Bruno v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

BRANDON B.1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 2:21cv208

)

KILOLO KIJAKAZI, Acting )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court for judicial review of a final decision of the defendant

Commissioner of Social Security Administration denying Plaintiff's application for Supplemental

Security Income (SSI) as provided for in the Social Security Act. Section 405(g) of the Act

provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the

transcript of the record including the evidence upon which the findings and decision complained

of are based. The court shall have the power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with

or without remanding the case for a rehearing." It also provides, "[t]he findings of the

[Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42

U.S.C. §405(g).

The law provides that an applicant for disability insurance benefits must establish an

"inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to last for a continuous period of not less

than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental

1 To protect privacy, Plaintiff’s full name will not be used in this Order.

impairment is "an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic

techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an

impairment exists. It must be shown that the impairment is severe enough to preclude the

plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th

Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.

1979). It is well established that the burden of proving entitlement to disability insurance

benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v.

Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record

as a whole contains substantial evidence to support the [Commissioner’s] findings. Scott v.

Astrue, 734, 739 (7th Cir. 2011); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more

than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984)

quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see also Jones v.

Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). "If the record contains such support [it] must [be]

affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see

also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after a hearing, the Administrative Law Judge (“ALJ”) made the

following findings:

1. The claimant attained age 18 on March 14, 2014, and was eligible for

supplemental security income benefits as a child for the month preceding the

month in which he attained age 18. The claimant was notified that he was found

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no longer disabled as of October 7, 2014, based on a redetermination of disability

under the rules for adults who file new applications.

2. Since October 7, 2014, the claimant has had the following severe impairments:

attention deficit hyperactivity disorder (ADHD), oppositional defiance disorder,

depression and anxiety (20 CFR 416.920(c)).

3. Since October 7, 2014, the claimant did not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d),

416.925 and 416.926).

4. After careful consideration of the entire record the undersigned finds that since

October 7, 2014, the claimant has had the residual functional capacity to perform

a full range of work at all exertional levels but with the following nonexertional

limitations: he can perform simple and detailed tasks, but not complex tasks

equating to unskilled and semi-skilled work; can deal with occasional changes in

work processes and environment; no work with the general public (face to face

communication and/or work over the phone); and can interact on an incidental

superficial work related contact with coworkers and supervisors (defined as brief,

succinct, concise, cursory communication relevant to the task being performed).

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on March 15, 1996 and is a younger individual age 18-49

(29 CFR 416.963).

7. The claimant has at least a high school education and is able too communicate in

English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past

relevant work (20 CFR 416.978).

9. Since October 7, 2014, considering the claimant’s age, education, work

experience, and residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20 CFR 416.969

and 416.969a).

10. The claimant’s disability ended on October 7, 2014, and the claimant has not

become disabled again since that date (20 CFR 416.987(e) and 416.920(g)).

(Tr. 24-30).

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Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability

benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied

review. This appeal followed.

Plaintiff filed his opening brief on February 2, 2022. On March 8, 2022, the defendant

filed a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on

March 24, 2022. Upon full review of the record in this cause, this court is of the view that the

ALJ’s decision must be remanded.

A five-step test has been established to determine whether a claimant is disabled. See

Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-

91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test

as follows:

The following steps are addressed in order: (1) Is the claimant

presently unemployed? (2) Is the claimant's impairment "severe"?

(3) Does the impairment meet or exceed one of a list of specific

impairments? (4) Is the claimant unable to perform his or her

former occupation? (5) Is the claimant unable to perform any other

work within the economy? An affirmative answer leads either to

the next step or, on steps 3 and 5, to a finding that the claimant is

disabled. A negative answer at any point, other than step 3, stops

the inquiry and leads to a determination that the claimant is not

disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162

n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature

of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.

Plaintiff received SSI benefits as a child, having been found disabled in 2006 on the basis

of impairments including ADHD and oppositional defiant disorder. (Tr. 112, 384). When he

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reached age 18 his eligibility for benefits was redetermined, and on October 6, 2014, it was

determined that he was no longer disabled beginning October 7, 2014. (Tr. 74, 95-98). That

determination was upheld by a State agency disability hearing officer. (Tr. 103-20, 450-67).

Following a timely request, Plaintiff appeared unrepresented at a hearing before ALJ Cindy

Martin in Valparaiso, Indiana, on June 20, 2018. (Tr. 37-73). Plaintiff waived his right to

representation. (Tr. 40-41, 159). The ALJ issued an unfavorable decision on September 25, 2018,

finding that Plaintiff’s disability had ended on October 7, 2014. (Tr. 19-36; 42 U.S.C. §1382c(a)

(3)(A)).

Plaintiff was 18 years old as of the date his disability was found to have ended and 22

years old as of the date of his hearing. (Tr. 103). He graduated from high school in May 2014. (Tr.

47-48, 185). He has never worked. (Tr. 46-47, 55, 174).

Plaintiff attended a series of alternative schools, with special education instruction as well

as therapy, due to an emotional disability. (Tr. 273-316, 329-42). He had difficulty sleeping

beginning at age five and was often tired in class. (Tr. 288). He was verbally and physically

aggressive and defiant towards students and staff, sometimes with outbursts lasting hours, and

was argumentative and threatening with family members. (Tr. 280, 284-88, 297-98, 307-09, 658).

He was psychiatrically hospitalized at ages six and ten for anger issues (Tr. 443); he threatened to

stab someone and had knives “hidden in the couches.” (Tr. 658). Although he made progress, he

continued to be disruptive, manipulative, and aggressive through 12th grade. (Tr. 334-35).

Plaintiff has been prescribed medications such as Adderall, Celexa, Lamictal, Zyprexa,

Ativan, Prozac, Abilify, hydroxyzine, Geodon, and Zoloft for depression, anxiety, oppositional

defiant disorder (“ODD”), ADHD, and PTSD. (Tr. 274, 285, 288, 346, 422, 441, 474, 483,

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495-96, 510, 554, 658). On psychiatric visits at Regional Mental Health Center in 2013 and 2014,

including after he turned 18, he reported social anxiety and displayed poor insight and judgment.

(Tr. 346-62). He generally reported he was not depressed or anxious in 2015 and early 2016,

although he was “not able to function without Adderall XR,” was scared of driving, lived “an

isolated life,” and continued to display poor insight and judgment. (Tr. 422-39). Plaintiff switched

providers to Porter-Starke Services in August 2016, reporting issues with depression, anger, and

attention. (Tr. 442-48). He has become better at managing his anger, but it escalates very quickly

and he still has outbursts. He has severe bouts of depression, which combined with his anxiety

“makes it all very bad.” He isolates from others and has low motivation. He has panic attacks,

cannot be in crowds of people, constantly worries, and is highly irritable. (Tr. 442). His sleep is

poor. (Tr. 443). Therapist Maritza Wysocki, LCSW, assessed social anxiety disorder, major

depressive disorder with anxious distress, disruptive mood dysregulation disorder, and ODD. (Tr.

445).

Plaintiff saw psychiatrists Sonia Yballe, M.D., and Mitchell Goldstein, M.D., as well as

therapists, at Porter-Starke in 2017 and 2018, reporting ongoing attention problems, depression,

anxiety, and anger. (Tr. 474-521, 522-24). He often appeared disheveled and displayed

psychomotor agitation, anxious mood and/or affect, and limited judgment and/or insight. (Tr.

475, 482, 484, 500, 504, 508, 510, 516, 519). Plaintiff reported feeling very anxious in an early

session with Dr. Goldstein because he did not know Dr. Goldstein (Tr. 514), and displayed

agitation. (Tr. 516). He breaks things when he is angry and has scratched himself. It bothers him

to hear someone chewing or breathing loudly. (Tr. 514). Dr. Goldstein prescribed Geodon to

address Plaintiff’s anger (Tr. 518), but this and Zoloft were stopped due to severe side effects.

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(Tr. 507, 510). In March 2017, Dr. Yballe stopped Plaintiff’s ADHD medication because there

were “other issues of more clinical relevance”: he was depressed and unmotivated, felt anxious all

the time, did not work, and had social anxiety. (Tr. 499). Then, in May 2017, Plaintiff reported

difficulty focusing and continuing depression, and Dr. Yballe added Adderall and Prozac. (Tr.

495-96). Plaintiff reported in June that these helped (Tr. 491), but thereafter continued to report

anxiety, anger, depression, and issues with attention and hyperactivity, and his Adderall was

increased. (Tr. 474, 481-82, 483-85).

Dr. Goldstein referred Plaintiff for a psychological assessment with John M. Spores,

Ph.D., and Quynh Chau, Psy.D., in May 2018, “to differentiate between autism and personality

disorder.” (Tr. 656, 476). Dr. Goldstein noted that Plaintiff seemed to be “lower functioning.”

(Tr. 656). Plaintiff reported sad mood; recurring crying spells; excessive worry; extreme

nervousness, anxiety, and paranoia during social interactions; problems maintaining relationships;

sensitivity to sensory inputs; low self-worth; excessive dependency upon others; social isolation;

and eccentric and strange behaviors. (Tr. 656-57). He displayed an above-average activity level

with evidence of psychomotor agitation, and his legs repeatedly shook during the assessment,

which he attributed to anxiety. (Tr. 657). Plaintiff has severe anxiety and difficulty following

orders unless they are specific, is unable to follow directions, and chooses not to adhere to a

structural chain of command. (Tr. 658).

Testing was negative for autism spectrum disorder. (Tr. 660). Drs. Spores and Chau found

that Plaintiff’s symptoms and behaviors “produce avoidance and isolation eventually leading to

marked dependency needs.” He is “likely to display marked anxiety and fear of social judgment in

most interpersonal situations.” (Tr. 663). His “[c]linical syndromes indicate marked anxiety and

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depression consistent with self-reports,” and he “may feel futile in efforts to improve the self,

leading to diminished self-care….” (Tr. 664). The examiners diagnosed avoidant personality

disorder, with avoidant and self-defeating traits; generalized anxiety disorder; and major

depressive disorder. (Tr. 665).

At the hearing, Plaintiff testified that he has been trying to save money out of his Social

Security checks in order to buy a computer so he can take college classes online. (Tr. 47-48). He

has not taken a driving test; if he tries to “even so much as sit behind the wheel of a car, [he]

completely freeze[s].” (Tr. 48-49). He gets rides from family and family friends. (Tr. 49). He has

not used public transportation at all since 2014. (Tr. 49-50). He took the bus when he was in high

school, with “minor issues” such as altercations with other students or arguments with drivers or

“bus driver attendees.” (Tr. 50-51). He was removed from the bus a few times. (Tr. 51).

Plaintiff tires easily, but he is not sure why. (Tr. 51). He spends most of his time alone in

his room. He plays video games from time to time. (Tr. 52). He avoids playing online elements of

games because he does not like dealing with other people. He does some chores like putting up

dishes and cleaning litter boxes, and occasionally switches the laundry if asked, although he often

gets preoccupied after being asked and will have to be told repeatedly before he does the chore.

(Tr. 53). Whenever he starts to get tired, he stops what he is doing and puts something on TV,

because he cannot fall asleep otherwise. (Tr. 53-54). He usually goes with his mom to a store

once a month. He has one friend, Scott, whom he has known since he was ten or 11, and also

interacts with Scott’s brother, Steve, who is a family friend. Plaintiff checks the mail and takes

out the garbage. At home he usually wears shorts, and will change them maybe every four days.

He does not shower as often as he should because he lacks motivation. (Tr. 54). He takes

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Adderall, hydroxyzine, and Lamictal. (Tr. 54-55). They made him extremely drowsy when he first

started taking them, which has improved, but he sometimes still gets sleepy at unusual times. (Tr.

55).

Plaintiff has never worked. He has attempted to help his family friend, Steve, with

projects like repairs of Steve’s home, but that has never gone well. (Tr. 55-56). Plaintiff tries to

help for a few minutes, then starts to believe he is doing everything the wrong way and retreats to

an area away from everybody. (Tr. 56). Plaintiff has been told he has problems with authority; he

disagrees in that he does not specifically have respect for someone because they have authority,

but will respect people if he sees that they deserve respect. (Tr. 57).

Mother also testified at the hearing. (Tr. 57-59). She stated that Plaintiff was in two

different “behavioral school[s]” from the third grade onward. One time, Plaintiff’s case manager

gave Mother a number for a company Plaintiff could use for rides to and from appointments, but

when Mother set up a ride for Plaintiff to go to the dentist, he was too scared to go and she had to

cancel the appointment. Mother does not work and receives SSI. (Tr. 58). She does not drive;

their friend Steve or Mother’s sister drive them. (Tr. 59).

Plaintiff explained that he became too scared to take the cab to his appointment because

he would be going alone and would have had to call to be picked up afterward. (Tr. 59-60). He

cannot call to order food because he panics and does not know what to say whenever he has to

interact with someone he does not know. His medication does not really help with this. He still

has depression despite some improvement with medication adjustment. (Tr. 60).

In support of remand, Plaintiff first argues that the ALJ failed to address the examining

opinion of Drs. Spores and Chau. Based on their extensive May 2018 psychological examination

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and testing of Plaintiff, Drs. Spores and Chau found that Plaintiff’s “[f]eelings of persecution,

mistrust in others, sensitivity to social rejection, and self-defeating behaviors produce avoidance

and isolation eventually leading to marked dependency needs,” and that he is “likely to display

marked anxiety and fear of social judgment in most interpersonal situations.” (Tr. 663). Plaintiff

asserts that the ALJ referred to this examination in her decision but ignored Drs. Spores’ and

Chau’s conclusions and failed to weigh them in evaluating the opinion evidence. (Tr. 28-29). See

20 C.F.R. §416.927(c) (“[W]e will evaluate every medical opinion we receive”).

The ALJ gave “some weight” to the opinions of the State agency reviewing psychologists,

who both found Plaintiff could interact sufficiently with coworkers and supervisors. (Tr. 28).

However, the opinion of Drs. Spores and Chau supports greater limitation both because of the

marked anxiety they found Plaintiff would likely display when interacting with others, and

because of his avoidance, isolation, and “marked dependency needs.” (Tr. 663). Plaintiff contends

that the ALJ was required to address these findings. Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir.

2000); see also Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (“An ALJ can reject an

examining physician’s opinion only for reasons supported by substantial evidence in the record; a

contradictory opinion of a non-examining physician does not, by itself, suffice”) (citation

omitted), 20 C.F.R. §416.927(c)(1) (“Generally, we give more weight to the medical opinion of a

source who has examined you than to the medical opinion of a medical source who has not

examined you”).

Here, the ALJ described some of the examiners’ observations, including Plaintiff’s

disheveled appearance and psychomotor agitation, but found that the examination results were

otherwise “generally benign.” (Tr. 28). Plaintiff contends that the ALJ erred in substituting her

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assessment of the examination findings for the psychologists’ own stated conclusions. Clifford v.

Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (an ALJ may not substitute her judgment for a medical

source’s opinion “without relying on other medical evidence or authority in the record”) (citations

omitted). The ALJ also failed to address the fact that Plaintiff’s agitation during this examination

was consistent with his treating sources’ repeated observations. (See Tr. 475, 484, 500, 504, 508,

510, 516). This supports the examiners’ opinion and the conclusion that Plaintiff displays marked

anxiety in interpersonal settings. 20 C.F.R. §416.927(c)(4) (“Generally, the more consistent a

medical opinion is with the record as a whole, the more weight we will give to that medical

opinion”).

Plaintiff further asserts that even assuming that the findings of Drs. Spores and Chau did

not constitute an “opinion” that required weighing, the ALJ should have obtained an updated

medical opinion rather than evaluating these objective findings (and the others that post-dated the

State agency reviews) herself. Plaintiff argues that the ALJ’s failure to recognize that Drs. Spores

and Chau had provided an opinion and/or obtain an updated opinion was especially significant

because Plaintiff was unrepresented. “Social Security proceedings are inquisitorial rather than

adversarial,” and it is the ALJ’s “duty to investigate the facts and develop the arguments both for

and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (citation omitted).

Therefore, the ALJ has a duty to “develop a complete record….” Kendrick v. Shalala, 998 F.2d

455, 456-57 (7th Cir. 1993). That duty is heightened with unrepresented claimants, Luna v.

Shalala, 22 F.3d 687, 692 (7th Cir. 1994), although it applies “even when the claimant is

represented by counsel.” Elbert v. Barnhart, 335 F. Supp. 2d 892, 905 (E.D. Wis. 2004) (citations

omitted).

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In response, the Commissioner argues that the ALJ acknowledged Plaintiff’s complaints

in the report such as feeling anxiety, being easily overwhelmed, and having difficulty following

orders, yet noted that on examination Plaintiff demonstrated some normal abilities and

communication skills, and argues that this discussion shows the ALJ did not substitute her

assessment for the examiners’ conclusion but rather accurately summarized their findings.

However, the significance the ALJ attributed to normal findings from Drs. Spores and Chau’s

examination, even while she acknowledged abnormal findings such as psychomotor agitation, is

unsupported because the ALJ ignored the examiners’ conclusions.

The Commissioner also argues that Plaintiff failed to establish that Drs. Spores and

Chau’s report constituted an “opinion”. While the Commissioner cites the regulatory definition of

medical opinions, it does not explain why the examiners’ conclusions do not qualify. Rather, the

Commissioner refers to the ALJ’s description of the report as a “detailed evaluation” and notes

that the ALJ considered separately it from the opinion evidence. However, because the ALJ did

not address the examiners’ conclusions at all, her decision does not provide any reason to believe

that she considered those conclusions, and then rejected them because they did not constitute an

opinion. In any event, Drs. Spores and Chau’s conclusions clearly qualify as “statements from

acceptable medical sources that reflect judgments about the nature and severity of [Plaintiff’s]

impairment(s), including [his] symptoms, diagnosis and prognosis, what [he] can still do despite

impairment(s), and [his] physical or mental restrictions.” 20 C.F.R. §416.927(a)(1). Drs. Spores

and Chau extensively described the effects of Plaintiff’s symptoms and diagnoses, the most

significant being that his symptoms “produce avoidance and isolation eventually leading to

marked dependency needs” and that he is “likely to display marked anxiety and fear of social

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judgment in most interpersonal situations.” (Tr. 663). Drs. Spores and Chau suggested therapeutic

techniques to target “interpersonal deficits”. (Tr. 665-66). As the ALJ did not adequately

consider the findings or import of Drs. Spores and Chau’s report, nor identify legitimate reasons

for rejecting their opinion, remand is warranted.

Next, Plaintiff argues that the ALJ’s RFC assessment is not supported by substantial

evidence. The ALJ found that Plaintiff can perform simple and detailed but not complex tasks;

that he can deal with occasional changes in work processes and environment; that he cannot work

with the public; and that he can only have incidental, superficial contact with coworkers and

supervisors, “defined as brief, succinct, concise, [and] cursory communication relevant to the task

being performed.” (Tr. 26).

Plaintiff contends that the ALJ did not explain how she reached these limitations apart

from weighing the State agency reviewing psychologists’ opinions. The ALJ found that the

initial-level, October 2014 opinion, which limited Plaintiff to semiskilled tasks as well as the

character of his interaction with coworkers and supervisors, did not reflect the full record’s

support for precluding Plaintiff’s interaction with the public due to his anxiety. (Tr. 28). The ALJ

found that the reconsideration- level opinion reflected Plaintiff’s social limitations but only

assigned that opinion “some” weight because it did not include any limitation on task complexity,

which the ALJ believed Plaintiff required due to his ADHD. (Tr. 28). The ALJ effectively

combined the two psychologists’ opinions into her ultimate RFC. Plaintiff argues this was

insufficient because, while the RFC is a legal decision for the ALJ to make, merely reviewing the

psychologists’ flawed opinions could not provide the requisite logical bridge from the evidence to

the ALJ’s conclusion. Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014). In support of her

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findings, the initial-level reviewer cited some school evidence; treatment records she described as

noting no suicidal ideation, good appetite, normal sleep, euthymic mood, logical thought

processes, and poor insight and judgment; and Plaintiff’s reported activities. (Tr. 384). The only

treatment evidence to which this reviewer had access was Plaintiff’s 2013 and 2014 treatment at

Regional Mental Health Center, which only included three visits after he graduated high school

(Tr. 346-62), and did not reflect reports such as Plaintiff’s increasing social isolation and

withdrawal after leaving school. (Tr. 422-39, 442-48, 474-524). The reconsideration-level

reviewer summarized the reports and findings from Plaintiff’s initial Porter-Starke assessment

and Plaintiff’s reported activities. (Tr. 452; see Tr. 442-48). However, that reviewer did not have

access to the Porter-Starke records after Plaintiff’s initial visit or the May 2018 examination.

Plaintiff points out that the ALJ failed to address other limitations on his ability to interact

and complete tasks. For example, the ALJ found that Plaintiff’s ODD was a severe impairment

(Tr. 24), which necessarily means that she believed it resulted in work-related limitations. See 20

C.F.R. §416.920(c). In describing the basis for her RFC restrictions, the ALJ only referred to

Plaintiff’s anxiety and ADHD. (Tr. 28). She did not address Plaintiff’s ODD or his resulting

anger or defiance issues in her RFC. Additionally, the psychologist who conducted the

initial-level review opined that Plaintiff “could work with a supervisor who was normally

considerate and positive, but would have problems with a supervisor who was often negative,

critical, or quarrelsome.” (Tr. 370). The ALJ failed to address the fact that Plaintiff’s ability to get

along with others, especially authority figures, is unpredictable, and that he can be defiant or

explosive. (See, e.g., Tr. 236-37, 442, 481-82, 514, 518). There is no evidence that Plaintiff only

responds that way to people who are unusually negative, critical, or quarrelsome.

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The ALJ did not ask the VE about the vocational impact of Plaintiff’s outbursts of anger

or defiance. (See Tr. 60-72). The Seventh Circuit requires that an ALJ “orient the VE to the

totality of a claimant’s limitations.” O'Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.

2010). Because Plaintiff’s claim had progressed to Step Five, the ALJ’s decision “hinged on the

validity of the hypothetical question” and the underlying RFC assessment. Young, 362 F.3d at

1004-05. Plaintiff argues that the ALJ’s finding that Plaintiff could adjust to other work, based on

the VE’s response to hypothetical questions that did not reflect Plaintiff’s ODD, is not supported

by substantial evidence.

Plaintiff further notes that the ALJ also failed to indicate how she considered Plaintiff’s

and Mother’s undisputed reports that Plaintiff requires repeated and detailed instructions about

how any task is to be done. (Tr. 53, 56, 59, 193, 196-97, 204, 215, 224, 227, 233, 236, 474, 658).

This need for explicit instructions is impacted by Plaintiff’s difficulty interacting with anyone he

does not know. Plaintiff thus concludes that he would require more than “brief, succinct, concise,

[and] cursory” instruction about tasks asked of him even if he were relatively comfortable with

the person asking. (Tr. 26). In response to the ALJ’s attempt to quantify the description of the

assistance Plaintiff needs, the VE said that no work would be available if an individual needed

extra supervision in the form of a supervisor’s assistance for five minutes every hour. (Tr. 68-69).

In response, the Commissioner argues that Plaintiff does not propose specific limitations

that would suffice to accommodate Plaintiff’s ODD. However, it was not Plaintiff’s burden to

identify specific limitations the ALJ should include in her RFC to accommodate impairments she

herself found severe, and there is no presumption that an unrepresented claimant has made his

best case before the ALJ. Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007) (citation omitted).

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Clearly, the ALJ’s restriction of Plaintiff to only incidental, superficial contact with coworkers

and supervisors because of his anxiety does not account for his unpredictable anger and defiant

behavior. Furthermore, the ALJ did not ask the vocational expert about any impact of anger or

defiance outbursts.

Plaintiff acknowledges that there is a tension between his difficulty interacting with others

due to his anxiety and behavioral extremes and his need for repeated and detailed instructions in

order to accomplish any task. Plaintiff’s and Mother’s testimony demonstrate that at times he

cannot get to the point of receiving the instructions he would need to accomplish a task because

of his difficulty interacting with others. (See Tr. 55-56, 59-60). These compounding difficulties

are part of why Plaintiff contends he would not be able to withstand competitive work.

For the reasons discussed above, this Court finds that the ALJ’s RFC assessment is not

supported by substantial evidence. Thus, remand is required on this issue.

Next, Plaintiff argues that the ALJ improperly discounted his subjective symptoms. The

ALJ found that the medical evidence was inconsistent with Plaintiff’s allegations because of

“generally” benign mental status examination findings (Tr. 27-28), and that Plaintiff’s daily

activities were “not limited to the extent one would expect” given his allegations. (Tr. 29).

Plaintiff contends that this analysis was legally improper and unsupported.

Plaintiff notes that the ALJ was prohibited from rejecting his allegations solely because

they were not fully supported by objective evidence. Knight v. Chater, 55 F.3d 309, 314 (7th Cir.

1995); 20 C.F.R. §416.929(c)(2); SSR 16-3p, 2016 WL 1119029 at *5. Plaintiff further notes that

the ALJ’s claim that Plaintiff’s examinations only showed “occasional” positive findings and

were otherwise generally benign was misleading. (Tr. 27, citing Tr. 346-62, 405, 422, 424, 426,

16

428, 430, 432, 434, 436, 438, 445, 475, 484, 500, 504, 508, 516-17). Plaintiff’s treating mental

health providers, especially from 2016 onward, consistently observed psychomotor agitation,

anxious mood and/or affect, and limited judgment and/or insight. (Tr. 422-39, 475, 482, 484, 500,

504, 508, 510, 516, 519).

Plaintiff also contends that the ALJ erred in her holding that Plaintiff’s activities were not

limited to the extent she would expect given his allegations. Plaintiff asserts that his ability to do

some limited chores at home is not inconsistent with his allegations or consistent with work

activity. (Tr. 53, 192-93, 214-15, 223-24, 231-33, 236). Plaintiff points out that the record does

not reflect regular interaction with anyone other than Plaintiff’s family, his treatment providers,

and two friends whom he has known since he was young. (Tr. 54). Plaintiff’s anxiety limits his

ability to engage in projects even with his family friend, Steve. (Tr. 56, 59).

Also, while the ALJ discounted the value of Mother’s statements as opinion evidence,

citing one Function Report (Tr. 28-29, citing Tr. 231-38), she failed to consider that those

statements are consistent with and support Plaintiff’s allegations, including his ongoing anger

issues, anxiety, difficulty performing tasks and following instructions, and social withdrawal. (Tr.

57-59, 108, 191-98, 214-15, 231-38); SSR 16-3p, 2016 WL 1119029, at *6-7 (ALJ will consider

factors such as a family member’s statements about a claimant’s symptoms), 20 C.F.R.

§416.929(c)(3).

This Court agrees with Plaintiff that the ALJ did not demonstrate any inconsistency

between Plaintiff’s allegations and the evidence and her analysis was legally insufficient. Thus,

remand is required for a proper analysis of Plaintiff’s subjective symptoms

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Conclusion

On the basis of the foregoing, the decision of the Commissioner is hereby REVERSED

AND REMANDED for further proceedings consistent with this Opinion.

Entered: March 31, 2022.

s/ William C. Lee

William C. Lee, Judge

United States District Court

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