The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONALD R. R., JR.,1 )
)
Plaintiff, )
)
vs. ) Case No. 19-cv-721-MAB2
)
COMMISSIONER of SOCIAL )
SECURITY, )
)
Defendant. )
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff, represented by counsel, seeks
judicial review of the final agency decision denying his application for Disability
Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
PROCEDURAL HISTORY
Plaintiff applied for disability benefits in August 2015, alleging disability as of
October 15, 2015. After holding an evidentiary hearing, an ALJ denied the application on
June 11, 2018. (Tr. 25, 40). The Appeals Council denied review, and the decision of the
ALJ became the final agency decision. (Tr. 1). Administrative remedies have been
exhausted and a timely complaint was filed in this Court.
1 In keeping with the court’s practice, Plaintiff’s full name will not be used in this Memorandum and Order
due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2 This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to
28 U.S.C. §636(c). See, Docs. 12 & 36.
Page 1 of 28
ISSUES RAISED BY PLAINTIFF
Plaintiff raises the following points:
1. The ALJ erred in evaluating Plaintiff’s physical RFC.
2. The ALJ erred in evaluating the opinion of Dr. Paul Carter, M.D.
3. The ALJ erred in evaluating Plaintiff’s mental RFC regarding concentration,
persistence or pace.
4. The ALJ erred in evaluating Plaintiff’s subjective allegations.
Plaintiff filed a reply in response to Defendant’s social security brief. However,
Plaintiff simply reasserts the same arguments he made in his opening brief.
APPLICABLE LEGAL STANDARDS
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he has 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 twelve
months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a plaintiff is disabled, the ALJ considers the following five
questions in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have
a severe impairment? (3) Does the impairment meet or medically equal one of a list of
specific impairments enumerated in the regulations? (4) Is the plaintiff unable to perform
his former occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R.
§ 404.1520.
An affirmative answer at either step three or step five leads to a finding that the
Page 2 of 28
plaintiff is disabled. A negative answer at any step, other than at step three, precludes a
finding of disability. The plaintiff bears the burden of proof at steps one through four.
Once the plaintiff shows an inability to perform past work, the burden then shifts to the
Commissioner to show that there are jobs existing in significant numbers in the national
economy which plaintiff can perform. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
It is important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must determine not whether
plaintiff was, in fact, disabled at the relevant time, but whether the ALJ’s findings were
supported by substantial evidence and whether any errors of law were made. Lopez ex rel.
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Supreme Court defines substantial
evidence as, “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations
omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. Burmester v.
Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However, while judicial review is deferential,
it is not abject; this Court does not act as a rubber stamp for the Commissioner. See, Parker
v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
Page 3 of 28
THE DECISION OF THE ALJ
The ALJ followed the five-step analytical framework described above. He
determined that Plaintiff had not worked at the level of substantial gainful activity since
the alleged onset date. He is insured for DIB through December 31, 2020.
The ALJ found that Plaintiff had severe impairments of cervical spine degenerative
disc disease, dysthymic disorder-late onset, alcohol abuse in remission, panic disorder
without agoraphobia, depressive disorder, insomnia, anxiety/generalized anxiety
disorder, and ADHD without hyperactivity.
The ALJ found that Plaintiff had the residual functional capacity (RFC) to perform
work at the medium exertional level limited to carrying fifty pounds occasionally and
twenty-five pounds frequently, sitting for at least six of eight hours and standing and/or
walking for about six of eight hours, occasionally climbing ladders, ropes, and
scaffolding, and avoiding concentrated exposure to dangerous workplace hazards such
as exposed moving machinery and unprotected heights. The ALJ determined Plaintiff
can understand and remember simple instructions and carry out simple, routine and rote
tasks that require little independent judgment or decision-making. He can have no more
than brief and incidental public interaction on less than an occasional basis. He must
work in a stable work setting where there is little daily change in terms of tools used, the
processes employed, or the setting itself, and change, when necessary, is introduced
gradually. He can have occasional interaction with co-workers and supervisors.
Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff is
Page 4 of 28
unable to perform any past relevant work. The ALJ found there are other jobs that exist
in significant numbers in the national economy that Plaintiff can perform.
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in preparing
this Memorandum and Order. The following summary of the record is directed to
Plaintiff’s arguments.
1. Agency Forms
Plaintiff was born in 1959 and was 58 years old on the date of the ALJ’s decision.
(Tr. 193). Plaintiff said he stopped working in October 2015 because of his conditions.
He previously worked as a janitor at both a hospital and Walmart. (Tr. 196-197).
In a Function Report submitted in December 2015, Plaintiff said his severe
anxieties about working affect his ability to work. He said he helps his mother with
housework including vacuuming, laundry, mowing, and taking care of a little dog. He
said he can go out alone, such as going to the grocery store twice a week for half an hour.
He said he does not spend much time with others, is often very nervous and is afraid to
go to church because he has to use the bathroom a lot. He said his condition affects his
ability to concentrate, understand, and follow instructions. He said he does not handle
stress well, cannot pay attention for long, gets along with authority figures, and is “not
too good” at following spoken instructions, but is “pretty good” at following written
instructions. (Tr. 202-209).
Page 5 of 28
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in February
2018. (Tr. 53).
Plaintiff said he worked at Maytag on assembly lines prior to a mental breakdown.
(Tr. 66). He also worked as a janitor at a hospital where he had to lift and carry fifty
pounds, but he stopped working there due to stress, anxiety and depression. He had a
nervous breakdown some months before working there in 2010 and was hospitalized for
three days, but he was able to work there over time because his psychiatrist got him work
leave. (Tr. 59-61, 66-67). He quit this job as well but later returned. Plaintiff worked at
Logan Primary Care as a janitor but stopped working there also due to anxiety. (Tr. 61).
He said he worked for about a month as a janitor at Walmart. Though he wrote in his
work history report that he lifted about fifty pounds at this job, he testified that he only
lifted around fifteen pounds but had trouble even with that and dragged the weight.
Plaintiff said he quit working at Walmart due to stress, anxiety, and trying to concentrate
on job duties. (Tr. 56-59). One employer made accommodations for Plaintiff in 2014 by
lessening the heavier duties and restricting duties that trigger anxiety. (Tr. 74). Plaintiff
said he came home after his shifts and immediately went to sleep due to crying and being
drained and exhausted from the stress, panic and anxiety he experienced while working.
(Tr. 67).
Plaintiff said he used to have panic attacks but has less now since he has not been
working. He said his anxiety creates tension in his neck and shoulders, stress makes him
Page 6 of 28
“panicky,” depression causes him to cry due to worrying about having to go into work,
and his panic disorder causes social issues with trying to get out, do things, and deal with
the public. Plaintiff said he does not go out much anymore, will go to the grocery store
either early in the morning or late at night to avoid people, he does not go to church, and
he attended a therapy group but stopped going because it was too stressful for him to
talk about his problems with others. (Tr. 68-71). He said he has difficulty working with
people and being supervised because it makes him nervous, confused, paranoid about
his job performance, and fearful that he is not doing his job correctly and will be criticized.
(Tr. 75).
A vocational expert (VE) testified that a person with Plaintiff’s RFC could not
perform their past work of cleaner in a hospital. The ALJ presented hypotheticals to the
VE which corresponded to the ultimate RFC findings. The VE testified this person could
do jobs such as hand packager, general production helper, and general production
worker. (Tr. 81-85).
3. Relevant Medical Records
Plaintiff presented to Alyson Wolz, an advanced practice nurse, at GOYA Health,
Ltd. five times between June 2013 and April 2014, complaining of chronic anxiety, trouble
relaxing, panic related to his job situation, stress, decreased concentration, fatigue, muscle
tension, sudden heart rate changes, shortness of breath (SOB), choking sensations,
abdominal distress, dizziness, and avoidant behaviors. (Tr. 280, 283, 286, 288, 290).
Plaintiff said his employer was unwilling or unable to make accommodations for him, so
Page 7 of 28
he quit his job. (Tr. 288, 290). However, his employer later offered Plaintiff to come back
to work and offered accommodations for his anxiety. (Tr. 286). He said he attempted to
train for auto mechanics but had a panic attack while at the school signing up for classes
and did not return. (Tr. 283). He said he experienced less anxiety since he quit and said
medications improve his symptoms. (Tr. 286, 288). Plaintiff said he wanted to be on
disability because he felt so much better when he did not have to go to work. (Tr. 283).
At these appointments, APN Wolz noted intact memory, judgment and insight, a
normal concentration and attention span despite one appointment where she noted it as
decreased, and she noted his mood and affect as normal despite one appointment where
she noted an anxious mood and blunted affect. (Tr. 281, 284, 287, 289-290). APN Wolz’s
assessments consisted of ADD without hyperactivity, major depressive disorder, anxiety
disorder, panic disorder, and agoraphobia, and plans included deep breathing exercises,
muscle relaxation exercises, medication and physical exercise. (Tr. 281-282, 284, 287, 289-
291).
Plaintiff presented to Jacquelyn Muniz, a Doctor of Psychology, at GOYA Health,
Ltd. eight times between June 2014 and December 2014, stating his problems began in
2009 following a breakdown. Plaintiff reported one hospitalization in the past for mental
health issues and a history of therapy. He complained of depression, anxiety regarding
working and applying for different jobs, paranoia, insomnia, hypersomnia, irritability,
frustration, confusion, feeling lost, hopelessness, indecisiveness, a limited attention span,
anhedonia, low self-esteem, fear of embarrassing himself in front of others, panic attacks,
Page 8 of 28
trouble leaving home, obsessions, compulsions, pulling out his hair, difficulty with social
situations, social withdrawal, feeling like others are spying on him or plotting to hurt
him, wondering if the voices he hears at work saying he is germy and loud are real,
trouble completing tasks/projects/duties, and relationship problems. (Tr. 272, 292, 294,
296-297, 299-301). At times, Plaintiff reported an improvement in symptoms, feeling less
anxious when off work, and forgetting about exercising. (Tr. 300-301).
At these appointment, Dr. Muniz noted Plaintiff had an anxious, dysthymic, flat
mood and affect, he had appropriate thought processes, he had intact memory, judgment
and concentration, and he had slowed, under-productive speech. (Tr. 272, 292, 296-297,
299-301). Dr. Muniz’s assessment included ADD without hyperactivity, generalized
anxiety disorder, major depressive disorder, panic disorder, and agoraphobia, and plans
included Plaintiff returning for additional appointments, therapy, medication
management, exercise, deep breathing, and finding different employment. (Tr. 272, 292-
297, 299-301).
Plaintiff presented to APN Wolz in January and August 2015, complaining of
fatigue, difficulty concentrating, muscle tension, excessive worry or rumination, sudden
changes in heart rate, SOB, feelings of choking, nausea or abdominal distress, feeling
dizzy or unsteady, avoidant behaviors, ADD, depression, anxiety, and panic. (Tr. 274,
277). He said stress worsens the symptoms, and said, “My work gives me all kinds of
anxiety.” (Tr. 274-277). APN Wolz noted no depressed mood or anxiety, normal
concentration and attention, and intact judgment and insight. APN Wolz’s assessment
Page 9 of 28
included ADD without hyperactivity, major depressive disorder, generalized anxiety
disorder, panic disorder, and agoraphobia, and plans included medication and exercise.
(Tr. 275-276, 278).
Plaintiff presented to Anita Lloyd, a licensed clinical professional counselor, at The
H Group and underwent Adult Diagnostic Assessments in October 2015, and February,
June, and October 2016. (Tr. 306, 381, 409, 575). Plaintiff reported being a good worker
before he had his breakdown in 2009. He reported working in a hospital as a janitor but
had a lot of problems with nervousness, and he reported working at Walmart but could
not handle it. (Tr. 308). Plaintiff said he wanted to decrease his anxiety so he could handle
going to NAMI groups3. (Tr. 409). He rated his depression as a six out of ten and anxiety
as an eight out of ten. (Tr. 310). He reported impulsivity, inattention, mood swings from
stress on the job, having a depressed mood most of the day nearly every day, low energy,
muscle tension, low self-esteem, feelings of hopelessness, eating when depressed,
recurrent panic attacks that he consistently fears and that keep him from working,
sweating, SOB, chest tightness, abdominal distress, dizziness, confusion, shaking, heat
sensations, fear of losing control or going crazy, consistent anxiety, worsened anxiety
when he leaves the house, racing thoughts, insomnia, hypersomnia, isolating himself,
indecisiveness, trouble concentrating and focusing, and lacking interest in things he used
to enjoy. (Tr. 310-312, 381-383, 385, 387-389, 409, 413, 575, 581). Plaintiff reported a desire
3 NAMI refers to the National Alliance on Mental Illness. NAMI “provides advocacy, education, support
and public awareness so that all individuals and families affected by mental illness can build better lives.”
https://www.nami.org/About-NAMI, visited on February 24, 2020.
Page 10 of 28
and effort to get on disability. (Tr. 411, 579).
LCPC Lloyd noted Plaintiff appeared well-groomed, overweight and cooperative,
and he had appropriate thought content, no perceptional disturbances, logical thought
processes, an anxious and depressed mood, labile affect, intact memory, fair insight and
judgment, and impaired attention. (Tr. 311, 386, 414-415, 582-583). LCPC Lloyd concluded
Plaintiff needed work on independent self-care, independent interactions with peers and
immediate social contact in activities, steps or activities that effectively cope with
symptoms, developing supportive social relationships, and independent management of
basically diverse nutritional needs. (Tr. 311, 386, 419, 587). LCPC Lloyd noted Plaintiff’s
symptoms cause him clinically significant distress or impairment in social, occupational,
or other important areas of functioning. (Tr. 312). Plaintiff’s primary diagnoses were
panic disorder without agoraphobia, dysthymic disorder, and insomnia. (Tr. 313, 388,
416, 584). Recommendations and plans included outpatient individual and group
therapy counseling, such as primary and behavioral healthcare integration (PBHCI), and
community support. (Tr. 315, 320, 390, 419, 585, 587).
Plaintiff presented to Reno Ahuja, a psychiatrist, at Centerstone on January 27,
2016, reporting situational anxiety, fine concentration, and good energy, motivation,
sleep and appetite. A mental status exam revealed a constricted affect, logical thought
processes, intact memory, and fair concentration, insight and judgment. Dr. Ahuja’s plan
included tapering Abilify, continuing therapy and exercising, and diagnoses included
panic disorder without agoraphobia, dysthymic disorder, and insomnia. (Tr. 370-371,
Page 11 of 28
373).
On February 11, 2016, Fred Klug, Ph.D., a licensed clinical psychologist, performed
a consultative exam at the request of the agency. Plaintiff said he cannot work because he
“is disabled and had a nervous breakdown in 2009.” (Tr. 324). Dr. Klug noted Plaintiff
had an adequate attention span, good concentration, poor short-term memory, intact
immediate and long-term memory, good reasoning, and poor abstract thinking,
judgment and insight. (Tr. 325-327). Plaintiff reported worrying about fifty minutes an
hour every day and trying to get on disability. He also reported feeling depressed two
days a week since 2009 when he had his nervous breakdown. He had a dysphoric and
tense mood and reported being nervous. (Tr. 326-327).
Plaintiff presented to Dr. Ahuja seven times between March and December 2016
complaining of high anxiety sometimes at a seven out of ten, worsening symptoms
regarding depression and anxiety, and being happy and then sad. (Tr. 365, 405, 649, 653,
656, 658). He reported a good mood at times with improved anxiety, no panic attacks,
fine concentration, and good energy, sleep and appetite. (Tr. 365-366, 401, 405, 649, 658).
At other times, however, Plaintiff reported a “pretty bad” mood saying he wanted to
sleep all the time, nervousness, poor energy, poor motivation, bad social anxiety, and
difficulty attending NAMI groups. (Tr. 365, 401, 405, 649).
Mental status exams often revealed a constricted affect while sometimes revealing
a worried, depressed, anxious or appropriate mood and affect, and they always revealed
logical thought processes, intact memory, and fair to normal concentration, insight and
Page 12 of 28
judgment. (Tr. 366, 402, 406, 650, 654, 657, 659). At one point, Dr. Ahuja determined
Plaintiff’s status may have worsened due to tapering Abilify and being on multiple
medications. Dr. Ahuja’s assessments included panic disorder without agoraphobia,
dysthymic disorder, and insomnia, and plans included medication management,
psychotherapy, and exercise. (Tr. 366, 368, 402, 404, 406, 408, 648, 650, 652, 654, 657, 659).
Plaintiff presented to Kathryn McMurphy, a physician assistant, at Shawnee
Health Care Marion twice in October 2016 complaining of left shoulder pain that is mild
to moderate in severity, intermittent, fluctuating, and aching. (Tr. 553, 556). Associated
symptoms included joint tenderness, nocturnal pain, and tingling in the arms. Plaintiff
said the pain is worse at night, and he injured the shoulder in a fall a few years prior. (Tr.
556). PA McMurphy noted normal physical exams, no tenderness over the left shoulder,
and full range of motion without pain on movement, and she started Plaintiff on
Meloxicam. (Tr. 554-555, 558).
Plaintiff was discharged from treatment with The H Group on March 7, 2017, on
his own accord. LCPC Lloyd indicated Plaintiff had fair progress in treatment. (Tr. 623-
624).
Plaintiff presented to Diane Washington, a psychiatrist, at Centerstone on March
27, 2017, complaining of anxiety, depression, and sleep disturbance from nightmares. He
reported feelings of doom and feeling nervous all the time, restless, and fidgety. A mental
status exam revealed a facial tic Plaintiff was unaware of, normal insight and judgment,
intact memory, constricted mood and affect, normal attention, “mask like” facial
Page 13 of 28
expression, and logical thought processes. The diagnoses included insomnia, persistent
depressive disorder, and panic disorder, and plans included medications. (Tr. 661-662).
Plaintiff presented to PA McMurphy in March, July, August and October 2017,
and PA McMurphy noted mild tenderness of the paracervical musculature and
submandibular4 tenderness. (Tr. 426, 429, 433, 449). PA McMurphy ordered an x-ray of
Plaintiff’s cervical spine and referred Plaintiff to physical therapy. (Tr. 463).
Plaintiff presented to Janice Fisher, a licensed practical nurse, at Centerstone on
June 29, 2017, for medication management and complaining of depression, anxiety, and
nightmares. (Tr. 663).
Plaintiff underwent a cervical spine x-ray on July 26, 2017, and the impression
revealed, “No acute osseous abnormality of the cervical spine. Mild to moderate
degenerative disc disease at C6-7.” (Tr. 504).
Plaintiff presented to Paul Carter, a psychiatrist, at Centerstone on November 9,
2017, for medication management and complaining of feeling overwhelmed, having
tearful outbursts with small minor triggers, social nervousness, nightmares, ruminative
thoughts, restlessness, and difficulty controlling worry. A mental status exam revealed
normal insight and judgment, intact memory, normal attention, and logical thought
processes. Diagnoses included insomnia, persistent depressive disorder and panic
disorder, and plans included medications and anxiety management. (Tr. 666-667).
4 Submandibular refers to, “Beneath the mandible or lower jaw.” https://medical-
dictionary.thefreedictionary.com/submandibular, visited on February 24, 2020.
Page 14 of 28
Dr. Carter filled out a medical statement on January 18, 2018, reporting Plaintiff
had decreased energy, generalized persistent anxiety, apprehensive expectation, and
recurrent and intrusive recollections of a traumatic experience, which are a source of
marked distress. He reported Plaintiff had moderate restriction of activities of daily living
and marked difficulty in maintaining social functioning. (Tr. 670). He reported Plaintiff
had deficiencies of concentration, persistence or pace resulting in frequent failure to
complete tasks in a timely manner. He reported Plaintiff as moderately impaired in the
ability to understand, remember and carry out detailed instructions, the ability to
maintain attention and concentration for extended periods, the ability to perform
activities within a schedule, maintain regular attendance and be punctual within
customary tolerances, the ability to work in coordination with and proximity with others
without being distracted by them, the ability to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes, and the ability to respond
appropriately to changes in the work setting. Dr. Carter reported Plaintiff being markedly
impaired in the ability to sustain an ordinary routine without special supervision, the
ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods, the ability to interact appropriately with
the general public, the ability to travel in unfamiliar places or use public transportation,
and the ability to set realistic goals or make plans independently of others. Dr. Carter said
Plaintiff’s anxiety symptoms impair his ability to work consistently without interruption
Page 15 of 28
from said symptoms. (Tr. 670-672).
4. Medical Opinions
Ellen Rozenfeld, Psy.D., a state agency psychological consultant, concluded in
a reconsideration determination that Plaintiff has moderate difficulties in maintaining
social functioning and concentration, persistence or pace. (Tr. 104). Dr. Rozenfeld
concluded Plaintiff has sustained concentration and persistence limitations. She found
Plaintiff is moderately limited in the ability to carry out detailed instructions and the
ability to maintain attention and concentration for extended periods. (Tr. 107). She also
found Plaintiff is moderately limited in the ability to interact appropriately with the
general public and, therefore, limited Plaintiff to low public contact. (Tr. 108).
Joseph Mehr, Ph.D., a state agency psychological consultant, concluded Plaintiff
has mild difficulties in maintaining concentration, persistence or pace. (Tr. 90). Due to Dr.
Rozenfeld’s reconsideration opinion that Plaintiff was moderately limited as opposed to
mildly limited, the ALJ gave great weight to the reconsideration determination. (Tr. 37).
ANALYSIS
First, Plaintiff asserts the ALJ erred in evaluating Plaintiff’s physical RFC.
Plaintiff suggests the record indicates an inability to lift fifty pounds. However, Plaintiff
points to his own testimony for support that he could not lift that much, as well as a few
medical records regarding neck and cervical spine issues. Plaintiff furthers his argument
saying the ALJ failed to explain how the cervical imaging studies, physical findings and
activities of daily living were evidence of an ability to lift and/or carry fifty pounds. Yet,
Page 16 of 28
the ALJ supports his RFC finding as to why and how Plaintiff can perform work at the
medium exertional level at Tr. 36 and 38.
Plaintiff claims the ALJ erred by not relying on a medical opinion to assess
Plaintiff’s lifting capacity. The ALJ “must consider the entire record, but the ALJ is not
required to rely entirely on a particular physician's opinion or choose between the
opinions. . .” Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007). The determination of RFC
is an administrative finding that is reserved to the Commissioner. 20 C.F.R.
§404.1527(d)(2). at Tr. 36, the ALJ discussed Plaintiff’s medical records regarding neck
and cervical spine issues, noting objective findings of mild tenderness and full range of
motion without increased pain, and explaining how these records support a medium
exertional level. The ALJ also discussed the record regarding Plaintiff’s neck and cervical
spine issues at Tr. 37 and solidified his decision at Tr. 38. Here, the ALJ considered the
medical evidence and formulated an RFC assessment based on the record as a whole
without relying on his own lay interpretation of the medical evidence. That is the ALJ’s
proper role. 20 C.F.R. §404.1527(d)(2). Therefore, Plaintiff’s first issue is denied.
Second, Plaintiff asserts the ALJ erred in evaluating the opinion of Dr. Paul Carter,
M.D. Dr. Carter treated Plaintiff, but the ALJ was not required to fully credit his opinion
because of that status; “while the treating physician’s opinion is important, it is not the
final word on a claimant’s disability.” Books v. Chater, 91 F.3d 972, 979 (7th Cir.
1996)(internal citation omitted). A treating source’s medical opinion is entitled to
controlling weight only where it is supported by medical findings and is not inconsistent
Page 17 of 28
with other substantial evidence in the record. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir.
2016), citing Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Plaintiff filed his application before March 27, 2017. The applicable regulation, 20
C.F.R. § 404.1527(c)(2), provides, in part:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's opinion on the issue(s)
of the nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record, we
will give it controlling weight. [Emphasis added]
If the ALJ decides not to give the opinion controlling weight, he is to weigh it
applying the factors set forth in § 404.1527(c)(1)-(6). Supportability and consistency are
two important factors to be considered in weighing medical opinions. In a nutshell, “[t]he
regulations state that an ALJ must give a treating physician’s opinion controlling weight
if two conditions are met: (1) the opinion is supported by ‘medically acceptable clinical
and laboratory diagnostic techniques [,]’ and (2) it is ‘not inconsistent’ with substantial
evidence in the record.” Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010).
Here, the ALJ explained that he gave little weight to Dr. Carter’s opinion because
(1) Plaintiff showed the ability to work despite his mental health symptoms; (2) Plaintiff
improved with medications and therapy; (3) Plaintiff had normal mental status
examinations in 2017; (4) Plaintiff had moderate GAF scores; and (5) Plaintiff declined
Page 18 of 28
additional therapy, despite there being aspects of his treatment that needed
improvement. The ALJ said, “The findings in the treating records from Dr. Carter were
inconsistent with these reports and the claimant’s activities and functioning in the record
demonstrated greater abilities.” (Tr. 37). The ALJ further explained his reasoning at Tr.
30 regarding Dr. Klug’s opinion.
Plaintiff’s argument ignores much of the ALJ’s discussion. In general, he argues
that the ALJ did not explain enough of the inconsistencies found between Dr. Carter’s
opinion and the medical records. However, that argument distorts the ALJ’s explanation.
The ALJ discussed the medical records in detail at Tr. 31-36. The ALJ’s discussion
illustrates that the treatment records do not support the treater’s opinion. For example,
he pointed out that Plaintiff’s mental status exams were normal in 2017, which does not
support the finding of “marked” impairments as suggested by Dr. Carter.
In light of the deferential standard of judicial review, the ALJ is required only to
“minimally articulate” his reasons for accepting or rejecting evidence, a standard which
the Seventh Circuit has characterized as “lax.” Berger v. Astrue, 516 F.3d 539, 545 (7th Cir.
2008); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). The ALJ met the minimal
articulation standard here.
Plaintiff’s argument is little more than an invitation for this Court to reweigh the
evidence. He has not identified a sufficient reason to overturn the ALJ’s conclusion on
this issue. Even if reasonable minds could differ as to whether Plaintiff was disabled at
the relevant time, the Court cannot substitute its judgment for that of the ALJ in
Page 19 of 28
reviewing for substantial evidence. Burmester, 920 F.3d at 510; Shideler v. Astrue, 688 F.3d
306, 310 (7th Cir. 2012). For these reasons, this Court rejects this issue.
Third, Plaintiff asserts the ALJ erred in evaluating Plaintiff’s mental RFC regarding
concentration, persistence, and pace. The ALJ’s RFC assessment and the hypothetical
question posed to the VE must both incorporate all the limitations that are supported by
the record. Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014). This is a well-established rule.
See Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (collecting cases). If the ALJ finds
that a plaintiff has a moderate limitation in maintaining concentration, persistence or
pace, that limitation must be accounted for in the hypothetical question posed to the VE.
The Seventh Circuit has repeatedly held, with exceptions not applicable here, that a
limitation to simple, repetitive tasks or unskilled work does not adequately account for a
moderate limitation in maintaining concentration, persistence or pace. O'Connor-Spinner
v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010); Yurt v. Colvin, 758 F.3d at 857; Varga v. Colvin,
794 F.3d 809, 814 (7th Cir. 2015); Taylor v. Colvin, 829 F.3d 799, 802 (7th Cir. 2016); Moreno
v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018), as amended on reh'g (Apr. 13, 2018); Winsted
v. Berryhill, 915 F.3d 466, 471 (7th Cir. 2019), DeCamp v. Berryhill, 916 F.3d 671, 676 (7th
Cir. 2019). “The ability to stick with a given task over a sustained period is not the same
as the ability to learn how to do tasks of a given complexity.” O'Connor-Spinner, 627 F.3d
at 620.
Here, the ALJ found that Plaintiff had moderate difficulties in maintaining
concentration, persistence or pace at step three of the sequential analysis when
Page 20 of 28
determining whether Plaintiff’s mental impairments meet or equal a listed impairment.
The ALJ noted that, while the step three determination is not a mental RFC assessment,
the ultimate RFC assessment “reflects the degree of limitation the undersigned has found
in the ‘paragraph B’ mental functional analysis.” (Tr. 31). The ALJ gave great weight to
the State agency psychological consultant’s opinion that Plaintiff had moderate
difficulties in maintaining concentration, persistence or pace.
In regard to Plaintiff’s mental limitations, the ALJ’s RFC finding says:
He can understand and remember simple instructions and carry out simple,
routine and rote tasks that require little independent judgment or decision-
making. He can have no more than brief and incidental public interaction
on less than an occasional basis. He must work in a stable work setting
where there is little daily change in terms of tools used, the processes
employed, or the setting itself, and change, when necessary, is introduced
gradually. He can have occasional interaction with co-workers and
supervisors.
(Tr. 31). Plaintiff suggests this language does not account for moderate limitations in
concentration, persistence or pace, and this Court agrees. A limitation to simple, routine
and rote tasks with little to no changes does not account for difficulties in concentration
arising from anxiety and depression. Varga v. Colvin, 794 F.3d at 815. Moreover, the ALJ
used the terminology that the Seventh Circuit has continually viewed as insufficient.
There are two recent Seventh Circuit cases that speak directly to this issue: Martin
v. Saul, 950 F.3d 369 (7th Cir. 2020) and Crump v. Saul, 932 F.3d 567 (7th Cir. 2019). In
Martin, the court held the ALJ correctly accounted for Martin’s concentration, persistence
or pace limitations by not “assuming that restricting [Martin] to unskilled work would
Page 21 of 28
account for her mental impairments.” Id. at 374. “The ALJ incorporated pace-related
limitations by stating that Martin needed flexibility and work requirements that were
goal-oriented.” Id. The ALJ in Crump used language in the RFC that the Seventh Circuit
has repeatedly found insufficient such as, “simple, routine, repetitive tasks with few
workplace changes.” Crump, 932 F.3d at 569. The court held the ALJ failed to incorporate
limitations like Crump’s likelihood of being off-task twenty percent of the time. Id. at 570.
Here, the ALJ did not go to lengths as the ALJ in Martin did. The present case is
similar to Crump in that the ALJ limited Plaintiff to work involving “simple, routine and
rote tasks,” without adding more relating to concentration, persistence or pace. This, as
established above, is not enough. “More to it, observing that a person can perform simple
and repetitive tasks says nothing about whether the individual can do so on a sustained
basis, including, for example, over the course of a standard eight-hour work shift.”
Crump, 932 F.3d at 570. The Seventh Circuit put it succinctly in Martin:
As we have labored mightily to explain, however, the relative difficulty of
a specific job assignment does not necessarily correlate with a claimant’s
ability to stay on task or perform at the speed required by a particular
workplace. . . . Put another way, someone with problems concentrating may
not be able to complete a task consistently over the course of a workday, no
matter how simple it may be.
950 F.3d at 373-74. Therefore, without more, the RFC does not adequately account for
moderate limitations in concentration, persistence or pace.
The Commissioner relies on Jozefyk v. Berryhill, 923 F.3d 492 (7th Cir. 2019). There,
the Seventh Circuit rejected Plaintiff’s argument that it was error to omit a reference to a
Page 22 of 28
moderate limitation in concentration, persistence or pace from the RFC assessment and
hypothetical question where “according to the medical evidence, his impairments surface
only when he is with other people or in a crowd.” Jozefyk, 923 F.3d at 498. That case is
distinguishable from the case at hand on that basis. The Seventh Circuit explained its
holding in Jozefyk in a later case:
In closing, we owe a word to the Commissioner’s reliance on our recent
decision in Jozefyk v. Berryhill, 923 F.3d 492 (7th Cir. 2019). We do not read
Jozefyk to save the shortfalls in the ALJ’s analysis here. In Jozefyk, we
determined that any error in formulating the RFC was harmless because the
claimant had not testified about any restrictions in his capabilities related
to concentration, persistence, or pace, and the medical evidence did not
otherwise support any such limitations. 923 F.3d at 498. As the
Commissioner concedes, the facts here are different. The medical evidence
plainly shows, and the ALJ recognized, that Crump suffers from CPP
limitations. And, unlike in Jozefyk, Crump testified consistently with the
medical treatment notes about how her bipolar disorder impairs her ability
to concentrate well enough to work for a sustained period.
Crump, 932 F.3d at 571. Here, Plaintiff testified that he had trouble concentrating on job
duties, and his mental health symptoms made him confused.
The Commissioner suggests that, according to Jozefyk, Plaintiff should have cited
to “evidence suggesting what additional limitations the ALJ needed to include to
accommodate his moderate limitations in concentration, persistence, or pace.” Doc. 32, p.
14-15. The Court disagrees for reasons stated above. The Commissioner also cites Dudley
v. Berryhill, 773 F. App'x 838 (7th Cir. 2019), but that case is nonprecedential. “Opinions,
which may be signed or per curiam, are released in printed form, are published in the
Federal Reporter, and constitute the law of the circuit. Orders, which are unsigned, are
Page 23 of 28
released in photocopied form, are not published in the Federal Reporter, and are not
treated as precedents.” Seventh Circuit Rule 32.1(b).
The Commissioner does not address the central point here, which is that the ALJ
found that Plaintiff has moderate limitations in maintaining concentration, persistence,
or pace, but failed to account for that limitation in the RFC assessment and the
hypothetical question.
Lastly, the Commissioner points out that the “B” criteria have been amended and
attempts to minimize the significance of the findings of moderate limitations by pointing
out that “moderate” limitation means that a claimant’s ability to maintain concentration,
persistence or pace independently, appropriately, effectively, and on a sustained basis is
fair. See, Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138,
66164, 2016 WL 5341732 (Sept. 26, 2016) (effective Jan. 17, 2017). But a moderate limitation
is not the same as “no” limitation. A “mild” limitation means that functioning is
“slightly” limited and a “marked” limitation means that functioning is “seriously
limited.” Moderate is between mild and marked. 81 Fed. Reg. 66138, 66164. Therefore, a
moderate limitation is more than a slight limitation, and the ALJ may not overlook the
state agency consultant’s designation of moderate limitations in the RFC. Further, these
definitions do not represent a change in the meaning of these terms:
Third, we have used the words “mild,” “moderate,” “marked,” and
“extreme” under our prior rules for many years. Although we did not
provide definitions for most of these terms until now, the definitions in final
12.00F are consistent with how our adjudicators have understood and used
those words in our program since we first introduced the rating scale in
Page 24 of 28
1985. As a result, the definitions we provide in these rules do not represent
a departure from prior policy.
81 FR 66138, 66147.
The ALJ’s conclusion regarding Plaintiff’s social limitations also refutes
Defendant’s attempt to minimize the significance of the findings of moderate limitations.
He found Plaintiff to be moderately limited in interacting with others, leading him to
limit Plaintiff to no more than brief and incidental public interaction on less than an
occasional basis. Dr. Rozenfeld likewise found that Plaintiff was moderately limited in
ability to interact with the public and therefore limited Plaintiff to low public/social
contact. This demonstrates that both the state agency consultant and the ALJ understood
that a moderate limitation is serious enough to require accommodation.
For the reasons stated above, the ALJ did not adequately account for
concentration, persistence or pace within the RFC finding. Therefore, this requires
remand.
In his fourth issue, Plaintiff asserts the ALJ erred in evaluating Plaintiff’s subjective
allegations. This Court rejects this argument. SSR 16-3p supersedes the previous SSR on
assessing the reliability of a claimant’s subjective statements. SSR 16-3p became effective
on March 28, 2016 and is applicable here. 2017 WL 5180304, at *1. The new SSR eliminates
the use of the term “credibility,” and clarifies that symptom evaluation is “not an
examination of an individual’s character.” SSR 16-3p continues to require the ALJ to
consider the factors set forth in the applicable regulation, 20 C.F.R. § 404.1529. Ibid. at *10.
Page 25 of 28
The new SSR does not purport to change the standard for evaluating the claimant’s
allegations regarding his symptoms. Thus, prior Seventh Circuit precedents continue to
apply.
The findings of the ALJ as to the accuracy of the Plaintiff’s allegations are to be
accorded deference, particularly in view of the ALJ’s opportunity to observe the witness.
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). However, Social Security regulations and
Seventh Circuit cases “taken together, require an ALJ to articulate specific reasons for
discounting a claimant's testimony as being less than credible, and preclude an ALJ from
‘merely ignoring’ the testimony or relying solely on a conflict between the objective
medical evidence and the claimant's testimony as a basis for a negative credibility
finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005), and cases cited therein.
Plaintiff argues that the ALJ did not provide an adequate explanation as to the
inconsistencies between Plaintiff’s subjective allegations, the objective clinical evidence,
and the treatment notes. On the contrary, the ALJ did just that at Tr. 32 and continued by
explaining the testimony and medical records from Tr. 31-38. Plaintiff also argues the ALJ
erred by saying Plaintiff’s activities of daily living discounted his subjective allegations.
However, the ALJ did not rely solely on Plaintiff’s activities of daily living to come to his
conclusion. The ALJ relied upon the record as a whole. Therefore, this assertion is
incorrect.
This Court disagrees that the ALJ incorrectly said Plaintiff “was never assessed
with more than a moderate level of impairment in the treating records.” A mental status
Page 26 of 28
exam performed by Dr. Carter in November 2017 was essentially normal. (Tr. 667). Later,
Dr. Carter concluded in a medical statement in January 2018 that Plaintiff was markedly
impaired in the ability to sustain an ordinary routine, the ability to complete a normal
workday and workweek and to perform at a consistent pace, the ability to interact
appropriately with the general public, the ability to travel in unfamiliar places or use
public transportation, and the ability to set realistic goals or make plans independently
of others. (Tr. 672). The ALJ gave Dr. Carter’s opinion little weight for the reasons
mentioned above in the analysis of Plaintiff’s second issue, and the ALJ explained in his
decision the great differences between the treating record and this medical statement.
The ALJ “need not provide a complete written evaluation of every piece of
testimony and evidence.” Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015) (citation and
internal quotations omitted). However, the Seventh Circuit has “repeatedly held that
although an ALJ does not need to discuss every piece of evidence in the record, the ALJ
may not analyze only the evidence supporting her ultimate conclusion while ignoring
the evidence that undermines it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Here,
the ALJ relied on the record as a whole in evaluating Plaintiff’s subjective allegations as
required.
This Memorandum and Order should not be construed as an indication that the
Court believes Plaintiff was disabled during the relevant period or that he should be
awarded benefits. On the contrary, the Court has not formed any opinions in that regard
and leaves those issues to be determined by the Commissioner after further proceedings.
Page 27 of 28
CONCLUSION
The Commissioner’s final decision denying Plaintiff’s application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C.
§405(g).
The Clerk of Court is directed to enter judgment in favor of Plaintiff.
IT IS SO ORDERED.
DATED: March 30, 2020
/s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
Page 28 of 28