UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOSEPH VAVERCAN, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-74-PRC

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Joseph Vavercan

on March 5, 2014, and Plaintiff’s Brief in Support of His Motion to Reverse the Decision of the

Commissioner of Social Security [DE 14], filed on July 30, 2014. The Commissioner filed a

response on October 17, 2014. Plaintiff filed a reply on November 6, 2014.

PROCEDURAL BACKGROUND

Plaintiff filed applications for disability insurance benefits and supplemental security income

on April 1, 2011, alleging a disability onset date of July 16, 2006. His claim was denied initially and

upon reconsideration. Plaintiff timely requested a hearing, which was held on July 5, 2012 and

presided over by Administrative Law Judge (ALJ) Henry Kramzyck. Present at the hearing were

Plaintiff, his attorney, and an impartial vocational expert. After the hearing, the ALJ requested a

consultative examination of Plaintiff. Plaintiff did not object to admission into evidence of the report

from this examination.

On September 6, 2012, the ALJ issued a written decision denying Plaintiff’s claims for

disability benefits and supplemental security income, making the following findings:

1. The claimant meets the insured status requirements of the Social Security Act

through September 30, 2009.
2. The claimant has not engaged in substantial gainful activity since July 16,

2006, the alleged onset date.

3. The claimant has the following severe impairments: right shoulder

osteoarthritis, obesity, degenerative disc disease of the lumbar spine, anxiety,

and psychotic/delusional disorder.

4. The claimant does not have an impairment or combination of impairments

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

in 20 C.F.R. Part 404, Subpart P, Appendix 1.

5. After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined

in 20 C.F.R. 404.1567(b) and 416.967(b), in that he can occasionally lift and

carry twenty pounds and frequently lift and carry ten pounds, and can sit for

a total of six hours in an eight-hour day, and stand or walk for a total of six

hours in an eight-hour day, with normal breaks, except: the claimant can

never climb ladders, ropes, or scaffolds; the claimant can occasionally climb

ramps and stairs; the claimant is able to understand, remember, and carry out

short, simple, repetitive instructions; the claimant is able to sustain

attention/concentration for 2-hour periods at a time, and for eight hours in the

workday on short, simple, and repetitive instructions; the claimant can use

judgment in making work decisions related to short, simple, and repetitive

instructions; the claimant requires an occupation with only occasional

coworker contact and supervision; the claimant requires an occupation with

set routines and procedures and few changes during the workday; the

claimant could have only superficial contact with the public on routine

matters; the cla[i]mant cannot perform fast-pace production work; and the

claimant can maintain regular attendance, can perform activities within a

schedule, and be punctual within customary tolerances.

6. The claimant has no past relevant work. 

7. The claimant was born [in 1964] and was 41 years old, which is defined as

a younger individual age 18-49, on the alleged disability onset date. 

8. The claimant has at least a high school education and is able to communicate

in English.

9. Transferability of job skills is not an issue because the claimant does not

have past relevant work.

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10. 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.

11. The claimant has not been under a disability, as defined in the Social Security

Act, from July 16, 2006, through the date of this decision.

(AR 21-33). Plaintiff then sought review before the Agency’s Appeals Council, which denied his

request on January 18, 2014, leaving the ALJ’s decision as the final decision of the Commissioner.

See 20 C.F.R. §§ 404.981, 416.1481. On July 16, 2014, Plaintiff filed this civil action pursuant to

42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency’s decision.

The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42

U.S.C. § 405(g).

STANDARD OF REVIEW

The Social Security Act authorizes judicial review of the final decision of the Agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse

only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous

legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence

consists of “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart,

345 F.3d 467, 470 (7th Cir. 2003)).

A court reviews the entire administrative record but does not reconsider facts, re-weigh the

evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment

for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227

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F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the

question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning

of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ “uses

the correct legal standards and the decision is supported by substantial evidence.” Roddy v. Astrue,

705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.

2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d

664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse

the decision “without regard to the volume of evidence in support of the factual findings.” White v.

Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.

1997)).

At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the

reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the

important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55

F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must

“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing

court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful

review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see

also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of

evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski

v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into

the reasoning behind [the] decision to deny benefits.”).

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DISABILITY STANDARD

To be eligible for disability benefits, a claimant must establish that he suffers from a

“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as

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

physical or mental impairment that can be expected to result in death or that 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),

1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from

doing his previous work, but considering his age, education, and work experience, it must also

prevent him from engaging in any other type of substantial gainful activity that exists in significant

numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),

416.920(e)-(f).

When a claimant alleges a disability, Social Security regulations provide a five-step inquiry

to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not

disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have

an impairment or combination of impairments that are severe? If not, the claimant is not disabled,

and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet

or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically

considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the

claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,

then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s

residual functional capacity (“RFC”), age, education, and experience? If yes, then the claimant is

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not disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-

(v), 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).

At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The RFC

“is an administrative assessment of what work-related activities an individual can perform despite

[his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be

based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R.

§ 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the

burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater, 55 F.3d 309,

313 (7th Cir. 1995).

ANALYSIS

Plaintiff seeks reversal of the ALJ’s decision and remand for an award of benefits or,

alternatively, remand for further proceedings. In support of the requested relief, Plaintiff argues: (1)

the ALJ’s assessment of Plaintiff’s credibility relies on improper factors, (2) the ALJ gave improper

weight to medical opinion evidence, and (3) the ALJ’s RFC determination lacks evidentiary support.

The Court considers each argument in turn.

A. Credibility

In making a disability determination, the ALJ must consider a claimant’s statements about

his symptoms, such as pain, and how the symptoms affect his daily life and ability to work. See 20

C.F.R. §§ 404.1529(a); 416.929(a). Subjective allegations of disabling symptoms alone cannot

support a finding of disability. Id. The ALJ must weigh the claimant’s subjective complaints, the

relevant objective medical evidence, and any other evidence of the following factors:

(1) The individual’s daily activities;

(2) Location, duration, frequency, and intensity of pain or other symptoms;

(3) Precipitating and aggravating factors;

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(4) Type, dosage, effectiveness, and side effects of any medication;

(5) Treatment, other than medication, for relief of pain or other symptoms;

(6) Other measures taken to relieve pain or other symptoms;

(7) Other factors concerning functional limitations due to pain or other

symptoms.

See 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). “Because the ALJ is ‘in the best position to

determine a witness’s truthfulness and forthrightness . . . this court will not overturn an ALJ’s

credibility determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310-11 (7th

Cir. 2012) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004)); see also Prochaska,

454 F.3d at 738. Nevertheless, “an ALJ must adequately explain his credibility finding by discussing

specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013)

(citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)); SSR 96-7p, 1996 WL 374186, at *2 (Jul.

2, 1996) (“The determination or decision must contain specific reasons for the finding on credibility,

supported by the evidence in the case record, and must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s

statements and the reasons for that weight.”).

Plaintiff presents three arguments in favor of finding the ALJ’s credibility determination

regarding Plaintiff’s mental impairments “patently wrong”: (1) the ALJ incorrectly decided that

Plaintiff’s discussion of obtaining disability benefits during therapy sessions compromised

Plaintiff’s credibility; (2) the ALJ erred in considering Plaintiff’s previously denied applications for

Social Security benefits in the credibility determination; and (3) the ALJ impermissibly made a

negative inference from Plaintiff’s refusal to comply with treatment without considering Plaintiff’s

explanation for his noncompliance. The ALJ determined that these three factors, along with

Plaintiff’s “poor work history with no clear significant gainful activity level earnings,” “suggest that

the claimant is seeking treatment to establish disability as opposed to therapy.” (AR 30). This

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suggestion and the ALJ’s observation of Plaintiff’s demeanor and concentration at the administrative

hearing are the reasons given for the ALJ’s credibility determination as to Plaintiff’s mental

impairments. (AR 30). The Court addresses each of Plaintiff’s arguments below.

Plaintiff first argues that the ALJ provided no logical bridge between Plaintiff’s discussion

of his applications for disability benefits during his therapy sessions and the ALJ’s conclusion that

this compromises Plaintiff’s credibility. The ALJ implies that discussion of Plaintiff’s applications

in therapy sessions is an indication of Plaintiff’s dishonest motivation for treatment. The

Commission supports the ALJ’s reasoning, suggesting that time spent in therapy discussing

Plaintiff’s application is time not spent on his mental symptoms and their functional effects.

However, symptoms and their effects need to be placed in context, and Plaintiff’s context at the time

of the discussions included his pending disability benefits applications.

In Plaintiff’s treatment plan, one stated objective was to resolve outstanding issues with his

Social Security case; however, there are ten other objectives listed. (AR 433-36). The record

indicates that, while Plaintiff had skills development sessions with the specific goal of helping him

with his ongoing Social Security application,1 see, e.g., (AR 328, 335, 337, 340, 342, 344-45, 347-

48, 351-52), the discussions in Plaintiff’s individual therapy sessions were on a broad range of

topics, including his pending Social Security applications, see, e.g., (AR 330, 332, 334, 339, 349-50

353-54). For example, in Plaintiff’s individual therapy session on March 5, 2012, the discussion

included problems with pain and sleep, issues with getting medication, a review of coping skills, his

upcoming Social Security hearing and types of Social Security benefits, and fishing. (AR 354). In

1

 Notably, it appears from the record that these sessions were begun upon the recommendation of Social Worker

Ruth Dekker, who was Plaintiff’s therapist. (See AR 379-80 (reporting that Dekker felt her only way to help Plaintiff

with his ongoing issues with the Social Security process was “to refer him to Aftercare and have a [Case Manager] work

with him to attempt to secure Medicaid and SSDI/SSI.”)).

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fact, some session reports do not mention any discussion of the Social Security application process.

See, e.g., (AR 334, 367, 372-73).

Furthermore, to the extent obtaining disability benefits was discussed in both the skills

development and individual therapy sessions, the ALJ provided no explanation as to how this

suggests treatment was sought to “establish disability.” (AR 30). The goal of psychotherapy is to

assist patients with developing coping skills and handling difficult situations through learning about

moods, feelings, thoughts, and behaviors.2

 The focus in Plaintiff’s mental health treatment was on

providing him with the tools to cope and function in light of his ongoing disability benefits

application process. Even in regard to the skills development sessions focused on Plaintiff’s pending

Social Security applications, there is a marked difference between having an objective of “obtaining

disability benefits” and “establish[ing] disability.” Id. “Obtaining disability benefits,” as an objective

for Plaintiff in his treatment plan, involved working through documentation, (AR 340), going to

hearings, (AR 351), and working on Plaintiff’s interpersonal skills in order to successfully retain an

attorney, (AR 348). As the ALJ uses it in addressing Plaintiff’s credibility, “establishing disability”

insinuates going to therapy to create a false record of a non-existent impairment. The treatment

records do not support this insinuation. The ALJ has not provided a logical bridge between

Plaintiff’s efforts in therapy to develop the skills to function as a Social Security claimant and the

conclusion that it was done to “establish disability.” See Giles, 483 F.3d at 487 (quoting Scott, 297

F.3d at 595)); see also Lakes v. Astrue, No. 11 C 3592, 2013 WL 623022, at *8 (N.D. Ill. Feb. 19,

2013) (“[I]t is unclear how a focused, even, ‘obsessive,’ desire to obtain benefits makes a claimant’s

disability claim more or less likely to be true.”).

2 Psychotherapy , M AYO C LINIC , http://www.mayoclinic.org/testsprocedures/psychotherapy/basics/definition/prc-20013335 (last visited Sept. 29, 2015).

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Plaintiff next finds fault with the ALJ’s consideration of Plaintiff’s previously denied

applications for disability insurance benefits in determining Plaintiff’s credibility. Before the instant

applications, Plaintiff had been denied disability benefits twice. (AR 30, 45). The first application

denial contains no record of alleged mental impairments, (AR 110-16), meaning that Plaintiff’s

allegations of mental impairment have been addressed only once before, in the second application,

see (AR 87-103). In that previous decision addressing Plaintiff’s mental impairment, there was no

evidence that Plaintiff suffered from delusions, (AR 90), but, in the decision in the instant case, the

ALJ found Plaintiff to have psychotic/delusional disorder, (AR 21). To draw an inference from a

previous denial of benefits that treatment was sought in order to “establish disability” and to also

find an additional severe impairment supported by the record of that treatment is incongruent. The

ALJ’s acknowledgement of the additional impairment indicates that Plaintiff had a legitimate reason

for filing again. This therapy identifies and treats a diagnosis that the ALJ accepts and that was

absent from the previous benefit denials. Additionally, a negative inference drawn from treatment

sought after a denial of benefits places a claimant seeking to remedy an evidentiary deficiency in

an impossible position: how can this claimant build a record documenting his or her condition if

treatment will be counted against his or her credibility? The ALJ failed to present a logical bridge

that connects the previous denial to the credibility determination.

Plaintiff’s final argument regarding the ALJ’s credibility finding regarding mental

impairments is that the ALJ erred in discrediting Plaintiff’s credibility due to noncompliance with

treatment without considering Plaintiff’s explanation for that noncompliance. The Commission

concedes, and the Court finds, that “Plaintiff’s refusal to take psychotropic medications, without

further analysis, is not a firm basis for a credibility assessment.” (Def. Resp. Br. 22); see also SSR

96-7p (“[T]he adjudicator must not draw any inferences about an individual’s symptoms and their

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functional effects from a failure to seek or pursue regular medical treatment without first considering

any explanations that the individual may provide.”). The Commission contends that, regardless of

this error by the ALJ, there is substantial evidence in support of the ALJ’s credibility decision, so

it should be upheld. Here, the Court disagrees with the Commission.

In arguing that substantial evidence supports the ALJ’s credibility determination regarding

Plaintiff’s mental impairments, the Commission offers several pieces of evidence the ALJ

considered in make a determination of Plaintiff’s credibility regarding his physical impairments.

However, there are only five supporting pieces of evidence given by the ALJ in support of his

credibility determination with regard to Plaintiff’s mental impairments: (1) noncompliance with

treatment, (2) discussion in therapy of obtaining disability benefits, (3) previously denied

applications for Social Security benefits, (4) poor work history, and (5) the ALJ’s observations of

Plaintiff’s behavior at the administrative hearing. (AR 30). The three errors noted above undermine

the ALJ’s credibility determination regarding Plaintiff’s mental RFC, and the remaining support

given is insufficient to overcome the flaws. The ALJ’s credibility determination regarding Plaintiff’s

mental RFC is “patently wrong” and requires remand.

B. Medical Opinion Evidence

Plaintiff asserts that the ALJ improperly weighed the medical opinion evidence of treating

psychiatrist Dr. Prakash Varghese and of consultative examiner Dr. Irena Walters, a psychologist.

An ALJ is required to evaluate every medical opinion received, regardless of its source. See 20

C.F.R. §§ 404.1527(c), 416.927(c). Factors the ALJ considers in weighing medical opinion evidence

include the examining relationship, the treatment relationship, the length of the treatment

relationship and the frequency of examination, the nature and extent of the treatment relationship,

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supportability, consistency, specialization, and other factors brought to the ALJ’s attention. Id. §§

404.1527(c)(1)-(6), 416.927(c)(1)-(6). “As a general rule, an ALJ is not required to credit the

agency’s examining physician in the face of a contrary opinion from a later reviewer or other

compelling evidence.” Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). However, “[a]n 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.”

Gudgel, 345 F.3d at 470.

Dr. Varghese is a treating psychiatrist, so the ALJ must give his opinions controlling weight

if (1) the opinion is supported by “medically acceptable clinical and laboratory diagnostic

techniques” and (2) it is “not inconsistent” with substantial evidence of record. Schaaf v. Astrue, 602

F.3d 869, 875 (7th Cir. 2010). However, courts have acknowledged that a treating physician is likely

to develop a rapport with his or her patient and may be more likely to assist the patient in obtaining

benefits. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). An ALJ is entitled to discount the

medical opinion of a treating physician if it is inconsistent with the opinion of a consulting physician

or when the treating physician’s opinion is internally inconsistent, as long as the ALJ gives good

reasons. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); Schaaf, 602 F.3d at 875. The ALJ

cannot pick and choose the evidence that favors his final decision; rather, the ALJ must articulate

his analysis well enough for an appellate court to follow and review his reasoning. Diaz, 55 F.3d 

at 307.

Plaintiff first alleges it was error for the ALJ, in giving Dr. Varghese’s opinions only light

weight, not to explain his consideration of the regulatory factors contained in 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2). While the ALJ must consider the regulatory factors, there is no

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requirement for the ALJ to explicitly discuss each factor in the decision so long as the ALJ

adequately provides good reasons for according the opinion the weight given. See, e.g., McCormick

v. Astrue, No. 11-CV-0328, 2012 WL 1886508, at *12 (N.D. Ind. May 23, 2012); Brown v.

Barnhart, F. Supp. 2d 773, 792 (E.D. Wis. 2004).

Regarding the adequacy of the ALJ’s explanations, the Court separates Dr. Varghese’s two

challenged opinions. The first opinion is that Plaintiff has marked restrictions in concentration,

persistence, or pace, which the ALJ gave little weight. The ALJ explained that he did so because Dr.

Varghese does not clarify his reasons for the opinion and because the treatment records do not

support it. (AR 25). The ALJ notes that the treatment reports do not discuss difficulties in

concentration or memory–only delusions–, that testing indicated intact memory, that a treating

neurologist found intact memory and concentration, and that the ALJ personally observed Plaintiff

to have only mild concentration difficulties and no memory problems at the administrative hearing.

Id. The ALJ has provided a sound explanation for giving this opinion little weight.

The second challenged opinion is that Plaintiff would miss more than four days of work per

month. The ALJ also gave this opinion little weight and supported this decision by noting Plaintiff’s

GAF scores of 50-55, which “are not consistent with inability to concentrate or to work”; Dr.

Varghese’s failure to explain his opinion; and Dr. Varghese’s opinion that Plaintiff is able to handle

his benefits, if awarded. (AR 31). The ALJ further supports his determination that Plaintiff would

be able to have regular work attendance with the following evidence: Plaintiff has had no inpatient

treatment for psychosis or delusions, Plaintiff refuses to take medications, and Plaintiff’s

impairments for which he receives counseling does not preclude unskilled work. (AR 32).

Plaintiff alleges several errors regarding the given reasons. While Plaintiff does not dispute

the validity of using his GAF scores in according weight to this opinion, he does argue that his

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scores support Dr. Varghese’s opinion. A score of 50 indicates serious symptoms or serious

impairment in occupational, social, or school functioning, while scores of 51-55 indicate moderate

symptoms or impairment. Plaintiff also argues that the ALJ should not use the lack of explanation

of the medical opinions to discount the opinions because the form used to provide the opinions does

not ask for explanations. Plaintiff further contends that Dr. Varghese’s treatment notes are consistent

with his opinions. Finally, Plaintiff asserts the ability to handle money is not inconsistent with Dr.

Varghese’s opinion that Plaintiff would miss four days of work per month. The ALJ’s explanation

here is not as sound as his explanation for the first opinion, and on remand the ALJ is directed, if

he uses the same reasons for according weight to Dr. Varghese’s work attendance opinion, to

address the different levels of functioning the GAF scores place Plaintiff within, to more fully

explain how the ability to manage benefits is inconsistent with the medical opinion, and to expressly

consider Plaintiff’s explanations for refusing to take medication. The Court further directs the ALJ,

if he is unable to discern the medical support of a treating physician’s opinion, to “solicit additional

information to flesh out [the] opinion.” Barnett, 381 F.3d at 669 (citing 20 C.F.R. § 404.1527(c)(3);

SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996)).

Plaintiff also alleges a fatal inconsistency in the ALJ giving great weight to Dr. Varghese’s

opinions that Plaintiff’s impairments produced mild limitations in activities of daily living and

moderate limitations is social functioning, (AR 24), but only giving little weight to Dr. Varghese’s

other opinions, (AR 25, 31). However, SSR 96-5p clarifies that “medical source statements may

actually comprise separate medical opinions regarding diverse physical and mental functions, such

as walking, lifting, seeing, and remembering instructions, and that it may be necessary to decide

whether to adopt or not adopt each one.” 1996 WL 374183, at *4 (July 2, 1996). The ALJ has the

discretion to accord different weight to Dr. Varghese’s different opinions, and there is no error here.

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Plaintiff next argues that the ALJ erred in giving little weight to the opinion of consultative

examining psychologist Dr. Walters. Because Dr. Walters is a consultative examiner, the ALJ can

discredit her opinion if a later reviewer gave a contrary opinion or if there is other compelling

evidence. Beardsley, 758 F.3d at 839.

Dr. Walters opined that Plaintiff suffered moderate to marked restrictions in social

functioning and marked restrictions in responding appropriately to usual work situations and to

changes in a routine work setting.3

 (AR 31). The ALJ gave Dr. Walters’s opinions little weight,

noting that it was not a longitudinal assessment of Plaintiff’s functional capacity but rather was a

snapshot of functioning in July 2012 and because the GAF score of 60 that Dr. Walters assigned

Plaintiff was inconsistent with the limitations that she proposed. (AR 31). Plaintiff argues that the

reasons provided fail to give a sound explanation for giving the opinions little weight. However, the

regulations require the ALJ to consider the length of the treatment relationship and the frequency

of examination. 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). It was mandatory for the ALJ to

consider that Dr. Walters’s opinion was only based on a single interaction with Plaintiff. As for

Plaintiff’s GAF score of 60, this falls within the mild symptoms or impairments range, which the

ALJ determined to be inconsistent with Dr. Walters’s opinions. By giving these two reasons for

according Dr. Walters’s opinions little weight, the ALJ has provided a good explanation. Remand

is not required on this ground.

3

 In his brief, Plaintiff identifies five opinions given by Dr. Walters. (Pl. Br. 14). However, the ALJ only

declared that two of these opinions are due little weight. (AR 31).

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C. RFC Determination

Plaintiff asserts that the ALJ made errors in determining Plaintiff’s physical and mental

RFCs. The Court will first address Plaintiff’s physical RFC. Plaintiff argues that the ALJ rejected

all of the evidence in the record regarding his physical RFC and that, consequently, there was an

evidentiary deficit that the ALJ improperly filled with his lay understanding. See Suide v. Astrue,

371 F. App’x. 684, 689-90 (7th Cir. 2010). However, an ALJ is not required to rely solely on

medical opinions to determine the RFC. Schmidt v. Astrue, 496 F.3d at 845 (recognizing that an ALJ

is not required to rely entirely on a particular physician’s opinion or choose between the opinions

of any of the claimant’s physicians (citing Diaz, 55 F.3d at 306, n.2)). The final responsibility for

deciding a claimant’s specific work-related or RFC limitations is reserved to the ALJ. See 20 C.F.R.

§§ 404.1527(e)(2), 416.927(e)(2); Diaz, 55 F.3d at 306, n.2. 

The ALJ assigned Plaintiff a more restrictive physical RFC than the State agency medical

consultants’ opinions of medium level work ability. (AR 30). The ALJ also provided evidentiary

support for this determination of light work ability. In rejecting the consultants’ opinions, the ALJ

considered Plaintiff’s “many physical impairments,” which include right shoulder osteoarthritis,

back pain, and obesity. (AR 30). The ALJ also noted the 2011 clinical findings of slow gait, leg

weakness, and decreased vibration in the feet and hands, (AR 28); a 2011 consultative examiner’s

report that Plaintiff had tenderness in his lumbar region and difficulty squatting but also a full range

of motion and normal strength of the upper and lower extremities, normal lumbar range of motion,

normal gait, the ability to heel/toe walk, and the ability to get on and off the examination table

without difficulty, Id.; a pain specialist’s observations of normal gait pattern and normal arm and

leg strength, (AR 29); diagnostic imaging of Plaintiff’s lumbar spine showing degenerative changes,

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(AR 28); and Plaintiff’s subjective testimony of consistent complaints of back pain, (AR 30). The

ALJ found additional restrictions on Plaintiff, which elevated his limitation to light work exertion.

Id. Regarding the specific limitation that Plaintiff cannot climb ladders and can occasionally climb

ramps and stairs, the ALJ cited Plaintiff’s osteoarthritis and history of right arm pain in combination

with his back impairment. (Id.).

While the ALJ has given significant evidence to support his decision, the ALJ did not

provide the required explanation of diagnostic imaging results in finding Plaintiff not significantly

limited in his ability to bend, stoop, crouch, crawl, or reach. The ALJ did not totally reject the

consultants’ opinions, which found no such postural limitations to be warranted, (AR 283, 289), but

there are diagnostic imaging results in the record that post-date the consultants’ opinions and that

go undiscussed in the ALJ’s decision, (AR 325-26, 552-53). While an ALJ does not need to address

every piece of evidence in the record, “an ALJ may not ignore an entire line of evidence that is

contrary to [his] findings.” Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999).

By not addressing these diagnostic imaging findings, the ALJ failed to build an accurate and logical

bridge in support of his decision regarding Plaintiff’s postural limitations. Independent of the errors

in the credibility determination, remand is required on this ground.

The Court now turns to Plaintiff’s alleged errors in the ALJ’s mental RFC determination.

Alleged mental impairments require the ALJ to use the “special technique,” set forth in 20 C.F.R.

§§ 404.1520a and 416.920a, at steps two and three of the evaluation process to determine whether

a claimant has a medically determinable mental impairment and whether that impairment causes

functional limitations. Craft, 539 F.3d at 674; SSR 96-8p, 1996 WL 374184 (July 2, 1996). First,

the ALJ determines whether a claimant has any medically determinable mental impairments by

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evaluating the claimant’s “pertinent symptoms, signs, and laboratory findings.” 20 C.F.R. §§

404.1520a(b)(1), 416.920a(b)(1). The ALJ must document that finding of a medically determinable

mental impairment and rate the degree of limitation in four broad “functional areas” known as the

“B criteria”: activities of daily living; social functioning; concentration, persistence, or pace; and

episodes of decompensation. Pepper, 712 F.3d at 365 (citing § 404.1520a(c)(3); Craft, 539 F.3d at

674 (citing 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00 et seq. )). Each assigned rating corresponds

with a determination of the severity of the mental impairment. Id. (citing § 404.1520a(d)(1)). The

ALJ must document use of the technique, incorporating the relevant findings and conclusions into

the written decision. Pepper, 712 F.3d at 365 (citing § 404.1520a(e)(4)).

Plaintiff first argues that the ALJ did not explain how he determined that Plaintiff’s

restrictions in concentration, persistence, or pace were moderate. The only mental RFC assessment

in the record, completed by Dr. Varghese, placed Plaintiff in the “marked” category. (AR 460). As

discussed in the medical opinion section above, the ALJ’s rejection of Dr. Varghese’s opinion

regarding concentration, persistence, or pace was proper, and the ALJ provided evidence from the

record to support his finding of moderate limitation.

Next, Plaintiff asserts that the ALJ identified no evidentiary basis for Plaintiff’s detailed

mental RFC. This case is already being remanded on other issues, including issues with the

credibility finding, and the new credibility determination may lead to changes in Plaintiff’s mental

RFC. However, the Court notes that Plaintiff is correct in his assertion that the ALJ improperly did

not provide support for his specifications in the mental RFC that “the claimant is able to sustain

attention/concentration for 2-hour periods at a time, and for eight hours in the workday on short,

simple, and repetitive instructions” and “the claimant can use judgment in making work decisions

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related to short, simple, and repetitive instructions.” (AR 26). Plaintiff further contends that the ALJ

should have addressed the specific evidence that Plaintiff is hyperverbal and has tangential thoughts,

(AR 405), and also has delusional thoughts, (AR 309-10, 312, 358, 381, 386, 399), in determining

Plaintiff’s capability to sustain concentration and attention for two hours at a time. On remand, if

the ALJ makes the same or a similar finding regarding Plaintiff’s ability to sustain concentration and

attention, the ALJ is directed to address this evidence.

Plaintiff asserts that the ALJ failed to explain his decision that Plaintiff could tolerate

occasional interaction with coworkers and supervisors and his decision to not limit the content as

well as the frequency of this contact. The ALJ wrote that “[d]ue to moderate deficits in social

functioning arising from [psychotic/delusional disorder and anxiety], [Plaintiff] is limited to

superficial interaction with the public and occasional contact with coworkers, and supervisors.” (AR

32). In determining Plaintiff’s level of social functioning, the ALJ addressed Plaintiff’s testimony

regarding social activities, the fact that he had never been dismissed from work for reasons related

to interpersonal skills, his criminal history showing no significant arrests or incarcerations, and his

reports of delusional beliefs regarding the FBI and political figures. (AR 24). The ALJ has presented

an explanation for this limitation in Plaintiff’s RFC, namely Plaintiff’s moderate difficulties in social

functioning, which the ALJ found “because while [Plaintiff] does socialize with family and friends,

he appears to have a grandiose attitude toward others. (Id.). While this evidence does support the

finding, it in not entirely clear which of the pieces of evidence from the social functioning

determination were used to support the specific limitation. Instead of using the broader term of

“moderate deficits in social functioning” and thereby attempting to incorporate by reference the

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underlying evidence, the ALJ is directed, on remand, to discuss the specific pieces of evidence that

support each limitation.

Finally, Plaintiff argues that the ALJ improperly failed to address Plaintiff’s delusional

thoughts in determining whether he could maintain regular work attendance and punctuality. The

ALJ based his decision on the fact that there is insufficient evidence to show that Plaintiff would

have difficulty in this area. The ALJ specifically considered that Plaintiff “has had no inpatient

treatment for psychosis or delusions,” which is proper in considering the disruption Plaintiff’s

delusions would cause to his work attendance. However, the ALJ also considered that Plaintiff “even

refuses to take medications,” which is improper without considering Plaintiff’s explanation for

refusal, as noted above. (AR 32). Once more, the Court directs the ALJ on remand to consider

Plaintiff’s explanation for noncompliance with treatment if the ALJ uses the noncompliance to

support Plaintiff’s ability to maintain regular work attendance and to be punctual.

D. Request for an Award of Benefits

An award of benefits is appropriate “only if all factual issues involved in the entitlement

determination have been resolved and the resulting record supports only one conclusion—that the

applicant qualifies for disability benefits.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citing

Briscoe, 425 F.3d at 356). As is evident from the discussion above, remand, not an immediate award

of benefits, is required here.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the Plaintiff’s Brief in Support of His

Motion to Reverse the Decision of the Commissioner of Social Security [DE 14], REVERSES the

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final decision of the Commissioner of Social Security, and REMANDS this matter for further

proceedings consistent with this Opinion and Order. The Court DENIES Plaintiff’s request to award

benefits.

So ORDERED this 29th day of September, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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