Moody v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

PAULETTE M., )

)

Plaintiff, )

)

v. ) Case No. 1:19-cv-1329

)

ANDREW M. SAUL, )

)

Defendant. )

ORDER & OPINION

This matter is on appeal from the Social Security Administration’s denial of

Plaintiff Paulette M.’s claim for disability benefits under the Social Security Act.

Before the Court are Plaintiff's Motion for Summary Judgement (doc. 11) and

Defendant Commissioner Andrew Saul’s Motion for Summary Affirmance (doc. 15).

Plaintiff has filed her Reply. (Doc. 16). This matter is therefore ripe for review. For

the following reasons, Plaintiff’s motion is granted and Defendant’s motion is denied.

BACKGROUND

I. Factual Background

The relevant time period is from the onset date of July 1, 2007, to the last date

insured, June 30, 2011. The following is a summary of Plaintiff’s medical records from

her alleged disabilities: an affective disorder and knee pain.

Prior to Plaintiff’s alleged onset date, she worked as an administrative

assistant for approximately 16 years, until 2003, when Plaintiff quit due to, inter alia,

the constant stress of dealing with customers. (R. at 198, 680, 696–697). She worked

briefly in childcare and for a construction company in 2005–2006. (R. at 150, 198,

685–686).1 Her employment history thereafter was scarce; the only position she held

through the next decade was a brief stint working as a secretary in a law firm. (R. at

198, 697). Plaintiff has not held gainful employment since mutually ending her

employment with the law firm in 2010. (R. at 150, 198, 698–99, 886).

A. Mental Health

Plaintiff first visited her primary care physician, Dr. Heather Schweizer, in

2008 for mental health reasons, and in subsequent appointments reported worsening

symptoms of depression. (R. at 415, 413, 411). Between March 2008 and October 2009,

Plaintiff reported symptoms consistent with depression and bipolar disorder to Dr.

Schweizer, including lethargy, decrease in mood, difficulty sleeping or focusing, and

an inability to care about anything or do anything. (R. at 401, 411, 413, 415). Later,

she reported she was sleeping up to 15 hours a day. (R. at 399). Through these

months, Dr. Schweizer modified and switched medications, but often Plaintiff

reported issues with them. (R. at 397–98, 401).

Dr. Schweizer submitted a statement in which she summarized Plaintiff’s

condition. (R. at 909). She also reported Plaintiff is still impacted by her moods, has

had many medication changes, and these medications along with her disorder create

problems including lack of energy or inability to concentrate. (R. at 909).

1 The construction position is listed in Plaintiff’s Work History Assessment Tool. (R.

150). There is some inconsistency with other portions of the record; Plaintiff did not

add this position on her self-reported history and elsewhere reported the dates of this

employment as 2004–2005. (R. 198). But this factual confusion does not impact the

instant motions.

Plaintiff first saw Dr. Raju Paturi, a psychiatrist, on July 13, 2009. (R. at 265).

While under Dr. Paturi’s care, Plaintiff reported “mood swings, racing, pacing, hyper

variable energy levels, and unable to finish tasks, shopping sprees, cannot control her

thoughts, getting irritable, angry and upset”; Dr. Paturi diagnosed her with bipolar

disorder and prescribed Topamax. (R. at 265–66).2 Within the same month, Plaintiff

returned and reported struggles with depression, anxiety, anger, mood swings, panic

attacks, and fatigue. (R. at 263). After two months of continued symptoms, Dr. Paturi

instructed Plaintiff to see another doctor because she was not following the prescribed

treatment plan; specifically, she started or stopped medications on her own and she

did not want to take medication that made her gain weight. (R. at 260–62). Dr. Paturi

found Plaintiff’s memory, concentration, and recall intact throughout their

appointments and indicated Plaintiff was “currently doing well” at her final two

appointments with him. (R. at 261–264).

Starting in October 2009, Plaintiff saw Dr. Martin Repetto, another

psychiatrist, for mental health treatment. (R. at 319). At the initial appointment,

Plaintiff described her mood as better. (R. at 319). Similarly, in November 2009,

Plaintiff reported she was doing well, sleeping well, and her mood had improved. (R.

at 320). Dr. Repetto prescribed anti-depressants and modified other medications. (R.

at 319–20).

2 Bipolar disorder is a “mood disorder[] characterized by a history of manic, mixed, or

hypomanic episodes, usually with concurrent or previous history of one or more major

depressive episodes.” Disorder, Dorland’s Medical Dictionary,

https://www.dorlands.com/dorlands/def.jsp?id=100031610 (last visited August 12,

2020).

Beginning in January 2010, and throughout the next three appointments,

Plaintiff reported feeling unmotivated, having mood swings and sleeping issues, and

lacking motivation; Dr. Repetto adjusted her medication in response. (R. at 321–23).

Starting in June 2010, Plaintiff reported better moods and Dr. Repetto recorded

stable affect and again adjusted her medications. (R. at 324). Plaintiff returned in

November 2010 and reported better moods but trouble sleeping, and then returned

in May 2011 to report she was doing well and had been sleeping better with the

adjusted medication. (R. at 327–28). At the May 2011 appointment, Plaintiff reported

she had begun making jewelry as a hobby. (R. at 328). After each appointment, Dr.

Repetto adjusted medication to fit Plaintiff’s needs. (R. at 327–28).

In November 2011, Plaintiff reported she was doing “ok” but could not handle

the stress in her life from family issues. (R. at 330). Dr. Repetto adjusted Plaintiff’s

medications in response to her complaints. (R. at 330). When Plaintiff returned in

February 2012, Dr. Repetto again adjusted medication when she reported she was

occasionally feeling restless and had been doing “dumb” things. (R. at 331). Her last

documented appointment was in September 2012, and Plaintiff reported her

medication “improved things a lot.” (R. at 332).

Dr. Repetto submitted a statement in 2013 and a letter in 2017; both assessed

Plaintiff’s mental health. (R. at 427–30, 912). The statement, a Mental Impairment

Questionnaire, highlighted Plaintiff’s long history of depression and Dr. Repetto’s use

of antidepressants and mood stabilizers in treatment. (R. at 427). He reported

Plaintiff has mild limitations in her activities of daily living; marked limitations in

social functioning, concentration, persistence, or pace; and Plaintiff would likely have

one or two episodes of decompensation every year. (R. at 429). Further, Dr. Repetto

marked “a minimal increase in mental demands or change in environment would be

predicted to cause the individual to decompensate.” (R. at 429). In the letter, Dr.

Repetto wrote:

[Plaintiff] has been under my care since 2009 for treatment of mood

swings, depression and anxiety associated to her diagnosis for Bipolar

disorder. [Plaintiff] has a history of mood swings with episodes of

increased energy and elevated affect alternating with periods of

depression. Since 2009, [Plaintiff] has presented several episodes of

depression, characterized by sadness, decreased energy, lack of

initiative and insomnia. During the time she was under my care her

medications were adjusted in [sic] multiple occasions. She was treated

with a combination of antidepressants and mood stabilizers. The

severity of her symptoms have affected her ability to function and

maintaining employment.

(R. at 912).

B. Physical Health

Beginning in June 2008, Plaintiff saw orthopedist Dr. George Irwin for

worsening knee pain; she emphasized the pain in her right knee caused by bending.

(R. at 303). At the initial appointment, Dr. Irwin noted Plaintiff’s knee had locked up

one to two times, she used pain medication to treat her knee pain, and reviewed her

MRI and X-ray results. (R. at 303). Dr. Irwin observed mild effusion of the knee,

tenderness of the right knee, and while one test revealed pain “to the lateral side of

the knee joint,” all other tests were normal. (R. 302, 303). On June 26, 2008, Plaintiff

underwent a procedure to repair tearing of the lateral and medial menisci3 in her

3 Menisci generally are “wedge-shaped crescent of fibrocartilage or dense fibrous

tissue, found in some synovial joints”; the lateral and medial menisci are

right knee. (R. at 307). The procedure also revealed lateral compartment

chondromalacia and patellofemoral chondromalacia.4 (R. at 307).

Plaintiff visited Dr. Irwin again on June 30, 2008, to review the surgical notes.

(R. at 301). He noted she was already off her crutches, bearing full weight, and had

not used pain mediation in the previous 24 hours; he did not report any abnormal

findings in her healing. (R. at 301). Three weeks later, Dr. Irwin reported an

uneventful recovery, although Plaintiff was complaining of “rare popping in the knee”

and some pain. (R. at 301). He did not recommend any restrictions and found she

could return to normal activities. (R. at 301).

In October 2008, Plaintiff returned to Dr. Irwin and again reported issues with

her knee “popping.” (R. at 300). At this visit, she reported “doing a lot of work around

her father’s home,” which included ladder climbing; Dr. Irwin noted her knee never

gave out or buckled. (R. at 300). He attributed her pain to having too high of

expectations after surgery, injected her right knee with pain medication and anti-

inflammatory medication, and concluded all test results were normal. (R. at 300).

Plaintiff returned in January 2009, reporting pain in both knees and bringing MRIs

ordered by her family physician (R. at 311–13); Dr. Irwin found the MRIs “fairly

unremarkable” but noted the left knee showed some thinning cartilage (R. at 299).

fibrocartilage found in the knee join and attached to the tibia. Meniscus, Dorland’s

Medical Dictionary, https://www.dorlands.com/dorlands/def.jsp?id=100064756 (last

visited August 12, 2020).

4 Chondromalacia refers to “softening of the articular cartilage.” Chondromalacia,

Dorland’s Medical Dictionary, https://www.dorlands.com/dorlands/def.jsp?

id=100020715 (last visited August 12, 2020).

Dr. Irwin recorded pain in both knees and that all tests were normal, prescribed a

new pain medication, and found “no further intervention is required.” (R. at 299).

Plaintiff next sought treatment for knee issues in March 2012 from Dr. Irwin’s

colleague, Dr. Nikhil Chokshi. (R. at 295–98). At this time, she complained of pain

mostly in her left knee resulting from in incident where she felt a “pop” when she got

up from a chair, which was exacerbated when she twisted her knew while doing

laundry. (R. at 295). She rated the pain a 10 out of 10 in her left knee, and reported

a dull, achy pain in her right knee. (R. at 295). Dr. Chokshi noted an effusion in the

left knee, and a larger effusion in the right knee along with tenderness throughout

both knees. (R. at 296). His diagnosis was “left knee acute injury, likely soft tissue,

possibly lateral meniscus [rather than] lateral collateral ligament. Right knee

osteoarthritis.”5 (R. at 297). Plaintiff returned within the same month for an MRI of

her left knee (R. at 294), and Dr. Chokshi ultimately performed a surgery to treat her

left knee pain (R. at 293). At a follow-up visit, Plaintiff reported she fell because her

right knee gave out and Dr. Chokshi discussed the possibility of getting her a

wheelchair. (R. at 293). However, Plaintiff reported she was “doing well overall in

terms of pain in the knee, etc.,” and Dr. Chokshi was “pleased with her progress to

date” and anticipated her “regaining full range of motion.” (R. at 293).

5 Osteoarthritis is “a noninflammatory degenerative joint disease seen mainly in older

persons, characterized by degeneration of the articular cartilage, hypertrophy of bone

at the margins, and changes in the synovial membrane. It is accompanied by pain,

usually after prolonged activity, and stiffness, particularly in the morning or with

inactivity.” Osteoarthritis, Dorland’s Medical Dictionary, https://www.dorlands.com/

dorlands/def.jsp?id=100076356 (last visited August 12, 2020).

II. Procedural Background

Plaintiff filed for Title II Disability Insurance Benefits on September 24, 2012,

alleging an onset date on July 1, 2007, of disability due to: arthritis in her knees,

back, and hips; high blood pressure; and restless leg syndrome; and bipolar disorder.

(R. at 58–64). Plaintiff requested a hearing by an ALJ, which took place on June 11,

2014. (R. at 30). Plaintiff (represented by an attorney) and a vocational expert (VE)

testified at the hearing. (R. at 30–57).

At the hearing, Plaintiff described the last time she worked outside the home

which ended in 2010 because she had trouble with her emotions, concentration, and

forgetfulness. (R. at 38). She stated she could drive, take care of her personal hygiene,

grocery shop, cook (with her husband’s presence to ensure the oven was properly

turned off), wash dishes for about ten minutes at a time, do one load of laundry per

day, dust, and vacuum in one room at a time. (R. 40–41). Plaintiff stated she does not

garden; however, the ALJ inquired about medical records which indicated Plaintiff

told her psychiatrist she helped her husband in their garden in an unsuccessful

attempt to jog her memory. (R. at 42–43).

Turning to medical history, Plaintiff claimed she had always taken medication

as prescribed by Dr. Repetto. (R. 43–44). When describing her medication’s side

effects, Plaintiff listed: not being able to sleep, sleeping too long, napping during the

day, and chronic fatigue. (R. at 46–47). She then testified she would have one to two

“bad” days per week, which included inability to do any household or social activities

and difficulties in thinking and concentration. (R. at 48–49). These symptoms were

evident when she attempted to work in 2009 and 2010; she would experience “crying

spells,” lasting at least 20 minutes, which required her to go to the bathroom to

compose herself. (R. at 49–50). Additionally, Plaintiff described problems with her

knees and stated she could not squat, kneel, or go upstairs without a railing because

her knees were “hurting all the time” and would “pop or be out of joint.” (R. 51).

Regarding her right knee, Plaintiff stated her 2008 surgery did not work and she

remained in pain from both knees, her back, and her hips, partly due to arthritis. (R.

51–52).

Next, the VE testified about suitable work within the national economy. The

ALJ presented a hypothetical in which a person with the same past work history as

Plaintiff had the residual functional capacity (RFC) to perform light work with the

following limitations: no climbing or environmental hazards, no interaction with the

public, only occasional interaction with coworkers and supervisors, and being

restricted to routine simple and repetitive tasks. (R. at 53). The VE stated such a

person would not be able to perform any of Plaintiff’s past work. (R. at 53). When

asked if a hypothetical person of the same age, education, and work history would be

able to find work in the national economy that fit the vocational factors laid out in

the last question, the VE testified such a person could work as a hotel cleaner, or in

non-machine manufacturing, such as a production-related inspector. (R. at 54). In

response to a question posed by Plaintiff’s attorney, the VE testified if an individual

were off-task for at least 10 minutes of every hour, all possible employment would be

eliminated. (R. at 56).

On June 26, 2014, the ALJ issued a decision stating Plaintiff was not eligible

for disability benefits. (R. at 9–23). Plaintiff requested review but was denied on

September 3, 2015. (R. at 1–5). Plaintiff appealed, and this Court remanded because

the ALJ failed to address Plaintiff’s age properly in conjunction with the Medical-

Vocational Guidelines; she was on the border between two categories and the ALJ did

not indicate he had considered which category to use. (R. at 738–51).

On October 17, 2017, Plaintiff returned for another hearing before the ALJ. (R.

at 675). First, Plaintiff’s attorney identified new evidence, including a letter from

Plaintiff’s previous employer, Janine Boggs. (R. at 682). Then, Plaintiff testified. She

discussed working as an administrative assistant for 16 years, which included

accounts receivable and customer service, but stated she had to quit when her mental

health affected her concentration and her emotional stability. (R. at 696–97). Plaintiff

also testified about her work at the church daycare and explained she worked briefly

in accounts payable for a construction company. (R. at 684–86). Continuing with

employment history, Plaintiff discussed her time at the law firm; she described the

seven months she tried working part-time, usually for a couple of hours a week, but

ultimately realized she could not handle it. (R. at 686–88). She reported calling off

work between four or five times a month, and she would leave her desk for up to 40

minutes “at a time” to compose herself during the workday. (R. at 698). Boggs, the

attorney who hired Plaintiff, wrote a letter describing her behavior during work,

corroborating Plaintiff’s account. (R. at 895). Both Plaintiff and Boggs agreed the

employment should end. (R. at 688).

Plaintiff also testified about her physical impairments and mental health

issues. (R. at 689). In describing her knee pain, she stated the surgery in 2008 did not

improve her condition, her pain level was about an 8 out of 10 throughout the time

period, and her knee would “pop” when “the bones were rubbing against each other.”

(R. 690–91). She reported having trouble going up and down stairs and stated her

knees lock when sitting. (R. 691). Turning to the mental health issues, Plaintiff

testified she couldn’t function, her symptoms cycled through depression and mania,

and her sleep was affected by her bipolar depression. (R. at 692). She talked about

her memory problems, inability to care for her personal hygiene, and how she gets

nervous around people in social situations. (R. 693–94). Plaintiff stated she could

complete tasks, but they take her a while; she mentioned her husband handling

money and responsibilities after she caused them to go bankrupt. (R. 694–95).

Plaintiff went through her history with Dr. Repetto, including how he adjusted her

medication in response to side effects. (R. at 695–96). The ALJ then closed the hearing

without further testimony. (R. at 699).

The ALJ again concluded Plaintiff was not disabled. (R. 652–67). The ALJ

found Plaintiff’s affective disorder, obesity, and bilateral degenerative knee disorders

qualified as severe impairments under 20 C.F.R. § 404.1520(c). (R. at 654). However,

the ALJ did not find Plaintiff’s impairments, or combination of impairments, met the

severity of one of the listed impartments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (R. at

655). The ALJ found Plaintiff could perform light work, except that she could not

climb ladders, ropes, or scaffolds; could perform other postural functions only

occasionally; needed to avoid environmental hazards; was limited to simple and

repetitive tasks involving little to no change in work routine, with no interaction with

the general public and little interaction with coworkers and supervisors. (R. at 657).

He concluded Plaintiff could not perform her past relevant work but did find Plaintiff

could perform work existing in the national economy. (R. at 664–66).

A request for review on the second decision was denied in 2019, making the

second decision by the ALJ final. (R. at 632–35). Plaintiff then filed the instant

Complaint on October 14, 2019. (Doc. 1).

LEGAL STANDARD

In reviewing a denial of social security benefits, district courts “conduct a

critical review of the evidence, considering both the evidence that supports, as well

as the evidence that detracts from, the Commissioner’s decision, and the decision

cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (quoting Lopez ex

rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (internal quotation marks

omitted)). The Commissioner’s decision must be “both supported by substantial

evidence and based on the proper legal criteria.” Ehrhart v. Sec’y of Health & Human

Servs., 969 F.2d 534, 538 (7th Cir.1992). Substantial evidence is defined as “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)). Legal conclusions are reviewed by

the Court de novo, Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008), while factual

findings are deferred to per 42 U.S.C. § 405(g): “The findings . . . as to any fact, if

supported by substantial evidence, shall be conclusive.”

In a substantial evidence determination, courts review the entire

administrative record but may “not reweigh the evidence, resolve conflicts, decide

questions of credibility, or substitute [their] own judgment for that of the

Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). The ALJ must

“build an accurate and logical bridge from the evidence to his conclusion.” Id. at 872.

And while the ALJ need not address every piece of evidence, the ALJ “may not ignore

evidence that undercuts [his] conclusion.” Spicher v. Berryhill, 898 F.3d 754, 757 (7th

Cir. 2018).

DISCUSSION

A claimant is disabled under §§ 216(i) and 223(d) of the Social Security Act if

the claimant demonstrates an “inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

To determine whether a claimant is disabled, an ALJ employs a five-

step inquiry which asks: (1) whether the claimant is currently employed;

(2) whether the claimant has a severe impairment; (3) whether the

claimant's impairment is one that the Commissioner considers

conclusively disabling; (4) if the claimant does not have a conclusively

disabling impairment, whether he can perform his past relevant work;

and (5) whether the claimant is capable of performing any work in the

national economy.

Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). Additionally, the claimant must

meet the insurance requirements of §§ 216(i) and 223 by establishing disability on or

before the last date insured in order to be entitled to a period of disability and

disability insurance benefits.

Plaintiff’s arguments are primarily addressed to step three and the

determination of her RFC, which occurs between steps three and four. The third step

must therefore be described in slightly more detail. The Commissioner must

determine whether the claimant’s impairment, or combination of impairments, is of

a severity to preclude any gainful work; to do this, the Commissioner compares the

claimant’s symptoms to the criteria listed in 20 C.F.R. Pt. 404 Subpt. P, App. 1. If the

elements of one of the listings are met or equaled by the claimant’s impairments, the

claimant is eligible for disability benefits and the inquiry ends. 20 C.F.R. §

404.1520(a)(4)(iii). If the claimant does not qualify under one of the listings, the

Commissioner proceeds to the fourth and fifth steps. 20 C.F.R. § 404.1520(e). But

before proceeding to the fourth step, the ALJ must determine the claimant’s RFC,

which represents his or her ability to do physical and mental work activities on a

sustained basis and is calculated through the Commissioner’s evaluation of all

impairments, including impairments that are not severe. 20 C.F.R. §§ 404.1520(e),

404.1545.

Plaintiff makes seven arguments on appeal: the ALJ failed to (1) properly

address a letter from Plaintiff’s prior employer because he mistakenly believed it did

not relate to the relevant time period; (2) address absences and off-task time; (3)

adequately account for limitations in concentration, persistence, and pace in the RFC;

(4) assign sufficient weight to Dr. Repetto’s opinion because Plaintiff’s symptoms

waxed and waned; (5) confront evidence showing a higher risk of bone fracture due to

her knee conditions; (6) accurately assess credibility; and (7) adequately account for

Plaintiff’s knee conditions in the RFC. (Doc. 12 at 11–23). The Commissioner

disagrees with all of her arguments. (Doc. 15-1 at 3–22).

I. The ALJ’s RFC Properly Accounted for Plaintiff’s Knee Conditions

Plaintiff’s fifth and seventh arguments relate to her knee conditions. Plaintiff

argues “the ALJ failed to confront evidence showing [Plaintiff’s] right knee symptoms

were not quickly resolved after surgery” (doc. 12 at 19) and cites medical records from

2012 and later, which are out of the relevant time period (doc. 12 at 19–20). The

Commissioner argues the ALJ summarized the record accurately and the evidence

(including bone density analysis) after the date last insured does not factor into the

equation. (Doc. 15-1 at 14–18).

Substantial evidence supported the ALJ’s decision on these points. Regarding

Plaintiff’s right knee recovery, the ALJ discussed each follow-up appointment with

Dr. Irwin, and summarized the notes: Plaintiff was weight-bearing four days after

the operation, she reported not needing pain medication within the previous 24 hours,

she showed good strength, she reported hearing a “popping sound” in her knee, and

all restrictions were removed in a normal time frame. (R. 301, 659). The ALJ also

discussed Plaintiff’s visit to her primary care physician, who ordered MRIs on both

knees, both of which Dr. Irwin reviewed. (R. at 659). The ALJ noted Dr. Irwin did not

find any significant clinical reason for the described knee pain except possible

cartilage thinning, and Plaintiff did not return for over three years after this

appointment. (R. at 659).

The ALJ discussed all relevant evidence regarding Plaintiff’s right knee

recovery before her date last insured. From Dr. Irwin’s notes, the ALJ reasonably

concluded Plaintiff successfully recovered and the surgery was not supposed to cure

Plaintiff’s symptoms but rather manage them. (R. at 300). The recovery was

“uneventful,” and Dr. Irwin reported his belief her expectations were too high and

stated: “I feel that she can carry out activities as she desires and she need not be

placed on any restrictions” after the second follow-up. (R. at 301). When Plaintiff

complained of pain, Dr. Irwin provided medication; when Plaintiff brought her own

MRIs, he evaluated them. (R. at 299). From this treatment, the ALJ could reasonably

conclude Plaintiff’s knee pain was under control and responding to treatment, and

required only the restrictions stated in the RFC. The pieces of evidence that run

contrary to the ALJ’s conclusion on Plaintiff’s right knee recovery are her reports of

occasional popping, her injury from doing work at her father’s house, and her report

of “problems with both knees” to her primary care physician and later Dr. Irwin. (R.

at 299–300). These were discussed, but the ALJ properly gave Dr. Irwin’s opinion

more weight as a specialist. (R. at 659); 20 C.F.R. § 404.1527(c)(5).

Plaintiff argues the ALJ did not discuss evidence from her 2012 treatments,

which occurred after the relevant time period. (Doc. 12 at 19). It is true an “ALJ must

consider evidence that post-dates the relevant period to the extent that it corroborates

or supports the evidence from the relevant period.” Blom v. Barnhart, 363 F. Supp.

2d 1041, 1059 (E.D. Wis. 2005). But Plaintiff has not shown the evidence postdating

the relevant period demonstrated anything about her condition during the relevant

period. The ALJ’s failure to discuss such evidence was therefore not erroneous; the

ALJ built a logical bridge from the relevant evidence to his conclusion Plaintiff’s knee

conditions do not prevent her performing light work.

Plaintiff also asserts the ALJ failed to account for the combined effect of her

obesity and knee issues. (Doc. 12 at 21). Contrary to this assertion, the ALJ explicitly

discussed Plaintiff’s obesity, including explicitly “consider[ing] the impact obesity has

on [Plaintiff’s] knees and functioning . . . and conclude[d] that [Plaintiff’s] obesity

contributes to her impairments, but does not result in limitations in excess of the

[RFC].” (R. at 655, 660). The Court may not reweigh the evidence.

As discussed above, substantial evidence supported the ALJ’s determination

as to Plaintiff’s knee condition. Because the ALJ’s RFC assessment made the proper

considerations and was supported by substantial evidence respecting Plaintiff’s knee

impairments, it cannot be reversed on the grounds related to that condition.

III. The ALJ Did Not Properly Address Plaintiff’s Affective Disorder

Five of Plaintiff’s arguments are directed at the ALJ’s review of her affective

disorder. The crux of these arguments is the ALJ failed to properly account for or

credit the record evidence from the relevant time period demonstrating Plaintiff

would have too many absences from work to maintain employment. (Doc. 16 at 3).

Plaintiff makes several arguments which shade into one another. Plaintiff argues the

ALJ improperly disregarded a letter from her former employer by incorrectly finding

it was outside the relevant time period, was patently wrong in his credibility

assessment of her subjective testimony, and gave insufficient weight to Dr. Repetto’s

opinions. These alleged errors, Plaintiff argues, caused the ALJ to insufficiently

address absences, off-task time, and limitations in concentration, persistence or pace

both at step three and in the RFC determination.

Plaintiff testified she needed to miss four or five days a month at the law firm

due to issues in concentration and sleep stemming from her affective disorder (R. at

698); the Boggs letter corroborated Plaintiff’s account (R. at 895). This subjective

account is also consistent with Dr. Repetto’s opinion Plaintiff would need at least four

days off during a month of work. (R. at 430). And the VE testified more than two

absences per month would eliminate all possible employment. (R. at 55). As Plaintiff

implies, this combination of testimony, if credited, would suggest Plaintiff was unable

to find gainful employment on her last date insured. (Doc. 12 at 12–13).

The ALJ found Plaintiff’s testimony incredible “not because of a desire to

mislead, but rather, she had difficulty differentiating between the present and past

and clearly remembering her functional abilities during the earlier time frame at

issue in this case.” (R. at 662). The ALJ lumped the Boggs letter in with reports from

Plaintiff’s husband and a friend, stating “[t]hese reports mirror the claimant’s

limitations and allegations concerning her inability to work” which the ALJ had

rejected as inconsistent with objective medical evidence and also rejected them

because the “third parties are not acceptable medical sources in [sic] do not appear to

have known the time frame relevant to the claimant’s application.” (R. at 663). As for

Dr. Repetto’s opinion, the ALJ gave it “little weight because [it was] significantly

inconsistent with the treatment notes from the Pavilion during the period at issue,”

the form was completed “nearly eighteen months after [Plaintiff’s] last date insured”;

and Dr. Repetto’s finding that Plaintiff had a GAF score of 60 “would appear to be

internally inconsistent, as GAF scores of 60 generally reflect no more than moderate

limitation in social, occupational, or school functioning.” (R. at 662).

The Commissioner presents an ouroboros of reasoning to defend this point. It

argues “Dr. R[e]petto’s opinions were not consistent with the record or supported by

other evidence, and thus the ALJ properly gave them little weight” (doc. 15-1 at 14),

the ALJ properly concluded Plaintiff’s testimony was not credible due to

inconsistency with the medical evidence of record and her confusion about the

timeline (doc. 15-1 at 19–20), and the Boggs letter was properly discounted because

it was “duplicative of the claimant’s testimony, and . . . the ALJ adequately addressed

the claimant’s testimony” and Boggs’s “opinion and observations were not consistent

with the evidence of record” (doc. 15-1 at 4). But had the ALJ given greater weight to

Dr. Repetto’s opinion, Plaintiff’s testimony and the Boggs letter would have been

consistent with medical evidence; had the ALJ credited Plaintiff’s testimony, Dr.

Repetto’s opinion would have been consistent with credited record evidence; and had

the ALJ properly recognized the timeline of Plaintiff’s employment with Boggs, the

Boggs letter could have provided sufficient corroboration of the timeline to find

Plaintiff’s testimony credible with regard to the number of monthly absences. The

Court will address the legal arguments the parties make regarding each part of this

circle in turn.

A. Dr. Repetto’s Opinion

Plaintiff alleges the ALJ failed to properly assess Dr. Repetto’s opinion due to

the waning and waxing of symptoms consistent with the nature of her affective

disorder. (Doc. 12 at 16–18). She emphasizes this argument in her Reply. (Doc. 16 at

2–3). The Commissioner argues Dr. Repetto’s opinion was inconsistent with other

treatment notes and was therefore properly given little weight. (Doc. 15-1 at 11–13).

An ALJ “may discount a treating physician’s medical opinion if the opinion is

inconsistent with the opinion of a consulting physician or . . . internally inconsistent,

as long as [the ALJ] minimally articulates his reasons for crediting or rejecting

evidence of disability.” Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007) (citation

and internal quotation marks omitted). But, the Seventh Circuit has explained “[a]

person who has a chronic disease, whether physical or psychiatric, and is under

continuous treatment for it with heavy drugs, is likely to have better days and worse

days.” Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008); see also Phillips v. Astrue,

413 F. App’x 878, 886 (7th Cir. 2010) (“Many mental illnesses are characterized by

‘good days and bad days,’ rapid fluctuations in mood, or recurrent cycles of waxing

and waning symptoms.”).

The ALJ’s reasons for giving Dr. Repetto’s opinions little weight were that the

opinion was given “nearly eighteen months after” Plaintiff’s last date insured and the

opinion was inconsistent with some of his treatment notes, especially his notes at her

final appointments. (R. at 662). This analysis appears to rest on the same

“misunderstanding about the nature of mental illness” present in Phillips. 413 F.

App’x at 886. Underlying the ALJ’s analysis was that Plaintiff’s treatment must have

been linear; if her records indicated improvement on one day, she was improving, if

she could go to the zoo or participate in ordinary daily activities on a given day, he

presumed that was her level ability the day before and the day after. (E.g. R. at 662

(“Throughout the period at issue . . . [Plaintiff] was performing a wide range of

activities . . . not consistent with marked limitation in social functioning or

concentration.”)).

To be sure, if a survey of Dr. Repetto’s notes from the relevant time period had

indicated only positive results, the ALJ likely could have safely discarded his later

opinion as inconsistent without further analysis. But here, the notes were mixed. On

October 27, 2009, Plaintiff reported she was feeling tired and lacked motivation and

Dr. Repetto objectively described her affect as depressed; this was the same visit she

reported going to the zoo. (R. at 319). On January 13, 2010, Plaintiff reported she was

sleeping less and had trouble with motivation, though was more motivated overall

and Dr. Repetto objectively described her affect as “depressed and restricted.” (R. at

321). In March 2010, Dr. Repetto described the same affect and Plaintiff reported

further problems with mood and sleep; the notes from Plaintiff’s April 2010

appointment were similar. (R. at 322–23). And while Plaintiff’s final appointments

from the relevant time were largely better, aside from sleep issues (R. 324–28), the

ALJ’s assumption that this reflected linear progression rather than fluctuation was

insufficient analysis in light of the nature of the alleged disability. It was especially

problematic in light of the fact Dr. Repetto indicated Plaintiff would have to miss a

number of days of work per month; implicitly, then, Plaintiff would also have good

days where she would be able to function. Given the type of disability alleged, the

ALJ’s reasons for giving little weight to Dr. Repetto’s opinions were insufficient; they

rested on an assumption that inconsistency undermined the opinions, rather than

reflecting the fluctuation common in mental illness. Larson v. Astrue, 615 F.3d 744,

750–51 (7th Cir. 2010); Bauer, 532 F.3d at 609.

On the record presently before it, the Court cannot say, as Plaintiff requests,

Dr. Repetto’s opinion is necessarily entitled to “controlling or at least substantial

weight.” (Doc. 12 at 18). On remand, the ALJ may still determine inconsistencies

require giving little weight to Dr. Repetto’s opinion. But that determination, if it is

reached, cannot be based on an assumption that mental illness follows a linear

progression.

B. The Boggs Letter

A crucial part of Plaintiff’s argument is the ALJ erred by discounting the Boggs

letter. (Docs. 12 at 11–13; 16 at 1–2). It is undisputed the ALJ mistakenly found the

letter did not relate to the relevant time period. (Docs. 12 at 12; 15-1 at 4). The

Commissioner argues, however, the factual mistake does not matter due to the

multiple other reasons given for the ultimate rejection of Boggs’s assessment,

specifically that it was duplicative of Plaintiff’s testimony, was inconsistent with

evidence of record, and Boggs was not an acceptable medical source. (Doc. 15-1 at 4).

As remand is appropriate for fuller consideration of Dr. Repetto’s opinion, the

rejection of the letter cannot survive on the ground that the letter is inconsistent with

evidence of record; it is consistent with, and corroborative of, Dr. Repetto’s opinion

and on remand the ALJ may give Dr. Repetto’s opinion greater weight. And while

Boggs is not an acceptable medical source—or indeed, any kind of medical source—

that alone is insufficient; “an ALJ cannot discount a former co-worker’s statement

merely because she is not a treating source.” Kenneth S. v. Saul, No. 18 C 5047, 2020

WL 419418, at *5 (N.D. Ill. Jan. 27, 2020).

The Commissioner’s remaining argument is that the Boggs letter is duplicative

of Plaintiff’s testimony and therefore need not be specifically confronted because

Plaintiff’s testimony was. (Doc. 15-1 at 4). In support, the Commissioner cites Carlson

v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (holding an ALJ did not err in failing to

discuss “testimony [which] was essentially redundant” with the claimant’s) and Books

v. Chater, 91 F.3d 972, 980 (7th Cir. 1996) (“To the extent [the ALJ] found [the

claimant’s] testimony concerning his disabling pain and physical limitations to be

untenable when contrasted with his reported daily activities and the relevant medical

evidence, he necessarily found [the claimant’s brother’s] supporting testimony

similarly not credible.”). (Doc. 15-1 at 4).

The cited cases differ in a material respect from the instant matter. The

primary reason the ALJ found Plaintiff’s testimony inconsistent with the medial

evidence he accepted was because “she had difficulty differentiating between the

present and past and clearly remembering her functional abilities during the earlier

time frame at issue in this case.” (R. 662). The Boggs letter therefore bolsters

Plaintiff’s testimony precisely where the ALJ found her weak; once properly placed

in the timeline, it suggests Plaintiff’s recollection of the effects of her affective

disorder causing her to miss work does relate to the time period before her last date

insured. To use the Books formulation, the ALJ did not necessarily find the Boggs

letter incredible because he found Plaintiff’s testimony so, since that reasoning does

not apply to the Boggs letter. Therefore, the ALJ’s decision rested in part on a failure

to properly confront the Boggs letter based on his factual misunderstanding of the

time it implicated. Reversal is warranted on this ground as well.

C. Plaintiff’s Credibility

Unlike the now-discarded other two legs on which the ALJ’s decision rested,

the analysis of Plaintiff’s credibility was not clearly flawed in and of itself. However,

with Dr. Repetto’s opinion potentially receiving more weight and the Boggs letter

being properly considered, the credibility analysis with regard to Plaintiff’s affective

disorder may need to be reconsidered.

“An ALJ should look to a number of factors to determine credibility, such as

the objective medical evidence, the claimant’s daily activities, allegations of pain,

aggravating factors, types of treatment received and medication taken, and

‘functional limitations.’ ” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (citations

omitted). An ALJ is required to show how the evidence was considered, articulate his

or her reasons for rejecting Plaintiff’s allegations, and provide substantial evidence

for that determination such that a meaningful review may be conducted. Garfield v.

Schweiker, 732 F.2d 605, 610 (7th Cir. 1984).

If the ALJ discounts the claimant’s testimony regarding their physical

condition, the ALJ must first conclude the claimant is not credible. Orlando v.

Heckler, 776 F.2d 209, 213 (7th Cir. 1985). To properly support a credibility

determination, an ALJ must provide specific reasons and substantial evidence for his

decision. Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). To review an ALJ’s

credibility assessment, courts must examine whether it was reasoned and supported,

only if this requirement is not met then can the assessment be “patently wrong.”

Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017).

Plaintiff argues the ALJ failed to address subjective allegations; therefore, his

credibility assessment was patently wrong. Plaintiff contends the ALJ did not

specifically address why he did not find her testimony credible with respect to her

absences and off-task time. (Doc. 12 at 13–14). She cites her testimony saying she

would miss work four to five times a month, had poor concentration, and would often

need to go to the bathroom to compose herself for up to 40 minutes at a time. (Doc. 12

at 13). She states her testimony was supported by the VE’s opinion that a person who

is off task for 10 minutes of every hour would not be able to find employment, Dr.

Schweizer’s findings on her concentration, and Dr. Repetto’s opinion on her

concentration, pace, and persistence. (Doc. 12 at 13–14).

The Commissioner argues the ALJ properly assessed all of Plaintiff’s

subjective allegations and from that, made a proper credibility assessment. (Doc. 15-

1 at 18). In making the credibility assessment, the ALJ found Plaintiff’s testimony

was inconsistent with the activities she had been doing and her treatment history,

specifically the gaps in her attempts to seek treatment for knee pain and failure to

comply with Dr. Paturi’s medication adjustments. (R. at 661).

As the credibility determination was intertwined with the rejection of Dr.

Repetto’s opinion and the Boggs letter, even if it does not present a ground for reversal

on its own, Plaintiff’s credibility will need to be reconsidered in light of the

determinations the ALJ makes regarding other evidence. On remand, however, the

ALJ likely ought to consider daily activities in light of the potential waxing and

waning of symptoms discussed above, although the Court does not make a ruling as

to whether this would have independently undermined the credibility analysis. See

Groskreutz v. Barnhart, 108 F. App’x 412, 418 (7th Cir. 2004) (holding an ALJ’s

credibility determination was patently wrong due in part to a failure to recognize

waxing and waning symptoms). The Court also does not comment on the RFC itself

or the determination of the RFC with regard to Plaintiffs’ affective disorder; as those

analyses are downstream of the evidentiary issues discussed above, remand may

necessarily require their reconsideration.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion (doc. 11) is GRANTED, and

Defendant’s motion (doc. 15) is DENIED. Pursuant to Sentence Four of 42 U.S.C. §

405(g), this case is REMANDED to the Social Security Administration for further

proceedings consistent with this Opinion.

SO ORDERED. CASE TERMINATED.

Entered this 26th day of August 2020.

s/ Joe B. McDade

JOE BILLY McDADE

United States Senior District Judge