KISSEL v. KIJAKAZI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

MARIA K.,1 )

)

Plaintiff, )

)

v. ) No. 3:22-cv-0094-MPB-MJD

)

KILOLO KIJAKAZI, Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

REPORT AND RECOMMENDATION

Claimant Maria K. requests judicial review of the final decision of the Acting

Commissioner of the Social Security Administration ("Commissioner") denying her application

for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act").

See 42 U.S.C. § 423(d). Judge Matthew P. Brookman has designated the undersigned Magistrate

Judge to issue a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [Dkt. 12.]

For the reasons set forth below, the Magistrate Judge RECOMMENDS that the District

Judge REVERSE and REMAND the decision of the Commissioner.

I. Background

Claimant applied for DIB in June, 2021, alleging an onset of disability as of January 29,

2021. [Dkt. 5-5 at 2.] Claimant's application was denied initially and upon reconsideration, and

1 To protect the privacy interests of claimants for Social Security benefits, and consistent with

the recommendation of the Court Administration and Case Management Committee of the

Administrative Office of the United States Courts, the Southern District of Indiana has opted to

use only the first names and last initials of non-governmental parties in its Social Security

judicial review opinions.

a hearing was held before Administrative Law Judge Kevin Martin ("ALJ") on March 8, 2022.

[Dkt. 5-2 at 46.] On March 21, 2022, ALJ Martin issued his determination that Claimant was not

disabled. Id. at 28. The Appeals Council then denied Claimant's request for review on May 3,

2022. Id. at 2. Claimant timely filed her Complaint on July 6, 2022, seeking judicial review of

the ALJ's decision. [Dkt. 1.]

II. Legal Standards

To be eligible for benefits, a claimant must have a disability pursuant to 42 U.S.C. §

423. Disability is defined as the "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, the

Commissioner, as represented by the ALJ, employs a sequential, five-step analysis: (1) if the

claimant is engaged in substantial gainful activity, she is not disabled; (2) if the claimant does

not have a "severe" impairment, one that significantly limits her ability to perform basic work

activities, she is not disabled; (3) if the claimant's impairment or combination of impairments

meets or medically equals any impairment appearing in the Listing of Impairments, 20 C.F.R. pt.

404, subpart P, App. 1, the claimant is disabled; (4) if the claimant is not found to be disabled at

step three, and is able to perform her past relevant work, she is not disabled; and (5) if the

claimant is not found to be disabled at step three, cannot perform her past relevant work, but can

perform certain other available work, she is not disabled. 20 C.F.R. § 404.1520. Before

continuing to step four, the ALJ must assess the claimant's residual functional capacity ("RFC")

by "incorporat[ing] all of the claimant's limitations supported by the medical record." Crump v.

Saul, 932 F.3d 567, 570 (7th Cir. 2019).

2

In reviewing Claimant's appeal, the Court will reverse only "if the ALJ based the denial

of benefits on incorrect legal standards or less than substantial evidence." Martin v. Saul, 950

F.3d 369, 373 (7th Cir. 2020). Thus, an ALJ's decision "will be upheld if supported by

substantial evidence," which means "such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019).

An ALJ need not address every piece of evidence but must provide a "logical bridge"

between the evidence and his conclusions. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).

This Court may not reweigh the evidence, resolve conflicts, decide questions of credibility, or

substitute its judgment for that of the ALJ. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir.

2019). Where substantial evidence supports the ALJ's disability determination, the Court must

affirm the decision even if "reasonable minds could differ" on whether Claimant is disabled. Id.

III. ALJ Decision

The ALJ first determined that Claimant had not engaged in substantial gainful activity

since the alleged onset date of January 29, 2021. [Dkt. 5-2 at 30.] At step two, the ALJ found

that Claimant had the following severe impairments: degenerative disc disease, borderline

intellectual functioning, anxiety, and bipolar disorder. Id. At step three, the ALJ found that

Claimant's impairments did not meet or equal a listed impairment during the relevant time

period. Id. at 31. The ALJ then found that, during the relevant time period, Claimant had the

residual functional capacity ("RFC")

to perform light work as defined in 20 CFR404.1567(b) except she can

occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolding;

and occasionally balance, stoop, kneel, crouch, and crawl. She is able to

understand, remember, and carry out instructions for simple, repetitive tasks in a

work setting requiring no more than occasional interactions with coworkers,

supervisors and the general public and is able to tolerate simple changes in the

routine work setting.

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Id. at 34.

At step four, the ALJ found that Claimant was able to perform her past relevant work as a

housekeeper during the relevant time period. Id. at 39. Alternatively, at step five, the ALJ,

relying on testimony from a vocational expert ("VE"), determined that Claimant was able to

perform jobs that exist in significant numbers in the national economy, such as a packer, an

assembler, and a sorter. Id. at 40. Accordingly, the ALJ concluded Claimant was not disabled.

Id. at 41.

IV. Discussion

Claimant raises numerous issues in her brief. Each of the issues will be addressed, as

appropriate, below.

A. The ALJ's Consideration of Claimant's Subjective Symptoms

Claimant argues that the ALJ’s consideration of her subjective symptoms is "critically

flawed" and requires remand. [Dkt. 7 at 13.] The Court agrees that remand is required.

In his decision, the ALJ recognized his obligation to evaluate Claimant's subjective

symptoms pursuant to 20 C.F.R. § 404.1520c and SSR 16-3p. Id. at 34. SSR 16-3p describes a

two-step process for evaluating a claimant's subjective symptoms. First, the ALJ must determine

whether the claimant has a medically determinable impairment that could reasonably be expected

to produce the individual's alleged symptoms. SSR 16-3p, 2017 WL 5180304, at *3 (Oct. 25,

2017). Second, the ALJ must evaluate the intensity and persistence of a claimant's symptoms,

such as pain, and determine the extent to which they limit her ability to perform work-related

activities. Id. at *3-4. At this step, the ALJ considers the claimant's subjective symptom

allegations in light of the claimant's daily activities; the location, duration, frequency, and

intensity of pain and limiting effects of other symptoms; precipitating and aggravating factors;

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the type, dosage, effectiveness, and side effects of medication; treatment other than medication

for relief of pain; and other measures taken to relieve pain. 20 C.F.R. § 416.929(c)(3). When

assessing a claimant's subjective symptoms, ALJs are directed to "consider the consistency of the

individuals own statements. To do so, [they] will compare statements an individual makes in

connection with the individual's claim for disability benefits with any existing statements the

individual made under other circumstances." SSR 16-3p, 2017 WL 5180304, at *8. The ruling

also explains that "[p]ersistent attempts to obtain relief of symptoms, such as increasing dosages

and changing medications, trying a variety of treatments, referrals to specialists, or changing

treatment sources may be an indication that an individual's symptoms are a source of distress and

may show that they are intense and persistent." Id. at *9.

In this case, the ALJ concluded that

claimant's medically determinable impairments could reasonably be expected to

cause the alleged symptoms; however, the claimant's statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record for the

reasons explained in this decision.

[Dkt. 5-2 at 35.]

The first reason given by the ALJ is that Claimant "testified that she has not been able to

sustain a job. However, the claimant’s earnings record indicate that she has worked at a couple

of jobs for several years at a time." Id. at 37. Presumably, the ALJ is referring to the following

exchange with Claimant during the hearing:

Q: What all problems have you been having that you think affect your ability to

work?

A: I've been having problems trying to comprehend and I just can't follow

directions. My boss would tell me to do things and I would forget. And

then, every time I would forget, I would end up in the office.

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Q: How long have you been having those problems with following directions,

forgetting, that sort of thing?

A: About every job I worked at pretty much. I had 29 jobs my whole life and I

couldn't keep good with any of them.

Q: Has that problem with the following directions and forgetting, has that gotten

better, gotten worse, stayed the same?

A: It's gotten worse. I'm even having problems at home.

Id. at 55. Claimant did not actually testify that she "has not been able to sustain a job"; she

testified that she "couldn't keep good with any of" her jobs, and that her ability to do so had

worsened over the years. Claimant's testimony as a whole indicates that she perceived that she

was not able to do a good job, and that she ended up "in the office" being reprimanded in all of

her jobs, and that eventually her symptoms worsened to the point where she could not sustain

employment. See id. at 57-58 (Claimant was sent home once or twice a week from her last job

because "[e]verything seemed to bother me at work and my head was racing. . . . I was around a

lot of people and that's why I could never get nothing done right.") This is hardly a reason to

discount her credibility.

The next reason the ALJ gives for discrediting Claimant's testimony regarding her

subjective symptoms is the following:

She testified that her mental health symptoms were getting worse over the last

year. Treatment notes show that the claimant had improvement in her symptoms

with medication shortly after establishing mental health treatment (Exhibit 5F).

As such, her psychiatrist did not need to see her for two months. At her next visit

in October 2021, she reported that she was increasingly irritated and [in] a bad

mood as well as paranoid and suspicious of others despite being compliant with

her medications (Exhibit 10F). She was started on a new medication at that time,

and at her next appointment her medication was increased again (Exhibit 10F-5).

She reported in December 2021 that her medications were helpful and she wanted

to keep the dosages the same but brought up symptoms and features of ADHD

(Exhibit 10F-3). However, she was reluctant to pursue medication for ADHD.

At that time, she had normal mental status examination findings. Thus, the

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psychiatric treatment records do not show more than moderate limitations in

functioning, and show that the claimant has had improvement with medication.

***

The claimant was tearful during the hearing, and she reported she could not

perform work tasks due to memory issues and focus problems. However, she

resisted ADHD medication and reported doing better with other medication

changes. Her psychiatric treatment notes do not show findings that would support

her subjective reports and she did not participate in counseling or therapy, despite

reporting debilitating symptoms. The record indicates that she reported to her

primary medical care provider that she had to quit her job, seemingly due to

mental symptoms (Exhibit 2F-6). However, improvement is indicated and the

findings in the psychiatric notes do not support her subjective allegations of

debilitating symptoms.

Id. at 37-38. The ALJ's summary portrays a patient who is trying different combinations and

dosages of medications over the course of several months in order to manage her psychological

symptoms. The records do not demonstrate that she had reached the point that she had found a

reliably helpful medication regimen. In addition, the ALJ did not inquire of Claimant why she

did not seek counseling or therapy and why she resisted adding ADHD medication to her

treatment regimen. See SSR 16-3P (S.S.A. Oct. 25, 2017) ("We will not find an individual's

symptoms inconsistent with the evidence in the record on this basis without considering possible

reasons he or she may not comply with treatment or seek treatment consistent with the degree of

his or her complaints. We may need to contact the individual regarding the lack of treatment or,

at an administrative proceeding, ask why he or she has not complied with or sought treatment in

a manner consistent with his or her complaints."); see also Paul v. Berryhill, 760 F. App'x 460,

465 (7th Cir. 2019) ("ALJs assessing mental illness and bipolar disorder must consider possible

alternative explanations before racing to conclusions about noncompliance with medical

directives.") (citation omitted); Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006)

(recognizing that "mental illness in general and bipolar disorder in particular . . . may prevent the

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sufferer from taking her prescribed medicines or otherwise submitting to treatment").

In addition, as Claimant notes, the Seventh Circuit has pointed out that "[t]he very nature

of bipolar disorder is that people with the disease experience fluctuations in their symptoms, so

any single notation that a patient is feeling better or has had a 'good day' does not imply that the

condition has been treated." See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (citations

omitted). As for the ALJ's observation that "[a]t that time, she had normal mental status

examination findings," the mental status examination portion of the medical record contained

identical normal findings at each of her appointments with her psychiatrist, even when the

narrative portion of those records suggests otherwise. See [Dkt. 5-7 at 129 (June 2021

appointment), 127 (July 2020 appointment), 156 (August 2020 appointment), 182 (October 2021

appointment), 180 (November 2021 appointment), 178 (December 2021)]. For example, the

record from her first appointment with her psychiatrist notes that Claimant "denies depression,

anxiety, memory loss, mental disturbance, suicidal ideation, hallucinations, paranoia" in the

"review of systems" section of the record. [Dkt. 5-7 at 129.] However, in the narrative section,

it states that Claimant "struggles with anxiety, anger and mood swings" and that she is "frustrated

and sad." Id. Similarly, at her November 2021 appointment, Claimant was noted to be "very

emotional and overcharged," but in the "mental status exam" portion of the record it states "no

depression, anxiety, or agitation." Id. at 18. It is unreasonable to rely on the generic, "check

box" portions of the medical record over the narrative portions.

Next, the ALJ stated that

The undersigned notes that the claimant was crying during the hearing and her

reports as well as reports from third parties indicate that the claimant frequently

had crying spells. However psychiatric treatment notes rarely show that the

claimant was crying at her appointments. She was noted to be very emotional and

overcharged in November 2021, which is considered in the residual functional

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capacity limitation to occasional interaction with others and simple changes in a

routine work setting (Exhibit 10F-5).

Id. at 38. It is unclear what the ALJ meant by this statement. Elsewhere in the decision, as noted

above, the ALJ found that "claimant's subjective reports of difficulty controlling her emotions,

and her crying during the hearing support finding that the claimant had moderate limitations in

adapting and managing oneself," and that "the psychiatric treatment notes indicated that the

claimant had some difficulty with forgetting things, irritability and mood swings, and crying

spells, which could reasonably cause moderate limitations and limit her to simple instructions in

simple work settings with no more than occasional contact with others." Id. at 39. Thus, it does

not appear that the ALJ actually disbelieved Claimant's claim of crying spells entirely, despite

what the quoted statement might suggest, but, again, it is not clear.2

Finally, with regard to the symptoms caused by Claimant's degenerative disc disease, the

ALJ stated:

The claimant testified that she has had back pain for several years and her pain

required her to lie down during the day. However, she did not report any physical

limitations on her function report (Exhibit 5E). Her husband did not report any

physical limitations either (Exhibit 4E). Remote treatment notes mention back

pain with very conservative treatment (Exhibit 4F). She did not complain of back

pain again until October 2021 (Exhibit 12F-15). Again, there is very little

treatment. Treatment notes indicate that the claimant went to the Emergency

Department in October 2021 due to back pain and imaging indicated a disc

protrusion with subarticular and foraminal compression of the left lateral recess

and left sided exiting nerve root at L4-L5 (Exhibit 11F-39). However, when she

followed up with her primary medical care provider on October 19, 2021, she

denied back pain and indicated that her back pain is significantly improved but

2 If, in fact, the ALJ meant that he did not believe Claimant, her husband, and her daughter when

they stated that she had frequent crying spells—and perhaps believed that Claimant's crying

during the hearing was not genuine—simply because Claimant did not always cry during her

appointments with her psychiatrist, that is absurd. The fact that Claimant did not cry in the

supportive environment of a psychiatrist's office says nothing about whether she had crying

spells at other, more stressful times.

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she was concerned with intermittent mild to moderate low back pain (Exhibit 12F-

17). She did not report active back pain other than her October 2021 emergency

room visit. Thus, the record does not support substantial periods of lying down

due to back pain, as the claimant has alleged.

Id. Actually, although Claimant's treating physician noted on October 19, 2021, following her

emergency room visit, that Claimant "denied significant back pain" on that day, he also noted

that she was "concerned with intermittent mild to moderate low back pain." [Dkt. 5-7 at 244.]

On examination, the doctor noted the following: "limited ROM (Mild limitation on back

extension with pain on trying to do full extension of the back) and tenderness (Paralumbar

tenderness)." Id. In addition, Claimant complained of back pain on February 2, 2022, and her

treating physician noted paralumbar tenderness on exam. [Dkt. 5-7 at 234.] Therefore, the ALJ's

statement that "[s]he did not report active back pain other than her October 2021 emergency

room visit" is inaccurate.

The Court's review of an ALJ's credibility determination is generally deferential unless

"if, after examining the ALJ's reasons for discrediting testimony, we conclude that the finding is

patently wrong." Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). The ALJ's determination

may be patently wrong where he fails to "'build an accurate and logical bridge between the

evidence and the result.'" Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006) (quoting

Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)). The ALJ must justify his subjective

symptom evaluation with "specific reasons supported by the record," Pepper v. Colvin, 712 F.3d

351, 367 (7th Cir. 2013), and build an "accurate and logical bridge between the evidence and

conclusion." Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Simply put, an ALJ "must

competently explain an adverse-credibility finding with specific reasons 'supported by the

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record.'" Engstrand v. Colvin, 788 F.3d 655, 660 (7th Cir. 2015) (quoting Minnick v. Colvin, 775

F.3d 929, 937 (7th Cir. 2015)).

The ALJ failed to do so in this case because, as explained in detail above, he relied on

inaccurate characterizations of the record as support for his conclusion that Claimant's subjective

symptom allegations were not fully credible. In addition, it is unclear what the ALJ meant by his

reference to Claimant's lack of crying at her psychiatric visits. Accordingly, remand is required

for the ALJ to reevaluate his subjective symptom evaluation based on an accurate reading of the

record and to more clearly articulate the reasons for his conclusions.

B. The ALJ's Consideration of the Medical Opinions of Record

The record contains several medical opinions regarding Claimant's abilities. Because

Claimant advanced this claim after March 27, 2017, the applicable law no longer required the

ALJ to give special weight to the opinion of Claimant's treating physician. See 20 C.F.R. §

404.1520c(a). Rather, the ALJ was required to evaluate all medical opinions on an equal basis

for "persuasiveness." Id. ALJs are instructed to evaluate all medical opinions using factors

including whether the opinion is supported by objective medical evidence; the opinion's

consistency with other evidence; the professional's relationship with the patient, including the

length, frequency, purpose, and extent of treatment; and the professional's specialization. 20

C.F.R. § 404.1520c(c). In addition, the regulation expressly recognizes that "[a] medical source

may have a better understanding of your impairment(s) if he or she examines you than if the

medical source only reviews evidence in your folder." 20 C.F.R. § 404.1520c(c)(3)(v). After

considering the relevant factors, an ALJ must articulate how persuasive he finds each medical

opinion in his decision. 20 C.F.R. § 404.1520c(b). The most important factors ALJs will use in

determining the persuasiveness of a medical opinion are supportability and consistency. 20

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C.F.R. § 404.1520c(b)(2). Opinions that are supported by and consistent with objective medical

evidence will be most persuasive. 20 C.F.R. § 404.1520c(c)(1)-(2).

With regard to Claimant's physical impairments, the record contains the opinion of state

agency physician Shayne Small, M.D., who opined that Claimant could perform medium work

with a few additional limitations. [Dkt. 5-3 at 14.] Dr. Small considered a lumbar x-ray taken in

July 2016, but he did not have available to him the results of an MRI and CT scan that were

performed on October 11, 2021. See [Dkt. 5-7 at 220] (MRI report); id. at 222 (CT scan report).

The ALJ summarized the reports from the MRI and CT scan as follows:

A CT of the claimant's lumbar spine, dated October 11, 2021, revealed eccentric

left disc protrusion with subarticular and foraminal compression of the left lateral

recess and left-sided exiting nerve root, with severe left neural foraminal

narrowing and compression of the exiting nerve root. An MRI of the lumbar spine

dated October 11, 2021, showed L5–S1 left subarticular disc protrusion, severe in

the lateral recess and neural foraminal narrowing with likely compression of the

exiting nerve root within the subforamen.

[Dkt. 5-2 at 36] (internal citations omitted).3 The ALJ then concluded that the state agency

physician's opinion that Claimant could perform medium work was not persuasive and, based on

this new evidence, instead limited Claimant to a range of light work. Id. at 39. As Claimant

points out, this violated the prohibition against "playing doctor," a "clear no-no" under Seventh

Circuit precedent. See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (ALJ's failure to

submit new MRI to medical scrutiny was fatal "since it was new and potentially decisive medical

evidence") (citations omitted). The ALJ simply was not qualified to determine that the condition

of Claimant's spine, as shown on the new imaging, supported a finding that she was capable of a

3 The 2016 x-ray found "mild levoscoloisis of the lumbar spine" and "advanced facet arthopathy

at the L4-5 and L5-S1 levels." [Dkt. 5-7 at 24.]

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range of light work; perhaps it supported a finding of sedentary work, or no work at all. As in

Goins, the ALJ was required to obtain a medical opinion with regard to the import of the new

imaging reports, rather than making that determination based on his own lay opinion. This must

be corrected on remand.

The Commissioner argues that this case is distinguishable from Goins and "more

analogous to cases where the Seventh Circuit found no error in the ALJ's analysis of the medical

and opinion evidence." [Dkt. 9 at 18] (citing Keys v. Berryhill, 679 F. App’x 477, 480-81 (7th

Cir. 2017), and Olsen v. Colvin, 551 F. App’x 868, 874-75 (7th Cir. 2014)). While the Court

agrees that the unpublished, and therefore non-precedential, cases cited by the Commissioner

lend some support to her argument, the Seventh Circuit's holding in Goins was unequivocally

reiterated in Akin v. Berryhill, 887 F.3d 314, 317-18 (7th Cir. 2018), in which the court stated:

The ALJ stated that the MRI results were "consistent" with Akin's impairments

and then based his assessment of her residual functional capacity "after

considering . . . the recent MRIs." But, without an expert opinion interpreting the

MRI results in the record, the ALJ was not qualified to conclude that the MRI

results were "consistent" with his assessment. See [Goins, 764 F.3d at 680]; Moon

v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014). The MRI results may corroborate

Akin's complaints, or they may lend support to the ALJ's original interpretation,

but either way the ALJ was not qualified to make his own determination without

the benefit of an expert opinion. The ALJ had many options to avoid this error;

for example, he could have sought an updated medical opinion. See Green v.

Apfel, 204 F.3d 780, 782 (7th Cir. 2000). But because the ALJ impermissibly

interpreted the MRI results himself, we vacate the judgment and remand this case

to the agency.

See also McHenry v. Berryhill, 911 F.3d 866, 871 (7th Cir. 2018) ("An ALJ may not conclude,

without medical input, that a claimant's most recent MRI results are 'consistent' with the ALJ's

conclusions about her impairments."). The Court cannot ignore these clear statements in

published Seventh Circuit cases in favor of less recent, unpublished decisions.

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With regard to Claimant's mental impairments, the record contains medical opinions from

two state agency psychologists, each of whom reviewed Claimant's medical records but did not

examine her. The ALJ found the following with regard to those opinions:

State agency psychological consultants reviewed the record on August 12, 2021,

and on October 5, 2021, and opined that the claimant had moderate limitations in

understanding, remembering, or applying information; moderate limitations in

interacting with others; moderate limitations in concentrating, persisting, or

maintaining pace; and mild limitations in adapting or read to do oneself (Exhibit

1A, 3A). The state agency psychological consultants further opined that the

claimant was able to understand, carryout, and remember simple instructions; she

could make judgments commensurate with functions of simple, repetitive tasks;

she could respond appropriately to brief supervision and interactions with

coworkers in work situations; and she could deal with changes in a routine work

setting.

The undersigned finds that this opinion is persuasive[,] although the claimant's

subjective reports of difficulty controlling her emotions, and her crying during the

hearing support finding that the claimant had moderate limitations in adapting and

managing oneself. The weight of the evidence indicates that the claimant had

some improvement with treatment they are primarily normal mental status

examination findings although the psychiatric treatment notes indicated that the

claimant had some difficulty with forgetting things, irritability and mood swings,

and crying spells, which could reasonably cause moderate limitations and limit

her to simple instructions in simple work settings with no more than occasional

contact with others.

[Dkt. 5-2 at 38-39.] It appears that the most recent medical record reviewed by the state agency

psychologists was dated August 6, 2021. See [Dkt. 5-3 at 3, 12].4 As discussed above, later

notes from her treating psychiatrist suggest that the improvement in her psychological symptoms

noted at the August 6, 2021, visit was short-lived. At her next appointment, on October 1, 2021,

she reported worsening symptoms, prompting her psychiatrist to add an additional drug to her

4 The reports list records received from Evansville Psychiatric Associates dated September 3,

2021. The last appointment Claimant had there prior to that date was on August 6, 2021. One of

the reports also lists records from Deaconess Hospital received on September 15, 2021; that is

simply a note from that provider indicating that it had no updated records to provide.

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treatment plan. [Dkt. 5-7 at 182.] At the following appointment, on November 20, 2021,

Claimant's psychiatrist noted that she was "very emotional and overcharged." Id. at 180. The

psychiatrist increased the dosage of one of her medications. At the following visit, on December

22, 2021, Claimant reported that her current medications had been "helpful," but that she was

experiencing a lack of focus and forgetfulness. Id. at 178. Thus, the ALJ's reliance on the state

agency psychologists' opinions, which did not have the benefit of these later records, is

problematic. This, too, should be corrected on remand.

C. Claimant's Remaining Arguments

Claimant makes several additional arguments, none of which require extensive

discussion.

First, Claimant argues that the ALJ's RFC determination is not supported by substantial

evidence. This argument flows from the errors identified and discussed above. Because the ALJ

is required to reevaluate his subjective symptom evaluation and consideration of the medical

opinions of record on remand, the ALJ will necessarily also have to reconsider his RFC

determination.5 In doing so, the ALJ shall take care to articulate how the RFC accounts for each

of Claimant's limitations, including those caused by her mental impairments.

Claimant also argues that the ALJ failed to adequately address the effects of Claimant's

severe obesity on her RFC. The only mention of obesity in the ALJ's decision is the following:

5 To the extent that Claimant argues that remand is required because the ALJ did not set forth a

function-by-function analysis in his decision, that argument fails because Claimant does not

identify any particular function that the ALJ did not address. See Jeske v. Saul, 955 F.3d 583,

596 (7th Cir. 2020) ("The lack of an explicit finding does not necessarily prevent us from

concluding that the ALJ appropriately considered a function."); Draper v. Martin, 664 F.3d

1110, 1114 (7th Cir. 2011) ("It is not this court's responsibility to research and construct the

parties' arguments.").

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The undersigned has also considered the impact of the claimant’s obesity on their

ability to function as required by SSR 19-2p. The evidence fails to show that the

claimant’s obesity increases the severity of their other medically determinable

severe impairments to an extent that the combination of impairments meets the

requirements of a listing.

[Dkt. 5-2 at 31.] The Court agrees that, on remand, the ALJ should consider the effects of

Claimant's obesity on her RFC and articulate his actual findings with regard to that issue.

V. Conclusion

For the reasons stated above, the undersigned RECOMMENDS that the Commissioner's

decision be REVERSED and REMANDED for further proceedings consistent with this

Report and Recommendation.

Any objections to the Magistrate Judge's Report and Recommendation shall be filed with

the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to

timely file objections within fourteen days after service shall constitute a waiver of subsequent

review absent a showing of good cause for such failure.

SO ORDERED.

Dated: 20 JUN 2023

Marl J. Dinsyfigre

United StatesWMagistrate Judge

Southern District of Indiana

Distribution:

Service will be made electronically on all

ECF-registered counsel of record via email

generated by the Court's ECF system.

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