 2015. Chesnut was diagnosed
with fibromyalgia, history of scoliosis, obesity, affective disorder, anxiety,
and posttraumatic stress disorder (PTSD). R. 95, 120, 270.
On April 7, 2015, Chesnut saw Dr. Dennis R. Caffery, M.D., to
establish treatment as a new patient. Chesnut said that she applied for
disability because she could not stand or sit for prolonged periods due to
chronic back and leg pain. She also reported headaches, GERD, and
restless leg syndrome. On examination, Chesnut was negative for
agitation, but was nervous/anxious. Chesnut had a body mass index (BMI)
of 36.0-36.9. She had a normal mood and affect. Dr. Caffery assessed
fibromyalgia, obesity, restless leg syndrome, edema, and anxiety. He
prescribed fluoxetine for anxiety. R. 353-54.
On May 21, 2015, Chesnut saw Dr. Caffery’s physician’s assistant,
Deborah Collins, PA. Chesnut reported that she was a victim of child
abuse and grew up with an adoptive parent. She also reported that she
lost a child of her own. Collins stated that Chesnut would probably need
counseling at some point. On examination, Chesnut was alert and
oriented. Her motor and sensory examinations were within normal limits.
Collins increased the dosage of fluoxetine. R. 350, 352.
On June 15, 2015, Chesnut saw state agency psychologist Dr.
Natalie Pamphile, Psy.D., for a Mental Status Examination. R. 364-68.
Chesnut had no indication of psychomotor agitation or retardation. She
maintained good eye contact and spoke clearly with good rhythm and rate.
Chesnut said that she lived with her fiancé and his mother. She had lived
there since December 2014. Before that, she lived with a friend for a year.
She said that the longest she lived in one place as an adult was two and
one-half years. She said she had no family or friends. Her children were
“adopted out” and no longer talked to her. R. 364.
Chesnut reported to Dr. Pamphile that she had problems falling
asleep. She had nightmares every night and had had night terrors two
weeks earlier. She said she was a victim of childhood abuse and trauma.
Her father verbally and physically abused her. She was taken from her
parents at age 4 and was subsequently adopted and then abandoned by
her adoptive mother. She said she spent four years in group homes from
age 14 to 18. R. 364.
On examination, Chesnut was oriented. Her memory was fair. She
had appropriate thought processes. She endorsed the presence of
auditory and olfactory hallucinations. Dr. Pamphile concluded:
Generally speaking, the claimant's cognitive functions appear to
be operating within expected developmental limits. The
claimant's reported psychological symptoms and behavioral
history appear to be commensurate with Major Depressive
Disorder, mild and Post-Traumatic Stress Disorder, moderate.
R. 367. Dr. Pamphile assessed major depressive disorder, mild and PTSD,
moderate. R. 368.
On July 20, 2015, state agency psychologist Dr. M.W. DiFonso,
Psy.D., prepared a Psychiatric Review Technique and a Mental Residual
Functional Capacity Assessment. R. 168-71. Dr. DiFonso opined that
Chesnut had an affective disorder and an anxiety related disorder. Dr.
DiFonso opined that Chesnut’s mental impairments caused mild restrictions
in activities of daily living; moderate difficulties in maintaining social
functioning; and moderate difficulties in maintaining concentration,
persistence, or pace. Dr. DiFonso found no evidence of repeated episodes
of decompensation each of extended duration. R. 168. Dr. DiFonso
opined that Chesnut was moderately limited in her ability to: understand
and remember detailed instructions; carry out detailed instructions;
maintain attention and concentration for extended periods; interact
appropriately with the general public; and accept instructions and respond
appropriately to criticism from supervisors. Dr. DiFonso found no other
limitations or restrictions due to Chesnut’s mental impairments. R. 170-71.
Dr. DiFonso concluded that Chesnut was moderately limited in her ability to
carry out detailed tasks, moderately limited in her social expectations, and
her adaptive skills were within normal limits. Dr. DiFonso stated:
[Chestnut] CAPABLE OF SEMI-SKILLED PRODUCTIVE
ACTIVITY W MODIFIED SOCIAL DEMAND. These findings
complete the medical portion of the disability determination.
R. 158.
On August 20, 2015, state agency psychologist Dr. Joseph Mehr,
Ph.D., prepared a Psychiatric Review Technique and a Mental Residual
Functional Capacity Assessment. R. 155-58. Dr. Mehr largely agreed with
Dr. DiFonso. Dr. Mehr opined that Chesnut had and affective disorder and
an anxiety related disorder. Dr. Mehr opined that Chesnut’s mental
impairments caused mild restrictions in activities of daily living; moderate
difficulties in maintaining social functioning; and moderate difficulties in
maintaining concentration, persistence, or pace. Dr. Mehr found no
evidence of repeated episodes of decompensation each of extended
duration. R. 155. Dr. Mehr opined that Chesnut was moderately limited in
her ability to: understand and remember detailed instructions; carry out
detailed instructions; maintain attention and concentration for extended
periods; interact appropriately with the general public; accept instructions
and respond appropriately to criticism from supervisors; and get along with
coworkers without distracting them or exhibiting behavioral extremes. Dr.
Mehr found no other limitations or restrictions due to Chesnut’s mental
impairments. R. 157-58. Dr. Mehr concluded that Chesnut was moderately
limited in her ability to carry out detailed tasks and moderately limited in her
social expectations, and her adaptive skills were within normal limits. Dr.
Mehr stated:
[Chestnut] CAPABLE OF SEMI-SKILLED PRODUCTIVE
ACTIVITY W MODIFIED SOCIAL DEMAND. These findings
complete the medical portion of the disability determination.
R. 158.
On July 7, 2016, Chesnut saw Dr. Caffery. Chesnut reported severe
leg pain. She reported that the rest of her medication seemed “to be
working okay for her.” R. 480. On examination, Chesnut was negative for
agitation. She had a normal mood and affect. Dr. Caffery added ropinirole
and magnesium to her medications at bedtime. R. 480-82.
On August 12, 2016, Chesnut saw Dr. Caffery for a follow up on her
restless leg pain at night. On examination, Chesnut was oriented and had
a normal affect and mood. R. 490.
On April 4, 2017, Chesnut saw Dr. Caffery for a recheck of her
restless leg syndrome and fibromyalgia. On examination, Chesnut was
alert and oriented. R.505. Dr. Caffery stopped the ropinirole and Flexeril
and prescribed trazodone at nighttime and meloxicam once a day. R. 506.
On April 21, 2017, Chesnut saw Dr. Caffery for a disability evaluation.
In his review of her symptoms, Dr. Caffery stated that Chesnut was
negative for dysphoric mood and agitation. He said she was
nervous/anxious. On examination, Chesnut had normal mood and affect.
R. 509.
On April 27, 2017, Chesnut saw Licensed Clinical Professional
Counselor Meredith Sary, LCPC, at St. Francis Medical Center in Peoria,
Illinois. Chesnut reported depression. She said that she wanted to sleep
all the time and eat too much. She reported that she was sad. She missed
her children and was afraid she would not see one of her grandchildren.
She reported feelings of helplessness, hopelessness, guilt, shame, and
worthlessness. She said she was isolated and had no interest in pleasure.
R. 448-49.
Chesnut reported a history of significant physical, emotional, and
sexual trauma. She said that her birth father sexually abused her. Her
birth mother and adoptive mother emotionally abused her. She reported
that her adoptive mother adopted her when she was 6 years old and that
her adoptive mother gave her up at 14 and left her at a psychiatric hospital.
Chesnut reported that she had three admissions to a psychiatric ward as a
child in 1989, 1990, and 1991. She last saw her birth parents in 2011. R.
448-50.
Chesnut said she was married once and separated in 2007. She said
her husband was abusive. She had five children, with four of them still
living. She had no contact with her children. Her boyfriend hit her daughter
and the state took her children in 2009. She reported trauma at losing her
children. She said that she found her “ex” after he committed suicide.1
She experienced homelessness and living on the streets. Sary said
Chesnut did not endorse specific symptoms of posttraumatic stress
syndrome (PTSD). She reported having nightmares. Chesnut did not have
suicidal or homicidal ideations. She showed anxiety and nervousness with
difficulty focusing, worry, uneasiness, and tension. R. 448-49.
Sary assessed major depression recurrent moderate, and anxiety.
She admitted Chesnut for outpatient counseling for the following reasons:
Reason for admission: Patient stated she wants to address her
traumatic past and let go of her own guilt/shame. Patient
discussed her desire to work on building on inner peace.
Patient discussed her depression and anxiety symptoms that
she would like decrease.
R. 453.
On June 8, 2017, Chesnut saw Dr. Caffery for bilateral knee pain. R.
476-77. On examination, Chesnut had normal mood and affect. Dr.
Caffery diagnosed fibromyalgia, restless leg syndrome, edema, and
anxiety. R. 476-77.
On June 29, 2017, Chesnut saw counselor Sary for her first
counseling session after her initial assessment. Chesnut completed a
PTSD inventory and endorsed many PTSD symptoms, including repeated
1 The records do not identify whether the “ex” was her ex-husband or another former significant other.
distressing memories; feeling an event will happen again; feeling intense
physical and emotional distress when exposed to reminders of events;
avoiding reminders of events; problems concentrating; exaggerated startled
response; feeling on guard; poor trust in others; significant guilt/shame; and
depression. Sary added PTSD to Chesnut’s diagnosis. R. 454. Sary
engaged in a counseling session and recommended that Chesnut return in
two weeks. R. 455.
THE EVIDENTIARY HEARING
On August 17, 2017, the ALJ conducted an evidentiary hearing. R.
115-47. Chesnut appeared with her attorney. Vocational expert Dennis
Gustafson also appeared. R. 117.
Chesnut discussed her pain from fibromyalgia and restless leg
syndrome and her medications. Chesnut testified that she was still taking
fluoxetine. She did not know how effective fluoxetine was. She said “I’m
not even exactly sure what it’s for. I just take it.” R. 128-29.
The ALJ asked Chesnut about her mental impairments. Chesnut said
she had anxiety issues all her life. She took Ritalin for six years when she
was a child. She was hospitalized as a child in the late 80’s and early 90’s.
Chesnut said she saw Sary for counseling. R. 130.
Chesnut said that problems with concentration became an issue in
the last few years and she needed reminders to take medications
sometimes. She said that she can put something down and immediately
forget where she put it. R. 130-31. She recently took her dog out at 4:00,
and 10 minutes later she took him out again because she had forgotten
that she had already taken him out. R. 131.
Chesnut said certain things could trigger her PSTD,
Like certain things I see, like with people taking care of their
children. We have a neighbor across the street. She cusses at
her child and she screams and she hollers and she hits and it
brings back memories. It – flashback. It’s – it – I can’t handle
it.
R. 137. She also said that she reacts when certain people remind her of
her father. She said that her father was a monster. R. 138. When she is
out in public and sees someone that reminds her of her birth mother or
father, she ducks or goes back to her van, “because I just can’t handle it.”
R. 138.
The vocational expert Gustafson also testified. The ALJ asked
Gustafson the following hypothetical question:
Q Mr. Gustafson, I'd like you to consider an individual of the
Claimant's age, education, and work experience. For this
opening hypothetical, I'd like you to consider an individual,
who's limited to medium work. I'd like you to assume this
individual should perform no more than frequent climbing,
stooping, kneeling, crouching, crawling, balancing, as that term
is defined in the Dictionary of Occupational Titles. Due to
deficits in memory, concentration, persistence and pace, I
would like you to assume that this individual is reasonably
limited to performing noncomplex, routine, and repetitive tasks
on sustained basis with only routine breaks. I'd like you to
assume that any work must not involve more than ordinary or
routine changes in the work setting or duties. I'd like you to
assume this individual would do best in a setting with reduced
social demands, considering that, I'd like you to assume any
work should not require more than occasional contact or
significant interaction with the general public, and I'd like you to
assume that any work should not require more than occasional
interaction with co-workers or supervisors. Would that allow for
any past work?
R. 142-43. Gustafson opined that such a person could not perform
Chesnut’s prior relevant work as a cashier / checker. R. 141-143.
The ALJ modified his hypothetical question:
Q Okay. Thank you. I'd like you to assume light exertional
limitations. I'd like you to assume this individual should never
climb ladders, ropes or scaffolds. I'd like you to assume this
individual can climb ramps and or stairs, stoop, kneel, crouch,
crawl, balance, as that term is defined in the Dictionary of
Occupational Titles. All those other postural activities, no more
than occasionally. I'd like you to assume this individual should
avoid more than frequent reaching, handling, and fingering. In
other words, no constant reaching, handling, and fingering. I'd
like you to assume this individual should avoid concentrated
exposure to temperature extremes and hazards, like
unprotected heights or dangerous machinery. All of the
nonexertional limitations from the first hypothetical, as well. Are
there light jobs that would allow for those nonexertional
limitations?
R. 144. Gustafson opined that such person could perform the
representative light jobs of maids and housekeeping cleaners, with 15,000
such jobs in Illinois and 440,000 nationally; non-machine related
manufacturing activities with 9,000 such jobs in Illinois and 160,000
nationally. Gustafson said that examples of these manufacturing activities
included assembler, light hand packaging, and bottle line attendant. R.
144-45. Gustafson opined that the person could also perform the
sedentary jobs of product related inspection work, with 300 such jobs in
Illinois and 7,000 nationally; shadow graph scale operator with 1,100 such
jobs in Illinois and 18,000 nationally; and hand packaging jobs with 900
such jobs in Illinois and 12,500 nationally. R. 145.
Gustafson opined that a person could not maintain employment and
be off work more than 2 days a month. Gustafson said that a person could
not maintain employment if the person was off-task 20 percent of the time
at work. R. 145. The hearing then concluded.
THE DECISION OF THE ALJ
The ALJ issued his decision on February 2, 2018. The ALJ followed
the five-step analysis set forth in Social Security Administration Regulations
(Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires that the
claimant not be currently engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant to have a
severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If true, Step 3
requires a determination of whether the claimant is so severely impaired
that she is disabled regardless of her age, education and work experience.
20 C.F.R. §§ 404.1520(d), 416.920(d). To meet this requirement at Step 3,
the claimant's condition must meet or be equal to the criteria of one of the
impairments specified in 20 C.F.R. Part 404 Subpart P, Appendix 1
(Listing). 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant is not so
severely impaired, the ALJ proceeds to Step 4 of the Analysis.
Step 4 requires the claimant not to be able to return to her prior work
considering her age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If
the claimant cannot return to her prior work, then Step 5 requires a
determination of whether the claimant is disabled considering her RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of
presenting evidence and proving the issues on the first four steps. The
Commissioner has the burden on the last step; the Commissioner must
show that, considering the listed factors, the claimant can perform some
type of gainful employment that exists in the national economy. 20 C.F.R.
§§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th
Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.
2005).
The ALJ found that Chesnut met her burden at Steps 1 and 2.
Chesnut had not engaged in substantial gainful activity since she applied
for SSI and she suffered from the severe impairments of fibromyalgia,
history of scoliosis, obesity, affective disorder, and anxiety. R. 95. The
ALJ decided at Step 3 that Chesnut’s impairments or combination of
impairments did not meet or equal a Listing. R. 97.
At Step 4, the ALJ found that Chesnut had the following RFC:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 416.967(c) with the
following non-exertional limitations. She can climb, stoop,
kneel, crouch and/or crawl no more than occasionally. Due to
deficits in memory, concentration, persistence and pace, she is
limited to performing non-complex, routine and repetitive tasks
on a sustained basis with only routine breaks. Any work must
not involve more than ordinary or routine changes in work
setting or duties. She will do best in a setting with reduced
social demands and considering this, any work should not
require more than occasional contact or significant interaction
with the general public and no more than occasional interaction
with supervisors or coworkers.
R. 99.
The ALJ explained the basis for the portions of the RFC related to
Chesnut’s mental impairments as follows:
Mentally, the undersigned has considered the claimant's history
of depression, anxiety and PTSD. She reports a history of
abuse as a child and a psychological consultative examiner
diagnosed major depression and post-traumatic stress disorder
in June 2015. Despite these allegations, the claimant has only
recently sought specialized mental health treatment, when she
was seen by a social worker at OSF Behavioral Health on two
occasions in April and June 2017. Furthermore, the
longitudinal medical evidence, does not reveal significant
findings during mental status examinations. Consulting
psychologist Dr. Pamphile noted the clamant to be fully oriented
with fair memory and appropriate thought processes, although
the claimant alleged hallucinations. Cognitive functioning was
as expected. When seen by Dr. Caffery initially in April 2015,
she was prescribed Fluoxetine for depression and anxiety
symptoms, and reported improvement in symptoms. Office
notes from Dr. Caffery in 2016 and 2017, demonstrate a normal
mood and affect and no changes in her Fluoxetine dosage.
Records from her treating counselor, reveal only two
appointments in 2017. Mental status examinations revealed a
congruent mood and affect with normal orientation. She had
average intelligence and normal attention and memory with no
hallucinations and coherent thought processes. Insight and
judgment were fair.
The undersigned has accommodated any mental functional
limitations, by limiting her non-complex, routine and repetitive
tasks on a sustained basis with only routine breaks, with no
more than ordinary or routine changes in work setting or duties.
Due to her anxiety and history of PTSD, she will do best in a
setting with reduced social demands and considering this, any
work should not require more than occasional contact or
significant interaction with the general public and no more than
occasional interaction with supervisors or coworkers.
R. 102 (internal citations to the Social Security administrative records
omitted). The ALJ also considered the opinions of Drs. DiFonso and Mehr.
The ALJ stated that Drs. DiFonso and Mehr noted some mental functional
limitations due to anxiety. The ALJ said that Drs. DiFonso and Mehr did
not have the benefit of seeing all the medical records. The ALJ indicated
that the RFC was based on a review of all the records and gave Chesnut
“all benefit of reasonable doubt.” R. 103.
The ALJ concluded at Step 4 that Chesnut could not perform her past
relevant work. At Step 5, the ALJ determined that Chesnut could perform a
significant number of jobs in the national economy. The ALJ relied on the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2,
and the opinions of vocational expert Gustafson that a person with
Chesnut’s age, education, work experience, and RFC could perform
various light and sedentary jobs, including packager with 11,000 jobs in
Illinois and 160,000 nationally. The ALJ concluded that Chesnut was not
disabled.
Chesnut appealed the decision. On November 14, 2018, the Appeals
Council denied her request for review. The decision of the ALJ then
became the final decision of the Defendant Commissioner. R. 1. During
the proceedings before the ALJ, Chesnut and her attorney did not
challenge the authority of the ALJ to conduct the hearing and issue a
decision in this case.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate”
to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence and may not substitute its judgment or reweigh the evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the ALJ’s evaluation
of statements regarding the intensity, persistence, and limiting effect of
symptoms unless the evaluation is patently wrong and lacks any
explanation or support in the record. See Pepper v. Colvin, 712 F.3d 351,
367 (7th Cir. 2014); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008);
SSR 16-3p, 2016 WL 1119029, at *1 (2016) (The Social Security
Administration no longer uses the term credibility in the evaluation of
statements regarding symptoms). The ALJ must articulate at least
minimally her analysis of all relevant evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994). The ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000).
As noted above, Chesnut raised three issues on appeal:
1. The ALJ erred in failing to develop the record as to
Plaintiff’s mental health, resulting in an RFC unsupported by
substantial evidence.
2. The ALJ’s RFC failed to account for Plaintiff’s limitations
as to maintaining concentration, persistence and pace, resulting
in an RFC unsupported by substantial evidence.
3. The case was adjudicated by an unconstitutionally-
appointed ALJ, and the matter should be remanded for a new
hearing with a different ALJ.
Plaintiff’s Memorandum of Law in Support of a Motion for Summary
Judgment (d/e 13), at 1. Chesnut forfeited any other issue she might have
raised. Chestnut attempts to raise in her Reply brief (d/e 20) a challenge to
the ALJ’s analysis of whether her impairments met a Listing at Step 3 of the
ALJ’s decision. While Chestnut raised the three issues noted above in her
Memorandum of Law in Support of Motion for Summary Judgment (d/e 13)
at 1, the issue regarding the ALJ’s failure to articulate a specific denial of
Chestnut’s entitlement to meet a Listing at Step 3 of the 5-step analysis
was not raised in Chestnut’s Motion for Summary Judgment. The issue
was raised for the first time in Chestnut’s Reply brief. See Plaintiff’s Reply
to Defendant’s Memorandum (d/e 20) at 3-5. An issue raised for the first
time in a reply brief is forfeited. See Narducci v. Moore, 572 F.3d 313, 324
(7th Cir. 2009) Additionally, Chestnut’s Reply does not suggest any Listing
which Chestnut met at Step 3. Failure to discuss a Listing to which
Chestnut may be entitled also waives the issue. The issue regarding a
Step 3 Listing raised by Chestnut is so underdeveloped that it is also
waived on that basis. Frazee v. Berryhill, 733 F.3d Appx. 831, 834 (7th Cir.
2018)
The Court addresses its analysis to the issues properly raised on
appeal. The Court sees no reversible error in any of the issues raised.
Issue No. 1 on Appeal
1. The ALJ erred in failing to develop the record as to
Plaintiff’s mental health, resulting in an RFC unsupported by
substantial evidence.
The ALJ is required to fully develop the record. The determination of
the completeness of the record, however, is a matter for the reasoned
judgment of the ALJ and the Court defers to the ALJ’s determination,
absent a showing that the ALJ abused his discretion. See Nelms v. Astrue,
553 F.3d 1093, 1098 (7th Cir. 2009); Wilcox v. Astrue, 492 Fed. Appx 674,
678 (7th Cir. 2012). In this case, Chesnut submitted her mental health
treatment records. Her primary care physician Dr. Caffery prescribed an
antidepressant fluoxetine. He also assessed her mental state at her
appointments. Chesnut also submitted the records of her sessions with her
counselor Sary. The ALJ also considered a consultative examination by
Dr. Pamphile and the expert assessments by Drs. DiFonso and Mehr. The
ALJ had a basis in the record on which to evaluate Chesnut’s functional
limitations based on her mental impairments. The Court sees no abuse of
discretion in relying on this record.
Moreover, Chesnut was represented by counsel. When a person is
represented by counsel, the person is presumed to have made her best
case before the ALJ. Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007).
If Chesnut’s counsel believed that more evidence on her mental condition
was necessary, he could have secured additional evidence or he could
have asked the ALJ to secure additional medical evidence. He did neither.
Chesnut argues that it is error to rely on the opinions of reviewing,
non-examining medical sources such as Drs. DiFonso and Mehr in
formulating an RFC. Reviewing psychologists, such as Drs. DiFonso and
Mehr, “are highly qualified . . . psychologists who are experts in the
evaluation of the medical issues in disability claims under the Act.” 20
C.F.R. § 404.1527(f)(2)(i). An ALJ may rely on their opinions in
determining eligibility for disability benefits. Scheck v. Barnhart, 357 F.3d
697, 700 (7th Cir. 2004); Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th
Cir. 2002); Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990). Chesnut
relies on persuasive authority from outside this Circuit to support the
proposition that an ALJ may not rely on the opinions of reviewing
physicians and psychologists. The Court will follow the controlling authority
of the Seventh Circuit set forth in Scheck, Johansen, and Scott. The ALJ
did not err in relying on the opinions of Drs. DiFonso and Mehr. He did not
abuse his discretion in deciding not to seek additional medical evidence on
Chesnut’s mental impairments, particularly in light of the fact that Chesnut’s
attorney chose not to raise the issue before the ALJ. There was no error.
Issue No. 2 On Appeal
2. The ALJ’s RFC failed to account for Plaintiff’s limitations
as to maintaining concentration, persistence and pace, resulting
in an RFC unsupported by substantial evidence.
The ALJ properly accounted for Chesnut’s limitation on maintaining
concentration, persistence, or pace in the RFC. Drs. DiFonso and Mehr
opined that Chesnut had moderate limitations in maintaining concentration,
persistence, or pace. R. 155, 168. Drs. DiFonso and Mehr both also
opined that, even with that moderate functional limitation, Chesnut could
perform semi-skilled work with modified social demands. The ALJ relied on
those opinions, and other evidence presented, and determined that
Chesnut had an RFC that was more limited to routine repetitive tasks:
Due to deficits in memory, concentration, persistence and pace,
she is limited to performing non-complex, routine and repetitive
tasks on a sustained basis with only routine breaks. Any work
must not involve more than ordinary or routine changes in work
setting or duties.
R. 99. The ALJ also addressed Drs. DiFonso and Mehr’s opinion that
Chesnut needed to work with modified social demands:
She will do best in a setting with reduced social demands and
considering this, any work should not require more than
occasional contact or significant interaction with the general
public and no more than occasional interaction with supervisors
or coworkers.
R. 99. The ALJ considered the findings that Chesnut was moderately
limited in maintaining concentration, persistence, or pace. The RFC limited
Chesnut to a range of work well within the range of work that Drs. DiFonso
and Mehr found her capable of even with her functional limitations due her
mental impairments. The ALJ properly “tied the record evidence to the
limitations included in the RFC finding.” Jozefyk v. Berryhill, 923 F.3d 492,
498 (7th Cir. 2019). There was no error.
Chesnut relies on cases in which the medical and psychological
experts provided no guidance to the ALJ on the functional limitations that
should be incorporated into an RFC when a person had a limitation on
maintaining concentration, persistence, or pace. See Varga v. Colvin, 794
F.3d 809, 813 (7th Cir. 2015); Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir.
2015); O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010).
Those cases do not apply here because Drs. DiFonso and Mehr provided
expert psychological guidance on the issue. DiFonso and Mehr opined
that, considering all of Chestnut’s mental limitations, she could perform
semi-skilled work with modified social demands. The ALJ may rely on the
reviewing physicians’ opinion that “translated” the list of limitations (such as
limitations on concentration, persistence, or pace) into a narrative
description of “specific RFC assessment” of the types of work that Chesnut
could perform. See Johansen, 314 F.3d 283, 288-89 (7th Cir. 2002); see
Dudley v. Berryhill, 773 Fed. Appx. 838, 843 (7th Cir. 2019). Drs. DiFonso
and Mehr provided a “specific RFC assessment.” The ALJ properly “tied
the record evidence,” including the opinions of Drs. DiFonso and Mehr, to
the RFC determination by formulating an RFC that was even less
demanding than the functional limitations set forth in the opinions of Drs.
DiFonso and Mehr. Jozefyk, 923 F.3d at 498. There was no error.
Issue No. 3 On Appeal
3. The case was adjudicated by an unconstitutionally-
appointed ALJ, and the matter should be remanded for a new
hearing with a different ALJ.
Chesnut’s counsel chose not to raise before the ALJ a challenge to
the constitutionality of the ALJ’s appointment. Chesnut, thereby, waived
this issue. Marylin R. v. Saul, 2019 WL 4389052, at *3-*5 (C.D. Ill.
September 13, 2019). The Court is convinced by the thorough analysis in
the Marylin R. opinion that an objection to the ALJ’s appointment is waived
if not raised before the ALJ. Chesnut’s arguments to the contrary are not
persuasive. The issue is waived and is not a basis for reversal on judicial
review.
THEREFORE, IT IS OREDERED that Defendant Commissioner of
Social Security’s Motion for Summary Affirmance (d/e 18) is ALLOWED;
Plaintiff Stephanie Chesnut’s Motion for Summary Judgment (d/e 12) is
DENIED; and the decision of the defendant Commissioner is AFFIRMED.
THIS CASE IS CLOSED.
ENTER: February 21, 2020
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE